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1 JUDGE MERON: Good afternoon, Mr. Theunens.

2 THE WITNESS: Good afternoon, Your Honours.

3 JUDGE MERON: Witness Theunens, could you please read the solemn

4 declaration given to you by the usher.

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

6 whole truth, and nothing but the truth.

7 JUDGE MERON: Thank you, Mr. Theunens. You may now be seated.

8 Mr. Theunens, you are being asked to testify in conjunction with

9 Mr. Sljivancanin's application for review of his conviction for aiding

10 and abetting murder as a violation of the laws or customs of war. In the

11 course of the afternoon, counsel for the Prosecution and Mr. -- and for

12 Mr. Sljivancanin will both put questions to you concerning certain issues

13 relating to his conviction. Judges may also choose to ask you questions.

14 So I would now like to invite counsel for the Prosecution to

15 begin the examination-in-chief.

16 Ms. Brady, you are starting that?

17 MS. BRADY: Yes, I am. Thank you, Your Honour.

18 WITNESS: REYNAUD THEUNENS

19 Examination by Ms. Brady:

20 Q. Firstly, good afternoon, Mr. Theunens. And as you know, my name

21 is Helen Brady and I'll be asking you questions in examination-in-chief

22 this afternoon. Before I start, just a few brief points. Firstly, we

23 both speak English, so please remember to take a brief pause -- wait for

24 a brief pause after my question before you answer so that the

25 interpreters don't -- can follow.

Page 146

1 And secondly, as you already know, your report and CV have

2 already been admitted in these proceedings, that's as Exhibits 7 and 8,

3 and that includes the addendum to your report that you made yesterday,

4 that's part of Exhibit 7.

5 So with those things in mind, I would firstly like to ask you,

6 Mr. Theunens, a few introductory questions, and again because your CV has

7 already been admitted I won't spend too much time on this. But for the

8 benefit of the record and the Bench, could you please provide just a

9 summary background on your education and your work experience.

10 A. Your Honours, after I graduated from military academy in Brussels

11 with a master's degree end of 1987, I spent three years in a tank

12 battalion in -- with the Belgian armed forces in Germany as a platoon

13 commander, acting company commander, and personnel officer. After that I

14 was called back to military academy to be an instructor. Subsequently I

15 was transferred to the Ministry of Defence to work as an intelligence

16 analyst on Balkans, Ministry of Defence of Belgium, obviously. During

17 that time-period which covered more or less nine years, I was also

18 deployed three times in peacekeeping operations in the former Yugoslavia.

19 I mean, the details you can find in my CV. At the end of those nine

20 years, I also worked in plans and policy, again at the Ministry of

21 Defence, intelligence plans and policy. Then in 2001, in July -- excuse

22 me, in June 2001 I moved to the ICTY, Office of the Prosecutor, where I

23 worked until April last year as an intelligence analyst in the military

24 analysis team. I've -- my work mainly consisted of cases involving Serb

25 perpetrators, i.e., JNA, volunteers, and Territorial Defence. And then

Page 147

1 last year in April I left the ICTY to move to southern Lebanon to UNIFIL

2 where I work since then as a chief of a joint mission analysis centre.

3 And just to be coherent, I mean it's also in the CV, I attended

4 specialised intelligence training in the UK and the US.

5 Q. Thank you. Just in relation to --

6 MS. BRADY: I'm sorry, my friend is standing up. Perhaps he

7 wants to say something.

8 JUDGE MERON: Yes, Mr. Bourgon.

9 MR. BOURGON: Good afternoon, Your Honour. I'd just like to

10 know -- I see that the witness has some material in front of him. I'd

11 just like to know what the material is before we go on.

12 Thank you, Mr. President.

13 THE WITNESS: Your Honours, it's a binder with a printed version

14 of my CV and a printed version of my report which I annotated myself in

15 order to again find back the important points. I mean, if you want I can

16 remove it.

17 JUDGE MERON: I can see no problem with that, and I'm sure you

18 can't either.

19 MR. BOURGON: I just wanted to know what it was, Mr. President.

20 JUDGE MERON: It was a legitimate question.

21 I see no problem, so please continue.

22 MS. BRADY: Thank you.

23 Q. You said that you worked at the ICTY between 2001 and 2009, last

24 year, as a military analyst in the military analyst team of the OTP. In

25 that regard you prepared expert reports for the purpose of court

Page 148

1 proceedings and you testified for the Prosecution in several cases.

2 Could you tell us about these cases, these reports.

3 A. I -- Your Honours, I testified in five trials. The first one was

4 the trial of Slobodan Milosevic; second was the trial of Milan Martic;

5 then there was the trial of Mile Mrksic, Veselin Sljivancanin, and

6 Miroslav Radic; the fourth one was Vojislav Seselj; and the last one

7 before I left was the trial of Ante Gotovina and Cermak and Markac. I

8 plan to testify also in the trial of Radovan Karadzic and prior to that

9 the trial of Frenki Simatovic and Jovica Stanisic. And so for these

10 trials reports have been filed and admitted, I mean, except for the two

11 last ones.

12 Q. And in your time as a military analyst in the OTP, did you have

13 occasion to analyse or study JNA military doctrine?

14 A. Indeed, Your Honours. Obviously because of the work I did prior

15 to joining the MAT in the OTP, I was already familiar to a large extent

16 SFRY military forces doctrine, JNA and Territorial Defence, as well as

17 the doctrine and the activities of the different parties that

18 participated in the conflict in the former Yugoslavia between 1991 and

19 1995. In addition, obviously here we had original documents, not only

20 regulations but also orders, where we could see where it was actually, as

21 an analyst, very interesting to see how the doctrine, i.e., the theory,

22 was being implemented during the conflict.

23 Q. And coming to the report that's been admitted in these

24 proceedings, Exhibit 7, can you tell us -- well, as background, you were

25 asked by us, the Prosecution, to prepare a report in this case. Is that

Page 149

1 right?

2 A. That is correct, Your Honours.

3 Q. And can you tell us the means by which you prepared this report?

4 A. The documents I had access to I received -- or the documents I

5 received from the appeals section are identified in the introduction of

6 the report, and obviously I could also -- I remembered the report I

7 drafted for this -- for the trial, and obviously I could also rely on the

8 other knowledge and experience I still had of the various doctrinal

9 issues.

10 Q. And when were you contacted by the Office of the Prosecutor for

11 that report and when did you come to The Hague in relation to that

12 report?

13 A. I received an e-mail in I think the second or the third week of

14 July this year, and by coincidence I was in Belgium on rest and

15 recreation annual leave and for a number of reasons I had no particular

16 plans and since my residence is two hours away from here I replied that I

17 was available, and then I spent I believe it was more or less a week here

18 to prepare a preliminary report.

19 Q. And did you come back at another stage?

20 A. Indeed. In the second half of August I was called back -- I mean

21 UNIFIL put me -- how would I say? - provided me on loan to work

22 approximately ten days here at the ICTY, not only for this case but also

23 to review material for the Stanisic/Simatovic trial, as well as the

24 Karadzic trial.

25 Q. And when you prepared your report what were you told was to be

Page 150

1 the scope of your report?

2 A. Your Honours, in July I was basically told to have a look at the

3 testimony of Mr. Panic and to, yeah, to draw analytical conclusions based

4 on that testimony without precise questions. However, in August I

5 received a number of questions, seven questions, from the appeals section

6 of the OTP which I tried to answer to the best of my abilities in the

7 report that I -- we have now in front of us.

8 Q. And those questions are contained in the annex to your report; is

9 that correct?

10 A. That is correct, Your Honours.

11 Q. Thank you.

12 I'd like to turn now to the substance of your report, and the

13 first thing I'd like to do, Mr. Theunens, is to show you an exhibit from

14 trial. This is Exhibit 368. And I hope that -- it should be appearing

15 on the screens in front of Your Honours in both English and B/C/S.

16 Okay. I think we've got it.

17 Do you see that, Mr. Theunens, on your screen now, it's

18 Exhibit 368 from the Mrksic trial?

19 A. Yes, I can see it.

20 Q. Can you tell me what this document is?

21 A. Your Honours, as we can see from the title which is just beneath

22 the left top heading, it's a regular combat report, "regular" stands for

23 that it's produced at a regular time. I remember from working on this

24 case that these reports were always dated at the end of the day, 1800.

25 And so it covers the activities of the past 24 hours, i.e., this one

Page 151

1 would cover the activities of the time-period starting the 20th at 1800

2 until the 21st at 1800. And it's sent by -- as we can see the left, top

3 heading, by this Operations Group South or south operative group command.

4 And it discusses the activities, it starts with the enemy forces which

5 are here called Ustasha forces, and the second paragraph, I'm sorry,

6 discusses the activities of the friendly or the own forces.

7 Q. And you've said who it comes from. Can you tell us who it is

8 going to?

9 A. Yes, indeed, Your Honours. It's sent to two addressees. First

10 of all, the command of the 1st Military District. Obviously because

11 that's the superior command of Operational Group South in eastern

12 Slavonia, and it's also sent to the secretariat of the -- I'm sorry, to

13 the SSNO, so the secretariat for national or for people's defence. And

14 why is that? Because the Guards Motorised Brigade, which is the main

15 unit in Operative Group South, in peace time and prior to 30th of

16 September, 1991, was subordinated to the SSNO through his chief of

17 cabinet.

18 Q. Thank you. I'd like to draw your attention ...

19 JUDGE MERON: [Microphone not activated]

20 Why didn't you submit it with the other exhibits?

21 MS. BRADY: Your Honours, this is already in the record --

22 JUDGE MERON: I realise that, but still it would have made it

23 easier for the Court.

24 MS. BRADY: My apologies. I was under the impression that

25 because it was a trial exhibit --

Page 152

1 JUDGE MERON: No, no, I'm not suggesting that this is not

2 correct, but still it would have made sense to add it.

3 MS. BRADY: It probably would have.

4 JUDGE MERON: Please continue.

5 MS. BRADY: Thank you.

6 Q. If I could direct your attention, Mr. Theunens, to the bottom of

7 that exhibit, if you look at the B/C/S version of the exhibit you'll see

8 a signature on that exhibit. What does that signature tell you about

9 Mr. Panic's role on the 21st of November, according to JNA doctrine?

10 A. Well, as I have mentioned in my report, I believe it's on page 14

11 or one of these pages -- sorry, when I discuss reporting in the role of

12 the commander, Lieutenant-Colonel Panic signs there as the commander or

13 the acting commander of Operational Group South, and by signing he

14 approves the contents of the document and he takes responsibility for it.

15 And I have explained it in my report what the basis is for my conclusions

16 on that.

17 Q. And what position does it show him to be in that day?

18 A. Well, I only -- I see only the B/C/S, but it's pretty obvious, it

19 says "komandant OG JUG," so it means commander Operational Group South.

20 Of course, the text is still the original one. It still says Mile

21 Mrksic, but we know from other documents that were admitted in the trial

22 and there is, for example, the resubordination order from the 21st in the

23 morning which was also signed by Lieutenant Colonel Panic as acting

24 commander, and this is the same signature. So it shows that at that

25 moment in time Lieutenant Colonel Panic is the acting commander of

Page 153

1 Operational Group South.

2 Q. Thank you. Now, Mr. Theunens, in your report --

3 MS. BRADY: And, Your Honours, this is in his report in answer to

4 question number 4.

5 Q. -- you speak, Mr. Theunens, about the doctrine of single

6 authority. Can you tell us briefly what this principle means?

7 A. Single authority is one of the three principles in the SFRY armed

8 forces doctrine on command and control as they are stipulated in the All

9 People's Defence law from 1982. In addition to single authority, there

10 is also unity in command and obligation to implement decisions. And

11 single authority means two things. It means, first, that there is only

12 one commander at a time who is entitled to issue orders; and at the same

13 time, there's only one person to whom the subordinate reports on the

14 implementation of the order he or she has received from that commander.

15 Q. And if you could also enlighten us, why is that doctrine or

16 principle of single authority so important for -- under military

17 doctrine?

18 A. Well, obviously there can only be one commander at a time because

19 otherwise there's confusion or even chaos. If two different people can

20 issue orders at the same time to the same unit or to the same

21 subordinate, the unit -- or I mean the subordinate unit or the

22 subordinate person will be confused about what to do when and how. So

23 that's why there's only one -- there can only be one commander at a time.

24 Q. In light of that principle of single authority and bearing in

25 mind Exhibit 368, in your opinion, and bearing in mind military doctrine,

Page 154

1 could Mrksic have exercised command authority over OG South during his

2 absence? So that is the period when he was away from -- on the 21st to

3 the 22nd of November?

4 A. Unless he would have violated a basic principle of command and

5 control - and I have not seen any indication whatsoever about that during

6 all the years I worked on this case, including requesting documents from

7 the Republic of Serbia at the time - so unless he would have really

8 violated that basic principle, it can be excluded that he, i.e., Mrksic,

9 during his absence had any command authority over OG South.

10 Q. So if I understand you correctly, does that mean then that the

11 signatory of Exhibit 368 had full command powers at the time he signed it

12 over OG South?

13 A. Indeed, Your Honours.

14 Q. If you could look again at that exhibit, 368, the situational

15 report that's on the screen, and you're familiar with it already from

16 trial, does it include information about the status of the prisoners of

17 war?

18 A. If we could go down on the -- to the bottom of the English part,

19 please. Thank you. Well, we can see it talks about civilians who have

20 been evacuated on the 20th and the 21st, including wounded. If we could

21 move to the -- maybe the next English page just to be -- okay, it talks

22 about the same activities that are conducted in relation to civilians and

23 wounded. But there's no -- no mention is made of any activities in

24 relation to prisoners of war.

25 Q. And from your knowledge of JNA doctrine and the circumstances of

Page 155

1 this case that you're familiar with, would you expect a situational

2 report like this, like Exhibit 368, to have included information about

3 prisoners of war; and if so, why?

4 A. Indeed, Your Honours, I would have expected information on any

5 activities with the prisoners of war and for two reasons. First of all,

6 because we know from the context - and I have tried to summarise that in

7 the report - the evacuation of Vukovar Hospital was what could be defined

8 as a high-profile operation. Why? Because there was a specific

9 agreement with the Croats which was -- I mean whereby the evacuation had

10 to be supervised one way or the other by international observers. There

11 was also a high interest from the security administration, including

12 security organs who wanted to have as many prisoners of war as possible

13 under JNA control in order to exchange them with prisoners the Croatian

14 forces were holding. And at the same time we know, again from the

15 context, that what happened with the evacuees from the hospital was not

16 in accordance with the earlier instructions, be it written orders as well

17 as what I just mentioned, the instructions given by the security

18 administration, i.e., instead of bringing as many prisoners as possible

19 to Serbia, Sremska Mitrovica, they were handed over to a body that was

20 qualified as the local government and to the volunteers. And again for

21 all those reasons, the high profile and the fact that the -- I mean, that

22 the hand-over -- what did not correspond with the initial instructions

23 received from the superior commands, those are key reasons to include

24 that activity in the report.

25 Q. Now, in your report - and this is specifically in answer to the

Page 156

1 question that we asked you, question number 5, in that report you speak

2 of a principle known as the duty of situational awareness. Can you tell

3 us what this principle means.

4 A. Your Honours, just to be fully precise, I'm not the sure whether

5 the word or the expression situational awareness as such is used in SFRY

6 armed forces doctrine, but when you talk about, for example, and that's

7 on paragraph 2 of page 18 of my report about the function -- I mean the

8 number of functions of command and control are defined. There is the

9 function of organisation. Further on -- I mean, there are many JNA as

10 well as SFRY armed forces regulations that clearly specify or clearly

11 stipulate that the commander has to be familiar with the situation, not

12 only of the enemy forces but also his own forces. And if you want I can

13 explain why that is important.

14 Q. Yes, please. Thank you.

15 A. It's pretty obvious. In a sense a commander receives a mission

16 from his superior. And in order to implement that mission, I mean

17 talking here about combat operations, he will have to use his own forces

18 to carry those orders out. Now, if he's not familiar with the status

19 from his own forces, it is difficult to give orders to them. Because,

20 for example, imagine that we are in an offensive scenario and okay in

21 this situation OG South receives a task to capture a particular town

22 before a particular time. It may be that a number of units of OG South

23 are weaker or maybe one unit is less experienced and another unit has

24 suffered a lot of losses, well, these are all factors -- or maybe one

25 unit is less trained. These are all factors the commander has to take

Page 157

1 into account in order when he plans the -- he prepares the order for his

2 subordinate units to make sure that he uses the best-qualified unit in

3 order to achieve the task he has received in the most efficient and the

4 most successful manner.

5 Q. And if I could just interrupt you at that point, and when we're

6 talking about this duty the commander has to be familiar with the

7 situation at all times, I refer to it as shorthand as situational

8 awareness, but when we're talking about that we're not just talking about

9 in the actual heat of battle, are we?

10 A. I mean, it is at all times the -- the regulations I have seen are

11 very specific -- I mean, they put more emphasis for combat operations for

12 obvious reasons, because then -- that is called the tempo of operations

13 is much higher. But -- I mean if -- I didn't address that, but, for

14 example, if you have to organise a parade you're not going to use, for

15 example, a unit -- I mean, fresh recruits, so you will maybe use a

16 unit -- forces that are better trained or have more experienced in

17 parades and that is also part of situational awareness and maybe a bit of

18 a less important situation.

19 Q. So even on the facts of this case, after the fall of Vukovar,

20 after the combat was over, the commander or the acting commander as the

21 case may be would have to take active steps to find out in accordance

22 with that principle, or duty of situational awareness, to find out what's

23 going on with the units who are in his chain of command; is that correct?

24 A. Yes, that's correct.

25 Q. Now, if I take you back again or remind you of Exhibit 368, under

Page 158

1 JNA doctrine by signing Exhibit 368, what then does that imply about the

2 steps that the commander of OG South or the acting commander of OG South

3 had taken?

4 A. Well, my signing the report he confirms that the report is

5 accurate and complete. And again, the need, I mean, for that is pretty

6 obvious. The superior command is -- has the same obligation of

7 situational awareness, and the reporting you receive from subordinates is

8 one of your sources in order to familiarise yourself with the status of

9 your own forces. Another way would be to conduct inspections, like to

10 visit a unit to see whether what they are saying is correct and so on.

11 Q. So just taking your answer, when you say he had to ensure that

12 the information is complete, how does he do that?

13 A. Well, usually there is a reporting system whereby the subordinate

14 units send reports to the superior units, and at the start of operations

15 arrangements are made to ensure that the information is made available by

16 the subordinate units at the appropriate times so that the superior

17 command has sufficient time to compile the report. I'm talking there

18 about regular reporting. Of course there can also be I would call

19 irregular reporting, i.e., in case of emergency or a significant

20 development. Because again, it's not a static situation even after the

21 end -- after the fall of Vukovar, things are still happening, I mean,

22 units are moving, units are preparing to withdraw. This is ongoing on a

23 permanent basis and again it's described in the report, but the OG South

24 will have an operational centre where all this information comes in by

25 radio, by reporting, by liaison officers, by different means, and all

Page 159

1 that information is put together. People -- I mean, they can also keep a

2 war diary. And then a selection is made of the relevant information that

3 is then included in the regular combat report which is then forwarded to

4 the superior command. Of course, at any time an irregular report can be

5 sent. In addition - and I'm sorry for being so extensive - but in

6 addition to relying on the reporting from the lower level, as I mentioned

7 the superior command can implement the inspection function of command and

8 control which is very logical. It means that you verify the degree of

9 implementation of your instructions and also, if needed, if the degree of

10 implementation does not correspond with the expectations that you take

11 corrective action.

12 Another way to ensure this information sharing are the briefings,

13 there are regular briefings, I think they were also around 1800 or just

14 after the report. I'm not sure anymore. There can be visits. I mean,

15 there's so many ways.

16 Q. And when you say that he had to, in signing that report, make

17 sure he was fully informed, what would he do if reports were not

18 forthcoming? What steps should that person take? You've mainly spoken

19 about when reports are coming, but what if there are no reports coming

20 his way, what's he obliged to do?

21 A. Well, then he will instruct the people in the operations centre

22 or the people in the staff to ask the subordinate unit why there is no

23 report. I mean, there can be many reasons. In the worst case if there

24 is a breakdown of the communications system he can send somebody to

25 collect the report or he can ask the subordinate unit to send a liaison

Page 160

1 officer with the information. Yeah, and again he can also conduct

2 inspections, as I mentioned earlier.

3 Q. So would it be fair to say then that that duty to remain

4 situationally aware would be an active duty to take steps if the

5 information was not forthcoming?

6 A. Of course, and it's what I tried to explain, the report -- it's

7 also out of self-interest. If you have to organise an operation as a

8 commander, and we know from the doctrine that you are responsible, you

9 have all interest in having as much and as accurate information as

10 possible because you don't want to be surprised in this scaling by your

11 own forces in the specific case we are looking at because that is -- it

12 should be one of the factors you can control.

13 What the enemy will do -- or other factors. I mean, for example,

14 the weather can suddenly create problems. These are things you don't

15 control. And as a commander, and that's -- again I mention that in

16 paragraph 8, the duty or the capacity to foresee. It's expected from a

17 commander in SFRY armed forces that he is able to foresee events - and

18 the reasons I explained in my report - the attitude -- I mean, the

19 capabilities, the possibilities of your own subordinate forces is

20 something that should be the least of a worry for yourself in order to

21 get accurate information. I mean, it's important to have that

22 information, but it should be the least difficult to obtain that

23 information, again in a scenario as we had in OG South at the time of the

24 events.

25 Q. Now, you know because you've read the testimony of Mr. Panic that

Page 161

1 he testified that on the 21st of November he was basically preoccupied

2 and attending to various tasks, organising a press conference, attending

3 to the return of the Guards Brigade to Belgrade and to the transport of

4 civilians.

5 MS. BRADY: For Your Honours' benefit that's at the pre-review

6 hearing transcript page 63 and 83.

7 Q. Under JNA doctrine would such tasks that he's described affect

8 his duty as a commander that day, on the 21st of November, especially

9 that duty to remain situationally aware or to be familiar with the

10 situation?

11 A. No, not at all. Again, in all the years I worked here and also

12 before and studying SFRY armed forces doctrine, workload is not a reason

13 to reduce or not an excuse to reduce responsibility. I mean, again I

14 think it's on page 8, it's clearly stated in JNA command and control

15 doctrine or SFRY armed forces command and control doctrine, a commander,

16 he can delegate authority for obvious reasons. I mean the -- otherwise

17 the chief of Main Staff would have to talk to each and every individual

18 soldier which doesn't work. So the commander can delegate authority but

19 he cannot delegate responsibility. And by delegating authority he still

20 remains responsible, obviously for the tasks he has delegated.

21 And in this particular case, Lieutenant-Colonel Panic was not

22 alone on the 21st of November. He has the OG South. There is

23 specialised personnel in the different branches who should be able to

24 help him with planning and organising all these activities. And then

25 it's his judgement call. And again, referring to the testimony -- I

Page 162

1 understand from the testimony that on the 20th of November, in the

2 afternoon and the evening, Lieutenant-Colonel Panic was very concerned

3 about the situation of the evacuees or the prisoners of war at Ovcara and

4 at that his Chief of Staff -- so he has no legal obligation to be

5 interested. He is interested. Why? Because he is the chief of staff.

6 And therefore I found it surprising, and I mentioned that in my report,

7 that on the day when he is legally responsible, because he is the acting

8 commander, he based on his testimony does not show any interest in the

9 situation of the prisoners, and that's something I tried to highlight in

10 my report. Based on my understanding of SFRY armed forces doctrine, that

11 is unusual.

12 Q. Just taking you one step further then on the answer you've given,

13 if a commander or acting commander is aware that he's got prisoners of

14 war in his zone of responsibility, in your opinion would it be more

15 important for him to be satisfied about the safety of those prisoners or

16 would it be more important for him to attend to his other tasks such as

17 preparing for press conferences and the return of the Guards four days

18 later?

19 A. It's not exclusive -- I mean, the fact that there are prisoners

20 of war in the zone of responsibility means that it's a task for the --

21 for OG South. Now, he can take care of it himself or he can delegate it

22 to somebody. It would make sense to delegate that responsibility over

23 the situation of these prisoners of war, i.e., that they are handed over

24 to the appropriate authority, that they are treated well, that nobody can

25 escape, and so on, to another officer who he, i.e., Panic, thinks is

Page 163

1 qualified to carry out that task in the best possible manner. And that

2 officer would then of course have to inform Panic about the way how he

3 has implemented that order. He would also have to inform Panic about any

4 problems he would encounter while carrying out that authority that Panic

5 has delegated to him. But again, in coherence -- or in accordance, I'm

6 sorry, with the doctrine, Panic would still remain responsible for the

7 situation of the prisoners of war.

8 And coming back to what I said earlier, taking into account the

9 information he had on the 20th, the concern he showed on the 20th, it

10 would seem logical that he would still show the same -- he would -- it

11 would certainly seem logical that he would still show the same concern on

12 21st because on that day he is the acting commander and according to SFRY

13 armed forces doctrine he is legally responsible for the activities and

14 the -- the activities of his units and the situation in his zone of

15 responsibility, including the situation of the prisoners of war.

16 Q. Now, I want to turn to a slightly different topic which is also

17 addressed in your report, and this is about the subordination of the 80th

18 Motorised Brigade to the OG South. In your report - and this is the

19 topic of your answer to our question number 2 - in your report you say

20 that the 80th Motorised Brigade was subordinated to the OG South until at

21 least the 23rd of November, 1991. Why do you say that?

22 A. Your Honours, I say that because we have -- there is one order --

23 I mean, there's an order and there's also an OG South -- a regular combat

24 report that still mention the 80th Motorised Brigade, and I discuss that

25 on pages 9 and 10 of my report. I'm trying to locate the exhibit number

Page 164

1 of the order -- I know it's the order -- sorry, the order Colonel Mrksic

2 gives on the 22nd which I think is Exhibit 424, where he instructs that

3 as of the 23rd of November, 1991, the 80th Motorised Brigade is obliged,

4 and so on. This is page 9 of my report. Now, if you're not -- I mean,

5 you can only issue orders to units that are subordinated to you. And

6 again we have to look at the context and I discuss the context in the

7 report. So that's why I conclude in addition to the regular combat

8 report of the 23rd that 80th Motorised Brigade has to remain or is still

9 subordinated to OG South until at least the 23rd, 1800 -- the 23rd of

10 November, 1800 hours.

11 Q. And bearing in mind then that the transfer of subordination --

12 sorry. Let me start again.

13 Bearing in mind that the transfer from OG South to the 80th

14 Motorised Brigade occurred sometime -- well, between -- after 6.00 p.m.

15 on the 23rd of November, prior to the 24th of November when the Guards

16 left, can you tell us about the situation in between when preparations

17 are going on for them -- for the Guards to depart.

18 A. Yes, Your Honours. This is a clear example of the implementation

19 or the principle of single authority, i.e., there's only one commander at

20 a time. However, the hand-over is a process because it involves the

21 movement of units -- I mean, one unit will replace the other, one command

22 will replace the other. It also involves an exchange of information and

23 that can take several days. But it's only at the time when there's the

24 formal hand-over from one commander, I mean the previous commander to the

25 new commander, that the actual hand-over takes place in the sense of

Page 165

1 command and control. So even if prior to that the units -- I mean, the

2 80th Brigade, there may be officers physically present at the OG South

3 Command and they are meeting -- I mean, the plans are co-ordinated, the

4 actual hand-over -- based on the fact that Colonel Mrksic still signs as

5 the commander of OG South on the 23rd at 1800 -- and we don't have a

6 regular combat report for the 24th with his signature, that's why I

7 conclude that the hand-over -- the formal hand-over can only have taken

8 place after the 23rd of November at 1800 hours.

9 Q. Okay. I want to turn now to my last set of questions, my last

10 topic of questions. Most of your testimony that we've heard this

11 afternoon has been about Panic's duties as acting commander on the 21st

12 of November. As you know, the night before, on the 20th of November,

13 Mr. Panic was in his usual role as Chief of Staff. All these duties that

14 you've talked about this afternoon, especially the duty of situational

15 awareness, can you tell us how they apply to the Chief of Staff, bearing

16 in mind the role of a Chief of Staff. You touched a little bit already

17 on this in answer, I know.

18 A. Your Honours, this is largely discussed in the reply I provide to

19 question 1 in a sense that the Chief of Staff, he -- basically he manages

20 the staff. Now, it's maybe -- it's important to notice that in the JNA

21 there was -- in addition to the staff you have a number of assistant

22 commanders. So you have the commander at the top, under him the Chief of

23 Staff who manages the staff; but in addition you also have three

24 assistant commanders, especially in the Guards Motorised Brigade as well

25 as OG South. These were the assistant commander for security, the

Page 166

1 assistant commander for logistics, and then the assistant commander for

2 political guidance. And they have a direct relation with the commander.

3 All the other staff officers, they are, as I said, managed by Chief of

4 Staff. And just to summarise his role, the commander receives an

5 assignment from his superior - in this case Colonel Mrksic would receive

6 a task from the command of the 1st Military District,

7 General Zivota Panic at the time. And then Mrksic consults with his

8 Chief of Staff in order to transform that instruction which can be very

9 short, can be very long, depends on the situation, into orders -- sorry,

10 into instructions for the subordinate units. And each staff section will

11 compile its part of the report -- of the -- excuse me, of the order.

12 And -- so the Chief of Staff is the closest -- I would say closest

13 collaborator of the commander because he's his interlocutor with the

14 staff, and that's also what I tried to explain. There is no legal duty

15 on the Chief of Staff to be aware of the situation, but he would be a

16 very poor Chief of Staff if he, as the closest advisor to the commander,

17 is not able to assure that he provides the most accurate and most

18 complete information to his commander. Because that's actually also the

19 duty of the staff in addition to elaborating orders and so on, it's --

20 the duty's also to ensure the situational awareness. So he has all

21 interest in being aware of the situation.

22 Q. Now, as we also know - and this is my last question - as we also

23 know, Mr. Panic did become the acting commander the next day. Upon

24 learning -- and that would have had to have been sometime before Mrksic

25 left. Upon learning that he would be the acting commander the following

Page 167

1 day, under military doctrine what questions would we expect someone in

2 the position of Mr. Panic, who was Chief of Staff at the time, about to

3 take-over the role of acting commander, what should he be asking himself

4 and his commander who is leaving, Mile Mrksic, in order to meet the duty

5 he's about to assume to be aware of what's going on in all the units?

6 A. Your Honours, this is covered by the aspect of -- by the function

7 of continuity of command and control which I have not addressed in this

8 report, but it's in part 1 of my report that was admitted in the trial.

9 But again -- obviously, Panic, as he will be held responsible for

10 everything he does as the commander when Mrksic isn't there, he needs to

11 ensure that Mrksic has given him all the information he, Panic, needs in

12 order to successfully carry out the command over OG South. That

13 doesn't -- that does not just include the instructions Mrksic has

14 received from his superiors, but Panic would also have to know all the

15 concerns Mrksic has in relation to the situation, what the enemy can do,

16 what the problems are for -- eventual problems for friendly units, and so

17 on. We discussed the issues of prisoners of war, he would have to -- he

18 would need to have that information too. And if he doesn't receive it

19 from Mrksic spontaneously, he would ask for it because he wants to be in

20 the best position in order to ensure his responsibilities - when I say

21 "he," I mean Panic - in order to ensure his responsibilities as commander

22 or acting commander -- acting commander.

23 MS. BRADY: Well, that's all the questions that I have for

24 Mr. Theunens in his examination-in-chief. Having said that, the

25 Prosecution relies on the entirety of his evidence which has been

Page 174

1 --- On resuming at 4.01 p.m.

2 JUDGE MERON: I see Mr. Bourgon rose to speak for the Defence.

3 MR. BOURGON: Indeed, Mr. President.

4 JUDGE MERON: You have one hour.

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

6 Cross-examination by Mr. Bourgon:

7 Q. Good afternoon, Mr. Theunens.

8 A. Good afternoon, Mr. Bourgon.

9 Q. I will be conducting the cross-examination of course on behalf of

10 the applicant, Mr. Sljivancanin. I do not have too many questions for

11 you. I hope to complete my cross in the time allotted, that is no more

12 than one hour. Now, that being said, if there are any questions that you

13 do not understand, a standard warning, you know the drill. Do not

14 hesitate to tell me and I will repeat the question.

15 Let me begin by introducing the people who are present with me

16 today, simply because you weren't there when the introductions were made.

17 Lead counsel in this case, Mr. Novak Lukic; Mr. Boris Zorko, case manager

18 to my left; to my immediate left, Ms. Caroline Bouchard-Lauzon; and to my

19 right the military expert that we have been working with,

20 Lieutenant-Colonel, retired, Remi Landry, from Canada.

21 Sir, I have three preliminary questions before I move into the

22 substance of my cross-examination. And my first such preliminary

23 question relates to your general military knowledge, having been a member

24 of the Belgian armed forces for a number of years. And my question is

25 straightforward. If a commander hears that a subordinate was convicted

Page 175

1 of a crime on the basis of information he knows is not true, would you

2 expect this commander to come forward and provide the information in his

3 possession in order to avoid an injustice?

4 A. I mean, he should step forward. I would just be surprised why --

5 I mean, if he's in a position to give information and he's a commander, I

6 would have expected that he -- the information that he has would also be

7 available during the investigation phase, i.e., before that the

8 conviction was pronounced. But okay, for one or the other reason that

9 was not possible, yeah, he can always step forward.

10 Q. No, no, that's not my question. It's not he can always. Would

11 you expect the reasonable commander to do so. That's my question.

12 A. I don't think that -- I don't think that that is part of military

13 doctrine. I mean, I haven't seen any regulations to that effect. I'm

14 familiar with the procedure for the enforcement of military discipline

15 and military justice in the JNA. As you know, the 1988 regulations --

16 Q. No, let me stop you --

17 A. No, no, but let me answer the question.

18 Q. Let me stop you here, sir, that's not my question. I will repeat

19 my question.

20 A. No.

21 Q. As you stand here today before this courtroom as a member of the

22 Belgian armed forces, are you saying that a commander from the Belgian

23 armed forces who hears that a subordinate has done -- is being convicted

24 on the basis of information he knows not to be true, will the information

25 that this Belgian commander has, will he step forward, do you expect him

Page 176

1 to step forward or is it that Belgian commanders do not step forward and

2 stay home with the information that they have? That's my question, sir.

3 A. I don't think there's a reason to raise your voice. Secondly,

4 I'm not here to testify about the Belgian armed forces. I'm here to

5 testify about the SFRY armed forces. I wanted to explain, and I think it

6 would be helpful for everybody to hear, that the 1988 regulations on the

7 implementation of the laws of armed conflict by the SFRY armed forces say

8 that any officer who has information that can be relevant for a crime has

9 to make sure that the competent authorities have that information. And

10 obviously that would happen during the investigation phase. Now, again,

11 if that hasn't happened, then afterwards he has the right to do so and it

12 would be more a moral issue I would say than a legal obligation. I

13 haven't seen any reference to a legal obligation except during the

14 investigation phase. But afterwards, yeah, I mean justice has to

15 prevail.

16 Q. Thank you, sir. You're avoiding my question, but I will move on

17 to my next.

18 The second question relates to the Trial Chamber's judgement.

19 The Trial Chamber's judgement adopted a number of findings in relation to

20 the events which took place at Ovcara, including what happened at the

21 Operational Group South Command and the command of 80th Motorised Brigade

22 during the period from 20 to 24 November 1991. I take it you reviewed

23 these findings. My question is: On the basis of the SFRY doctrine,

24 which I understand to be the focus of your report, do you disagree or

25 dispute any of these findings?

Page 177

1 A. I would appreciate if you would put -- I mean a concrete

2 finding --

3 JUDGE MERON: This question is far too general, Mr. Bourgon.

4 There were lots of findings. I think that if you want to ask the witness

5 a specific question, ask a specific question.

6 MR. BOURGON: Well, I was trying to --

7 JUDGE MERON: And I would counsel that you think of the time that

8 you have. I'm anxious that you should be able to cover the areas that

9 you really need.

10 MR. BOURGON: Thank you, Mr. President. I was simply referring

11 that whether there's any finding that he disputes. He saw the evidence.

12 He can tell me if there's any findings that he disputes on the basis of

13 doctrine. That's an important -- that's a very relevant question for

14 this hearing. Are we relitigating or are we looking at a new fact. Is

15 there any findings that he disputes? It's a very simple question,

16 Mr. President.

17 JUDGE MERON: Okay. Let's see how he handles it.

18 THE WITNESS: Your Honours, the Office of the Prosecutor did not

19 ask me to review the Trial Chamber judgement, so I haven't really looked

20 into that. There may be things -- I mean, if you put a concrete thing in

21 front of me I can maybe try to be of assistance, but it requires

22 preparation.

23 JUDGE MERON: I still think if you have a specific question to

24 ask about a finding made by the Trial Court about which you seek comment

25 either in terms of accord or disagreement do ask it specifically.

Page 178

1 MR. BOURGON: Thank you, Mr. President, I will abide by your

2 guidance.

3 Q. Sir, my -- I'd like to ask you a few questions now, coming back

4 to what you said during your testimony before I move on. In your

5 examination-in-chief you testified about -- at page 21, lines 15 to 22,

6 about the difference between a commander -- not the difference. You said

7 that as soon as Panic -- as soon as Mrksic left OG South Command, Panic

8 became the acting commander; that's correct?

9 A. But it's not an assumption, it's a fact because --

10 Q. I'm saying. That's what you said.

11 A. Yeah, but you used the word "assume."

12 Q. Well, let me make that a bit clearer. Did you say that Panic was

13 acting commander when Mrksic left the brigade?

14 A. Yes, and I do that on the basis of two documents. There's one

15 order, the resubordination order --

16 Q. I agree with you. You don't need to explain.

17 A. Okay.

18 Q. I'm just asking yes or no.

19 A. Yeah.

20 Q. Okay. Now, did Panic ever disagree in the evidence that he was

21 standing in for Mrksic on that day?

22 A. I don't remember. I don't think so.

23 Q. That wasn't important to you if Panic accepted or did not accept

24 that he was standing in?

25 A. I don't think that is what I'm saying. I don't remember Panic

Page 179

1 saying that he disagrees. That can mean two things: That my

2 recollection is bad or that he indeed disagrees. I don't think he

3 disagreed to that, and if he disagrees then there is a problem with the

4 fact that he signed an order, a key order, at 6.00 in the morning on the

5 21st and he signs --

6 Q. I agree with you --

7 A. Okay.

8 Q. You don't need to explain. I agree with you.

9 A. Yeah.

10 Q. Very quick questions.

11 My next question: When Mrksic left Operational Group South

12 command on the 21st in your opinion -- please yes or no, I don't want an

13 explanation --

14 A. Okay, okay.

15 Q. Was he still the commander of Operational Group South?

16 A. I mean, there is no short answer to that question because

17 obviously he goes as the commander of Operational Group South to

18 Belgrade; however, because he's absent there is an acting commander who

19 has all the duties and responsibilities of the commander of the

20 operational group.

21 Q. Sir, is it your testimony - because you spoke about this at page

22 21, lines 15 to 22. Now, let me give you a scenario and just tell me yes

23 or no and we'll do the rest in writing, unless you feel obligated to

24 explain of course. If Mrksic calls the brigade from Belgrade and he

25 speaks to the operations officer, will the operations officer answer in

Page 180

1 your view: Sorry comrade Mrksic, I cannot speak to you today because you

2 are away in Belgrade and my boss is Panic? Is that your view, yes or no?

3 A. I can give you a very short answer. It depends what he calls

4 for.

5 Q. Thank you, sir. I'll move on.

6 A. But, I mean, if it's an operational matter why would -- if he

7 calls the operations officer, it would mean that he cannot reach Panic,

8 but then the operations officer would have the duty to ensure that Panic

9 has all the information Mrksic -- operational information Mrksic shared

10 with the operations officer.

11 Q. That's not the question again. Will the operations officer

12 refuse to speak to him and to abide by instructions given to him by

13 Mrksic, yes or no?

14 A. I don't understand the question because we have to first

15 establish why would Mrksic call the operations officer for an operational

16 matter when we know that actually his Chief of Staff is the acting

17 commander.

18 Q. Again you're avoiding my question. I will move on to my next

19 one. And I would like to now address your report and I would like to ask

20 you some questions about your CV. Now, correct me if I'm wrong, sir,

21 but --

22 JUDGE MERON: Mr. Bourgon, and what if the telephone call from

23 Mrksic would say: I would suggest in light of my experience that this be

24 done? How would you react to that? No order.

25 MR. BOURGON: Well, that's what I was hoping that the expert

Page 181

1 would say. I'm saying that the commander is calling -- I was simply

2 asking him. Will the operations officer say: I can't speak to you.

3 You're away and I've got my commander here, or will he entertain the

4 information? My position is he will entertain, but that's what the --

5 my question I asked.

6 THE WITNESS: That's not my answer, I'm sorry.

7 MS. BRADY: Your Honour, perhaps Mr. Theunens could be given a

8 chance to answer that properly. I think he's being cut off.

9 THE WITNESS: I mean, you have been in the military. It wouldn't

10 make sense for the operations officer to say to Mrksic: Sorry, I don't

11 talk to you. I mean, it wouldn't make sense.

12 MR. BOURGON:

13 Q. Thank you, sir, that's all I wanted to hear.

14 A. No, but please. I mean, this is not one-liners. The operations

15 officer will not keep Panic fully like -- how do you call it? Would not

16 avoid to inform Panic about everything Mrksic tells him because his

17 duty -- I mean, the operations officer, his duty is to ensure that he

18 assists Panic in maintaining permanent situational awareness. So it may

19 be that Mrksic calls Panic -- calls the operations officer, but then the

20 operations officer, who has no command authority by the way, he will talk

21 immediately to Panic.

22 Q. Let me make that easier, sir. Mrksic calls --

23 A. Yup.

24 Q. -- and he speaks to Panic --

25 A. To Panic, yeah.

Page 182

1 Q. And he gives him an order. Will Panic refuse to execute the

2 order?

3 A. Normally not.

4 Q. Thank you. Let me move my next question.

5 On the basis of my reading of your CV, I take it that you have no

6 war experience, you've never been involved in a war --

7 JUDGE MERON: Sorry, if he would execute the order, how does this

8 fit into your theory of unity of command?

9 THE WITNESS: I mean, it could be -- but Mrksic is talking to

10 Panic only. It could be that Mrksic, because he's in Belgrade, he

11 receives an oral instruction, for example, from the command of the 1st

12 Military District who is there. And then Mrksic is not going to order

13 the commanders, like 80th Brigade or other subordinate units of OG South,

14 no, he will speak to Panic because Panic is the commander on the ground.

15 And then it will be Panic who issues orders on the basis again of the

16 plans and another assistant -- assistance provided by his staff to the

17 units, but Mrksic is not going to call in directly to the command of the

18 80th Brigade. It would go via Panic because Panic is the commander on

19 the ground.

20 JUDGE MERON: Please proceed -- I'm sorry.

21 JUDGE POCAR: Just to be clear about the situation. Assuming

22 Mrksic would call directly the unit instead of going to Panic just

23 because either he does not find the commander, Panic, on the phone, he --

24 or he has the number of the other one, whatever the reason, and gives the

25 order -- an order to the head of the unit, is that your view that the

Page 183

1 unit commander will not implement the order without prior going to check

2 to give the information to Panic and have Panic confirm the order? Is

3 that your point?

4 THE WITNESS: Exactly, Your Honours. Because Panic is the

5 commander on the ground.

6 JUDGE POCAR: Thank you.

7 MR. BOURGON:

8 Q. Thank you, sir. That's very helpful.

9 Now, let me move again to your CV.

10 A. Mm-hmm.

11 Q. I was just asking you that on the basis of your CV, please answer

12 yes or no, you have never been involved yourself in a war?

13 A. I have held no command position in a war, that's correct.

14 Q. And no staff positions in the war either within a unit involved

15 as a party to a conflict?

16 A. No -- I mean, the UN was not involved in a war, that's obvious.

17 No, the Belgian armed forces were not involved in a war during the time I

18 served in them.

19 Q. And your command experience, sir, is limited to when you -- at

20 early on in your career when you were commander of a tank platoon which

21 has four tanks; is that correct?

22 A. That's correct. And I've been also acting a command of a company

23 which has 13 tanks.

24 Q. And if I tried to -- if I asked you to describe yourself in

25 military terms, or if your colleagues would describe yourself in military

Page 184

1 terms, they would simply say that you are an intelligence officer; is

2 that right?

3 A. I'm an intelligence analyst because an intelligence officer can

4 be many things, it can be somebody who collects information and so on.

5 Intelligence analyst would be a good definition, yeah.

6 Q. Thank you. I appreciate and I apologise because I fully agree

7 with you. It's intelligence analyst I should have used. Now, you have

8 never worked yourself in an operational brigade headquarters; is that

9 correct?

10 A. That is not correct because -- I mean, two points. First, I've

11 been a liaison officer between two brigades doing exercises with the

12 Belgian armed forces, whereby I had a very close look at how a NATO

13 brigade works, and I've also attended a one-year staff course in Belgium

14 which was brigade level. And I've had -- during the time-period I worked

15 here I saw many documents, I mean, regulations, operational reports,

16 orders, as well as I had the privilege to interview a number of senior

17 officers of the Guards Motorised Brigade, including Defence witnesses, so

18 I think I'm in a position to issue a number of analytical conclusions in

19 relation to how the Guards Brigade operated in Vukovar.

20 Q. Did you work in an operational brigade headquarters?

21 A. Yes.

22 Q. Where?

23 A. Well, I was a liaison officer --

24 Q. A liaison officer is not in a brigade --

25 A. Well, I'm sorry --

Page 185

1 Q. Were you ever a G2?

2 A. No.

3 Q. Thank you. Now --

4 A. But a liaison officer can work in a brigade because actually the

5 liaison officer, he passes the information from one brigade commander to

6 the other brigade commander. So I -- it's still a member of the staff.

7 Q. Thank you, sir. And you've never been a Chief of Staff, have

8 you?

9 A. No, I haven't.

10 Q. Let me move on to the methodology of your report, and I'd like to

11 address what you said in answer to Judge Guney's question a little

12 earlier, which is on page 31, lines 14 to 19:

13 "What I have tried to do is to look at the testimony Mr. Panic

14 has given and I compared it with SFRY armed forces doctrine or JNA

15 military doctrine and I compared it with the other evidence that had been

16 presented in the trial as well as the Trial Chamber's judgement and the

17 Appeals Chamber judgement, and that is how I came to the conclusions."

18 That's your statement that you said at page 31, lines 14 to 19 --

19 13 to 14. I would just like to confirm that this is what you did in this

20 case. That's what you tried to do?

21 A. This is actually how I implemented the methodology.

22 Q. Thank you. Now, let's --

23 A. I mean -- sorry, just to clarify, because maybe -- I mean,

24 English is not my first English. I implemented the methodology, the

25 intelligence side which I've also described in previous -- during

Page 186

1 previous testimony and I -- or I applied that methodology to the

2 information that was in front of me.

3 Q. Okay. I'd like to move on, talking about methodology and

4 reference has been made to this by my colleague and by yourself. You use

5 a number of documents, including trial Exhibit 578?

6 A. Yeah, that's my report in the trial which was admitted.

7 Q. And that's a comprehensive report of some 300 pages which

8 addresses the concepts and the principles found in the doctrine that you

9 talked about today?

10 A. Among other things, yes.

11 Q. And this report was prepared for the Mrksic, Radic, and

12 Sljivancanin trial?

13 A. Exactly.

14 Q. And if I look at the footnotes in this report, I see, for

15 example, the All People's Defence law, that was Exhibit 392; I see the

16 manual for the work of commands and staff, that was 393; I see the JNA

17 textbook on command and control, that was 394; I see the JNA brigade

18 rules, that was 395; I see the regulations on the applications of the

19 rules of international law, that was 396; and I look at JNA battalion

20 manual, 397. Now, it's my understanding that your report for this review

21 hearing is based on the same sources of doctrine?

22 A. Yeah, and you -- I think you listed a number of examples, yeah,

23 the most relevant ones.

24 Q. Which ones did I miss?

25 A. I don't know by heart, but the other report I don't know how many

Page 187

1 exhibits I listed there. But I also looked -- and I think -- I mean some

2 of the documents were presented by the Prosecution. I looked at also not

3 just the doctrine but also how the Guards Motorised Brigade implemented

4 the doctrine, i.e., I looked at orders and combat reports.

5 Q. I know that. But --

6 A. Okay.

7 Q. -- doctrine point of view, SFRY doctrine --

8 A. Yeah --

9 Q. -- is there anything that is in 578 that you look for this case

10 that is not in 578, doctrine point of view?

11 A. I don't think so.

12 Q. So would it be right to conclude then that those sources which

13 form the basis of your report that was in evidence at trial, this was

14 available to the Judges when they rendered their judgement in that case;

15 is that correct?

16 A. Mr. Bourgon, I don't think I'm in a position to comment on how

17 the Judges came to their conclusions.

18 Q. Okay. Well, you would agree with me that you testified in this

19 trial; right?

20 A. Yes, I did.

21 Q. And you explained the concepts developed in your report, 578?

22 A. Indeed -- there's maybe one difference that I didn't really

23 address the role of the Chief of Staff, and I think when you compare my

24 report, Exhibit 578, with the report that is now in front of you, I tried

25 to focus more on the duties according to SFRY armed forces doctrine of

Page 188

1 the Chief of Staff. So -- and that's why I think it's relevant to

2 highlight these things because -- I mean, you know as well as I do, these

3 regulations, some are 400 pages. You cannot expect somebody to look in

4 at all these pages.

5 Q. And that's why you testified to explain it to the Judges at

6 trial?

7 A. I don't decide myself about testimony. I was called, so.

8 Q. Okay. Now, I just want to clarify because we -- I read your

9 quote, you tried to explain it more. But looking at what you said today

10 and in your report, what you really tried to do is you analysed the acts

11 and conduct of Panic in light of the doctrine; that was your aim, right?

12 A. That is what I was asked to do by the OTP appeals chamber [sic].

13 Q. And to say whether it was in accordance with or consistent or not

14 consistent with the doctrine?

15 A. To a -- yeah. Or whether it was consistent not just with the

16 doctrine but also to the -- again, the reports -- OG South regular combat

17 reports as well as orders, i.e., how the doctrine was implemented.

18 Because the doctrine as such is one thing, but you also have to compare

19 it with how it is implemented, and if there are differences you try to

20 understand these differences because there must be reasons. And what I

21 noticed is that actually that the testimony of Mr. Panic -- and I don't

22 want to talk too long, but I interviewed -- I had a lot to participate in

23 the witness interview of Mr. Panic before he was a witness. And there

24 was -- let's say there was -- the views were very coherent, doctrine and

25 OG South how they implemented through the documents and the orders. I

Page 189

1 noticed that when I compared now his testimony in the pre-review hearing

2 that there was significant differences.

3 Q. Okay. Now, just to confirm that -- I want to confirm that when

4 Panic was interviewed by the Prosecution --

5 A. Yeah.

6 Q. -- and he gave his statement for this trial -- for the trial --

7 A. Yeah.

8 Q. -- you were a member -- you were there?

9 A. Yes.

10 Q. Okay.

11 A. And I think it's -- sorry, it's useful because at that time it

12 wasn't clear whether he would be Prosecution or Defence or whatever.

13 So -- or whether he would even be called.

14 Q. Okay. Now, my question now is when you say that you analysed the

15 combat reports, which is the evidence, the doctrine, and the findings and

16 then you say is it consistent or not with the doctrine, and if it's not

17 consistent it's highly unusual or rather implausible, was that your

18 methodology?

19 A. No, that's not the methodology. Again, the methodology is the

20 intelligence cycle more or less, and I would focus just on the processing

21 phase; i.e., where you look at the information. First of all, you're

22 going to verify the reliability of the source and the credibility of

23 the -- first of all, you evaluate that information.

24 Q. I'm talking what you did for this case --

25 A. Yeah, no, no, but that's the methodology, the intelligence cycle.

Page 190

1 And the processing phase where first I collate, I organise my

2 information, okay, I receive a number of questions from the Prosecution.

3 Q. Mm-hmm.

4 A. I look for -- I mean based on my recollection for documents, I

5 look at relevant sections of the testimony. I looked at my previous

6 report to see what -- which section was dealing with what. I noticed,

7 for example, that there was not very much about the role of the Chief of

8 Staff. So I thought okay, let's take again the regulations. I could

9 establish that the regulations were a reliable source. Why? Because I

10 participated in a number of interviews where these senior officers

11 confirmed this was the regulation that we should apply. Then I start

12 to -- in the analysis step of the processing phase, I compared the

13 information, the new information, with the existing body of knowledge.

14 That is what this analysis is about. And then --

15 Q. That's what you did in this case?

16 A. Yeah.

17 Q. And you drew conclusions on that?

18 A. Exactly.

19 Q. And when the new testimony in your view was against doctrine, you

20 said it was highly unusual or rather implausible?

21 A. I'm sorry, you always focus or you try to limit it just to

22 doctrine. Doctrine is I would say -- I mean, the logic is I start with

23 doctrine. And then I say like, how was the doctrine implemented by OG

24 South, and I see that through the combat documents at different times.

25 Q. That's the evidence; right?

Page 191

1 A. Exactly. And then I compared it with my military experience

2 which I have acquired at different moments -- even at this moment I still

3 acquire military experience because UNIFIL is a quiet military mission.

4 And when looking at all these three key elements I draw conclusions.

5 Q. Okay. Now, I take it you're familiar with the findings of the

6 Trial Chamber with respect to the application of doctrine, how the

7 doctrine was applied. I take it you're familiar with these findings?

8 I'll bring them to your attention if you're not.

9 A. No, that would be helpful just to avoid misunderstandings.

10 Q. Okay. Let's begin, for example, the creation of OG South

11 Command?

12 A. Mm-hmm.

13 Q. The Trial Chamber held at paragraph -- that was at paragraph --

14 sorry, paragraph 69 on page 24, they concluded that the creation of

15 Operational Group South, okay, was established as an expedient to deal

16 with a situation which had not been anticipated by the applicable formal

17 rules, i.e., the internal breakup of the SFRY, and that Operational Group

18 South did not strictly comply in structure to any formal formation.

19 Do you agree with the Trial Chamber?

20 A. Yeah.

21 Q. Okay. Now, the fact that the normal -- another finding, I'll go

22 straight to the point. Another finding of the Trial Chamber at paragraph

23 285, and I just want to know that you agree with this finding, and it's

24 the following:

25 "The Chamber is not able to accept that normal JNA procedures

Page 192

1 were consistently observed or regarding as so binding as Sljivancanin

2 Defence has so strongly urged. The facts of this case disclosed frequent

3 non-observance of normal JNA procedures and standards at all levels

4 affecting matter as varied as the very establishment and structure of

5 Operational Group South," okay, that's one, "but to the observance of the

6 chain of command."

7 Do you dispute that finding?

8 JUDGE MERON: That's paragraph 285?

9 MR. BOURGON: 285, Mr. President.

10 THE WITNESS: I don't understand the sentence as it is in the

11 transcript. Okay. When I read in the middle "and structure of

12 Operational Group South, okay, that's one but to the observance of the

13 chain of command."

14 MR. BOURGON:

15 Q. Let me read it again. I'm sure the Judges, if I need, will at

16 least entertain my request for more time if I need some. Let me read

17 that quote.

18 "The Chamber is not able to accept that normal JNA procedures

19 were consistently observed or regarding as so binding."

20 Do you agree with that? Do you dispute this finding?

21 A. You gave one example -- I mean the --

22 Q. No, that's a finding. Do you dispute --

23 A. No, no I don't --

24 Q. [Overlapping speakers] You analysed the judgement --

25 A. No, I didn't analyse the judgement, but I don't dispute what you

Page 193

1 just told me. I was not asked to analyse the judgement.

2 Q. Okay. I know you weren't, but you did consider the judgement,

3 that's what you said in your answer.

4 A. Yeah, but not to analyse the judgement. The judgement was a

5 source of information.

6 Q. Did you, yes or no, look at a number of trial judgement findings

7 to do your report? They're all over the place in the footnotes.

8 A. Yeah, but I mean it's maybe the matter of interpretation, but I

9 did not analyse the judgement. I looked at the judgement and I -- for

10 certain things -- where it was -- things were not clear to me, I used the

11 judgement. Now, okay there are -- there may be doubt about the

12 procedures as to how OG South was established. I think it was a

13 complicated situation. But I haven't seen any -- I don't remember

14 seeing, and again I worked very long on this trial also requesting

15 documents I mean for years that there were -- that there was a pattern of

16 a violation -- I mean the most basic principle of command and control,

17 i.e., single authority. I haven't seen such evidence.

18 Q. So you disagree with the Trial Chamber's finding, and I will read

19 you the quote, okay.

20 "This case discloses" --

21 MR. BOURGON: Sorry, my colleague is standing up.

22 JUDGE MERON: Ms. Brady.

23 MS. BRADY: Yes, of course we have no problem with Mr. Bourgon

24 putting this quote to the witness, but it has to be put in the context of

25 the whole quote of the whole paragraph. This is in effect the prelude --

Page 194

1 the Trial Chamber's prelude to its reasoning as to why it was not

2 prepared to find beyond reasonable doubt and gave the benefit to

3 Mr. Sljivancanin in his being involved in the transmission of the order.

4 So I think that's a very important detail that Mr. Bourgon is not

5 covering in his question and it's quite misleading.

6 MR. BOURGON: I disagree, Mr. President, but I will move on

7 simply by reading the quote.

8 Q. And the quote goes as follows, and that's part of the quote which

9 can be isolated:

10 "This case" -- okay, the facts of this case, we're not talking

11 about a specific example here, "the facts of this case disclose frequent

12 non-observance of normal JNA procedures and standards at all levels

13 affecting matter as varied as the very establishment and structure of

14 OG South to the observance of the chain of command."

15 Do you agree or disagree with the Trial Chamber's finding?

16 A. I have to give the same answer I gave earlier. It's a very

17 general -- I mean kind of statement where, from an analytical point of

18 view at least. If I were asked to analyse it and to give an opinion,

19 well, then I would like to see examples. And on the basis of this

20 example, so far I only heard one example, that was the establishment of

21 OG South, and there I agree with you. But I don't think that that is a

22 significant matter. And I tried to explain to you that the evidence I

23 have reviewed and also -- I mean the documents -- the -- what I heard

24 from various witnesses, violation of the principle of command and

25 control, i.e., single authority, I haven't seen an example of that.

Page 195

1 Q. Thank you. I'll move on to my next question. I'd like to

2 address a few issues in your report, and I will begin by question 1 which

3 is found at page 3. Now, at the review hearing Panic testified - so

4 you're familiar with that - that no commander is duty-bound to inform all

5 of his subordinates of the orders that he issues. Panic also answered

6 yes to the proposition put to him by Judge Meron that it is not

7 impossible that Mrksic issued the withdrawal order directly to the 80th

8 Motorised Brigade without telling his own Chief of Staff.

9 Now, I personally fail to find a clear answer in your -- in

10 question 1, but that's not what I want to discuss with you today --

11 A. Yeah, but I don't think it's correct what you say because I do

12 say that -- I use the expression apos -- to inform Panic a posteriori in

13 paragraph 8 where I do leave the door open that Mrksic would have spoken

14 directly to Vojnovic. But then soon -- I mean, the order is

15 implemented -- it is visible on the ground to what is the effect of the

16 order, and then I would expect, well, if he doesn't do it in advance,

17 which would have been logical because Mrksic needs input from his staff

18 for that order. It's not just like move the truck 20 metres, it's a

19 serious matter. And leaving the door open for the possibility that he

20 could have issued the order directly to Vojnovic without telling anyone,

21 as you suggest, even though he told Karanfilov as we know, then to me it

22 would be highly unusual that he wouldn't inform Panic immediately after.

23 Q. I move on to my next question --

24 A. Okay.

25 Q. Because the Judge covered that with you.

Page 196

1 In your report --

2 A. Yup.

3 Q. -- does it say anywhere it's impossible that Mrksic did that

4 either with prior or after notice, is it impossible? Do we find these

5 words in your report?

6 A. No, because as I tried to explain we're working with human

7 beings. Of course Mrksic can do it. But we have to look at the next

8 step. Why do you issue an order? To have something done.

9 Q. Okay.

10 A. And the action would be visible. And so -- I mean, there would

11 be an immediate effect and everybody would know. So of course Mrksic

12 could tell Vojnovic, but where would it lead us to? Everybody would know

13 immediately, i.e., contradicting what Panic has tried to explain during

14 the pre-review hearing that nobody knew.

15 Q. Okay. Let's move on to a practical example and that will be much

16 easier to cover this. Okay. Because the crux of the matter really, even

17 if it was not addressed in direct examination, to us is at paragraph 14

18 of page 7, so if I can have that in e-court and that would be -- because

19 you say in this report -- in this paragraph that the testimony of Panic

20 that he was not aware of the order issued by Mrksic is inconsistent with

21 SFRY armed forces doctrine. Okay. That's your conclusion?

22 A. Yeah.

23 Q. In your report. Okay. So let's try -- what I would like to

24 suggest to you is some reasons Mrksic might have had of doing so without

25 informing Panic, and you can tell me if I'm out to left field or if what

Page 197

1 I'm saying makes a bit of sense. Let's try one possibility.

2 The Trial Chamber found at paragraph 621 that:

3 "When Mrksic issued the withdrawal of the JNA Guards, he well

4 knew that this left the TO and the paramilitary" units or -- sorry, units

5 is not there, "with unrestrained access to the prisoners and that by

6 enabling this he was assisting in the commission of the offences of

7 violence and murder and that he was aware what indeed probably followed."

8 Do you agree what really this means is that when Mrksic issued

9 the withdrawal order he knew well that he was committing a crime; right?

10 A. Yeah, that the absence of a person of Guards Motorised Brigade or

11 OG South staff guarding the prisoners could or would result in crimes,

12 yeah, could result in crimes. Mm-hmm.

13 Q. So it wasn't certain according to you or was it certain? It's

14 very important. If the Trial Chamber says it is. What do you say?

15 A. No, no, no, I'm not referring to the trial judgement here. I'm

16 just looking from the military point of view. Mrksic has received

17 information actually throughout -- and actually the command of OG South,

18 they all -- I mean they knew it, also the Chief of Staff. Panic himself

19 is there on the 20th in the afternoon. He testified that he informed

20 Mrksic. They know that something can happen, they have to foresee it,

21 that's the duty -- I'm not referring to the judgement here. I'm just

22 looking at military regulations.

23 Q. No, but that's very important that you would say this because you

24 say that Panic knows and Mrksic knows. Now, very different -- very big

25 difference here. Mrksic is withdrawing the MPs. He knows that there

Page 198

1 will be a crime. You agree with that?

2 A. From the doctrinal point of view, on the basis that -- on the

3 basis of the informations received, yeah, it could result in crimes, and

4 he would be held accountable because he had a duty to foresee.

5 Q. But the Trial Chamber said when he did this --

6 A. Okay.

7 Q. He knew very well.

8 A. Yeah.

9 Q. Do you agree or disagree?

10 A. I don't disagree with the Trial Chamber's judgement.

11 Q. Okay. I take it that you would agree with me then that when you

12 look at SFRY doctrine, okay, at the way you referred it because I never

13 found any term like that in the books, but --

14 A. Which term --

15 Q. -- if in all of these books [overlapping speakers] --

16 A. Which term?

17 Q. I never found the term "SFRY armed forces doctrine" in any of the

18 sources you reviewed?

19 A. No, but doctrine is a concept. Doctrine is a set of regulations

20 for which -- I mean for military doctrine military behaviour is based.

21 The SFRY armed forces should be a known entity. I mean, they were

22 established -- I don't have the exact reference here, but I think it's

23 referred in my document when the name changes.

24 Q. But to put that all together this concept --

25 A. Yes.

Page 199

1 Q. -- and you say number of books is your call; right? You decide

2 what is SFRY armed forces doctrine. That's what you told the Judges when

3 you testified?

4 A. I don't decide that. That is what I think what also senior

5 officers of the JNA have told us, that, okay, the doctrine said this and

6 they referred to the same kind of regulations I did. So I didn't invent

7 something knew here.

8 Q. In that doctrine, in that doctrine --

9 A. Yeah.

10 Q. -- is there anything that says that when a commander is going to

11 commit a crime he has to inform his Chief of Staff?

12 A. I mean, I don't understand -- again, I come back to the point,

13 the order -- no, no, you cannot --

14 Q. It's simple, it's simple --

15 A. No, no --

16 Q. Is there anything in the book -- is there a rule that says that

17 if I'm about to commit a crime I have to tell my Chief of Staff if I'm

18 the commander. It's a very simple question. Yes or no? Find me the

19 rule.

20 A. I'm sorry, this question is nonsensical from the military point

21 of view.

22 Q. Thank you. I'll move on to my next question --

23 A. But I would like to mention. You cannot look at an order. An

24 order is not something in isolation. Why do you give an order? Not just

25 to issue a document. No. You issue an order to have an action executed.

Page 200

1 That action here consists of withdrawing the MPs.

2 Q. Now --

3 A. Ovcara was, I don't know, less than 10 kilometres away from

4 Negoslavci.

5 Q. Sir, we agree that the order is a crime?

6 A. It would result in a crime, yeah?

7 Q. So you're not sure whether it could or not result in a crime?

8 It's very important. From a military point of view, because you say it's

9 nonsense.

10 A. No, no. Your question is nonsensical. I didn't say that the

11 order is nonsense.

12 Q. No, but is the order -- do you agree, yes or no, that Mrksic knew

13 that he was committing a crime? That's what the Trial Chamber said.

14 A. Yeah, I mean, I go along with the Trial Chamber's judgement. I

15 have no problem with that.

16 Q. And then my question is: Find me a rule where it says the

17 commander has to tell his Chief of Staff if he's committing a crime, yes

18 or no?

19 A. Yeah, but I cannot answer your question in the context of like

20 when I look at SFRY armed forces documents, the facts, I don't understand

21 your question.

22 Q. Okay. I'll move on because I think the Trial Chamber will. But

23 let's look at another example -- sorry, the Appeals Chamber.

24 MR. BOURGON: Sorry, I apologise, Mr. President.

25 Q. If we look at the facts of this case as established by the

Page 201

1 Trial Chamber. Now, you will agree with me based on the facts that

2 Mrksic did not issue the withdrawal order or mention the withdrawal order

3 during the daily briefing, did he?

4 A. Yeah, that is -- I think what is stated in the judgement and the

5 evidence. I don't know -- why how -- yeah.

6 Q. No, but your conclusion did he say it in the daily briefing yes

7 or no?

8 A. I haven't looked into that.

9 Q. Wouldn't that be important to know whether it was mentioned

10 because one of your conclusions is that Panic should have mentioned it at

11 the daily briefing. Did you not look to see if the commander mentioned

12 it at the daily briefing?

13 A. No, no. What I wrote is that -- I mean, Panic testified that he

14 informed the commander Mrksic about what he had seen in Ovcara and he'd

15 also asked Mrksic to take measures.

16 Q. We are at one step further.

17 A. Yeah, yeah.

18 Q. We are at the withdrawal order, sir.

19 A. Indeed, indeed. But when I write that Panic should have

20 mentioned it during the briefing, I would expect that Panic would also --

21 because the briefing everybody is together there, the people from Ovcara

22 are there Vojnovic, that Panic would check with them in -- of course in

23 close co-ordination with Mrksic, like how is the situation now? Because

24 we are three or four hours later.

25 Q. Sir.

Page 202

1 A. Yeah?

2 Q. Would you have expected the commander to mention this order at

3 the daily briefing?

4 A. If the order had been taken already then it should have been

5 mentioned, but I don't remember exactly when the order was given. I

6 think it's only later that the people are informed.

7 Q. The evidence in this case --

8 A. Yeah.

9 Q. -- do you agree, reveals that it was not mentioned at the daily

10 briefing?

11 A. No. Okay.

12 Q. All right. So let's put that aside. You agree, then, that Panic

13 did not learn this order at the daily briefing?

14 A. That's correct.

15 Q. We're together on this?

16 A. Yeah, yeah.

17 Q. Now, let's go a bit further and you say that -- and of course,

18 and the fact that Mrksic did not mention this is also a violation of the

19 doctrine because a commander should share with his staff; right?

20 A. It depends when he decides to issue that order. If he decides to

21 issue it after the meeting, then obviously he cannot mention it during

22 the meeting. If he had decided to issue the order and if he issued it

23 prior to the meeting, he should have mentioned it.

24 Q. Okay. He should have mentioned it, and if he did not it's a

25 violation of the doctrine?

Page 203

1 A. No, it depends on the timing of the order. Tell me --

2 Q. So all this is a grey area?

3 A. No, no, it's not a grey area. I don't have the trial judgement

4 in front of me but I don't remember exactly when Mrksic issued the order

5 to withdraw the MPs. I'm just trying to clarify my answer.

6 Q. Okay. Well I will help you.

7 A. Okay.

8 Q. The Trial Chamber held that the order was issued shortly before

9 or shortly after the daily briefing. Does that help you?

10 A. Well, if it's before the daily briefing he should have told them.

11 If it's after the daily briefing, then he should have communicated it

12 otherwise. But he cannot -- if it's issued after the briefing he cannot

13 mention it during the briefing.

14 MS. BRADY: I'm sorry to interrupt, but can you give us the

15 reference to the judgement that you've made just then on the finding.

16 MR. BOURGON: Which one?

17 MS. BRADY: The --

18 MR. BOURGON: Earlier or after?

19 MS. BRADY: Yes. That one.

20 MR. BOURGON: I'll find it and get back to you unless you want it

21 now because I'm quite short of time, but of course that's a finding that

22 we have in the judgement and I forgot to have it here in my notes.

23 Q. But let me look then -- we know from the evidence, and you

24 referred to that, that Mrksic then met with Vojnovic, and he gave his

25 order only to Vojnovic at that time? You're aware of that?

Page 204

1 A. Yes, and I think there's also Vukosavljevic in the area. I know

2 of that. But again let's be careful not to think in exclusives. The

3 fact that we can establish to whom he gave it does not exclude that he

4 would have given it to somebody else.

5 Q. Sir, this is criminal law --

6 A. No --

7 Q. We have a judgement, we have findings, and I'm willing to

8 entertain any dispute or challenges on your part because I think that

9 that's what your whole report is about, relitigating this case.

10 A. No, not at all.

11 Q. That's [overlapping speakers] --

12 A. No, no, no --

13 JUDGE MERON: Now, Mr. Bourgon, Colonel Panic, if I remember

14 correctly, himself testified on a number of occasions - and this is in

15 the exhibits which have been submitted to us - that he would be

16 tremendously surprised that it would be completely exceptional for Mrksic

17 not to share the order with him at one point.

18 MR. BOURGON: Absolutely. That's one of my questions coming up,

19 Mr. President.

20 JUDGE MERON: Also, the testimonies of Mr. Panic suggest and they

21 were given before the trial judgement, I quite agree, suggest that on the

22 whole OG South functioned well in terms of transmission of orders. There

23 may have been -- he mentions one or two sort of exceptions, but on the

24 whole he's much more flattering to the performance of OG South than the

25 Trial Chamber was in the sentence that you have cited. It's a complex

Page 205

1 issue and it's really quite difficult to -- but I would really suggest

2 that since your time is limited, try to focus as much on the problems

3 that you are trying to establish.

4 MR. BOURGON: Thank you, Mr. President. I will do so.

5 Q. Let us look at the facts of the case that Mrksic, we agree -- you

6 know from the evidence that he did not say it at the daily briefing. But

7 you mentioned in your testimony that he said it to two people.

8 A. Mm-hmm.

9 Q. He said it to Karanfilov and he said it to Vojnovic, probably in

10 the presence, we're not sure, of Vukosavljevic. That's the evidence.

11 Okay. Now, what I'm simply suggesting to you: If a commander, okay, is

12 about to issue an illegal order and -- no, not about, has issued an

13 illegal order to two subordinates, would that be a fair thing to say,

14 that he's not going to -- he will limit this to as few individuals as

15 possible simply to protect himself. Is that a possibility, sir?

16 A. I'm sorry. It doesn't -- if -- I mean, the order is intended to

17 carry out an activity. Now, the activity consists of withdrawing forces.

18 Everybody will see that the forces are gone and they will ask what

19 happened. And the only logical conclusion is that the commander, because

20 there is single authority, has issued the order to withdraw them. So he

21 cannot hide that. Karanfilov, it would be highly unlikely that Mrksic,

22 again according to doctrine and what we've seen in the trial, that Mrksic

23 would talk directly to Karanfilov ignoring Vukasinovic, i.e., the deputy

24 of the security organs and most importantly ignoring Sljivancanin who was

25 actually in charge of this operation where then Mrksic, according to you,

Page 206

1 would just talk to a captain to say, look, let's get them out of there.

2 It wouldn't make sense because within minutes everybody would know,

3 and Sljivancanin would hear it from Karanfilov, and he would go to Mrksic

4 and say, colonel, what are you doing. That would be the reality.

5 Q. Okay. Now, let me just get one question on this because if I

6 listen to you correctly I take it that 20 military policemen who are in

7 Ovcara, they return to their barracks or wherever they live, okay, at the

8 command or in or around the command of the 80th Brigade. That's your

9 position that within minutes everybody will know that?

10 A. Yeah, because -- I mean, I'm not talking about the 20 military

11 policemen, I'm talking about Karanfilov. If Mrksic talks to Karanfilov

12 directly, I mean Karanfilov should be -- should ask himself, should check

13 with Sljivancanin, hey, the commander has told me that, it's your

14 operation, how do you see that. I mean that would be the logical

15 reaction.

16 Q. Sir, that's not what you said. You said within minutes people

17 will know that the MPs have been withdrawn and they will say commander

18 what did you do? Are you saying that --

19 A. No, I -

20 Q. I'm just asking you.

21 A. Yeah, yeah.

22 Q. 20 men leaving from Ovcara and returning to OG South -- not OG

23 South, returning to the 80th Brigade. I just want to know if it's your

24 professional opinion that within minutes everyone will know in OG South.

25 Is that your professional opinion?

Page 207

1 A. Well, I will give you two elements of reply. First of all, it's

2 not about the 20 men. It's about handing over authority from OG South to

3 another entity. That is a key issue. Secondly, I mean you are familiar

4 with the inspection function of command and control and also the fact

5 that they have to report on the implementation of the order. So in

6 concrete terms the MPs will inform the operations centre of the 80th

7 Brigade, hi, we're back, and the operations centre of the 80th Brigade

8 will inform the operations centre of the OG South, gentlemen, we have

9 implemented your mission, they are now back in the camp.

10 Q. Okay. Now if I look at what you're saying now, okay, is there

11 any evidence on the record that there was a report made to Operational

12 Group South Command, did you see any evidence to that effect?

13 A. No, there is no such evidence, but again if Karanfilov -- I think

14 it's established -- it is established in the evidence --

15 Q. No, is there a finding --

16 A. Karanfilov -- it is established Karanfilov goes to Ovcara to tell

17 the MPs of the 80th Brigade to withdraw. Karanfilov has to come back to

18 the OG South and say: I have passed the order. They are withdrawing.

19 That is military reality, and I don't know whether the Trial Chamber

20 confirmed that.

21 Q. So -- well, the Trial Chamber did not.

22 A. Okay.

23 Q. So but I'll ask you if I want to confirm that today, I need to

24 call Karanfilov to testify again; right? That's what you want if you

25 want to determine that?

Page 208

1 A. No, no. I mean there is a finding that Karanfilov knew about the

2 order because he informed the 80th Brigade, and then again based on how

3 militaries work, Karanfilov reports to his commander to his -- actually,

4 he should report to Sljivancanin, I have implemented your order, that's

5 it.

6 Q. But is there evidence to that that you saw. You looked at the

7 evidence?

8 A. I didn't look at all the evidence now.

9 Q. So that was not interesting to you?

10 A. That's not the issue. I don't think it -- I mean, it's probably

11 not -- it's not mentioned in the -- I don't know whether it's mentioned

12 in the trial judgement or the Appeals Chamber's judgement.

13 Q. You mentioned that three people were made aware of that order:

14 Karanfilov, Vukosavljevic, and Vojnovic. You will agree with me we can

15 add to this, we can add a Vezmarovic because he's the guy who withdrew

16 the MPs. So that's four people; right?

17 A. Yeah, I mean you can add the 20 MPs if you want.

18 Q. And the 20 MPs. Yes. Okay.

19 Now, let me tell you is there any finding in the judgement of

20 anybody else who was informed of that order, is there any findings in the

21 judgement?

22 A. I have not analysed the judgement. That was not the tasking I

23 have received.

24 Q. I thought you were going to compare the judgement with the

25 findings and the SFRY doctrine?

Page 209

1 A. No, no.

2 Q. That's not what you did?

3 A. No, no, I compared the testimony of Mr. Panic with the doctrine

4 with the operational -- I mean, the combat documents, i.e., reports and

5 orders of OG South. And indeed I received a copy of the trial judgement

6 and the appeals judgement. But I haven't looked in -- I haven't -- those

7 were sources. But it was not my duty or my -- I was not requested to

8 analyse these sources in detail.

9 Q. Okay. Let me move on to a quick question --

10 JUDGE MERON: I really don't think that it was within his remit

11 to come with a notation on the judgement as a whole.

12 MR. BOURGON: No, it wasn't, Mr. President, but it was his job to

13 look at the judgement. He said he did. How can he make a report --

14 JUDGE MERON: I mean, he was given a specific remit by the

15 Prosecution.

16 MR. BOURGON: I'll save that for argument, Mr. President.

17 JUDGE MERON: I think he was given a specific remit by the

18 Prosecution and he tried to carry that out.

19 MR. BOURGON: Thank you, Mr. President.

20 Q. Sir, is it a possibility, possibility, that Mrksic -- and there's

21 a reference to this in the judgement at the finding in paragraph 586,

22 okay, where it says that there are suspicions to that effect. Is it

23 possible that Mrksic received an order from superior command and the

24 order is: Give them the prisoners, we cannot avoid a conflict with these

25 people at this time? Is that a possibility, sir, that in such a case,

Page 210

1 okay, if the order said: Don't tell anyone, that Mrksic would not tell

2 anyone? Is that a possibility?

3 A. I mean, I have tried to explain that "don't tell anyone" doesn't

4 work in the military because the people have left. OG South will

5 familiarise themself -- I mean Panic when he's the commander, he has to

6 be really sure that what he tells to the 1st military district is

7 correct. He will have a look at what is happening there.

8 Q. Sir.

9 A. You cannot hide that there are no more MPs in Ovcara.

10 Q. When a crime is committed --

11 A. Yeah.

12 Q. Okay. It's not what you say that there is no don't tell. I'm

13 just asking you, okay, and we'll go to another scenario and that will be

14 my last one.

15 A. Yeah.

16 Q. You -- Panic said when he testified, first of all, he said that

17 Panic -- sorry, that Mrksic should have told him. So you and him agree

18 on this. No problem there. Then Panic said: If I had heard this during

19 the conversation between Mrksic and Sljivancanin, if I had heard this, I

20 would immediately have reacted. Okay. Now, you agree with me that this

21 would have been the thing to do?

22 A. Yeah.

23 Q. Okay. Now, given that this was the thing to do, I'm simply

24 suggesting to you the possibility, okay, that Mrksic, he knew very well

25 that Panic would oppose this order and that's why he did not tell him.

Page 211

1 Is that a possibility, sir?

2 A. But -- I'm sorry, I'm repeating myself, but it doesn't work like

3 that. I mean, Panic is the Chief of Staff. He will be informed of the

4 fact that the MPs are not there anymore, especially since on the 20th

5 Panic goes out of his own initiative to Ovcara to see what is happening.

6 Why could -- I mean, I cannot imagine that Mrksic would think like I can

7 hide the order and Panic will certainly not have a look on the 21st, he

8 will not be interested anymore. It doesn't make sense.

9 Q. So if there are no findings that Panic found this information,

10 what you're saying is that he's a liar; right?

11 A. I don't say that.

12 Q. Well, you met with him. Did he look to you as a reasonable

13 person?

14 A. I will reserve my comments for myself. I've never commented on a

15 witness and I will never do so, I mean not in this environment.

16 Q. But did he co-operate with you when you met with him?

17 A. Overall yes, but we had to use at certain occasions documents to

18 clarify certain issues.

19 Q. Okay. Now, let's look to --

20 JUDGE MERON: Now to go on and move on. It is curious,

21 Mr. Bourgon, that having visited Ovcara and brought back a rather

22 worrying situation about dangers to which the POWs were exposed and the

23 treatment which was being meted out to them, that Panic on the following

24 day did not show any interest regarding the sequence, what happened

25 later. This is a bit puzzling.

Page 212

1 MR. BOURGON: Thank you, Mr. President. I will then go straight

2 to a line of questioning referring to what the witness has said.

3 JUDGE MERON: Judge Liu has a question.

4 Judge Liu.

5 JUDGE LIU: Witness, let me ask you a question. I would like to

6 draw your attention to your report on the paragraph 10 on page 6. You

7 said that:

8 "Considering the SFRY armed forces doctrine and the operational

9 context, any suggestion that Mrksic would have tried to hide his

10 withdrawal order from his closest collaborator and the deputy

11 Lieutenant-Colonel Miodrag Panic and the officer he had put in charge of

12 the evacuation operation Sljivancanin, appeared to be rather

13 implausible."

14 Did you find that sentence?

15 THE WITNESS: Yes, Your Honours, I did.

16 JUDGE LIU: I would like you to explain to me how could I arrive

17 in this conclusion and what SFRY armed forces doctrine you mean and what

18 that operational context in your mind when you're writing this report.

19 Thank you.

20 THE WITNESS: Yes, Your Honours. I will try to be brief. The

21 reference to SFRY armed forces doctrine refers to the aspect of a

22 situational awareness, whereby the staff managed or organised by the

23 Chief of Staff is responsible for ensuring the situational awareness of

24 the commander. And that is something I have addressed in question 1

25 where you can find the different regulations. So of course the commander

Page 213

1 has the legal duty to be aware, but he is assisted by his staff and there

2 the Chief of Staff is the organiser.

3 The operational context, just two elements. Ovcara I think is I

4 wrote here less than 10 kilometres, but in fact is shorter, from

5 Negoslavci. There was no -- I'm not aware of any impediment for members

6 of the OG South Command to visit Ovcara at any moment in time on the 20th

7 or the 21st. So -- and that's what I've tried to explain to Mr. Bourgon.

8 The order as such doesn't mean anything. It is the effect of the order.

9 I.e., when it is implemented it will have a result on the situation, and

10 in this particular case on the situation of the friendly force, i.e., the

11 units of OG South, where a number of forces have been withdrawn, more

12 importantly prisoners of war which were under the control of OG South are

13 now -- have been handed over to another entity and all that is part of

14 the situational awareness where the Chief of Staff has the duty to inform

15 the commander of these events and of these developments.

16 JUDGE LIU: Thank you.

17 JUDGE MERON: Mr. Bourgon, you have another ten minutes.

18 MR. BOURGON: Thank you, Mr. President.

19 Q. Sir, is there any evidence on the record that you saw of anyone

20 noticing the departure of these 20 MPs?

21 A. I will give two --

22 Q. No, the evidence on the record, please. Do you see any?

23 A. I think the war diary or the operational diary of the 80th

24 Motorised Brigade has an entry for the 20th in the evening that the

25 military police of the 80th Brigade has returned to the -- yeah, the 80th

Page 214

1 Brigade, and that the prisoners have been handed over.

2 Q. And did you see any evidence of this information reaching

3 Operational Group South Command at any time?

4 A. Well, actually the issue should not be -- should not be evidence

5 of it reaching because that is common sense in the military. The

6 evidence should have been -- or the question should have been not

7 reaching. Because if that information -- if the 80th Brigade has not

8 informed OG South then OG South has to tell the 80th Brigade what is

9 happening, why didn't you tell us? Because we issued you an order we

10 have to be informed of the implementation, that's how it works.

11 Q. Absolutely agree, as long as they know what the order is; right?

12 A. Yeah, but it's --

13 Q. If they don't know the order they can't expect a come-back;

14 right? Can they?

15 JUDGE MERON: Mr. Theunens, I am told that you, when you speak

16 you speak too quickly for the interpreters.

17 THE WITNESS: I'm sorry, Your Honours.

18 No, because the order -- as I -- the order is one thing, but it's

19 the effect of the order, implementation, that is the key issue, and the

20 implementation is very visible. I have also tried to explain in my

21 report that situational awareness is not a passive duty. You don't sit

22 and wait like, is somebody going to tell me they have withdrawn. No.

23 The commander has the duty to inform himself about the situation of his

24 troops. Because you can -- I mean, it's like everywhere. Nobody is

25 going to tell bad news or like to give bad news. So the commander has to

Page 215

1 be active, send these guys, invite the commanders of subordinate units

2 like to know what is happening, and that is all part of the picture that

3 is being created with the assistance of the staff under the management of

4 the Chief of Staff.

5 MR. BOURGON:

6 Q. Sir, is it your position then that if the doctrine says a report

7 should have been sent back, then unless we have evidence that it was not

8 we are to believe it was. That's your position?

9 A. No. My position is that if the report was not sent then OG South

10 should have complained to the 80th Brigade what is happening, why don't

11 you send the report.

12 Q. If they don't know that the order was given they can't; right?

13 A. But it's their duty to know what is happening --

14 Q. If the order was not given, can they expect a back order?

15 A. But if the order was not given they couldn't withdraw, because

16 then that's anarchy. Militaries act upon orders and orders have to be --

17 everything has to be verified. It's very simple.

18 Q. Sir, my colleague reminded you that we have to focus on the

19 findings of the Trial Chamber, okay, and we're not here to relitigate.

20 A. Okay.

21 Q. Now, the Trial Chamber found that there's no report going back to

22 Operational Group South command. Okay. Vojnovic testified that he never

23 told Mrksic that he had executed the order and that he had never told

24 anyone for that matter. None of the persons that you say were aware of

25 this order were found to have shared it with somebody with Panic.

Page 216

1 Nobody -- you mentioned those who are aware. Okay. You said the MPs.

2 You said Vezmarovic. You said Vukosavljevic, you said Vojnovic, okay,

3 and I'm going to add another one -- and of course Karanfilov, and I'm

4 going to add another one to this and that's P14.

5 A. Mm-hmm.

6 Q. Okay. And P14, okay, he discussed and they knew about the fate

7 of the prisoners or they had rumours about the fate of the prisoners on

8 the morning of 21st; whereas, the information in OG South according to

9 the evidence was nil, and the information according to the record did not

10 reach Operational Group South. Are they supposed to expect a back order

11 when they are not even aware that the order was implemented?

12 A. I'm not sure I understand the question, but --

13 Q. Okay. I'll move on because I'll keep this for argument.

14 One more issue I'd like to address with you. Now, Vojnovic when

15 he received this order, now this man accepted to carry out an illegal

16 order, would you agree with that?

17 A. With hindsight, yes.

18 Q. You mean he did not know on the spot?

19 A. I mean, you would have to ask Vojnovic. Vojnovic -- one could --

20 one could argue that Vojnovic should have known that the withdrawal of

21 the MPs could have resulted in crimes, yeah, that's Article I think 36 of

22 the --

23 Q. So he accepted to carry out an illegal order?

24 JUDGE MERON: We have a question from Judge Guney.

25 JUDGE GUNEY: [Microphone not activated]

Page 217

1 THE INTERPRETER: Microphone for the Judge, please.

2 Microphone, please.

3 JUDGE GUNEY: Mr. Theunens, in light of the irregularity of the

4 order itself, would it not be expected to have it transmitted irregularly

5 as well? This is the first question.

6 THE WITNESS: Mm-hmm. Yes, Your Honours.

7 JUDGE GUNEY: The second question is: Are you aware of another

8 illegal order that was transmitted through the regular chain of command?

9 Thank you.

10 THE WITNESS: Yes, Your Honour. To answer the first part, I

11 think -- I mean, that's only a partial aspect because of course we can

12 imagine the situation that Mrksic tries to hide the order -- I mean,

13 let's develop a scenario. We could try to imagine that scenario, that he

14 hides the issuing of the order. But it's about the effect of the order,

15 the implementation, because the order as such as long as it is not

16 implemented has no value. It's the implementation of the order which is

17 a key issue here. And -- okay, Mr. Bourgon disputes that it would be

18 noticeable to the command of OG South when I say in a very short

19 time-period.

20 On the 21st of November, OG South reports that everything is

21 going in according with the regulations, i.e., the evacuation of the

22 civilians and the wounded and the Geneva Conventions, whereas it was

23 their duty to verify the situation, the status of the prisoners at

24 Ovcara. Coming back to the second part of your question, I'm not aware

25 of any other example of an -- call it illegal order that was transmitted

Page 218

1 via the regular or irregular manner. I'm not aware of such an example.

2 JUDGE GUNEY: Thank you.

3 MR. BOURGON: Mr. President, how much time do I have left?

4 JUDGE MERON: You have three minutes.

5 MR. BOURGON: Three minutes. Then --

6 JUDGE MERON: If I can be an accountant.

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

8 Q. Sir, I will -- I have two questions, then, that I will ask you,

9 and the first one is the following. You know because you saw the appeal

10 judgement's findings that we are here to discuss a new fact which was

11 accepted by the Trial Chamber as being a new fact, which is that Panic

12 heard a conversation between Mrksic and Sljivancanin and that during that

13 conversation Mrksic did not tell Sljivancanin that he had withdrawn the

14 military police. Now, that's why we are here today. Okay. I would like

15 to know from you since you were involved or invited by the Prosecution to

16 take part in these proceedings, were you -- was any additional evidence

17 not known to the Trial Chamber at the time brought to your attention

18 concerning this conversation?

19 A. The -- I mean, the material I used -- or the material I used -- I

20 received -- I apologise, from the OTP appeals section is identified in

21 the introduction. I looked at military regulations, but I haven't seen

22 any additional material -- or any additional evidence in relation to that

23 conversation.

24 Q. And, sir, the Prosecution I take it did not discuss any such

25 evidence with you, say, listen, we've got something here that we did not

Page 219

1 know of? That never came up; right?

2 A. No, no, it didn't.

3 Q. Now, you've been an analyst with the Office of the Prosecutor in

4 the Military Analysis Team for quite a while or you were for a number of

5 years, so you're quite familiar with these cases. And I take it that you

6 are familiar with the fact that within the JNA officers and all members

7 of the JNA are quite scared or at least do not like security officers,

8 members of the security branch, because they can file a report at any

9 time against anybody? Are you familiar in general with this concept?

10 A. Yeah, I think it -- it's a bit of a -- maybe -- if you allow me,

11 a liberal interpretation of doctrine, but there was some -- it's like in

12 any armed force, I guess, some kind of, I mean, fear of security organs

13 because they only show up at the bad moment. But it's not in writing,

14 this is just interpretation of the people. It's never a good thing when

15 a security officer comes to you because he may have something against

16 you.

17 Q. And he may -- and security officers because of this special chain

18 they have, they can make an investigation against a commander without a

19 commander even knowing about it. You're familiar with that?

20 A. Yeah, indeed, I mean more or less.

21 Q. Now, if Mrksic has committed a crime by withdrawing the MPs,

22 okay, I suggest to you that the last person he would tell this to is the

23 security officer who can make an investigation on him; do you agree with

24 that?

25 A. No, I don't because Article 36, as I mentioned, from the 1988

Page 220

1 regulations on the implementation of the laws of war says that any

2 officer whenever he discovers that a crime may have been committed has a

3 duty to report it and, sorry, to provide information to the competent

4 authorities. So the particular position of the security organs does not

5 apply to these kind of crimes, I mean crimes -- a violation of the laws

6 of war.

7 JUDGE MERON: We really have to end this now, and of course,

8 Mr. Bourgon, Karanfilov belonged to the security organ, didn't he?

9 MR. BOURGON: Absolutely, Mr. President. That was my last

10 question.

11 JUDGE MERON: Well, why don't you just merge it with your summary

12 later on.

13 MR. BOURGON: I will do so.

14 JUDGE MERON: Argument.

15 MR. BOURGON: I will do so, Mr. President, because if he's scared

16 of telling Sljivancanin, of course he would not tell Sljivancanin either

17 that he told Karanfilov.

18 JUDGE MERON: Thank you.

19 We will now have a 20-minute pause which is required by technical

20 reasons.

21 Ms. Brady, I am aware that you have both 15 minutes which have

22 been allotted to you and subsequently the 30 minutes.

23 MS. BRADY: Yes [overlapping speakers] --

24 JUDGE MERON: So we will keep your rights to those two sections.

25 20 minutes, so we will meet at about 25 minutes before 6.00.

Page 224

1 So, Ms. Brady, your summary argument. You have 30 minutes, but I

2 am aware of the fact that you have not used up your time for

3 re-examination.

4 MS. BRADY: Thank you, Your Honour. Thank you.

5 Your Honours, Panic's evidence that he didn't hear Mrksic tell

6 Sljivancanin on the evening of the 20th of November about his order to

7 withdraw the JNA from Ovcara has no impact on the verdict because he

8 cannot be believed on this matter. And we say this for three main

9 reasons.

10 First, self-interest. His evidence about the conversation is

11 unreliable because what -- because of what it might suggest about his own

12 knowledge of Mrksic's patently illegal order and his own responsibility

13 for its disastrous consequences, and this follows the same pattern of

14 evidence that he gave at trial.

15 Second, bias. His evidence is unreliable because -- in addition,

16 I should say, because of his demonstrated bias for the Guards Brigade and

17 Sljivancanin. In our submission he's tailored parts of his testimony

18 both at trial and in this review so as to best insulate himself and

19 Sljivancanin from any knowledge of the order and thereby any

20 responsibility for the crime.

21 Third, implausibility. It is inconceivable given JNA military

22 doctrine and the context of these events that Panic, the Chief of Staff

23 who was acting commander the next day, remained ignorant of the

24 withdrawal order throughout the evening of the 20th of November and then

25 for the entire four days that he and the Guards Brigade stayed in

Page 225

1 Vukovar. These lies render his testimony about what he heard Mrksic say

2 to Sljivancanin, or rather, not say to Sljivancanin simply not credible.

3 Mr. Theunens' report and his evidence that we've just heard help

4 to illuminate the lies and the half-truths that Panic had to tell this

5 Chamber in order to support his claim of ignorance. And when seen in

6 light of normal military doctrine, it's clear that Panic acted we could

7 say most unusually from the time the withdrawal order was issued. And

8 when this becomes apparent, one begins to see why the Trial Chamber

9 treated his evidence so cautiously.

10 Panic is obviously a highly professional -- successful,

11 professional soldier. He's highly decorated. When he contravenes the

12 military rules he's always lived by, you have to ask yourself why. When

13 he buries his head in the sand, you have to ask yourself why. And when

14 he lies to you, you have to ask yourself why.

15 And this afternoon what I'm going to do with the rest of the

16 session here is to highlight some of the most glaring occasions when

17 Panic, on his own account, acted unusually. In the context of his

18 broader knowledge, there's only one conclusion as to his motive for doing

19 so. And of course we will be relying on our written submissions to make

20 our argument in more detail.

21 I'll turn first to his self-interest. The Trial Chamber observed

22 Panic testify for four days and assessed his credibility at length, and

23 these findings were upheld by this Chamber. It concluded that it could

24 not believe his evidence when it came to matters that could expose him to

25 criminal liability or which could put him in an unfavourable light. And,

Page 226

1 Your Honours, the Trial Chamber had this to say about Mr. Panic, and I'm

2 quoting from 297 of -- paragraph 297 of the trial judgement.

3 "Regrettably the Chamber also finds that in his evidence

4 Lieutenant-Colonel Panic sought to present aspects of his own role in a

5 more favourable light and to avoid disclosing matters that could be

6 construed as implicating Panic himself in criminal conduct. Because of

7 this, while the Chamber is entirely persuaded it should accept much of

8 his evidence, it has and will identify its reservations about some

9 issues."

10 Now, what I'd like to do is just to take you briefly to three

11 examples from trial where the Trial Chamber had these reservations and

12 did not believe Panic. And you'll see that Panic's knowledge of the

13 withdrawal order or lack of knowledge, as he claims, is of the same

14 nature of evidence and for the same reason you should disbelieve it.

15 First, the question of what Panic saw at the barracks, the JNA

16 barracks, in the morning before he phoned Mrksic prior to going to the

17 SAO government meeting. The Trial Chamber found that Panic "underplays

18 the full extent of his knowledge of the situation at the barracks that

19 morning" --

20 JUDGE MERON: Could we have the paragraph in the transcript.

21 MS. BRADY: Certainly, Your Honours. I'm quoting from paragraph

22 297 of the trial judgement.

23 JUDGE MERON: Still from the same paragraph?

24 MS. BRADY: It is. It's a different part. It's a very long

25 paragraph.

Page 227

1 That he "underplays the full extent of his knowledge of the

2 situation at the barracks that morning" and was "not fully frank and

3 honest about the events he saw at the barracks concerning the convoy of

4 prisoners of war."

5 You will recall that here was a situation where Panic said there

6 was one bus, no real security threat. The Trial Chamber found there were

7 actually five buses there at that time and already the TOs were verbally

8 and physically assaulting the prisoners on the bus. That's an example of

9 minimising what he saw.

10 Second, why Panic visited Ovcara after the government meeting.

11 The Trial Chamber found his reason for going to Ovcara, remember he said

12 he was going there to check on the progress of the trials, they found it

13 "entirely lacking in credibility" and found instead that he went there in

14 fact to assess the situation so he could make a report to Mrksic. That's

15 at paragraph 307. Another example where he is minimising or downplaying

16 his role or knowledge.

17 Finally, what Panic saw at Ovcara. Again, the Trial Chamber

18 found that he was "not being frank when speaking of his own knowledge of

19 mistreatment of the prisoners of war that day, so as to minimise the

20 truth in that respect." That's at paragraph 308. So while they did

21 accept that he went and told Mrksic, you know, there's a security

22 situation, you better -- you should send some further -- some further

23 forces to deal with it, they accepted him on that but they found that he

24 was not willing to admit the full extent of what he said because he was

25 basically saying it was under control at that point, again to minimise

Page 228

1 himself from information that could really harm him.

2 Panic's denial of any knowledge of the withdrawal order in this

3 review proceeding follows that same pattern, as we can see from his trial

4 evidence. Panic has repeatedly denied any knowledge of who ordered the

5 withdrawal of the JNA security from Ovcara. So it's no surprise that

6 he's come in these proceedings and continued to say or said he didn't

7 hear Mrksic tell Sljivancanin about the withdrawal order that evening.

8 It's a consistency. He's always said he didn't know, so of course from

9 his point of view he's going to say he didn't hear. Because to admit

10 hearing this - and, Your Honours, allowing the Appeals Chamber's finding

11 to stand would have the same effect because he's privy to that

12 conversation in accordance with the finding that you made - if he admits

13 hearing that conversation he too would have been privy to that illegal

14 order, something that he has never admitted to, can never admit to,

15 because it would mean that he did nothing to stop it. So in our

16 submission his self-interest in the events gives him every reason to hide

17 the truth on what was said that evening at the command post between

18 Mrksic and Sljivancanin.

19 JUDGE MERON: Do mind refreshing my memory, Ms. Brady, did we

20 make a specific finding regarding Panic listening to the order that was

21 given, according to us, by Mrksic to Sljivancanin?

22 MS. BRADY: I believe that Panic is --

23 JUDGE MERON: You say that he was privy and that we so found.

24 Would you --

25 MS. BRADY: Yes.

Page 229

1 JUDGE MERON: Did we --

2 MS. BRADY: Paragraph 62 of the appeals judgement in a

3 footnote -- excuse me, Your Honours, I thought that it had been footnoted

4 in that part of the judgement, but nevertheless that was the evidence at

5 trial of Sljivancanin --

6 JUDGE MERON: But that was your conclusion --

7 MS. BRADY: -- and Panic.

8 JUDGE MERON: But when you said that we so found, this is not

9 quite so, is it?

10 MS. BRADY: Your Honours, you made the finding that when

11 Sljivancanin went in to report to Mrksic, the conversation had occurred.

12 JUDGE MERON: I simply did not remember our alluding in that

13 context to the presence of Panic, but --

14 MS. BRADY: Your Honours, I would like to double-check that

15 because you've quoted -- I think this is the reasoning, actually. You've

16 quoted from Veselin Sljivancanin's testimony, the trial testimony. And

17 in that there's reference to the fact that Panic was there at that

18 meeting.

19 JUDGE MERON: Okay. Let's proceed. If you have something to add

20 you can always --

21 MS. BRADY: Yes.

22 JUDGE MERON: -- insert a short sentence in your summary.

23 Please.

24 MS. BRADY: I will carry on.

25 The second point bias. Panic's self-interest has to be

Page 230

1 considered together with the clear bias that he exhibits for the Guards

2 Brigade and Sljivancanin. Panic spent almost a quarter of his career

3 with the Guards Brigade and his reputation is clearly bound up with

4 theirs. He was Chief of Staff at the time. The next year he was made

5 commander. We will be detailing this more in our brief. But he well

6 knows that the impact of the Ovcara massacre on the reputation of the

7 Guards Brigade -- and, Your Honours, I would like to remind you how

8 Panic -- Mr. Panic opened his testimony in the Belgrade trial in the 2004

9 Belgrade trial, this is Exhibit Number 1, and I'm quoting from page 15.

10 He said this, this is how he opened:

11 "Allow me to say, first of all, that I'm very sorry and upset

12 that it has come to this. That team of officers of the Guards Brigade or

13 the Guards Brigade itself did not deserve this. What happened happened,

14 a job done professionally, and here in the end the Guards Brigade is

15 being called to account, so what can I say about that?"

16 The image that Panic wants to project here in this proceeding is

17 that of a neutral observer only wanting the truth. That image is some

18 way from reality. And again we will be going through this more in our

19 written submissions. This is just a summary form of that argument. But

20 what is more interesting is that you can actually see Panic's bias in his

21 trial evidence.

22 You will recall at trial the rather major shift in Panic's

23 testimony when for the first time at trial he named Pavkovic as having

24 been the person in charge of the evacuation, and he said, "Well,

25 Sljivancanin was only in charge of the security tasks at the hospital."

Page 231

1 And the Trial Chamber noted that that diverged sharply from his 2000 --

2 his previous statement that he'd given in 2005, that's Exhibit 2 in these

3 proceedings, because in that statement Panic had said that he was present

4 at the command briefing the night before when Mrksic placed Sljivancanin

5 in charge of the evacuation and could use as many military police as

6 possible. So at trial he did an about-face and the Trial Chamber relied

7 on his statement and what was the contents of his statement rather than

8 that trial testimony. This is a finding that the Appeals Chamber upheld

9 on appeal.

10 Another example of his bias can be seen in his claim that it

11 appeared from the government meeting that they planned to try the

12 prisoners of war, something he told Mrksic. And the Trial Chamber said

13 at paragraph 585 that it was "quite unable to accept the honesty of this

14 aspect of his evidence. It was obviously self-serving and ... an attempt

15 to put the JNA and Mile Mrksic in a more favourable light."

16 And, Your Honours, in our submission his bias is also evident in

17 these current -- in this present review proceeding. When he testified in

18 the review hearing he mentioned two additional topics of discussion in

19 that conversation which had not appeared previously in his statement

20 which he gave to Mr. Lukic last year in 2009. This is Exhibit 4. Where

21 he was writing down his recollection of that conversation. When he came

22 here at the review he gave two other bits of information, we call it,

23 that hadn't appeared in the statement about that discussion, one, that

24 Sljivancanin had reported to Mrksic that he was back from his mission;

25 and two, that the government had decided to take the prisoners to Ovcara.

Page 232

1 And it's no coincidence in our submission that these matters had featured

2 as part of Sljivancanin's trial testimony and then they appear now in the

3 review hearing.

4 We'll -- again, we'll be detailing these inconsistencies in our

5 brief in more beet.

6 In summary on these two points, Panic's account of the

7 conversation should be given no weight given his powerful incentive to

8 protect himself, his revered unit, and Sljivancanin.

9 Before I turn to my third point which is the other reason you

10 shouldn't believe him, I wanted to clarify that in answer to your

11 question you did actually make the finding that in paragraph 61 of the

12 trial -- of the appeals judgement that, it's about five lines from the

13 bottom --

14 JUDGE MERON: [Microphone not activated]

15 MS. BRADY: I was thinking it was a footnote to paragraph 62, but

16 in fact it's in paragraph 61, Your Honours.

17 You recall basically what Sljivancanin did when he got back to

18 the command post, and in the middle of it you have said:

19 "Sljivancanin then met with Captain Borisavljevic who told him

20 about the meeting of the SAO government" --

21 JUDGE MERON: That's in paragraph 61?

22 MS. BRADY: Yes. It's in the middle.

23 JUDGE MERON: Yeah.

24 MS. BRADY: And then it says, and this is the relevant part for

25 us:

Page 233

1 "Finally Sljivancanin met with Mrksic and Panic."

2 That's the reference I'm talking about when I say Panic knows

3 that he's named as part of that conversation.

4 JUDGE MERON: There is no direct mention here of the withdrawal

5 order in that context in that sentence.

6 MS. BRADY: No, Your Honours, but if you put paragraphs 61 and 62

7 here, what you've said is that Sljivancanin went to see Panic -- went and

8 had a conversation with Mrksic and Panic, and the next -- very next

9 paragraph you've said that in the course of that meeting Mrksic must have

10 told Sljivancanin of the order. So I think the logical implication, at

11 least to an outside reader, is that Panic was there and that's something

12 that Panic himself could well recognise if somebody picked up that

13 judgement and read it about themselves they would say, "Well, you know,

14 I'm also part of that discussion about an illegal order."

15 I'll move now to my third reason as to why you shouldn't believe

16 Panic, and that is that his evidence is implausible in light of JNA

17 military doctrine. Now, this Chamber has not had the same opportunity as

18 the Trial Chamber did to observe Panic testifying for four days, but even

19 from the comparatively brief evidence that he gave in June of this year,

20 in the pre-review hearing, it's clear that he's not telling the truth.

21 Now, we have to remember a few things. First, on the 20th of November

22 Panic was the Chief of Staff and he'd already played a significant role

23 regarding the prisoners that day, being the conveyor of Mrksic's order to

24 the government meeting, and he knew about the precariousness of their

25 situation. The next day, the 21st of November, he took over from Mrksic

Page 234

1 as acting commander. His testimony that he wasn't aware of the

2 withdrawal order during this whole period, from the evening of the 20th

3 of November and then throughout the remaining four days that he and the

4 Guards stayed in Vukovar, simply defies military doctrine. Because to

5 believe Panic would mean that three core principles of military

6 doctrine - and I'm talking about singleness of authority and unity of

7 command and situational awareness, the duty to be situationally

8 aware - that these core principles had completely broken down in this

9 highly disciplined and elite unit of the JNA.

10 Now, firstly Panic's evidence when he says he didn't know of the

11 withdrawal order that evening, this defies military doctrine. And we say

12 this, first, because he was the Chief of Staff and we've heard today and

13 in the report that under the JNA armed forces military doctrine, that

14 person, the Chief of Staff, plays a central role in the commander's work.

15 He's the principal advisor to the commander, he's the deputy, he's got to

16 be there waiting -- able, I should say, to take over if something bad

17 happens to the commander. He works closely with him to formulate orders

18 and decisions and implement them. It's almost -- these are my words, not

19 the expert's, but it's almost a symbiotic working relationship. And

20 Panic wasn't in disagreement about this. Panic agreed that the Chief of

21 Staff plays a big role, a very important role, a very close role with the

22 commander.

23 But apart from being just the Chief of Staff, if I can say that,

24 we have to consider his role that day and his awareness of the prisoners'

25 situation. Because here we have not just a Chief of Staff but one who

Page 235

1 was highly engaged in his commander's activities on the 20th of November

2 concerning the prisoners. Now, don't forget, Mrksic had sent Panic to be

3 his representative to the government meeting. So he trusted Panic to go

4 and convey his agreement with the government's decision to take over the

5 prisoners. They spoke before Panic went to the meeting, they spoke after

6 he got out of the meeting, Panic all the while keeping Mrksic updated

7 about basically what was going on with the prisoners and the government's

8 decision. And then he goes off to Ovcara so he can go and make a report

9 to Mrksic. They're actively involved together about the prisoners at

10 this stage. And he went and told Mrksic what he'd seen, although he gave

11 a rather sanitised account about that.

12 The third fact that we have to bear in mind is that he was taking

13 over as acting commander the next day, and also considering the

14 importance of the decision to withdraw the security from Ovcara. And in

15 light of the time we will detail this more in our submissions, but

16 essentially it's simply not believable that Mrksic kept his Chief of

17 Staff out of the loop on this order.

18 Now, even more inconceivable, Your Honours, is his claim that he

19 did not learn of the withdrawal order or anything about its terrible

20 consequences until he returned to Belgrade several days later, four days

21 later. So the implication is that he thought that the prisoners of war

22 were at Ovcara being guarded by the 80th Brigade, if you accept his

23 version. Yet, despite taking over as acting commander on the 21st and

24 22nd of November, he failed to take any steps whatsoever to even acquaint

25 himself with their situation or take steps to follow up. And this has to

Page 236

1 be seen -- questioned in light of his previous concern for the prisoners

2 the day before. And in our submission, the only reason for this

3 incoherence is that he knew the true state of affairs and was determined

4 to isolate himself as much as possible from it.

5 Now, I've mentioned from the 21st of November until Mrksic

6 returned on the 22nd of November, Panic was acting commander of the OG

7 South. And we heard today from Mr. Theunens that that position carries

8 with it the duty to keep aware of the situation in the units over which

9 he's commanding. He was obliged to seek out information about his units

10 and what they were doing. He was obliged to seek out information about

11 the prisoners under guard by the OG South units. And as Mr. Theunens

12 explained, this isn't like a passive duty where you sort of wait around

13 and hope the information sort of comes your way, it's not a passive duty;

14 it's a very active duty. He has to ensure a constant monitoring of data,

15 monitoring of the situation, so he can issue prompt decisions and orders

16 and so thereby make prompt and timely reports to his superiors.

17 So upon assuming command of OG South on the 21st, military

18 doctrine dictates that Panic should have kept himself apprised of the

19 situation. If he didn't get reports from the 80th, he was duty-bound to

20 go and get them, either personally or he could send somebody, especially

21 given his concerns the previous day. In our submission, the fact he did

22 nothing at all speaks volumes. And the reason why is that he knew the

23 true state of affairs and he was distancing himself from it.

24 Now, I want to turn to three I guess key reasons, the three main

25 reasons why -- which Panic gives as to why he did nothing to follow-up on

Page 237

1 the prisoners, nothing, not a word about these prisoners that he's so

2 concerned with before. Each one of his explanations is -- so defies key

3 tenets of military doctrine that these lies should cause you to have

4 serious doubts about his credibility.

5 First, he suggested, and Judge Meron asked me -- Judge Meron

6 asked me to point to the transcript where Panic had said this. He

7 suggested -- well, he actually said it, that the 80th Motorised Brigade

8 had sole responsibility for the Ovcara area and had ceased to be the

9 subordinate to the OG South by the 21st of November. This is completely

10 false and it runs directly counter to the principle of single authority

11 and unity of command. What he's trying to imply is that from the

12 20th/21st of November, the 80th already had sole responsibility for

13 Ovcara, even though the Trial Chamber itself already found that the OG

14 South was -- retained responsibility for all subordinate units within its

15 zone including the 80th until the 23rd of November. These are the

16 Trial Chamber's findings at 82 and 253.

17 Now, it's true, the 80th Brigade was going to take over when the

18 Guards departed, but until that - and we heard this today from

19 Mr. Theunens and it's very much part of his report - according to that

20 principle of single authority and unity of command, only one unit can be

21 in charge at one time and that was OG South. So while the preparations

22 for the take-over by the 80th of the OG South zone was a gradual process

23 and taking place over several days, the actual transfer of authority took

24 place at a specific moment in time and that was after the 23rd of

25 November, 6.00 p.m., and before 24th of November when they left. And

Page 238

1 until that point the OG South commander retains responsibility, overall

2 responsibility, for the situation in that zone of responsibility. And we

3 can see this clearly from the orders that were issued by both Mrksic and

4 Panic to the 80th Motorised Brigade in the period 21 to 23 November.

5 These are Exhibits 422 and 424. If the 80th were not still being

6 subordinate, were not then subordinate to the OG South, why are they

7 being issued orders.

8 The second reason -- I'm sorry, I realised, Your Honours, that

9 I'm actually now at the 30 minutes. If I could ask for your indulgence,

10 I should be able to complete my submissions in about five more minutes,

11 seven minutes maximum.

12 The second reason Mr. Panic gave why he showed no concern, no

13 follow-up to the prisoners when he was acting commander is he says in

14 effect that he was command in a formal sense only. And by this I mean --

15 we refer to his testimony at the pre-review hearing, page 71, you will

16 recall he said this:

17 "Mrksic was still alive. He was right there. He had

18 communications equipment and was soon back from Belgrade."

19 And he also left open the possibility and it was explored today

20 in questioning of Mr. Theunens, not with much effect I would add, but

21 that he claimed he didn't communicate with the 80th command on the

22 morning of the 21st, but he suggested that Mrksic may have. He said

23 "perhaps by phone," and that's at page 71.

24 Well, we heard what Mr. Theunens said about that in answer to

25 Judge Pocar's question, that essentially if Mrksic had rung up and told

Page 239

1 an operations officer, the operations officer would have gone to

2 Mr. Panic who was then acting commander, otherwise there's complete chaos

3 and that's the whole idea of singleness of authority and unity of

4 command.

5 Basically, this is another example of Panic misleading this

6 Chamber. It defies core -- you know, this core principle of single

7 authority to suggest that he was not fully in command that day, but

8 somehow Mrksic was pulling the strings from outside and actively

9 commanding and receiving operational reports to Panic's exclusion. Well,

10 if that in itself contradicts Exhibit 368, which is the regular combat

11 report which he signed which he sent to his superiors in the 1 MD, signed

12 as acting commander on the 21st of November at 6.00 p.m., where he's

13 covering all the situational developments in the preceding 24 hours.

14 The last explanation Mr. Panic gave for why he wouldn't have

15 followed up with the prisoners is that basically he said he was too busy

16 attending to other tasks, all these other things that he had that day,

17 like the press conference, the return of the Guards to Belgrade, and

18 taking care of civilian convoys. This is an astonishing statement. It

19 runs completely counter to his duty as acting commander to remain aware

20 of what the units under his command are doing, not to mention prisoners

21 of war who were being guarded by them. And as Mr. Theunens has

22 explained, the number and nature of tasks that a commander has at any one

23 given time doesn't impact on the duties that he has under this SFRY or

24 armed forces doctrine, very basic points of military doctrine. He has to

25 keep aware of the situation of his units and the prisoners of war, not

Page 240

1 just so he knows what to do himself but he's also got this obligation

2 going up to his superiors. So he can't just say, "Oh, well, you know, I

3 was too busy." If need be, he's got to prioritise, he's got to delegate

4 his tasks. In our submission, if he was truly so preoccupied with other

5 tasks, this was a deliberate choice by him to remain purposely ignorant.

6 One final remark, Your Honours, before I conclude. When you come

7 to assess Panic's credibility, I ask you to look closely at Exhibit 368,

8 this report that he signed as acting commander and sent to his superiors

9 at 6.00 p.m. on the 21st of November. And don't forget what this is,

10 it's a report to his superiors about the preceding 24 hours in Vukovar.

11 So by necessity it should have mentioned the main activities in that

12 period by OG South units, which would, by necessity, include information

13 about 200 prisoners of war that they'd got and, you know, the fact that

14 the 80th Motorised Brigade was with them. Well, what does it record

15 about those topics when we have a look at that report? Nothing.

16 Absolutely nothing. It does mention the transfer of the civilians and it

17 does mention the transfer of the wounded and the sick in the previous 24

18 hours, but absolutely no mention at all of the transfer of 200 prisoners

19 of war to the government or even -- or to Ovcara. They have simply

20 vanished, vanished from the radar, not in his report.

21 The exclusion of any information whatsoever about the prisoners

22 from this 21st of November report was Panic's deliberate attempt to

23 isolate himself from the situation at Ovcara, just as he has done

24 whenever he testifies about these matters including in these review

25 proceedings.

Page 241

1 In conclusion, Your Honours, Panic cannot be believed about the

2 conversation. On this issue his self-interest and his bias is palpable.

3 His professed ignorance of the withdrawal order that evening and the

4 following four days, despite being Chief of Staff, despite being acting

5 commander, is implausible in light of military doctrine and the

6 operational context. That being so, his testimony, what he's told you

7 about the conversation between Mrksic and Sljivancanin, has no impact on

8 Sljivancanin's conviction.

9 And those conclude my submissions. I'm happy to answer any

10 questions.

11 JUDGE MERON: Thank you, Ms. Brady. I note that you use now in

12 concluding the word "implausible" which appeared throughout the report of

13 your expert. At one point today at least you upgraded that word a little

14 bit to "inconceivable." I did ask Mr. Theunens whether implausible means

15 impossible and you know that he was not prepared to make a commitment on

16 that. And things happen in the fog of war and we must be very careful

17 about very serious matters like that.

18 MS. BRADY: Yes.

19 JUDGE MERON: And you rightly pointed out that the question of

20 credibility of Colonel Panic is very central to this review. And I trust

21 that in your summary submissions you will identify -- try to identify any

22 discrepancies between Mr. -- Colonel Panic's testimony and prior

23 statements or anything else relevant to the question of his credibility

24 and of course Mr. Bourgon will have six days after that so he will have

25 ample time and space to answer this.

Page 242

1 Do I see any questions? I do not.

2 So we will now move -- I'm terribly sorry.

3 Judge Vaz.

4 JUDGE VAZ: [Interpretation] Thank you, Mr. President. I would

5 like to ask Ms. Brady the following. Is it really possible for someone

6 who is not prosecuted by the Prosecutor, someone like Mr. Panic -- just

7 the fact of coming to testify in favour of someone, here it's

8 Mr. Sljivancanin. Does this mean that he absolutely has to defend him in

9 order to protect himself? Is it automatic according to you or do you

10 think that someone can just -- can't someone just come to say the truth

11 must be told and I will testify to the truth without trying to protect

12 this person, especially since this person is not being prosecuted at the

13 time?

14 MS. BRADY: Yes. You're quite right, Your Honour. It is

15 possible someone could come and say, "Well, no, I want to have the truth

16 be told and this is what it is" without himself being guilty -- without

17 himself actually being guilt. But in our submission if you put all the

18 facts that we've outlined, and our submissions will make it clearer,

19 together you get a picture, and taking into account the Trial Chamber 's

20 findings about his credibility where they treated it with rather a large

21 grain of salt, we are submitting that you should also treat his evidence

22 with a large grain of salt that, yes, somebody could come along and just

23 tell the truth. You don't mean to say you're biassed for that person or

24 you're protecting yourself, but in light of all the facts, in light of

25 the military doctrine which was sort of out the window completely, thrown

Page 243

1 out the window, none of this was working that day, frankly when you add

2 up all these details it does not add up in our submission. And the real

3 reason why he came to give evidence is a combination of self-interest.

4 Yes, I know he wasn't actually prosecuted, but that doesn't mean that

5 he's not potentially in a difficult situation, in a tight situation,

6 himself in other countries or in other jurisdictions.

7 He doesn't have to be an accused himself to have self-interest.

8 In our submission, he's so close to these events and that in itself would

9 cause you to have a serious doubt when seen in light of everything else

10 that he's testified about. And the clear three lies, the foundational

11 lies that I've pointed out to -- I think in my submission establish that.

12 Yes.

13 JUDGE MERON: I believe that Judge Pocar has a follow-up

14 question.

15 JUDGE POCAR: [Microphone not activated]

16 I was just wondering whether it is your position -- we heard that

17 Panic spontaneously went, if I'm correct, to the Defence team after he

18 heard that Sljivancanin had been convicted. Is that correct? My

19 recollection is correct?

20 MS. BRADY: Yes.

21 JUDGE POCAR: Now, is that your point that he did so because the

22 judgement of the Trial Chamber as referred to by the Appeals Chamber

23 mentioned that -- or claim to the conclusion that Mrksic told or must

24 have told Sljivancanin during that conversation to which Panic was

25 present, was attending that conversation. So if Mrksic had told

Page 244

1 Sljivancanin on that occasion that the order had been given, Panic would

2 have heard of the order because he was present.

3 So he -- it's your point that for your position that he came up

4 with the -- to the Defence trying to protect himself against a possible

5 prosecution based on the fact that it was -- that he knew of the order

6 according to the conclusions of the Appeals Chamber?

7 MS. BRADY: Well --

8 JUDGE POCAR: Of course you mentioned yourself he would not be

9 subject to any prosecution before this Tribunal.

10 MS. BRADY: Right.

11 JUDGE POCAR: Because the prosecutions are closed here.

12 MS. BRADY: Right, right but they --

13 JUDGE POCAR: But he may be before a domestic court.

14 MS. BRADY: But Your Honours --

15 JUDGE POCAR: I was wondering if it was your point.

16 MS. BRADY: Well, firstly I think you need to say that it's not

17 just a question of is he going to be prosecuted, but also how it looks to

18 the outside world when this finding is left hanging, as it were, in the

19 appeals judgement. So when he finds out -- he told us that when he found

20 out that Sljivancanin was convicted he said, "Oh, you know, what's the

21 basis?" And we recall that he asked his daughter to help him with the

22 translation and he quickly looked at that. It's very difficult. I would

23 be in the land of speculation if I said, "Well, it's definitely for this

24 reason that he got up out of his house and charged over and contacted

25 Mr. Lukic." Of course we can't say that, but what we can say is that he

Page 245

1 has several very powerful incentives to come up with this story, to help

2 Sljivancanin, to continue to protect the Guards Brigade, to protect

3 himself. Any one or more the combination of those reasons could have led

4 him to finally decide: Yes, great, I'm going to go and contact

5 Mr. Lukic. But apart from that, I would be speculating, Your Honours.

6 JUDGE MERON: Well, thank you. I think that we will now move on

7 to Mr. Bourgon for 30 minutes.

8 MR. BOURGON: Mr. President, honourable Judges, as I begin this

9 oral submission which is so important for Mr. Sljivancanin, I will begin

10 simply by recalling why is it that we are here today. In other words, we

11 need to remind ourselves of the exceptional circumstances of this case.

12 What are the exceptional circumstances of this case? Well, you have an

13 officer who has been convicted for aiding and abetting by omission a

14 number of prisoners of war which is a very severe conviction. The

15 gravity can certainly not be undermined.

16 But how did this conviction come about? This conviction come

17 about of something that was not anticipated initially, whether at trial

18 or even on appeal. It wasn't even a ground of appeal. It did become a

19 ground of appeal or not a ground of appeal -- it did draw the interests

20 of the Appeals Chamber in extremis, on the basis of what the Appeals

21 Chamber found in paragraph 62 of its judgement. And what did the Appeals

22 Chamber find? They say the only possible conclusion or reasonable

23 conclusion is that Mrksic must have told Sljivancanin that he had

24 withdrawn the military police. And on this basis, this provided

25 Sljivancanin with the necessary mens rea for aiding and abetting by

Page 246

1 omission and he was convicted.

2 The issue here is that as soon as this conviction became public

3 knowledge someone who was present during that specific conversation, a

4 senior officer of the JNA, and this senior officer, a former very

5 high-level commander, he said, "I was there. I know that Mrksic did not

6 say that. And I must do something about it."

7 Now, Mr. Theunens today did not want to agree with me that any

8 senior officer would want to do that if he knows the truth. That's okay.

9 You saw -- you saw Mr. Theunens how he reacted to my question and how

10 defensive he was in trying to avoid answering the plain truth. Because

11 of course I look at it from the opposite point of view as opposed to the

12 Prosecution. They look at it from the point of view he came forward to

13 protect himself. I submit to you, Mr. President, that he came to you to

14 prevent an injustice. And that's the whole difference, complete

15 difference, between the two positions. And this is the crux of the

16 matter in this case.

17 Everyone knew that Panic was there during that conversation.

18 That was established by the Trial Chamber. The Appeals Chamber also

19 referred to the Trial Chamber's conclusion in saying that Panic was

20 there. But it was established in your decision, Mr. President, on 14

21 July that the fact that Panic heard this conversation and the fact that

22 during this conversation Mrksic did not say that he had withdrawn the

23 military police, that this was something new, that this was a new fact

24 that could reverse the judgement. From that point on, all of our

25 attention must be directed to one thing: Did Panic hear the conversation

Page 247

1 and did Mrksic say whether there was -- whether he had withdrawn the MPs.

2 The Prosecution's position, they have not one iota of evidence in

3 addition to what was already considered by the Trial Chamber and what was

4 reviewed by the Appeals Chamber to say that Mrksic did say that he had

5 withdrawn the military police during this conversation. So they say then

6 we have no evidence. Panic must be a liar. That's all they got.

7 I agree with you, Mr. President, it is a central issue, but

8 before we go and we think and we make the step of thinking that someone

9 can simply to avoid an absolutely hypothetical prosecution, hypothetical

10 problems, to come and put himself before this Tribunal -- and having been

11 there he testified here before, he worked before with all -- with the

12 Defence team of Mrksic, he worked before with the Defence team of

13 Sljivancanin, he gave a statement to the Prosecution, he testified here

14 for four days, he was examined, cross-examined by three different

15 parties, asked questions to the Judges. Even if someone did not have

16 anything to hide, they would say: I'm not going to go back there again.

17 But him, yes, he will go back there.

18 So the key question with respect to the credibility is exactly

19 this: Did he try to protect himself? Did he do this in order to shield

20 some possible responsibility? And my question -- my response to this

21 answer is a clear no.

22 Now, we look at the conversation itself and that's what we have

23 to focus on. The conversation itself, we say how could the Prosecution

24 say or show that what Panic says is not true? Well, there are many

25 things which the Prosecution could have done to find evidence. What is

Page 248

1 more, they did it. We all know that they investigated this case to the

2 limit. When the Prosecution filed its motion for extension of time, that

3 was I believe on 22 July, they said, "Well, we looked at Panic's

4 testimony and we have lots of witnesses that we identified that we want

5 to speak to. And we also have filed a request for assistance to this

6 government and a request for assistance to that government. It is

7 evident that they were going out of their way to find something in order

8 to show that this was not the truth. What'd they come up with? An

9 expert witness who says that because SFRY doctrine was not applied, Panic

10 is a liar. Of course it's a bit of a jump what I'm saying here, but it

11 remains the fact. All they can come up with is an expert witness who's

12 going to say SFRY doctrine was not applied, so these actions are not

13 plausible.

14 But the Trial Chamber looked at the doctrine, had the opportunity

15 of hearing expert witnesses on the doctrine, and they made some pretty

16 good findings on the doctrine, saying the doctrine was not being applied

17 consistently, the doctrine was not being adhered to. But not only in the

18 creation of Operational Group South but also in the chain of command. So

19 now we have to look again. I look at Mrksic because the expert says and

20 I guess the Prosecution would like us to believe that, that Mrksic --

21 it's not possible that Mrksic did not give the order without telling

22 Panic. Okay. Well, let's look at that. Of course the expert will never

23 want to say that there are such possibilities. But when a man commits a

24 crime - and that's what Mrksic did at that time, he was committing a

25 crime. So he's committing a crime and this expert who's never been to

Page 249

1 war, who's never been a Chief of Staff, who's never been into any

2 operational environment, is going to go on and say: Oh, yes, he had to

3 tell the Chief of Staff, of course. Mr. President, we can't bring any

4 weight to such statement. He didn't even want to put his money where his

5 mouth is, as we say, and say that it's impossible. He agrees that it was

6 possible.

7 Let's take a look, Mr. President, at what the Prosecution could

8 have done and most likely did in order to look for evidence. Because if

9 Panic lied about the conversation, there are many people who could have

10 been interviewed again to give us some idea that Panic knew of the order

11 in the evening of 20 November 1991 and there is also a number of people

12 who could have been interviewed to know that during the period from 21

13 November until 24 November, Panic somehow did get the information that a

14 crime had been committed. And if he did, that's why he obtained

15 information on the 23rd that may possibly bring his liability, so he's

16 going to lie about a conversation in the evening of 20 November. He will

17 take the risk to come here, to get into this environment, and to testify

18 that it was not mentioned in the evening of 20 November because he wants

19 to avoid the fact and hide the fact that he learned later on.

20 The Prosecution could have interviewed the persons in the command

21 of Operational Group South. They must have done it. No evidence. The

22 Prosecution could have interviewed witnesses who were with Panic during

23 those days. They must have done it. No evidence. Not one who can come

24 and say: I know that Panic was aware, not one. That's the key,

25 Mr. President. They could have interviewed witnesses who were present at

Page 250

1 any event attended by Panic to find someone who could say that he was

2 made aware. Now, this applies to witnesses who already testified and it

3 applies to new witnesses, and new witnesses would have been admitted at

4 this hearing to come and say that Panic was aware, that Panic really did

5 not do something knowing that this was the case. Nope, nothing, not one.

6 But I'm sure that the Office of the Prosecution did investigate.

7 Let's take one example, Mr. President. There was - and I'm

8 looking now to 21 November because the Prosecution focused most of its

9 cross-examination -- of its examination-in-chief today to the 21 of

10 November, that appears to be their -- main thrust of their theory, that

11 he learned later on and because of that he comes and lies about the 20th

12 because he learned on the 22nd.

13 On the 21st Panic was at a press briefing. There were at this

14 press briefing, according to the evidence we have, 120 or more people

15 from the media, both national and international. If there had been

16 rumours about what happened to the prisoners, one of these people from

17 the media would have picked that up. If it was so much known, it would

18 have been picked up somehow by somebody. No. The only people who talked

19 about this order are those who were involved. The evidence in this case

20 shows, if you look at the evidence, you have the colonel of 80th

21 Motorised Brigade, he was giving the order; you have Karanfilov, he

22 denied receiving the order; you have Vukosavljevic, he was given the

23 order to transmit; you have Vezmarovic, he was the guy who executed the

24 order; and you have P14, the guy who was right beside Ovcara, less than

25 200 metres away and who discusses the issue with Mrksic; you also have

Page 251

1 the Chief of Staff of 80th Motorised Brigade, Danilovic, he testified, he

2 was cross-examined. Those people became in possession of the order but

3 no one else. There's a reason for that. There's a reason why Mrksic did

4 not tell Panic. There's a reason why Vojnovic did not tell anybody. And

5 there's a reason why it did not get out of this close circle. And

6 there's no evidence that this information ever reached Miodrag Panic.

7 That's the key to this information.

8 Let us look at what the expert said today because we think that

9 this is nothing but relitigation. That's been our view. We put it on

10 paper and we say it again today.

11 The expert, I asked him a few questions about the evidence; he

12 wasn't even aware of it. Some key findings quite closely related to the

13 issue at hand, he did not look. Of course he looked at the paragraphs

14 that the Prosecution gave him. That's normal. He's a former OTP

15 Prosecutor -- or Prosecutor is not the right word but analyst working for

16 the Prosecution. If we think of bias in this case, Mr. President, it's

17 certainly not Panic who's biassed; it's this guy who comes and sits here

18 and plays the game with the Prosecution. At least if they could bring

19 forward a real general, someone who's been there. They must have found

20 one -- I mean, I know it's different, I have access to lots of those

21 before somebody says that, but they could have brought a real general,

22 they could have brought somebody with operational experience.

23 The way he answered the question to Judge Pocar -- I mean, I'm

24 not going to take the time to get -- to lead further evidence to show

25 that it's simply not correct, but I will argue to you that it is simply

Page 252

1 not correct. It is not true that the commander of the 80th Brigade

2 getting an order from Mrksic who is in Belgrade is going to say, well,

3 comrade Mrksic wait a minute, I need to check with Panic before I take

4 your order. This is simply not the way it works. Where does this guy

5 come from? I don't know. And when a question is put to him, what's more

6 important? Is it more important to look at the prisoners or to look at

7 other operational requirements? How could he ever know? He's never been

8 a Chief of Staff. The book will not be of any assistance in saying that.

9 He might have conducted interviews with generals. I too. Could I give

10 you a real solid opinion as to what is the choice to be made by someone

11 in such difficult circumstances? I could not. And I put it to you that

12 he cannot either and which shows that everything that he said must be

13 completely disregarded because that's not the issue. The issue in this

14 case is the evidence and nothing but the evidence.

15 But the fact that the Prosecution -- sorry, the Trial Chamber has

16 looked at all these events. When I look at the evidence I say: Okay,

17 let's see what we got to show that Panic was aware before the

18 conversation, before the conversation. I asked this -- the expert,

19 Mr. Theunens, I asked him -- of course you know that it was not mentioned

20 at the briefing. Now, is it the Prosecution's case that it was? Well,

21 then we have to relitigate and call all these witnesses again. We'll

22 have to call Gluscevic, Lesanovic, Trifunovic, who else? Because it's

23 clear from the evidence that this was never mentioned at the judgement --

24 sorry, at the daily briefing.

25 If it's not mentioned at the daily briefing, what possibility --

Page 253

1 what timing is left between the daily briefing and the conversation with

2 Sljivancanin? Very little time. What happens during that very little

3 time? Well, we know that during that time Mrksic has the conversation

4 with Vojnovic and with Vukosavljevic and that this conversation takes

5 place outside. Was Panic privy to that conversation in any way based on

6 the evidence? No. Did the Prosecution bring a witness to say that Panic

7 was close to that conversation? No. Why did the Prosecution not call

8 Vojnovic back here? He's the one who failed to report the order. He's

9 the one who did -- executed an illegal order. He's the one who told the

10 next day according to the evidence he told all his officers: Make sure

11 you tell everybody that this shall not happen again. He's the one who

12 told P14, and he was surprised when P14 told him the people -- there are

13 rumours -- that there are rumours that the prisoners were murdered. And

14 this guy, he should be here to testify and to tell the Appeals Chamber:

15 I know that Panic knows, but he's not here to do that. Why did they not

16 call him back? Why not call back Vukosavljevic and see maybe Panic heard

17 or he was at the end of the room. The reason is simple: They're not

18 coming because Panic was not aware of that conversation. Not only it's

19 not in the evidence, they can't find more evidence that it was.

20 So now we're in the middle of the conversation. We covered

21 before because Panic said that he did not see Karanfilov at the command

22 and the Prosecution did nothing about that. And then we say the daily

23 briefing, that's covered. The period between the daily briefing and the

24 conversation, that's covered. The conversation itself, we have no other

25 evidence. We are left with nothing, Mr. President. We're left with

Page 254

1 simply the Prosecution's theory that someone lied because he learned

2 later -- because he must have learned. The stakes are too high to jump

3 into that -- to make that jump, way too high. What matters is the

4 evidence, not whether doctrine was applied. Because -- especially about

5 the doctrine, it's important to recall that when this -- the expert -- he

6 says Mrksic should have told Panic. Panic says yes. He says Panic

7 should have reacted when he was told. Panic says: If I had been told I

8 would have reacted. So where is the line?

9 The Prosecution would like to give you three examples where

10 apparently Panic misled or misguided or lied before the Trial Chamber.

11 Well, there's two issues here: One, all those three issues that they

12 relate to have nothing to do with responsibility, but I don't have time

13 to do this right now. This will be later. But the key issue - and I

14 was -- I did not know that Mr. Theunens was present when Mr. Panic was

15 interviewed. Now we know, he was there. At trial in his statement and

16 at trial Panic said: I don't know who issued the order. I know Mrksic,

17 he's not the type to issue such an order, but it can only come from the

18 commander. Biassed you say? He got his commander convicted and he's

19 biassed? Biassed for Sljivancanin? Where's the evidence? Where's the

20 evidence that he biassed? There's no bias here. He convicted the

21 commander of the Operational Group South. Can you imagine how difficult

22 that must have been for Mr. Panic to do that. And he said no order. And

23 the Prosecution, they took this information, they liked what he said

24 because he said that it can only come from Mrksic, so they grabbed the

25 ball and they ran with the ball and they ran as quick as they can -- as

Page 255

1 they could and they got a conviction against Mrksic. You want to

2 challenge Panic? Hey listen, it's not possible that you did not know

3 that. Come on. Don't pull a fast one like us. We're going to look like

4 fools in the evidence if you say that. Don't do that to us. That's not

5 possible. I mean, Theunens was there, that was the time to say:

6 Mr. Panic, you're the Chief of Staff, it's not possible that you don't

7 know. Did he say that? Did the Prosecution do anything at that time?

8 No. But now, oh, now it's different. Now it's different because he's

9 saying the truth again but this time they don't like it because they

10 might have a conviction overturned. So suddenly Panic becomes not

11 credible and they will do everything to ensure that the world knows that

12 Panic is a bad officer. Well, I hope, Mr. President, that this will not

13 be the case in whatever judgement you render about the qualities of Panic

14 who came here to testify.

15 I have four minutes left. I will do one more -- one last thing I

16 wish to say and that's the following, which is of course -- again I come

17 back to the conversation because we really believe that this is the crux

18 of the matter, not after, not before, it's the conversation. We already

19 said if Mrksic is committing a criminal act he's not likely to tell

20 Sljivancanin. I mean, this theme of being scared of security officers is

21 a recurring theme in many trials before this Tribunal. Now, the expert

22 would like you -- would like you to believe that because of Article 36 of

23 the Law on the Applicability of International Laws of War, because under

24 law I commit a crime and I'm going to turn myself in, I'm going to tell

25 Sljivancanin I committed a crime. And then, Mr. President, the same goes