1 Friday, 31 October 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.04 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, The
10 Prosecutor versus Ante Gotovina, et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Mr. Misetic, before I give you an opportunity to continue your
13 cross-examination, there's one relatively urgent procedural matter I
14 would like to raise briefly.
15 An application has been made for safe conduct for a future
16 witness. The Chamber would like to know, because this witness is
17 scheduled already on relatively short notice, whether any response will
18 be filed and when it is intended to file such a response, and the Chamber
19 will consider, of course, whether it leave sufficient time to issue the
20 safe conduct, if we decide to do so.
21 MR. MISETIC: I think there's extra microphones on.
22 I can tell you that our position right now is that we will
23 formally file no later than Monday. Our position is that we very much
24 would like to see that witness in the courtroom, and, therefore, we also
25 encourage the Trial Chamber to issue a safe conduct order.
1 MR. KAY: On behalf of General Cermak, we have no objection to
2 the application for safe conduct. May this response serve as our filing.
3 Thank you.
4 JUDGE ORIE: Yes.
5 MR. KUZMANOVIC: Your Honour, the same here.
6 JUDGE ORIE: Same. So, therefore, the Chamber staff can start
8 Having dealt with it, Ms. Botteri, I would like to remind you
9 that you are still bound by the solemn declaration you've given at the
10 beginning of your testimony, and Mr. Misetic will now continue his
12 Please proceed.
13 MR. MISETIC: Thank you, Mr. President.
14 WITNESS: LJILJANA BOTTERI [Resumed]
15 [Witness answered through interpreter]
16 Cross-examination by Mr. Misetic: [Continued]
17 Q. Good morning, Ms. Botteri.
18 A. Good morning.
19 Q. Let me start by going back to this issue about the commission
20 that you were questioned about extensively by the Prosecutor.
21 The commission also had, as its members, members of the military
22 police, and my question to you is: You are aware, are you not, that that
23 component of the commission, meaning the military police, in fact, did
24 have powers to investigate unknown perpetrators. Correct?
25 A. Yes.
1 Q. Now, we've talked yesterday a little bit about this order that
2 General Gotovina wrote pursuant to the order from General Cervenko; and
3 in your statement to the Defence, we also talked about this a little bit,
4 you had said that an order from General Gotovina to the military police
5 would not be relevant, and you were asked some questions about that
7 Let me show you first Exhibit P880.
8 MR. MISETIC: Mr. Registrar, please.
9 Q. What I'm showing you, as can you see on the screen, Ms. Botteri,
10 are the rules governing the structure and operation of the military
11 police of the armed forces of the Republic of Croatia
12 MR. MISETIC: And if we could, Mr. Registrar, turn to Article 66
13 of this. It's pages 27 to 28 of the English translation excerpt.
14 Q. Now, this -- these are the rules that govern the work of the
15 military police; and in Article 66, it says: "On the basis of the
16 information gathered, when there are grounds for suspicion that a crime
17 was committed, an authorised official of the military police shall draft
18 a criminal report providing a description of the crime and listing the
19 evidence obtained during the process of information-gathering."
20 MR. MISETIC: If we could go to Article 69, which is the next
21 page in the English.
22 Q. Article 69 says: "When a report is submitted to an authorised
23 official of the military police by military personnel or someone else,
24 he ... is required to accept the report and forward it without delay to
25 the State Prosecutor in charge, as well as gather the necessary
1 information and take other measures relating to the reported crime and
2 the perpetrator."
3 Now, you said in your Defence statement that an order from
4 General Gotovina would be -- would not be relevant. Is the reason for
5 that, Ms. Botteri, because the military police was already under a legal
6 obligation once it received information to file criminal reports? In
7 other words, they didn't need an additional order from anyone to file a
8 criminal report once they received information. Correct?
9 A. Yes. That's their obligation arising from the very rules
10 governing the work of military police.
11 Q. Now, when your commission completed its work and identified
12 members of the 4th Guards Brigade who had illegally entered some
13 apartments in Split
14 obligation of the military police to file criminal reports was automatic
15 by virtue of their obligations under the rules. Correct?
16 A. Correct.
17 Q. And any order from General Gotovina or anyone else was
18 superfluous, was it not?
19 A. Correct.
20 THE INTERPRETER: Would you be so kind as to speak closer or into
21 the microphone.
22 MR. MISETIC: Yes, I apologise.
23 One moment, please.
24 [Defence counsel confer]
25 MR. MISETIC: Mr. Registrar, if could I have a P1007, please, and
1 if we could go to Article 31, please, which is -- it's page 10 of the
3 Q. Ms. Botteri, we talked -- you talked a little bit with the
4 Prosecutor about various articles of the Code of Military Discipline. We
5 didn't talk about Article 31.
6 Article 31 states, as follows: "In situations where the
7 authorised officer finds that the offence against military discipline is
8 also a criminal offence, that [sic] case shall be sent via regular
9 channels to the authorised Prosecutor; if he thinks that it is in the
10 interest of the service, he shall also initiate disciplinary proceedings
12 Now, in practice, Ms. Botteri, what this meant was that an act
13 which had the elements of a crime was something that should -- would
14 first be referred to the military prosecutor. Correct?
15 A. Correct.
16 Q. Now, as I read this provision, the intent is that, generally,
17 military commanders are not to undertake disciplinary proceedings for
18 acts that are -- have elements of criminality, but are to refer it to the
19 prosecutor; however, there is an exception, which is if the authorised
20 officer makes the subjective determination that it is in the interests of
21 the service, he shall also initiate disciplinary proceedings.
22 Is that accurate?
23 A. That's correct, yes.
24 JUDGE ORIE: I take it that you were aware that you included some
25 four or five rather complex legal issues, and a simple "yes" by the
1 witness, of course, must be of comfort to you, but is, of course, not
2 really --
3 MR. MISETIC: I'm getting into it.
4 JUDGE ORIE: Yes, please proceed.
5 MR. MISETIC:
6 Q. Now, Ms. Botteri, let's break this down.
7 Would you agree with me, based on your experience working in the
8 Split Military District, that one of the policy issues underlying this
9 provision was that you did not want commanders to be opening up their own
10 investigations and, thus, potentially disrupting a criminal
12 A. Yes, that was the intention.
13 Q. Can you explain to us what might happen if a criminal
14 investigation was under way and a commander whose subordinates may be
15 involved in a criminal act then was authorised to start conducting his
16 own investigations? What was the danger there that could occur, if you
18 A. Can you please clarify the question?
19 Q. If you know, what -- what potentially could happen if a military
20 commander, generally speaking, was able to start launching parallel
21 investigations concerning discipline while a criminal investigation was
22 under way by the military police?
23 Let me put it more directly. Was there a potential that by
24 launching a parallel investigation you could disrupt evidence in the
25 criminal investigation?
1 A. Of course.
2 Q. Now, this provision in Article 31 that says: "If he thinks that
3 it is in the interest of the service, he shall also initiate disciplinary
5 You were the person in charge with interpreting the Code for
6 General Gotovina. Correct? You were his legal advisor. Correct?
7 A. Yes.
8 Q. Okay. How do you interpret that provision? Does that provision
9 obligate a commander to undertake disciplinary proceedings, or does that
10 provision allow him to subjectively to determine whether disciplinary
11 proceedings are needed?
12 A. The provision does not obligate a commander but, rather, empowers
13 him to assess for himself whether it would be in the interests of the
14 service to initiate a disciplinary procedure.
15 Q. Now, going back to the commission, General Cervenko, in his
16 initial order, says he wants, in addition to the criminal reports being
17 filed, he wants disciplinary measures to be taken. Is that something
18 that, under Article 31, General Cervenko was authorised to do in his
19 subjective determination?
20 A. Yes, of course. He would be authorised to do that.
21 Q. Let me ask you about Article 31 in practice and about forming
22 commissions generally.
23 If, under Article 31, the commander as a general rule is not
24 supposed to interfere in a criminal investigation by launching a
25 disciplinary investigation, obviously concerning acts that also have
1 elements of criminality, then if a commander were to launch an inquiry
2 concerning a disciplinary violation that was also a crime, at the end of
3 that inquiry, as a general rule, he would, nevertheless, have to then
4 abstain and refer the matter to the military prosecutor. Correct?
5 A. Yes.
6 Q. Now, let me show -- I'm going to show you, Ms. Botteri -- it's in
7 English, so I will read some portions of it. This is from an expert
8 report by an expert the Prosecution is using, named Reynaud Theunens. I
10 what role it had. This is page 89 of the Theunens report.
11 MR. MISETIC: And, Your Honour, I'll not be tendering this into
12 evidence; I'm just using it for demonstrative purposes.
13 Q. Now, Mr. Theunens in describing the authority of the military
14 police says, and you can read the yellow highlighting: "The members of
15 the military police can apply the following measures while performing
16 their tasks: Warning, identification, report, bringing in," and then it
17 goes on.
18 Then when you go to subpart 2, below, in defining what "report"
19 means, Mr. Theunens says: "Reporting concerns the submission by the
20 members of the military police of disciplinary reports against military
21 personnel who have violated military discipline and of a criminal report
22 against persons who have committed a crime that falls within the
23 jurisdiction of a military court."
24 Now, Ms. Botteri, what this means is that it was the military
25 police, in conducting a criminal investigation, when they arrived at a
1 perpetrator and identified him, not only did the military police file a
2 criminal report but it was the military police who would then file a
3 report with the authorised body, whether it be the commander or the
4 military disciplinary court, so that disciplinary proceedings could also
5 be taken, if necessary. Correct?
6 Let me shorten the question. The military police conducts
7 criminal investigations. At the end of that criminal investigation, the
8 military police was to not only file a criminal report but also had an
9 obligation to file a disciplinary report with the appropriate body so
10 that disciplinary measures could also be taken. Correct?
11 A. Yes.
12 Q. Now, if a commander believes that the military police is
13 investigating an act which can be or is classified as s crime, it was
14 understood, was it not, that the military police would also ensure that
15 disciplinary measures would be -- a disciplinary report would also be
16 filed after that investigation. Correct?
17 A. Yes.
18 Q. In other words, there should have been no need to open up
19 separate investigations for disciplinary violations that also have
20 elements of criminality. Correct?
21 A. No, no, no. In none of the cases was this -- has this occurred.
22 Q. Let me make sure we're -- we're talking about the same thing.
23 My point, Ms. Botteri, is that if the military police was
24 conducting a criminal investigation, the disciplinary investigation was
25 subsumed within that investigation. Correct?
1 A. Yes.
2 Q. So, as a general rule, there was no need for commanders to open
3 up their own investigations concerning acts that were also subject to
4 criminal investigation by the MPs. Correct?
5 A. No, that was not necessary at all.
6 JUDGE ORIE: Mr. Misetic, I noted the difference in phrasing of
7 your previous question, that earlier you asked whether there should have
8 about no need; whereas, now you're asking there was no need, which, of
9 course is not the same. I just want you to be aware that I noticed this
11 MR. MISETIC: I can ask it either way judge.
12 Q. There should have been no need to conduct a separate
13 investigation for matters that were --
14 JUDGE ORIE: The issue being that what should be and what was is
15 not the same, depending on factual circumstances. There should be no
16 need to create food aid programmes if every state would take its
17 responsibility to feed its own population, which does not mean that there
18 is no need to create such programmes, depending on what happens.
19 MR. MISETIC: That's exactly --
20 JUDGE ORIE: I'm emphasizing this because, as you may have
21 noticed also in the earlier stages of the examination of this witness, I
22 very much insisted on making it a clear distinction what should be there
23 or what was the system and what happened. I emphasise this, that the
24 Chamber is not only interested in knowing whether there should be no need
25 but whether there was no need.
1 You see the point, I take it?
2 MR. MISETIC: I do, but let me see if I can clarify it.
3 JUDGE ORIE: Yes. I just leave it to you. Of course, I could
4 remain silent and say nothing about it, but I think sometimes it is good
5 if counsel is aware of what comes to the mind of the Judges.
6 MR. MISETIC: Okay.
7 Q. Now, Ms. Botteri, you've heard the comments of the Presiding
8 Judge, so let me ask you this question.
9 The commission was formed concerning the apartments because
10 somebody came to General Gotovina, specifically General Cervenko, to say
11 that the usual procedure - in other words, what should happen - isn't
12 going to happen here, for whatever reasons that General Cervenko
13 determined, so you need to do the following. Correct?
14 A. Yes.
15 Q. Now, would you agree with me that if some sector of the Croatian
16 system was unable to do what it should be doing, and they needed General
17 Gotovina's intervention, that what would happen is somebody would bring
18 it to General Gotovina's attention, correct, just as happened with
19 General Cervenko. Correct?
20 A. Yes.
21 Q. Unless somebody brought it to General Gotovina's attention that
22 the different sectors of the Croatian system were not going to be doing
23 the tasks which they typically are supposed to be doing, General Gotovina
24 and you, in his command, would assume that the system is functioning as
25 it should. Correct?
1 A. Correct. That's true.
2 THE INTERPRETER: Could counsel please speak into one microphone
3 or the other but not both. Thank you.
4 JUDGE ORIE: I see how attractive it to be heard twice,
5 Mr. Misetic.
6 MR. MISETIC: I'm either not heard in one or too heard in two so.
7 JUDGE ORIE: Well, we'll overcome this problem.
8 MR. MISETIC: I'll cut his one in half, maybe that will help.
9 Q. Ms. Botteri, let me show you a different passage from
10 Mr. Theunens' report, and this is page 160 and we will also show it via
11 sanction concerning what military discipline refers to.
12 This is again page 160, where Mr. Theunens writes: "Military
13 discipline refers to the exact, full, and timely conduct of military
15 Now, you were the person in charge or in the legal department of
16 the Split Military District. Military discipline is primarily concerned
17 with ensuring exactly what Mr. Theunens says here: "The exact, full, and
18 timely conduct of military service." Correct?
19 A. Yes.
20 Q. It is not primarily concerned with ensuring that every
21 perpetrator of a crime meets justice. Correct? It is intended to
22 protect the army not to necessarily punish the individual. Correct?
23 A. Yes.
24 Q. It is the criminal justice system that is intended to mete out
25 punishment to the individual primarily. Correct?
1 A. Yes.
2 Q. I'll be getting back to that in a few minutes, but let me also
3 turn your attention to Article 26 -- sorry.
4 MR. MISETIC: First, let me call up 65 ter 929, Mr. Registrar.
5 Actually -- all right. That's fine. While I was there, I was
6 going use it, but that's okay.
7 Q. Ms. Botteri, you were asked some questions about subordination as
8 well. I just want to show you the order by the then-chief of the
9 Main Staff of the 3rd of July 1995, General Bobetko, in which the
10 7th Guards Brigade was, and I quote: "Operatively resubordinated to the
11 ZP Split."
12 MR. MISETIC: If we can go to the next page, please, and if we
13 can go to the top of the page.
14 Q. And they create -- it says: "I make the commander of the
15 7th Guards Brigade and the commander of the Split Military District
16 personally responsible for the implementation of this order, and they
17 shall report to me following implementation of the order through the
18 chain of command."
19 Do you have any -- are you familiar with the fact that
20 operatively the 7th Guards Brigade was resubordinated to the Split
21 Military District in July 1995?
22 A. Yes.
23 MR. MISETIC: Your Honour, may have I this exhibit marked, and I
24 tender it into evidence.
25 JUDGE ORIE: Ms. Gustafson.
1 MS. GUSTAFSON: No objection, Your Honour.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: Your Honours, this becomes Exhibit number D880.
4 JUDGE ORIE: D880 is admitted into evidence.
5 MR. MISETIC: Thank you, Mr. President.
6 Q. Now, in your Defence statement, you talked about how -- you said
7 at paragraph 14: "The Split Military District could not have conducted
8 disciplinary proceedings against members of the attached subordinated
9 units; that is, it could have conducted them in extraordinary cases, but
10 the system was not set up to suit such cases."
11 I would like to talk to you for a few minutes about that.
12 MR. MISETIC: Now, Mr. Registrar, if we could go back to P1007,
13 please, at Article 26.
14 Q. Ms. Botteri --
15 MR. MISETIC: First, I'm going to advise the Chamber that this is
16 an translation issue in Article 26. There are words missing in the
17 English translation that are in the Croatian original. So if I could ask
18 Ms. Botteri to just -- or I will read out the relevant passage that's
20 JUDGE ORIE: If you ask her to read slowly, and you know that
21 it's not the task of our interpreters to correct translations.
22 MR. MISETIC: Yes.
23 JUDGE ORIE: Nevertheless, to close our eyes for that is also a
24 bit stupid.
25 MR. MISETIC: Yes.
1 JUDGE ORIE: So, therefore, if you would please read the relevant
2 short passage.
3 MR. MISETIC: Okay. I will start just the -- the clause that
4 talks about -- it begins in the English, "If such measures are," which is
5 the third line.
6 JUDGE ORIE: Yes.
7 MR. MISETIC: Okay.
8 Q. [Interpretation] "If they are required and necessary for
9 maintaining order and discipline."
10 JUDGE ORIE: In view of the translation by our interpreters,
11 could you please have the translation verified on this issue at a later
13 MS. GUSTAFSON: Yes, Your Honour.
14 MR. MISETIC: Your Honour, if I may, the word was translated as
15 "necessary" and --
16 JUDGE ORIE: Yes, Mr. Misetic.
17 MR. MISETIC: I know --
18 JUDGE ORIE: You know what the system is. It can be read again,
19 a translation issued, but we are not whispering in the ears of our
20 interpreters what the correct interpretation should be.
21 MR. MISETIC: No, no, no, that's not what I'm saying. In order
22 for me to proceed with the examination, there's an element of --
23 JUDGE ORIE: If you use the original text --
24 MR. MISETIC: Okay.
25 JUDGE ORIE: -- and then put questions in relation to the
1 original text, then I take it the right answer will emerge, if that is --
2 MR. MISETIC: In Croatian, you mean?
3 JUDGE ORIE: Yes. If you are seeking interpretation of this
4 legal provision, then I think there's nothing wrong in quoting the
5 original, and then we'll hear and you will hear what the translation is.
6 And if there's any issue as usual, we do not have a debate on
7 translation, but then, of course, during the break if is not resolved in
8 such a way that we can deal with it, then during the break there will
9 certainly be a possibility to resolve the matter.
10 MR. MISETIC: Let me also for the record say that the
11 interpretation is not incorrect. It's just --
12 JUDGE ORIE: [Overlapping speakers] ... you know better --
13 MR. MISETIC: [Overlapping speakers] ... I have to clarify it
14 with the witness.
15 Q. Ms. Botteri, the phrase in Article 26, "potrebiti u nuzni," now
16 can you explain to us what you understand by the word "nuzni." What does
17 that mean in this context? If could you help us out, because it is not
18 in the English translation on our screen.
19 A. Where such conduct is involved that necessarily calls for
20 intervention in order to prevent any such conduct that would -- or,
21 rather, to prevent continued unlawful conduct on the part of the
22 perpetrator as an emergency measure or an urgent measure.
23 Q. Okay. That's exactly what I wanted to develop with you.
24 It is -- the word there means it is in an emergency situation or
25 in an urgent situation that requires immediate intervention. Correct?
1 A. Emergency intervention or urgent intervention, but we're
2 discussing only disciplinary measures here, not disciplinary sentences.
3 Once again, this goes to show that only more lenient disciplinary
4 measures were applied as emergency interventions.
5 MR. MISETIC: Now, if we could go back to exhibits P -- the first
6 exhibit is P1014, please.
7 JUDGE ORIE: Mr. Misetic, there has been a question on my mind
8 for quite a while. I'll phrase the question and then if you will deal
9 with it anyhow, then I'm not asking for an answer at this moment;
10 however, if not, I would like to invite the witness to answer that
12 Ms. Botteri, Article 26 deals with measures to be taken to
13 offenders who are not members of their organic unit. Now, just for my
14 understanding, I can imagine two situations. The one is that a commander
15 happens to see a soldier committing a disciplinary offence, a soldier
16 with whom he who is got nothing to do, apart from the fact that he sees
17 it happening.
18 You're going deal with it?
19 MR. MISETIC: That first part, yes. I don't know what your
20 second part is.
21 JUDGE ORIE: And the second, of course, is that even on a
22 temporary basis, there has been created a command relationship, an
23 operational command relationship. If that is it a matter that will you
24 deal with, then I'll not ask the witness at this moment to answer this
1 Please proceed.
2 MR. MISETIC: Thank you, Mr. President.
3 Q. Ms. Botteri, we're about to go into now answering Judge Orie's
5 MR. MISETIC: So if we could go to P1014, please.
6 Q. This is what you were shown on direct examination. It concerns
7 the disciplinary measure issued directly by General Gotovina to members
8 of the 2nd Infantry Battalion of the 9th Guards Brigade which was not
9 organically part of the Split Military District.
10 MR. MISETIC: Now, if we could turn the page, please, and again
11 if we could go -- sorry. If we could go back to the first page, please,
12 Mr. Registrar.
13 Q. While we are there at that first page, I wanted to follow-up with
14 you on something that you explained yesterday.
15 This is the Split Military District, sending to the chief of the
16 Main Staff, General Gotovina's personal disciplinary measure. Is that
17 because of the principle that we established yesterday?
18 In other words, the next highest ranking commander above General
19 Gotovina would have been the chief of the Main Staff; and, therefore, it
20 was up to the chief of the Main Staff to evaluate the disciplinary
21 measure issued by General Gotovina. Is that correct?
22 Did you understand my question, Ms. Botteri?
23 A. Yes.
24 Q. Okay.
25 A. I did understand your question and my answer is yes.
1 Q. Okay.
2 MR. MISETIC: If we could go to page 3, please.
3 Q. Now, this describes what happened. And if we go to paragraph 3,
4 it says that: "He admitted to having entered the area of disengagement
5 on 17 May 1995
6 might have jeopardized himself and others."
7 Then it goes on explaining the rational for issuing the
8 disciplinary measure.
9 Now, the fact that General Gotovina is the -- well, first, let me
10 take a step back.
11 This situation, if you can determine from the text, involved a
12 situation where these members of an attached subordinated unit entered,
13 in violation of orders, entered the zone of separation between the
14 warring sides. Correct?
15 A. Yes.
16 Q. And by doing that, they, through their conduct, could have caused
17 hostilities to begin. Correct?
18 A. Yes.
19 Q. And by virtue of that, they could have cost the lives of soldiers
20 as well as civilians who would have been subjected to a conflict that
21 would break out as a result of their entering the zone of separation.
23 A. Yes.
24 Q. Now, first, is that the type of situation under Article 26 that
25 is the emergency urgent measure that needs to be taken on the spot?
1 A. Yes. This is a typical example of an urgent intervention and an
2 emergency application of this Article 26.
3 Q. Now, General Gotovina, by virtue of the fact that he is the
4 commander issuing the discipline as a matter of first instance, does that
5 suggest to you that it was General Gotovina who personally observed this
6 disciplinary infraction?
7 A. Yes.
8 Q. And, now, to get to the Presiding Judge's question, this is one
9 of those exceptions to the rule that you yourself described in your
10 statement. You said, in extraordinary circumstances, it could happen
11 that a commander would issue a disciplinary measure against a
12 subordinated -- an attached subordinated unit.
13 Is this one of those extraordinary measures that were called for
14 under Article 26 of the Code of Military Discipline?
15 A. Yes.
16 Q. This was -- this measure was not undertaken simply because the
17 2nd Battalion of the 9th Guards Brigade was now a subordinated part of
18 the Split Military District and, therefore, was generally subject to
19 disciplinary measures issued by the Split Military District Command.
21 A. Yes.
22 JUDGE ORIE: Mr. Misetic, have you dealt with the document --
23 MR. MISETIC: Yes.
24 JUDGE ORIE: -- because I would have some questions.
25 Ms. Botteri, a few questions in relation to this.
1 First of all, could you tell us under what circumstances it was
2 established that this guard member committed this mistake? When was it
3 established; when it happened or afterwards, or what were the
5 Do you know?
6 THE WITNESS: [Interpretation] Your question is not clear to me,
7 under what circumstances.
8 JUDGE ORIE: What I mean is, was he caught in the act being seen
9 by his colleagues or was it reported three days after the event had
10 happened? That's what I mean by the circumstances, and how was it
11 established, what way was it established.
12 THE WITNESS: [Interpretation] I'm not aware of that.
13 JUDGE ORIE: Now another thing that we see is that in this order,
14 no reference is made to Article 26; whereas, I understand from your
15 answer that Article 26 of the rule book seems to be the basis for the
16 competence to issue this order.
17 Do you have any explanation of not mentioning apparently a vital
18 element --
19 THE WITNESS: [Interpretation] Yes, I understand your question,
20 but I would have to look at Articles 27 and 33, the ones that are
21 referred to.
22 JUDGE ORIE: I think that we discussed earlier that you called
23 this a typical example of the exercise of authority or competence under
24 Article 26; nevertheless, it's not mentioned here as the basis for this
1 Have you any explanation for the absence of any reference to
2 Article 26?
3 THE WITNESS: [Interpretation] It might be an error, but also I'm
4 unable to reply to the question with precision because I don't know what
5 Articles 22 and 33 of the rule book say, or Article 4 of the addition to
6 the rule book.
7 JUDGE ORIE: Now, my last question in relation to this document
8 is the following: The offence is described, the seriousness of it is
9 described, it is described that this should not remain without
11 The emergency to issue this disciplinary measure, I do not read
12 it, but do I miss anything?
13 THE WITNESS: [Interpretation] I don't see that you've missed
15 JUDGE ORIE: Thank you for that answer.
16 Please proceed, Mr. Misetic.
17 MR. MISETIC: Yes, Your Honour.
18 Q. Let's clarify some more of that, Ms. Botteri.
19 MR. MISETIC: Mr. Registrar, if I could have 1D58-0052, please.
20 Q. And, Ms. Botteri, this is a letter that you wrote to your
21 superiors in the legal affairs administration in Zagreb in the Ministry
22 of Defence on the 14th of August, 1995, so ten days after Operation Storm
23 began. It is, on its face, a response apparently to a request from the
24 legal affairs administration that you submit proposed changes to the Code
25 of Military Discipline.
1 And while we're on the first page --
2 MR. MISETIC: If we could scroll down to the bottom in English.
3 Q. And, Ms. Botteri, this is the fifth paragraph in the Croatian
5 First, if you could explain to us why one of your proposed
6 changes was that: "The text of the Code needs to be corrected in a
7 manner to exclude the use of terms such as a disciplinary offence and
8 mistake, but use only one single term, and along with specific
9 definitions of a disciplinary offence and a disciplinary violation to
10 establish at least the basic criteria for the differentiation of one
11 breach from the other, in order to unify the practice of the HV units."
12 Can you explain what motivated to you write that paragraph?
13 A. I have to repeat this, although I've stated it more than once,
14 breaches of discipline were divided into minor offences and major
15 offences. Any commander, in accordance with the provisions of the Code
16 of Military Discipline, starting from the position of platoon commander
17 upwards, could establish by himself the criteria used to determine what
18 was a minor and what was a major offence.
19 In other words, the Code of Military Discipline did not establish
20 any criteria that a commander could use to determine in a uniform manner
21 what sort of unlawful behaviour was in question. And working on this in
22 practice, I felt that, for the same criteria to be applied everywhere and
23 for the proper implementation of the Code of Military Discipline, with a
24 view to upgrading discipline, the Code itself should establish the
25 criteria, so that the practice, the implementation would be uniform
1 throughout the chain of command in the entire Military District.
2 This is what propertied me to ask for amendments to the Code of
3 Military Discipline, to this effect. I did this so that at the level of
4 the command of the Military District, there could be more control and
5 better supervision of the implementation of military discipline.
6 Q. Okay.
7 MR. MISETIC: If we could go to the next page in this document,
8 please, and this is now -- it's the first paragraph in the page in
9 Croatian, and it is the, I believe, third paragraph in the English
11 Q. Now, you also recommended and state: "We think that the simplest
12 way to deal with disciplinary violations is to implement the principle of
13 territoriality in the manner that all persons serving in the armed forces
14 are subject to disciplinary responsibility to the Military District
15 Commander, i.e., the military disciplinary court pertaining to the
16 Military District."
17 Now, can you explain to the Court what you were trying to convey
18 there by suggesting a change that would adopt the principle of
20 A. What we wanted to achieve was the following: The added tasks
21 that were not in the organic composition - we've often discussed this in
22 the course of my testimony - should also be within the competence of the
23 commander of the Split Military District, as regards military discipline.
24 So all the attached units would be under his command as regards military
25 discipline. That was our proposal for the very reason that, in practice,
1 we noticed deficiencies in this respect.
2 The application of the Code of Military Discipline in the way
3 that it established the competences and jurisdiction of the commander of
4 the Military District made it difficult or even prevented the
5 establishment of total discipline in such situations.
6 Q. Can you tell us what type of deficiencies you noticed, specific
7 examples of what the deficiencies were?
8 Let me ask a more specific question, Ms. Botteri.
9 We've talked about there principle of the next highest commander
10 reviews a disciplinary measure undertaken by his immediate subordinate.
11 In the concrete case, if the commander of the 7th Guards Brigade, General
12 Ivan Korade, disciplined a member of the 7th Guards Brigade during or
13 after Operation Storm, who was the next commander, the immediate to
14 General Korade, who would review that measure to make sure it was a
15 properly issued disciplinary measure?
16 A. That was the commander of the Military District that the
17 7th Guards Brigade belonged to.
18 Q. So is it fair to say that it never happened that a disciplinary
19 measure issued by the 7th Guards Brigade or any other attached unit to
20 the Split Military District had the disciplinary measures of the
21 commander of that attached unit sent to General Gotovina for review?
22 A. No, never.
23 Q. And is that one of the deficiencies in the system that you were
24 trying to correct but suggesting the adoption of the principle of
1 A. Yes, certainly. It follows from the text. The text itself is
2 very clear.
3 Q. Finally, on this document, Ms. Botteri, is it safe to say by
4 virtue on the fact that on the 14th of August, 1995, by suggesting that
5 the principle of territoriality should be adopted, is it safe to say that
6 it was your understanding as the legal officer in the command that the
7 Split Military District did not have disciplinary authority over attached
8 units? That's the first part of my question.
9 Is that correct?
10 A. Yes, yes. You're quite correct. You're completely correct.
11 Q. The second part of my question is: But the Split Military
12 District Command, on the 14th August, was seeking that authority over
13 attached units. Correct?
14 A. Yes.
15 MR. MISETIC: Your Honour, Mr. President, I ask that the exhibit
16 be marked, and I tender it into evidence.
17 JUDGE ORIE: Ms. Gustafson.
18 MS. GUSTAFSON: No objection, Your Honour.
19 JUDGE ORIE: Mr. Registrar.
20 THE REGISTRAR: Your Honours, this becomes Exhibit number D881.
21 JUDGE ORIE: D881 is admitted into evidence.
22 MR. MISETIC:
23 Q. Now, again, while we're on this topic, Ms. Botteri, you were
24 shown the statistics from the third quarter of the Split Military
25 District concerning disciplinary measures taken.
1 MR. MISETIC: And that is P1017, Mr. Registrar, and if we could
2 go to the next page.
3 Q. As you can see, this is the report that you sent.
4 MR. MISETIC: If we can go to the next page, Mr. Registrar, and
5 if we can go to page 4 in the English, please.
6 Q. By the way, to follow-up on my last series of questions,
7 Ms. Botteri, did you ever get the authority to have territorial
8 jurisdiction over attached subordinated units?
9 A. No. Our proposals were not adopted by the competent authorities.
10 Q. Okay.
11 JUDGE ORIE: Mr. Misetic, may I ask one or two additional
12 questions in relation to this.
13 Why did you want to change to another system?
14 THE WITNESS: [Interpretation] Observing the problems that came up
15 in practice. I was a person who, if there was a single incident in
16 practice, would always consider the best way of solving it.
17 JUDGE ORIE: What were the problems in practice? I mean, if in
18 the old system, to say so, or the existing system, everything went well,
19 what were the problems?
20 THE WITNESS: [Interpretation] I don't remember individual
21 instances, but questions arose coming from subordinate commanders in
22 their daily work and activities. Because these attached units were on
23 our territory, they had questions for me, asking me how to solve this
24 problem, and that's how I assessed the situation and evaluated that the
25 problem could be solved by the application of military discipline,
1 according to the territorial principle.
2 I have to add that, apart from these written traces, we had
3 consultations, workshops; and, as regards what I said about establishing
4 criteria that would lead to uniform practice, when deciding what was a
5 minor and what was a major offence, at each such consultation I requested
6 these changes to be me.
7 JUDGE ORIE: Yes. That seems to be a different subject, the
8 clarification of offences.
9 You said you got questions. Now, I'm just trying to imagine we
10 have a non-organic but temporarily operational part of the Split Military
12 Now, if someone commits a disciplinary offence, the commander
13 would take the measures and those measures would be reviewed, either for
14 their regularity or through an appeal by his commander, perhaps outside
15 the Split Military District. What's wrong with that? I mean, what was
16 wrong in the old system? What were these questions?
17 THE WITNESS: [Interpretation] Questions had to do with the
18 jurisdiction over troops who were present in the territory of the Split
19 Military District. The system was organised in such a way that whatever
20 instruments were prescribed by the Code of Military Discipline could not
21 be imposed against them.
22 JUDGE ORIE: So the system was not functioning. Is that how I
23 have to under it? Was it just impractical and was it cumbersome to send
24 matters for review to someone who was at totally different place; or was
25 the system not proper functioning, which means that either the issuance
1 of disciplinary measures or regularity reviews of such measures did not
2 take place in accordance with the rules? What was the problem,
3 non-functioning or practical problems?
4 THE WITNESS: [Interpretation] I would not agree with your
5 statement that the system did not function at all; rather, there were
6 difficulties in practice, especially so when one had attached units to
7 his own troops in an area.
8 The system was well-equipped to function only where no attached
9 units were present as an added asset in a given territory. Generally
10 speaking, the system was functional; however, every system can be
11 improved and perfected. And in our view, the system would have been
12 perfected had the principle of territorial jurisdiction been introduced.
13 JUDGE ORIE: Please proceed.
14 MR. MISETIC: Yes.
15 Q. Ms. Botteri, let's look at what's on the screen.
16 MR. MISETIC: If we can scroll to the left, please -- actually, I
17 don't know if it is cut off in the original.
18 MS. GUSTAFSON: I believe the same page is on the next page
19 without the margin cut off.
20 MR. MISETIC: If we can go to the next page, please.
21 Thank you, Ms. Gustafson.
22 Q. Now, we see the military police -- or the post codes for the
23 various units; and, yesterday, you told us that given the passage of time
24 you don't recall the various codes.
25 But let me ask you, as a general matter, none of these units are
1 the attached units resubordinated to the Split Military District. Would
2 that be correct?
3 A. Yes.
4 Q. So you, when you would send these reports, had no statistical
5 information whatsoever as to what disciplinary measures were being taken
6 by units that were operationally subordinated to the Split Military
7 District. Correct?
8 A. No.
9 Q. Those -- based on your answer to one of my previous questions,
10 those units, when they would send their statistics, they wouldn't send
11 them to you in the Split Military District. They would send their
12 statistics back to their home, so to speak, military districts. Correct?
13 A. Correct.
14 Q. Now, when we talk about what types of problems did the
15 non-territoriality create, would one of the problems be that the Split
16 Military District Command was not entitled to receive information about
17 disciplinary measures being undertaken by units that are operating on its
19 A. Correct, that's what I said. We were unable to control,
20 supervise, or evaluate the situation.
21 Q. Okay. You were asked some questions concerning the military
22 commencing proceedings before the military disciplinary court. You were
23 asked questions about who was the lowest level commander in the Split
24 Military District who could issue a decision to commence those
25 proceedings, and the answer was the Split Military District commander.
1 My question to you, however, is: How did a matter of -- how did
2 a case come to the attention of the military district commander for his
3 review as to whether it should be referred to the military disciplinary
4 court? What was the process by which the commander of the military
5 district is seized of such a case?
6 A. Yes. My answer was that the military district commander passed a
7 decision to bring charges against an individual before the military
8 disciplinary court. I wanted to describe the procedure preceding that
9 particular stage; however, I was only asked to give a straightforward
10 answer to the question put to me and which was taken out of the context
11 of the Code of Military Discipline.
12 On this particular issue, it is the company commander who would,
13 as far as I remember, under the Code of Discipline, send a report to the
14 battalion commander, who would, in turn, report -- or, rather, conduct an
15 inquiry on that particular issue and report on that to the brigade
17 I wouldn't like to make a mistake, and I'd like to have a look at
18 the Code of Military Discipline.
19 I believe that the brigade commander would then pass a decision
20 to launch an investigation, and only once the entire investigative
21 procedure was completed would the military district commander render a
22 decision to bring charges before the military disciplinary court and send
23 the decision to the military disciplinary prosecutor.
24 I don't have if I was specific enough but that was the procedure
25 in short, as it went from the company commander via the battalion
1 commander, and the brigade commander through to the military district
2 commander, who, ultimately, was only seized of rendering a decision to --
3 whereby charges were brought before the court.
4 Throughout the chain of command, it was down to each and every
5 one of the commanders to assess if the unlawful conduct involved amounts
6 to a minor or a major explain offence. As I've just said a moment ago,
7 no criteria existed for that.
8 If a procedure was initiated, based on the assessment made by,
9 for instance, a battalion commander to the effect that the conduct
10 involved was a minor disciplinary offence and if that procedure ended at
11 the level of the brigade, even if subsequently the military district
12 commander were to learn about that particular case, since it already been
13 completed by, at that time, in application of the res iudicata principle,
14 or, rather, that double jeopardy was not allowed, the military district
15 commander could not take any further measures. He was powerless in that.
16 As for us, we would only receive statistical data and were not in
17 a position to enforce full control and supervision over military
18 discipline, precisely due to these provisions contained in the Code of
19 Military Discipline.
20 Q. Let me ask you. You referred to the fact that the matter then,
21 once, after all of those steps, it even got to the military district
22 commander, he would then refer it to the military district prosecutor.
23 The military disciplinary prosecutor, then, made his own evaluation as to
24 whether to proceed with charges before the military disciplinary court.
1 A. Yes. If he gave it a green light, then he filed the list of
2 charges or an indictment before the military disciplinary court.
3 MR. MISETIC: Your Honour, I am about to go into a different
4 topic, so I don't know --
5 JUDGE ORIE: Well, perhaps we better first have a break.
6 As far as timing is concerned, any changes in respect of the
7 assessment of yesterday?
8 MR. KAY: Your Honour, there is a change on my part. I have no
9 questions now.
10 JUDGE ORIE: Mr. Misetic.
11 MR. MISETIC: I will take at least the second session.
12 JUDGE ORIE: Second session.
13 MR. KUZMANOVIC: No questions, Your Honour.
14 JUDGE ORIE: Ms. Gustafson, may I take it that the third session
15 would be enough for you and perhaps for the Bench.
16 MR. MISETIC: I may need a little bit time in the third session,
17 but I anticipate finishing in the second.
18 JUDGE ORIE: We will have a break, and we resume at five minutes
19 to 11.00.
20 --- Recess taken at 10.29 a.m.
21 --- On resuming at 10.58 a.m.
22 JUDGE ORIE: Mr. Misetic, please proceed.
23 MR. MISETIC: Thank you, Mr. President.
24 Q. Ms. Botteri, at paragraph 10 of your Defence statement, you talk
25 about the fact that, and I quote: "Problems with reserve soldiers were,
1 in practice, solved by means of individual demobilization. It was my
2 subjective view that the commanders would rather get rid of their
3 problematic reservists by simply substituting them for another soldier in
4 cooperation with the defence office."
5 Then you go on to say: "For many, this presented a graver
6 punishment than the one prescribed by the Code."
7 Now, first, I'd like to turn your attention to Article 11 of the
8 Code of Disciplinary Conduct.
9 MR. MISETIC: And, again, Mr. Registrar, that is P1007, please.
10 It would be page 4 in the English, which is where Article 11 begins.
11 Q. Now, in your direct examination, you were asked about a few of
12 these types of measure, sentences, that should shall be meted out to
13 servicemen found to be responsible for major violations.
14 MR. MISETIC: And if we turn the page in English.
15 Q. Now, the fifth -- the fifth different type of sentence was
16 termination -- termination of status as active servicemen.
17 Now, I understand that there's a difference between an active
18 servicemen and a reservist, but in terms of the nature of the
19 disciplinary measure taken against a reservist, do you think that
20 demobilization, because of misconduct, is something that is consist with
21 the spirit of Article 11, in terms of what disciplinary sanctions are
22 appropriate in order to ensure discipline in units?
23 A. Yes.
24 Q. Now, in that same paragraph, 10, of your Defence statement, you
25 said: "Demobilization presented a graver punishment than the one
1 prescribed by the code."
2 Then you said: "In other words, by loosing the status of a
3 mobilized person, the person also lost income ensured to them as a member
4 of the HV."
5 Can you explain, particularly in the circumstances of August
6 1995, what you meant by a mobilized person losing income as a member of
7 the HV and how that impacted those reservists?
8 A. In view of the general social welfare circumstances at the time,
9 to demobilize a reservist meant grave consequences for that person,
10 because at that time a when there was widespread unemployment and
11 financial difficulties, that person would be left without the income that
12 his mobilized status in the Croatian army ensured him. That meant
13 drastic -- that was perceived as a drastic punishment for that person far
14 graver than any other sentence that could have been meted out to that
15 person under the Code of Military Discipline.
16 Q. Let's talk about the demobilization process.
17 MR. MISETIC: And, Mr. Registrar, if I could have 65 ter 2591,
19 Q. Now, I'm going to show you a few documents before I ask you some
20 questions, Ms. Botteri. This is a decision by the minister of defence on
21 the 9th of August.
22 In point 1, as of 9 August, he says: "Start immediately with
23 demobilization of at least 70.000 conscripts in the units, institutions,
24 and commands of the armed forces of the Republic of Croatia
25 command of the Main Staff of the Croatian army."
1 Point 2 is: "The demobilization of conscript, materiel, and
2 technical equipment from the records and installations shall be carried
3 out until 30 August 1995
4 MR. MISETIC: Mr. Registrar -- or, Mr. President, I ask that the
5 exhibit be marked, and I tender it into evidence.
6 JUDGE ORIE: Ms. Gustafson.
7 MS. GUSTAFSON: No objection, Your Honour.
8 JUDGE ORIE: Mr. Registrar.
9 THE REGISTRAR: Exhibit D882, Your Honours.
10 JUDGE ORIE: D882 is admitted into evidence.
11 MR. MISETIC: Now, Mr. Registrar, if we could go to 1D58-0048,
13 This is now General Cervenko's order to the various military
14 districts, dated 14 August 1995
15 instruction from the minister of defence, point 1 says: "Military
16 district commanders shall enable the demobilization of all military
17 conscripts with refugee status who wish to be demobilized."
18 Then it describes how demobilization is to be carried out.
19 MR. MISETIC: Mr. President, I ask that this exhibit be marked,
20 and I tender it into evidence.
21 MS. GUSTAFSON: No objection.
22 JUDGE ORIE: Mr. Registrar Mr. Registrar.
23 THE REGISTRAR: As Exhibit number D883, Your Honours.
24 JUDGE ORIE: D883 is admitted into evidence.
25 MR. MISETIC: Mr. Registrar, if I could now have 1D58-0062,
2 And just for the record, Your Honour, there is no date on this
3 document, but I will follow up with the next document which I think will
4 establish the general date of the document, because there is an
5 subordinate who, on the basis of this order, issues a subordinate order.
6 Q. This an order now from the commander of Operative Group West,
7 which I will later demonstrate was issued on or around 19 August 1995,
8 and it says: "Based on an oral order by the Deputy Commander of the
9 Split Military District, staff Brigadier Ademi with the purpose of
10 improving the control and re-enforcing discipline in the Split MD
12 Point 1is: "All commanders of the units in the zone of
13 responsibility of Operative Group West can according to their own
14 judgement dismiss part of the soldiers from their own units. Principally
15 dismiss individuals or groups who are behaving in a manner that causes
16 disturbance of discipline and order."
17 MR. MISETIC: Mr. President, I ask that this exhibit be marked,
18 and I tender it into evidence.
19 MS. GUSTAFSON: No objection.
20 JUDGE ORIE: Mr. Registrar.
21 THE REGISTRAR: As Exhibit number D884, Your Honours.
22 JUDGE ORIE: D884 is admitted into evidence.
23 MR. MISETIC: Mr. Registrar, if I could have 1D58-0050, please.
24 Q. This is now the order passed on by Mr. Fuzel's [phoen]
25 subordinate. It says: "Based on the memo of the commander of Operative
1 Group West..."
2 MR. MISETIC: And the class numbers match the order I just
3 tendered into evidence, Mr. President.
4 Q. "... notification," it says, "to dismiss -- may dismiss
5 conscripts from the unit to the order; 2, primarily dismiss the
6 individuals in groups who with their behaviour disturb the order and
7 discipline within the unit and, as such, significantly impair the
8 implementation of combat tasks. It is necessary that the commanders of
9 the units, according to their personal assessment, propose to the Manning
10 and staff division the names of conscripts who need to be demobilized."
11 MR. MISETIC: Your Honour, I ask that this exhibit be marked, and
12 I tender it into evidence.
13 MS. GUSTAFSON: No objection.
14 JUDGE ORIE: Mr. Registrar.
15 THE REGISTRAR: As Exhibit number D885, Your Honours.
16 JUDGE ORIE: D885 is admitted into evidence.
17 MR. MISETIC: Mr. Registrar, if I could have 65 ter 880, please.
18 Q. This is also the 19th of August, again within Operative Group
19 West. This is now an order in the 142nd Home Guard Regiment, again
20 referring to the order of the commander of the Operative Group West.
21 Once again, it says: "To demobilize, in the first place ..." -- sorry.
22 "In the first, to discharge individuals or groups that breach
23 discipline an order."
24 Now, Ms. Botteri, you said in your statement that it was your
25 subjective view that commanders were demobilizing soldiers because of
1 disciplinary problems; however, were you aware at the time that there, in
2 fact, were orders to use demobilization as a means of preserving
3 discipline in the units?
4 A. That's correct. I did say that this was my subjective view;
5 however, my area of work was not closely related to mobilization and
6 demobilization, which is why I said that I was aware of that because I
7 had general knowledge the work going on at the headquarters, at the
8 command. I formed my own opinion of it. This, however, does not mean
9 that I was aware of these orders. It is just that they did not fall
10 within my purview.
11 Q. Okay. But the -- my next question to you is: If, in fact, the
12 disciplinary measure that was being imposed was demobilization as
13 reflected in these orders, would individual demobilization of problematic
14 soldiers be reflected in any of the statistics you prepared in your
15 reports about the nature of the disciplinary or the number of the
16 disciplinary measures ... [Overlapping speakers] ...taken?
17 A. No.
18 Q. Can you explain why they wouldn't be in your statistics?
19 A. Demobilization was, in fact, a sanction for the perpetrator
20 involved; however, formally and legally speaking, in the context of the
21 implementation of the Code of Military Discipline, it was not a
22 disciplinary sanction. I kept records only those formally imposed
23 disciplinary sanctions as provided for in the Code of Military
25 MR. MISETIC: Mr. President, I ask that the exhibit on the screen
1 be marked, and I tender it into evidence.
2 MS. GUSTAFSON: No objection.
3 JUDGE ORIE: Mr. Registrar.
4 THE REGISTRAR: As Exhibit number D886, Your Honours.
5 JUDGE ORIE: D886 is admitted into evidence.
6 MR. MISETIC: Mr. Registrar, if I could have, while we're still
7 on this topic, 1D58-0045, please.
8 Q. This is it an order from the commander of the 6th Home Guard
9 Brigade, and it says -- it's 16 August 1995: "Due to unbecoming conduct
10 I hereby order, 1, the demobilization, collection of weapons, and removal
11 from the units payroll for the following member of the command centre,
12 Mario Rejanovic, date of demobilization."
13 Then the order is signed by the commander.
14 Is this the type of measure if demobilization that were referring
15 to in your statement about the type of specific measure that would be
16 taken against reserve soldiers.
17 A. Yes.
18 MR. MISETIC: Your Honour, I ask that it be marked, and I tender
19 it into evidence.
20 MS. GUSTAFSON: No objection.
21 JUDGE ORIE: Mr. Registrar.
22 THE REGISTRAR: Exhibit D887, Your Honours.
23 JUDGE ORIE: D887 is admitted into evidence.
24 MR. MISETIC:
25 Q. Ms. Botteri, I'm going to go through four documents quickly here,
1 and then maybe ask you a couple of questions after them, but in terms of
2 what other measures were being taken in addition to this demobilization
4 MR. MISETIC: Mr. Registrar, if I could have 1D58-0001, please.
5 Q. This is an order for General Gotovina on the 18th of August, an
6 order on taking security measures for units returning from the
7 battlefield. In the preamble, it says that the order is because of an
8 order from the General of the Main Staff -- the chief of the Main Staff,
9 about reports of certain units on the way back from the battlefield
10 opening infantry fire in inhabited settlements and, thus, endangering the
11 lives and the security of the civilian population and causing disturbance
12 of public order and peace and military discipline.
13 Then there is an order, point 1: "Strictly forbid the return of
14 the units from the battlefield to their home garrisons and peacetime
15 locations prior to an organised collection of storage and all infantry
16 armament, ammunition, and mine explosive devices from the military
18 MR. MISETIC: Your Honour, I ask that this exhibit be marked, and
19 I tender it into evidence.
20 MS. GUSTAFSON: No objection.
21 JUDGE ORIE: Mr. Registrar.
22 THE REGISTRAR: Your Honours, this becomes Exhibit number D888.
23 JUDGE ORIE: D888 is admitted into evidence.
24 MR. MISETIC: The next document, Mr. Registrar, is 65 ter 2097,
1 THE INTERPRETER: Thank you for reading slowly.
2 Q. This is an order from the commander of the 112th Brigade on
3 20th of August, again concerning breach of order and discipline and
4 because of the international reputation of the Republic of Croatia
5 It says: "I hereby order," again this is on the basis of an
6 order the operative group commander, "to establish control in all the
7 unit and immediately take measures against setting fire to facilities and
8 killing animals. Disciplinary and criminal measures are to be taken
9 against any irresponsible individuals."
10 MR. MISETIC: Your Honour, I ask that this exhibit be marked, and
11 I tender it into evidence.
12 MS. GUSTAFSON: No objection.
13 JUDGE ORIE: Mr. Registrar.
14 THE REGISTRAR: Your Honours, this becomes Exhibit number D889.
15 JUDGE ORIE: D889 is admitted into evidence.
16 MR. MISETIC: Mr. Registrar, if I could have Exhibit D652,
18 Q. This is again an order being passed by the commander of the
19 113th, passing along the same orders, as you can see, again on the 20th
20 of August, again calling for disciplinary measures and the institution of
21 criminal proceedings against responsible individuals.
22 MR. MISETIC: If we could go, Mr. Registrar, now to Exhibit D653,
24 Q. This is the commander -- the order of the commander of Operative
25 Group West, 20 August 1995
1 the unidentified lack of order and discipline and in view of the
2 international reputation of the Republic of Croatia
3 establish control in all units, to take measures against the burning of
4 structures and killing of animals, to take disciplinary and criminal
5 publishes against irresponsible individuals.
6 Then this order says: "The commanders of battalions and
7 independent units must pay particular attention to burning and killing of
8 animals with their subordinated commanders down to the command level of
9 squad, because we will find ourselves in a situation where the army will
10 not have anywhere to camp."
11 Now, Ms. Botteri, were you aware at that time that orders were
12 being passed in this period of 18 to 21, 22 August, up and down the chain
13 of command, concerning establishment of discipline within the units?
14 Were you aware of these types of orders?
15 A. Yes.
16 Q. And it was up to then the commanders of the individual
17 subordinated units to undertake the disciplinary measures necessary to
18 establish order and discipline in the units. Correct?
19 A. Certainly.
20 Q. Now, we've established that one of the measures that was taken
21 was the demobilization of these type of problematic soldiers, but let's
22 talk about something that was highlighted in the direct examination by
23 the Prosecution regarding the high number of disciplinary measures taken
24 for soldiers who were absent without leave.
25 Do you recall that discussion while you were being questioned by
1 the Prosecutor?
2 A. Yes.
3 Q. Now, I'm going to read a portion of some trial testimony and then
4 show you some documents and ask you some questions.
5 But on the 9th of April, 2008, and on the 11th of April, 2008
6 we -- this Trial Chamber heard testimony from a witness named Edward
7 Flynn, who was a representative of the human rights action teams that
8 were operating in Sector South. He discussed at transcript pages 1.097,
9 and I'll read to you his testimony.
10 He says on questioning by the Prosecution: "Do you note the
11 paragraph which refers to the burning of houses and seeing two soldiers
12 belonging to the 4th Guards Brigade lounging next to the burning houses?"
13 He answered: "Yes. I wrote that, here, the 4th Split Brigade --
14 yeah, I remember that. I was present. I saw that."
15 "How did you identify the unit the soldiers belonged to?
16 "You know, at that time, I may have become familiar with the
17 different markings of soldiers from different units, but I may also have
18 relied on one of my colleagues to help me with that information."
19 Then, in trial transcript page 1.321 to 1.322, on my questioning,
20 Mr. Flynn testified that he did not see any armoured vehicles in the
21 vicinity of that village, that these soldiers of the 4th Guards Brigade
22 could have been in -- using civilian transportation, and that he did not
23 see sounds of gun-fire or other visible or audible evidence that there
24 was a military operation taking place.
25 Now, before I ask you questions about that incident, let me show
1 you an order by General Gotovina.
2 MR. MISETIC: This is Exhibit D204, Mr. Registrar.
3 Q. This is an order issued by General Gotovina on the 10th of
4 August, and in it he writes: "Based on the information from the areas
5 liberated by the HV, the analysis thereof, and in order to prevent theft
6 of property, undisciplined conduct, and to save human life, I hereby
7 order ..."
8 Point 1 is: "I prohibit arbitrary movement of the HV members in
9 the liberated areas without the knowledge of their superior commanders."
10 MR. MISETIC: Now, if we could go to D205, please.
11 Q. This is the commander of the 113th Brigade, after having received
12 General Gotovina's order, issuing that order to his subordinates.
13 In it, the first point, again, is: "I forbid movement of members
14 of the 113th HV Infantry Battalion in the liberated areas without
15 knowledge of the superior commander."
16 Now, first of all, on the basis of those two orders and the fact
17 that that is point 1 in both orders, one of the problems regarding
18 soldiers who may be committing crime is that they were absent from their
19 units and the commanders didn't flow where their soldiers were. Correct?
20 A. Yes.
21 MR. MISETIC: Now, if we could go to D192, please.
22 THE INTERPRETER: Interpreter's notes: The booths are having
23 problems hearing the counsel. If the lectern could be rearranged in such
24 a way so that the microphone is closer to him please, that would be
25 great. Thank you.
1 MR. MISETIC: Mr. Kehoe never has this problem, I note.
2 JUDGE ORIE: I'll refrain from any comment on that, Mr. Misetic.
3 MR. MISETIC:
4 Q. Ms. Botteri, this is a request sent by Commander Kotlar. You saw
5 that, on 12 August, he issued an explicit order that commanders were to
6 know where their soldiers were. Now there's a long list of soldiers for
7 whom he is seeking the forcible apprehension. At number 29, one of those
8 soldiers was Vladimir Gojanovic. Apparently, Commander Kotlar does not
9 know where some of the soldiers who are mobilized in his unit are.
10 MR. MISETIC: If we could go to P200, please.
11 Q. Now, Mr. Gojanovic testified before this Trial Chamber, and this
12 is the demobilization order issued by Commander Kotlar concerning
13 Mr. Gojanovic. It says he is to be demobilized on the 7th of September.
14 Now, I have a few questions for you on the basis of all the
15 documents we've looked at now.
16 IN this particular instance, you see that Mr. Gojanovic is absent
17 from his unit, at least according to Mr. Kotlar; yet, Mr. Gojanovic
18 testified that he never received a disciplinary measure and that the only
19 thing that happened to him at the end was that he was demobilized.
20 Is that consistent with you understand of what types of measures
21 were taken against soldiers such as Mr. Gojanovic who apparently were
22 absent from their units?
23 A. Could you repeat your question, please.
24 Q. Mr. Gojanovic, according to theses document, the commander of the
25 113th did not know where he was, as well as various other individuals,
1 who were mobilized into the 113th, and the measure that appears to have
2 been taken against Mr. Gojanovic, the only measure, is the demobilization
3 order that is now on your screen.
4 My question to you is: Is that demobilization one of the ways
5 that commanders, such as Commander Kotlar, dealt with individuals who
6 failed to stay in their units?
7 A. Yes, that's logical, yes.
8 Q. Now let's go to the next step. I read you the portion about
9 Mr. Flynn seeing two members of the 4th Guards Brigade next to a burning
10 building without any apparent signs of hostilities or a military
11 operation in the area.
12 Now, yesterday, we established that many disciplinary measures
13 were taken for soldiers who were absent without leave. My question to
14 you is: If a commander knows that his soldier is absent from his unit
15 with but cannot prove what that soldier was doing while he was absent
16 from the unit, what is the disciplinary measure that he can take that he
17 knows he can prove, in addition to demobilization?
18 A. I didn't understand your question.
19 Q. It was a bad question.
20 A commander who only can prove that his soldier was absent from
21 the unit can only undertake the disciplinary measure of punishing the
22 soldier for being absent from his unit. Correct?
23 A. That's correct.
24 Q. Now, if he suspects or he has a subjective view that soldier may
25 have been stealing from homes while he was absent from the unit, may have
1 set fire to a house while he was absent from the unit, he can't take a
2 disciplinary measure for those infractions, unless he has evidence that
3 can prove that. Is that true?
4 A. No. A disciplinary measure can refer only to his absence from
5 the unit. By no means you can have disciplinary procedures undertaken
6 for anything the soldier might have done during his absence because
7 there's no proof. It's impossible to conduct the proceedings in that
9 Q. And, also, going back to how we started this morning, if, in
10 fact, the suspicion was that what he was doing while he was away from the
11 unit was criminal in nature, that was a matter to be dealt with by the
12 crime police or the military police. Correct?
13 A. That's correct, yes.
14 Q. Now, let's talk about how this demobilization -- some of the
15 problems with the demobilization.
16 MR. MISETIC: So if we could first, Mr. Registrar, go to 65
17 ter 4130, please.
18 Q. This is a transcript of a meeting held by President Tudjman on
19 the 23rd of August, 1995, with, among others, the minister of defence and
20 the minister of the interior.
21 MR. MISETIC: And if we could go to page 9 of the English,
22 please, and this is page 17 of the Croatian version.
23 Q. Now, at the top, it is Minister Jarnjak talking, at the top in
24 the Croatian version. It is the upper middle part of the page in
1 He says: "We have a significant drop in crime rights in Osijek
2 and in that area; however, there's a huge problem that now after Storm
3 and after Flash, there are now again so many weapons in private hands,
4 explosives, uncontrolled, that simply, I don't know, we will now pass
5 this law and we will have to launch a massive campaign for return of
6 these weapons. Look, I know of rifle, automatic ones, anything you
8 Then Mr. Susak says: "Mr. President, here, in a house, a private
9 house, to get in there and find 100 kilograms of explosives, that's
11 MR. MISETIC: Now, if we could turn the page in English, please,
12 and in Croatian to turn the page as well.
13 Q. In the Croatian, Ms. Botteri, it is Mr. Susak second from the
14 bottom, that entry before the Ivan Jarnjak passage; and in English, it's
15 at the top.
16 It says: "Minister Susak, we are doing this without a law what
17 we are doing with the mobilisation, because we're simply taking away by
18 force. There is no law saying what you're allowed to do and what you're
20 Then Jarnjak says: "There was a law passed stating what is
21 allowed and what is not, but the problem is that nobody will report.
22 Nobody will report anybody. You have plenty of grenades."
23 Then General Cervenko says: "In the process of, Mr. President,
24 in the process of demobilization, we had 15 people who were killed, up
25 until now, 15 people."
1 Then Cervenko continues on: "They throw grenades at each other
2 and so forth. Fifteen people were killed until yesterday in the process
3 of demobilization."
4 Susak says: "Okay. These also include suicides, but,
5 Mr. President, the outcome at the end of demobilization will more dead
6 than in the operation. That has always been so in every operation we
8 The president says: "Wait a moment. Are you demobilizing with
10 Cervenko says: "They hand in the weapons."
11 Susak says: "But they hand in the weapons they were issued
12 officially, Mr. President, what we had now in operation, especially the
13 Home Guard and the reserves. They wouldn't report anything they took.
14 We give him a rifle and he will return the rifle to us. But the fact
15 that he took two more on top of that, that is something we have no record
17 Ivan Jarnjak: "Then the right to these trophies and everything,
18 the war booty and all that."
19 Susak says: "That's no problem; it's logged."
20 JUDGE ORIE: I think you went a bit too quick for the
21 transcriber --
22 MR. MISETIC: I was just listening to the French channel.
23 JUDGE ORIE: No. That doesn't help because the transcribe is the
24 one who doesn't speak.
25 MR. MISETIC: I apologise.
1 Q. One the next page, Mr. Jarnjak says: "No, they don't log, that's
2 the point."
3 Susak says: "Yes, they don't log."
4 Now, Ms. Botteri, are you able to help us with explaining what we
5 just read about what the problems with demobilizing the Home Guard
6 elements and the reservists -- do you know how they were able and where
7 they were coming up with the weapons that the Croatian army itself could
8 not keep track of, where they were getting weapons from?
9 A. Let me not repeat myself. I agree with the text that has just
10 been read out; in other words, I believe that this could have involved
11 war trophies, war booty; that's to say, weapons that were not registered
12 or reported anywhere.
13 Q. We've heard testimony from a Prosecution witness named Ive
14 Kardum, who talked about the fact that tons of explosives were found in
15 the former so-called Krajina when the Croatian authorities took over.
16 Are you familiar with the fact that -- these reservists when they entered
17 the zone were able to discover weapons that were left behind by the
19 A. Yes, I heard that. Although that was not an area I was concerned
20 with, I had heard of a store house somewhere where such weapons were
22 Q. I'm putting these questions to you because of the relationship to
23 discipline that this issue would have. Was it, in fact, the case with
24 reservists who were leaving or entering the zone, that the soldiers were
25 acquiring weapons, unbeknownst to their commanders and the Croatian
1 institutions? Are you familiar with that.
2 A. Yes.
3 Q. And when Mr. Susak on this transcript talks about "the process of
4 demobilization will result in more deaths than in the operation itself,"
5 are you able to help us with what he -- exactly he is referring to there
6 in the transcript?
7 A. This is the first time I see the text. What I can only conclude
8 or assume is that Minister Susak has expressed his concern, anticipating
9 exactly one such situation where soldiers who got hold of weapons that
10 had not been officially registered anywhere could be responsible for
11 precisely such incidents.
12 MR. MISETIC: Mr. President, I ask that the exhibit be marked,
13 and I tender it into evidence, the transcript.
14 MS. GUSTAFSON: No objection.
15 JUDGE ORIE: Ms. Gustafson.
16 Mr. Registrar.
17 THE REGISTRAR: Your Honours, this becomes Exhibit number D890.
18 JUDGE ORIE: D890 is admitted into evidence.
19 MR. MISETIC: I'm going to follow up on that point, Your Honour.
20 If I could have Exhibit D586, please.
21 Q. Now, you mentioned the problems about the weapons and the
22 problems, and that is in your last answer: "Soldiers who got hold of
23 weapons that had not been officially registered anywhere could be
24 responsible for precisely such incidents."
25 Now, this is a letter from Josko Moric from the Ministry of
1 Interior to Mr. Lausic, talking precisely about this issue. As you can
2 see, he says: "We have received information that demobilization of a
3 certain number of conscripts has begun and that soon a more extensive"
4 mobilization "can be expected."
5 MR. MISETIC: Your Honour, I think we will need to correct the
6 translation there. It should say -- in the original Croatian, it says:
7 "That soon a more extensive demobilization can be expected."
8 JUDGE ORIE: That makes sense.
9 MR. MISETIC:
10 Q. "With the return of the HV units and the demobilization of
11 conscripts, a certain quantity of weapons, ammunition, mines, explosives,
12 and other deadly materiel has been brought to the previously liberated
13 parts of our country. We estimate that the quantity of this materiel
14 will increase once the planned number of conscripts has been fully
16 MR. MISETIC: Can we turn the page, please.
17 Q. "The consequences of the arrival of new quantities of the
18 materiel have already been demonstrated in the cases when it was used to
19 violate public law and order, cause public danger, and attack authorised
20 officials or prevent them from carrying out their duty."
21 He then proposes a series of actions to be done between the MUP
22 and military police concerning this process of demobilization.
23 Now, disciplinary infractions that were issued concerning the
24 misuse of weapons or disciplinary sanctions that were issued because of
25 the misuse of weapons or taking weapons out of storage areas, which is
1 another case that was shown to you on direct examination, was that also,
2 those disciplinary measures, part of the effort? In other words,
3 disciplinary measures to ensure that weapons were being properly stored
4 and taken away from conscripts, was that your understanding at that time
5 that that was part of the process of ensuring the return of law and order
6 to the area?
7 A. Yes.
8 MR. MISETIC: Mr. Registrar, if I could have 65 ter 646, please.
9 Q. This is now what appears to be an inspection of the Split
10 Military District that had been conducted by Colonel General Zivko
11 Budimir and his report of the inspection sent to the chief of the
12 Main Staff, General Cervenko, on the 18th of August, 1995.
13 MR. MISETIC: If we could go to page 2, please, and page two in
14 the Croatian, please.
15 Q. General Budimir's inspection, under problems, he writes: "Lack
16 of good and compatible means of communication, which significantly
17 impedes the commanding of units, particularly during offensive
19 Then it continues on: "The problem ..." --
20 MR. MISETIC: If we could go to the next page in the English.
21 Q. "The problem with regard to the means of communication is more
22 apparent in reserve units that were mobilized shortly before the start of
23 Operation Storm."
24 Part b says: "Changes of command personnel in reserve units that
25 were demobilized for a long period of time and commands and command
1 personnel only recognise the real state within the units when in combat."
2 Now, can you explain a little bit for us that -- those two
3 paragraphs concerning reserve units? The reserve units themselves had
4 been demobilized for a long period of time prior to Operation Storm, is
5 that correct, many of the units?
6 A. Yes, that was true for a large number of units.
7 Q. And then there was a mass mobilization on the eve of Operation
8 Storm. Is that correct?
9 A. That's correct.
10 Q. Now, General Budimir notes that the commanders of these units who
11 had been mobilized on the eve of Operation Storm only recognised the real
12 state of the unit when the unit is in combat.
13 Is that -- from your perspective or from your knowledge in the
14 Split Military District, is that something that is consistent with your
15 view about what commanders of reserve units really knew about what was
16 going on in their units?
17 A. Yes.
18 MR. MISETIC: Your Honour, I ask that the exhibit be marked, and
19 I tender it into evidence.
20 MS. GUSTAFSON: No objection.
21 JUDGE ORIE: Ms. Gustafson, no objections.
22 Mr. Registrar.
23 THE REGISTRAR: As Exhibit D891, Your Honours.
24 JUDGE ORIE: D891 is admitted into evidence.
25 Ms. Botteri, could I ask you one follow-up question.
1 You were asked about whether what you saw in this document, that
2 is, what the real state of these reserve units were, whether your view
3 was consistent with what you find in these documents. What did you know
4 about commanders of reserve units and their knowledge of the state of
5 their units? What's the basis of your view on the matter?
6 THE WITNESS: [Interpretation] From my communication with them and
7 from documentation that I received from various units, which I was then
8 able to review and assess.
9 JUDGE ORIE: That's a rather vague answer. Could you be more
10 concise, more concrete.
11 You said your communication with them. What kind of
12 communication you're referring to?
13 THE WITNESS: [Interpretation] I didn't mean direct communication;
14 that's to say, oral communication. I meant correspondence, written
16 JUDGE ORIE: What kind of correspondence would you receive in
17 which these reserve units commanders would express their views on the
18 difference between the state within the units, in combat and not in
19 combat? What was it that caused them to communicate with you on this
21 THE WITNESS: [Interpretation] In more cases than one, this would
22 not involve direct communication with individuals.
23 Let me give you an example. A moment ago, I said that I was
24 duty-bound to send reports on military discipline measures to my
25 competent superior body. I had a deadline which, in turn, forced me to
1 obtain timely reports from units, and I had difficulties in that. This
2 was the sort of communication that I had with them. I had to make sure
3 that I -- that they observed their deadlines in order for me to carry out
4 my duties toward my superiors in a timely fashion. I had difficulties in
5 carrying out my duties. That depended on their reports, and this was
6 something that entailed my communication with commanders of reserve
7 units, of reserve brigades.
8 I don't know if I was clear enough this time.
9 JUDGE ORIE: Well, you were very clear but not on the subject
10 matter I asked you about.
11 Could you give us an example of a communication from which you
12 learned what you say was consistent with what you find in this document,
13 an example of it. Not only that it was difficult to get everything there
14 in time and to report in time and that you have problems with that, but
15 just an example of a communication in which you were informed about how
16 they viewed in combat times the real state within these units.
17 THE WITNESS: [Interpretation] I cannot answer the specific
18 question about what certain commanders thought of the status or situation
19 in their respective units. I did not have direct knowledge of that;
20 however, in my line of duty, I was able to arrive at a conclusion to the
21 effect that this was, indeed, the situation that prevailed at that time.
22 JUDGE ORIE: Please proceed, Mr. Misetic.
23 MR. MISETIC: Thank you, Mr. President.
24 Q. Ms. Botteri, let's follow up on that -- on that issue.
25 What do you know about -- let me ask the first question.
1 Professional brigades were provided barracks, weren't they?
2 A. Yes.
3 Q. What about reserve brigades?
4 A. Reserve brigades were, for the most part, relocated to various
5 camps out in the field.
6 Q. But reserve soldiers, when they were no longer on duty, did they
7 go back to a barracks or did they go home?
8 A. They went home.
9 Q. These reserve brigades, they have fixed barracks facilities that
10 were their permanent barracks?
11 A. No.
12 Q. So, at least, in part, you know that a commander of a reserve
13 brigade would have a much harder time keeping track of his soldiers when
14 they were' not in combat than, say, a commander of a professional brigade
15 whose soldiers are being quartered in barracks. Correct?
16 A. Yes.
17 MR. MISETIC: Mr. Registrar, if I could have -- and I have to use
18 the ERN number. It is uploaded by the Prosecution into e-court, but
19 there's no 65 ter number. It's 0354-2830.
20 Q. This is a report on disciplinary measures and sanctions you sent
21 to the legal department on the 18th of October, 1995.
22 MR. MISETIC: If we could turn the page, please, and go to the
23 third page in the original.
24 Q. Now, this is the list of the table of disciplinary measures taken
25 from the 1st of January, 1995, to the 30th of June, 1995
1 And if we scroll to the bottom of that page, we see that 1138
2 disciplinary measures were issued in that time-period.
3 Now, in your statement --
4 MR. MISETIC: If we turn the -- just a moment.
5 Q. In your statement, at your answer to question 19 --
6 MR. MISETIC: If we turn the page in the document on the screen,
8 Q. Now, there are -- this report shows 261 proceedings conducted in
9 one report, and in the attachment another 277 proceedings, and then
10 attachment two shows 891 proceedings.
11 MR. MISETIC: If we can turn the page again, please.
12 Q. In total, when you add them all up, it appears that 1431
13 disciplinary proceedings were conducted in the third quarter, as opposed
14 to 1138 disciplinary measures conducted in the first two quarters
16 My question is: Did you note the rise in the number of
17 disciplinary measures in the third quarter back in 1995?
18 A. Yes, since I was the one who sent these reports to the
20 Q. Did you have an understanding as to why more disciplinary
21 measures were -- were being filed in the third quarter, as opposed to the
22 first two quarters?
23 A. Of course, this was not something that one would have known.
24 Q. Why wouldn't you have known why there was such a large number --
25 a large increase in the number of disciplinary measures in the third
2 A. Well, on the basis of the statistical data I received.
3 Q. Okay. Your statement refers to the fact that there were a
4 greater number of mobilized members in the third quarter than there were
5 in the first two.
6 A. Yes.
7 Q. Was the increase in disciplinary measures in any way related to
8 the increase in mobilized members in the third quarter?
9 A. Of course.
10 Q. And what was it about the reserve members that increased the
11 number of disciplinary measures?
12 A. Can you please clarify the question?
13 Q. The reserve members were much less disciplined --
14 A. I apologise. My concentration seems to be on the decrease. Will
15 we be having our break soon?
16 JUDGE ORIE: We could take a break. Perhaps that would be wise.
17 Can you give us a further indication, then, Mr. Misetic?
18 MR. MISETIC: About half an hour.
19 JUDGE ORIE: If we resume at 25 minutes to 1.00, then what
20 would --
21 MR. MISETIC: I would be done by about 1.00.
22 JUDGE ORIE: By about 1.00.
23 Ms. Gustafson, would that cause you any problems.
24 MS. GUSTAFSON: I expect I would need 15 to 20 minutes, Your
1 JUDGE ORIE: Thank you.
2 We will are a break and resume at 25 minutes to 1.00.
3 --- Recess taken at 12.14 p.m.
4 --- On resuming at 12.43 p.m.
5 JUDGE ORIE: Although there may have been good reasons why we are
6 a bit late, I, nevertheless, apologise because it might influence the
7 timing of the parties.
8 Mr. Misetic, please proceed.
9 MR. MISETIC: Thank you, Mr. President.
10 Q. Ms. Botteri, the question I was posing to you at the end is that
11 the reason that there were so many more disciplinary measures taken in
12 the third quarter is because there were so many more mobilized soldiers
13 in the third quarter. Correct?
14 A. Yes. There were more mobilized soldiers and they were less
15 disciplined. In my view, this resulted in a greater number of
16 disciplinary measures.
17 Q. Okay.
18 MR. MISETIC: Mr. Registrar, if I could have 65 ter 1150, please.
19 I'm sorry. I forgot to tender that into evidence. Your Honour,
20 may I tender that document into evidence, please.
21 MS. GUSTAFSON: No objection, Your Honour.
22 JUDGE ORIE: Mr. Registrar.
23 THE REGISTRAR: Your Honours, that becomes Exhibit number D892.
24 MS. GUSTAFSON: Sorry, Your Honour. It's been pointed out to me,
25 just for the record, that did have a 65 ter number, and it was 391.
1 Thank you.
2 JUDGE ORIE: That's then on the record as well.
3 D892 is admitted into evidence.
4 Could we ask one additional question.
5 I noticed that in these statistics, we find two cases dealt with
6 by the military disciplinary court in the third quarter. Could you
7 explain why there were only two cases, which does not seems to be much,
8 but perhaps you could explain.
9 MR. MISETIC: It's not on the screen. I think she's looking at
10 the screen, Your Honour.
11 JUDGE ORIE: No, it's not on the screen anymore. It was a
12 similar statistic, and we find it on the ninth page, I think -- no. Let
13 me just look at it.
14 It's page 10 out of 12 of the previous document.
15 THE WITNESS: [Interpretation] I must point out that, if
16 accordance with the provisions of the Code of Military Discipline, a
17 military procedure before a military disciplinary court could be
18 instituted only for non-commissioned officers and officers.
19 JUDGE ORIE: Yes. But I'm asking you because you say there's a
20 limited number of people that were subject to this jurisdiction;
21 nevertheless, the number of just two: One in category A, one in
22 category C. It does not strike as a great productivity, but perhaps you
23 could explain to us what explains this relatively low number.
24 THE WITNESS: [Interpretation] Well, first of all, there was a
25 limited number of those against whom disciplinary proceedings could be
1 substituted before a military disciplinary court, as I have just stated.
2 Then the procedure itself was quite long and complex, and the cases
3 depicted here are only those that have been finalised, which doesn't mean
4 that there were not proceedings ongoing before the military disciplinary
5 court at the time.
6 JUDGE ORIE: Yes. Does it mean that in the time that followed
7 that number went up considerably, in accordance with the increased number
8 of disciplinary measures being taken in the third quarter?
9 THE WITNESS: [Interpretation] I assume that might have happened,
10 and one could check that in the archives of the military disciplinary
12 JUDGE ORIE: Yes.
13 Please proceed.
14 MR. MISETIC: Mr. President, I think, just as a clerical matter
15 so that the record is clear, I think there is an issue as to whether the
16 document I used and tendered is the same as 65 ter 391.
17 JUDGE ORIE: Could you please sort that out.
18 MS. GUSTAFSON: I misspoke. It was 3391.
19 JUDGE ORIE: 3391.
20 MR. MISETIC: Now, Mr. Registrar, again if I could have 65 ter
21 1150, please.
22 Q. Ms. Botteri, this is a report issued by the legal affairs
23 administration in Zagreb
24 "Report on disciplinary measures and sentences imposed in the HV and
25 criminal proceedings completed before military courts in the period from
1 October to December 1995."
2 MR. MISETIC: If we could go to page 5 of this report in the
4 I'm not sure we have the right page. It should be -- in the
5 Croatian, it should go back.
6 Q. Now, reading page -- or the paragraph in the Croatian,
7 paragraph 3, misnumbered in the English translation as a second
8 paragraph 2, it says: "As can be concluded from the previous item, a
9 large number of disciplinary proceedings was conducted. Most of them
10 were conducted in the Split Military District, as many as 1257; while
11 1048 disciplinary measures were imposed in the Osijek Military District."
12 MR. MISETIC: And if we can go to page 8 in the English.
13 Q. The conclusion in paragraph 1 says: "A large number of
14 disciplinary proceedings were carried out in the period between
15 October and December 1995. Large discrepancies, however, were observed
16 in the number of disciplinary proceedings carried out and disciplinary
17 measures pronounced in different military districts. These discrepancies
18 should reflect the real state of affairs.
19 "But if we take into consideration the fact that 1257
20 disciplinary measures were imposed in the Split Military District and
21 none in the Gospic Military District, it is obvious that we are dealing
22 here with different sentencing criteria, i.e., with different
23 disciplinary policies in different military districts. Such a situation
24 must be dealt with."
25 Now, from this passage, Ms. Botteri, is it your reading of this
1 document that the author of the document is using this -- is using the
2 Split Military District as an example of a military district that is, in
3 fact, processing a large number of disciplinary measures, in comparison
4 with, for example, the Gospic Military District?
5 A. Yes, certainly, not only compared to the Gospic Military District
6 but with every other military district as well.
7 My comment on this is that this reflects what I have been trying
8 to depict in my statements here, and it reflects the situation and the
9 extent to which there was insistence in the Split Military District on
10 establishing military discipline.
11 Q. Now, Ms. Botteri, we've seen the statistics, we've seen that, in
12 comparison with other Military Districts the Split Military District, at
13 least in the fourth quarter, led in terms of the number of disciplinary
14 measures taken.
15 You were the person in charge in the command for legal affairs
16 and keeping track of what was happening concerning the implementation of
17 military discipline in the military district. Correct?
18 A. Yes.
19 Q. Did there ever come a point in time where you, in reviewing the
20 information that was coming into you, suspected that the system of
21 military discipline was not functioning, that there was a problem in the
22 system -- putting aside the recommendations you made in the letter on the
23 14th of August, in addition to those, was there any point in time where
24 you said, "The system is broken or the system is not functioning"?
25 A. No.
1 Q. If something was not functioning in terms of the military
2 disciplinary system, is it fair to say that it would have been your
3 responsibility to alert General Gotovina and the members of the -- or
4 your superiors in the legal affairs department in Zagreb, that something
5 was not right, in terms of the functioning of the military disciplinary
7 A. Yes.
8 Q. Did you ever tell General Gotovina that there was any problem in
9 the functioning of the military disciplinary system at any time between
10 the 4th of August, 1995, and the end of December 1995, excluding, of
11 course, the suggestions you made in the 14 August letter?
12 A. No.
13 MR. MISETIC: Mr. President, thank you. I have no further
14 questions for the witness.
15 Q. Thank you, Ms. Botteri.
16 JUDGE ORIE: Thank you, Mr. Misetic.
17 MR. KAY: No questions, Your Honour.
18 JUDGE ORIE: Mr. Kuzmanovic.
19 MR. KUZMANOVIC: No questions, Your Honour.
20 MR. MISETIC: Your Honour, I'm instructed to read into the record
21 that we're taking -- or to seek permission, I should say, to make a
22 correction to a translation to an exhibit that we used yesterday.
23 It is D879. We have collected the translation error and wish to
24 put on the record that we will replace page 1D58-0039 in e-court.
25 JUDGE ORIE: Ms. Gustafson, did you have an opportunity to verify
1 the --
2 MS. GUSTAFSON: No, not yet, Your Honour. This is the first I
3 have heard it.
4 JUDGE ORIE: It is on the record and then the new copy will be
5 the valid one, unless Ms. Gustafson reports to us before next Tuesday
6 that there's any objection against the new translation.
7 Please proceed, Ms. Gustafson.
8 MS. GUSTAFSON: Thank you, Mr. President. I was just wondering
9 if Mr. Misetic wanted to tender that last document.
10 MR. MISETIC: Thank you very much. I apologise and appreciate
11 it. Yes, I do.
12 MS. GUSTAFSON: There's no objection. But because it relates to
13 specifically to a question that Your Honour raised that the witness
14 wasn't able to answer, the document indicates that there were four
15 military disciplinary proceedings in the Split Military District
16 disciplinary court for the fourth quarter.
17 JUDGE ORIE: Yes. Although this is argumentative rather than
18 anything else, you explained to us the content which might not be
19 appropriate. But if it is correct what Ms. Gustafson says, then I take
20 it that you would agree that the mere mentioning that this not the way to
21 proceed would suffice.
22 MR. MISETIC: Yes, Your Honour.
23 JUDGE ORIE: Thank you.
24 MS. GUSTAFSON: I apologise, Your Honour.
25 JUDGE ORIE: Please proceed.
1 MS. GUSTAFSON: If we could have P1007 on the screen, please,
2 then if we could go to page 4 in the English and page 3 in the B/C/S, and
3 if Article 9 could be expanded.
4 Re-examination by Ms. Gustafson:
5 Q. And, Ms. Botteri, I'd just like to you read to yourself Article 9
6 of the military disciplinary code.
7 MS. GUSTAFSON: It must be on the previous page in the B/C/S. I
9 Q. Have you had a chance to read it?
10 A. Yes.
11 Q. And would it be fair to say that this is a provision that deals
12 with how disciplinary measures should be taken against officers and NCOs
13 in state administrative bodies, businesses, and other legal entities, and
14 that disciplinary measures should be imposed in accordance with the
15 regulations in such bodies and disciplinary violations dealt with
16 military disciplinary courts?
17 Is that a fair reading?
18 A. Yes.
19 Q. Thank you.
20 MS. GUSTAFSON: If we could now go to D881.
21 Q. Ms. Botteri, this document you're about to see, this is the set
22 of proposals that was referred to earlier, proposals to the -- to amend
23 the Code of Military Discipline.
24 And as you go through this document, do you see that your
25 proposals deal with the Code and it goes Article by Article,
1 chronologically? So first a proposal to Article 3, then Article 4, then
2 Article of, then Article 9, and so on.
3 Is that how it's set out?
4 A. Yes.
5 MS. GUSTAFSON: And if we could go, then, to the last
6 paragraph in the B/C/S; and in the English, it's the first paragraph on
7 page 2. Then if we could -- it should be the first page in B/C/S and the
8 last paragraph. Sorry. And if we could expand the last paragraph so
9 that the witness could read it more easily.
10 Q. And this is your proposal dealing with Article 9, paragraph 2,
11 and the proposal is set out disciplinary responsibility proceedings and
12 the powers of persons serving in the armed forces of the RH at
13 headquarters, administrations regional departments, et cetera, that are
14 not included in the present provisions of the Code.
15 You note: "Since in our work to date we have had such cases, for
16 example, violation of military discipline at the defence office, the
17 headquarters, administration, et cetera."
18 MS. GUSTAFSON: And if we could go to the top of the next page in
20 Q. Then this is a paragraph that you were referred to in
21 cross-examination, where it says: "We think the simplest way to deal
22 with disciplinary violations is to implement the principle of
23 territoriality." Then you were asked about that.
24 Then the next paragraph talks about changes to Article 9,
25 paragraph 3 of the Code. Then further down the page, you can see there
1 are proposals to Article 10, Article 11, Article 14, 15, 33, 34, and so
3 Ms. Botteri, this paragraph at the top off page 2 here, is that a
4 paragraph that's dealing with proposals to amend Article 9 of the Code?
5 A. Yes.
6 Q. And when you were asked about there in cross-examination, you
7 said: "What we want to the achieve was the following: The added tasks
8 that were not in the organic composition, and we've often discussed this
9 in the course of my testimony, should also be been the competence of the
10 commander of the Split Military District as regards military discipline.
11 So all the attached units would be under his command as regards military
12 discipline. That was our proposal."
13 Ms. Botteri, it's correct from our reading of Article 9 that had
14 has nothing to do with attached subordinate the units. Article 9 deals
15 with officers and NCOs working in certain administrative bodies,
16 businesses, and legal entities.
17 So my question is: If this was your intention to ensure that
18 attached units would be under the disciplinary authority of the military
19 district commander, why did you make that proposal here in the context of
20 an amendment to Article 9?
21 A. May I ask you to put the text of the Article back on the screen,
23 MS. GUSTAFSON: That was P1007. I believe it was on page 3 in
24 B/C/S, or possibly page 2, and page 4 in the English.
25 THE WITNESS: [Interpretation] Yes. We can go back now to the
1 text of my proposal.
2 MS. GUSTAFSON: I apologise. Could we go back to D881.
3 Q. Ms. Botteri, you will recall that it was the last paragraph on
4 page 1, the paragraph at the bottom of your screen.
5 A. The proposal, as regards Article 9, was -- it referred to a
6 different category of persons than the one I was referring to in the
7 passage on territorial responsibility.
8 Article 9, that is, of the Code of Military Discipline, in the
9 first two items, speaks of the imposition of disciplinary measures; and
10 in item 2 of the same Article, an exception is made, and it is stated
11 that disciplinary proceedings can be instituted against such persons
12 according to the rules of the institutions these persons are working in.
13 In item 3 of Article 9, there is reference to the breaches of discipline
14 that those persons have committed, the major breaches.
15 In practice, the implementation of the Article defined in this
16 way was unclear, which is why I asked for that Article to be amended and
17 to be defined with greater precision. In relation to the jurisdiction of
18 the military disciplinary court for the major breaches of discipline of
19 those persons, I even proposed that those persons be enumerated, listed.
20 In contrast to the proposals for amendments to Article 9, the
21 proposed amendments, as regards the application of the territorial
22 principle, referred to a proposal that this principle be applied for both
23 major and minor breaches of discipline; and in my interpretation, these
24 are two different proposals, two different situations.
25 Q. So you maintain that this paragraph deals with the territorial
1 principle being applied to attached subordinated units, even though
2 Article 9 doesn't deal with attached subordinated units. Is that
4 MR. MISETIC: I'm going to object to the claim that it doesn't
5 deal with attached subordinated units. Paragraph 1 is a very broad --
6 MS. GUSTAFSON: I'm asking that exact question, Your Honour.
7 JUDGE ORIE: Could you -- well, let me just read it again.
8 MS. GUSTAFSON: I'm sorry. I didn't understand the objection.
9 The witness agreed with me earlier on that paragraph 9 did deal with the
10 particular people mentioned in that Article.
11 MR. MISETIC: I agree that it deals with that in section 2, but
12 it doesn't mean that deals with other things in section 1 and 3.
13 JUDGE ORIE: Can you rephrase the question such that
14 Mr. Misetic's objection does not apply anymore and you get the answer
15 that you're seeking.
16 MS. GUSTAFSON: Yes, Your Honour.
17 Q. Ms. Botteri, the first paragraph on page 2, does that address the
18 problem that you claim existed with attached subordinated units? Is that
19 paragraph proposing an amendment so that attached subordinated units are
20 under the disciplinary authority of the district that they're attached
22 A. Which paragraph are you referring to?
23 Q. The first paragraph on page 2, at the top of the page in front of
25 A. Your specific question in relation to -- or, rather, your
1 specific question is related to that first paragraph on page 2?
2 Q. Yes.
3 A. Can you repeat it, please.
4 Q. The first paragraph on page 2, does that address the problem that
5 you said existed with attached subordinated units? Is that
6 paragraph proposing an amendment so that attached subordinated units are
7 under the disciplinary authority of the district that they're attached
9 A. Yes.
10 Q. Can you explain why that paragraph is in between a proposed
11 amendment to Article 9, paragraph 2, and Article 9, paragraph 3, when
12 Article 9, paragraph 2, deals with the disciplinary responsibility of
13 certain individuals working for certain entities and doesn't deal with
14 attached subordinated units?
15 A. I don't understand your question.
16 MS. GUSTAFSON: Your Honour --
17 THE WITNESS: [Interpretation] Can you clarify it a bit.
18 MS. GUSTAFSON: -- in light of the limit the time I have, I'd
19 just like to move on at this point.
20 JUDGE ORIE: Please proceed.
21 MS. GUSTAFSON:
22 Q. Ms. Botteri, you were asked about parallel disciplinary and
23 criminal investigations, and you were asked to interpret Article 31 of
24 the Code. You gave certain answers, and I'd just like to clarify those
25 answers with a concrete answer.
1 MS. GUSTAFSON: And if we could have 65 ter 5990.
2 Q. Ms. Botteri, can you see that this is it a special report of the
3 military police relating to an event, an incident that occurred on the
4 21st of May in front of the Trogir police station. It describes what
5 took place at approximately 2005 hours. It was reported that a
6 hand-grenade was thrown in front of the Trogir police station by some 100
7 members of the 114th Brigade. One person was seriously injured and a
8 vehicle was damaged.
9 Now, Trogir, that's on the coast near Split. Is that correct?
10 A. Yes.
11 MS. GUSTAFSON: If we could just scroll through the document.
12 Q. We can see there is a chronology of events.
13 MS. GUSTAFSON: If we go to the next page, and if we go then to
14 the last page.
15 Q. The last paragraph indicates that the identify of the perpetrator
16 was revealed, and it's reported that a forensic investigation is under
17 way with the aim of apprehending the above-mentioned. You can see it is
18 signed by Major Budimir.
19 Does it appear to you that in relation to this incident a
20 criminal proceeding is under way?
21 A. Yes.
22 MS. GUSTAFSON: Now, if we could go to 65 ter number 2110.
23 Q. This is a document also from the 22nd of May, the same date. It
24 says that on the basis of a specific incident which took place on in
25 Trogir on the 21st of May, members of the Croatian army committed several
1 unmilitary and legally punishable crimes, which resulted with severe
2 consequences of life and health of a civilian and with big damage.
3 Then there's an order, and it's an order to the commander of
4 VP 2136, which is the 114th Brigade, to immediately constitute a
5 commission, to investigate the causes and consequences of the incident,
6 and under point 3, to take the strictest measures against the
7 perpetrators of the incident.
8 If you go to the next page, you can see it's an order from
9 General Gotovina to the commander of the 114th Brigade.
10 Now, in your cross-examination, you were asked: "Was there a
11 potential that by launching a parallel investigation," it was in
12 reference to a parallel disciplinary investigation, "you could disrupt
13 evidence in the criminal investigation?"
14 You said: "Of course."
15 My question to you is: Can you explain in relation to this
16 example how a parallel disciplinary investigation could disrupt the
17 evidence in a parallel criminal investigation? What was the concern?
18 A. Investigations conducted for the purposes of military
19 disciplinary procedures were led by either individuals or commissions
20 consisting of members who were not specially trained for that job. The
21 military police had a specialist department and staff who were especially
22 trained for that job.
23 Therefore, the conduct of parallel investigations could cause
24 such problems, and frequently so. In some cases, this ultimately proved
25 to be a fruitless exercise if, within the military police force, there
1 were -- there was personnel who dealt particularly with that sort of
3 Q. Can you give me one concrete example of how a disciplinary
4 investigation could disrupt a parallel criminal proceedings? I'm talking
5 in concrete terms.
6 A. You're asking me too much. So much time has elapsed that I don't
7 remember any specific examples.
8 Q. Thank you. You were asked some questions about statistics and
9 the provision and availability of statistical information on disciplinary
10 measures at the Split Military District. In one of those, you confirmed
11 that you had no statistical information whatsoever for units that were
12 temporarily operationally subordinated to the Split Military District.
13 Then you were asked: "Now, when we talk about what types of
14 problems did the non-territoriality create, would one of the problems be
15 that the Split Military District commander -- command," sorry, "was not
16 entitled to receive information about disciplinary measures being
17 undertaken by units that are operating on its territory?"
18 Then you said: "Correct. That's what I said. We were unable to
19 control, supervise, or evaluate the situation."
20 Now, in terms of the Split Military District being entitled to
21 receive information, my question is: In relation to, for example, the
22 2nd Battalion of the 9th Guards Brigade, which was operationally
23 subordinated to the Split Military District but organically a part of the
24 Gospic Military District, if General Gotovina had requested information
25 from General Norac in the Gospic Military District and requested General
1 Norac to provide him with statistics or other information on disciplinary
2 measures being imposed on members of the 2nd Battalion of the 9th Guards
3 Brigade, do you think that that is a request that General Norac would
4 have complied with?
5 A. What do you mean "would have complied with"? He would probably
6 react by saying that that was not standard procedure.
7 What are you exactly referring to? Reports on disciplinary
8 measures imposed or some sort of information or brief? I don't quite
9 understand what you have in mind there.
10 Q. For example, the statistical information that you received,
11 statistical information on a quarterly basis, if General Gotovina had
12 requested that information for the units of the 2nd Battalion of the
13 9th Guards Brigade from the Gospic Military District, do you think he
14 would have been able to receive that information?
15 A. I don't see that there would arise such a situation for that sort
16 of information to be sought in this particular manner, if we know what
17 sort of system was in place.
18 JUDGE ORIE: Ms. Botteri, could I ask you one question.
19 You explained to us that it was problematic that you could not
20 keep matters under control because there was no information about
21 disciplinary matters taken against members of temporarily subordinated
22 units belonging to another military district.
23 Ms. Gustafson would like to know whether that information could
24 have been obtained from, for example, the Gospic Military District.
25 THE WITNESS: [Interpretation] In practice, a situation where we
1 would be seeking that information would not arise, if a system was in
2 place where the Gospic Military District reported to the competent
3 administration for legal matters of the ministry on issues concerning its
5 JUDGE ORIE: Yes. Was ever an effort made to obtain that
6 information? You've got a lot of units under your temporary command or
7 temporarily under your command. Now, you know that you've got no
8 knowledge whatsoever about any disciplinary measures taken about members
9 of those units.
10 Was ever an effort made to obtain that information, because I do
11 understand that the lack of information bothered --
12 THE WITNESS: [Interpretation] We did not have reason to doubt
13 that the system functioned --
14 JUDGE ORIE: [Previous translation continues] ...
15 THE WITNESS: [Interpretation] -- but we sought that information
16 from the competent administration.
17 JUDGE ORIE: Yes. Did you make an effort to get that about
18 disciplinary measures, for example, the units you mentioned before, to
19 obtain that information from the Gospic Military District, through
20 whatever way? Did you seek that information, did you make an effort to
21 obtain that information?
22 THE WITNESS: [Interpretation] No.
23 JUDGE ORIE: Please proceed, Ms. Gustafson.
24 MS. GUSTAFSON: Thank you, Your Honour.
25 Q. And just finally, Ms. Botteri, I have a similar question in
1 relation to the questions were asked about the practice of imposing in
2 informal disciplinary measures by simply demobilizing soldiers who were
3 problematic. Yo.
4 You were asked whether you had any -- whether these individual
5 demobilizations would be reflected in any of the statistics, and you said
6 no. Then you were asked where they wouldn't be in your statistics, and
7 you said that that wasn't part of the -- that wasn't provided for in the
8 Code of Military Discipline.
9 My question is a similar to the one His Honour just posed: Was a
10 request ever made, to your knowledge, to obtain information on how many
11 soldiers were being demobilized informally for reasons of misconduct or
12 why soldiers were being demobilized, in terms of what the conduct was?
13 Are you aware of any request like that, or order?
14 A. No, that was not part of my job.
15 MS. GUSTAFSON: Thank you, Your Honour. Those are my questions.
16 JUDGE ORIE: Thank you, Ms. Gustafson.
17 Let's start with some very practical matters. No number has yet
18 been assigned to 65 ter 01150.
19 I think you tendered it, Mr. Misetic.
20 MR. MISETIC: Yes, Your Honour.
21 JUDGE ORIE: And there was no objection, Ms. Gustafson.
22 Mr. Registrar.
23 THE REGISTRAR: Your Honours, that becomes Exhibit number D893.
24 JUDGE ORIE: D893 is admitted into evidence.
25 MS. GUSTAFSON: Your Honour.
1 [Trial Chamber confers]
2 JUDGE ORIE: Ms. Gustafson.
3 MS. GUSTAFSON: That reminds me, Your Honour, I neglected to get
4 numbers for 65 ter 5990, which is also not on the 65 ter list, and 2110.
5 Those were the two documents just referred to.
6 JUDGE ORIE: Any objections.
7 MR. MISETIC: No objection.
8 JUDGE ORIE: 5990.
9 THE REGISTRAR: Becomes Exhibit number P1018, Your Honours.
10 JUDGE ORIE: And 2110.
11 THE REGISTRAR: Becomes Exhibit number P1019, Your Honours.
12 JUDGE ORIE: P1018 and P1019 are admitted into evidence.
13 I have a few questions for you, Ms. Botteri.
14 Questioned by the Court:
15 JUDGE ORIE: You explained, in the statement that you have given
16 to the Defence, how the higher number of disciplinary measures could be
17 explained in the third quarter of 1995. I will literally read what you
18 said, where you explained that there were was a new system, you also
19 explained that some units were missing in the reports, and you then said:
20 "When you look at it this way, it turns out that the third quarter showed
21 25 percent more disciplinary proceedings than in the entire past six
22 months. I remember the information is that we had 50 per cent more
23 disciplinary proceedings per month in the third quarter of 1995 than in
24 the past period."
25 You said: "50 per cent more disciplinary proceedings per month."
1 Is that, over the three months, 50 per cent more than over the
2 three preceding months; or how should I understand the 50 per cent?
3 I will read it again to you: "I remember the information is that
4 we had 50 per cent more disciplinary proceedings per month in the third
5 quarter of 1995 than in the past period."
6 What do you mean exactly? Let's keep it very concrete.
7 The third quarter is July, August, September. Now tell us what
8 was 50 percent more in July, August, September; whether July or August or
9 September; or end August and September? Explain to me exactly what you
10 mean there.
11 A. I believed that what I meant was that there were 50 per cent more
12 in that particular quarter, the third quarter, as compared to the
13 previous three months.
14 JUDGE ORIE: Yes. And when you state that it turned out that the
15 third quarter showed 25 percent more disciplinary proceedings than in the
16 entire past six months, can you --
17 A. Believe me, I don't remember the figure of 25 percent. In which
18 of the statements did I say that?
19 JUDGE ORIE: Yes. It's in the last statement. It's one line
20 before the 50 percent.
21 A. I can't give you an answer concerning the 25 percent at this
23 JUDGE ORIE: Then I have another question.
24 You emphasised, as you said in your statement given to the
25 Defence, that even if people were demobilized as a kind of a sanction for
1 inappropriate disorderly behaviour, that, of course, there was still
2 criminal liability.
3 Could you give us any example of someone who was, for the reason
4 of disorderly behaviour or inappropriate behaviour, demobilized? Do you
5 have remember any such case, specific case?
6 A. I don't remember such cases. I wasn't in charge of
7 demobilization, nor did I receive reports on demobilization. As far as I
8 remember, some of the documents were shown to us today.
9 JUDGE ORIE: Yes. Now, did you have any knowledge whether before
10 someone was demobilized for such inappropriate behaviour, whether that
11 behaviour was investigated and whether there were any reports made in
12 that respect?
13 A. Would you be so kind as to tell me which report you're referring
14 to, the one in the military disciplinary procedure or --
15 JUDGE ORIE: I do understand that demobilization was encouraged
16 and was a quasi-sanction. Now, was this usually, as far as you know,
17 investigated and were the results of such an investigation, in whatever
18 context, put on paper when such a person was demobilized.
19 A. They were such cases.
20 JUDGE ORIE: Do you remember any specific one, even if not by
21 name, an event you may remember?
22 A. Not a specific one, no; but there were such case, yes.
23 JUDGE ORIE: Yes. You said that even if someone was demobilized,
24 that, of course, you would like to emphasise that all soldiers were
25 always as criminally liable as any other citizen of the Republic of
2 Do you know of any concrete case where someone, because of bad
3 behaviour, was demobilized but then brought before a court, in order to
4 establish whether there was any criminal liability for misconduct?
5 A. It is beyond dispute that every such demobilized soldier incurred
6 criminal liability, but I do not recall specific cases.
7 JUDGE ORIE: I did not challenge your statement about criminal
8 liability; I was asking about a concrete example.
9 I have no further questions for you.
10 I'm looking at the clock, Mr. Misetic, a brief question?
11 MR. MISETIC: Yes.
12 JUDGE ORIE: Two minutes, and with the indulgence of the
13 interpreters. Thank you very much.
14 MR. MISETIC: And I think the interpreters as well.
15 First, Mr. President, I will deal with your question later. I
16 believe there's cases in evidence already about soldiers who were
17 demobilized --
18 JUDGE ORIE: I'm not saying that. I just wanted to look at the
19 knowledge of this witness --
20 MR. MISETIC: Yes, Your Honour.
21 JUDGE ORIE: -- in relation to these matters.
22 MR. MISETIC:
23 Further cross-examination by Mr. Misetic:
24 Q. Ms. Botteri, quickly, the issue of you not asking for reports of
25 reports of people who were demobilized, you didn't ask for them because
1 you did not have a legal objection --
2 MS. GUSTAFSON: That was not a question, Your Honour; it was
3 whether any request was made.
4 MR. MISETIC: I'm not the sure what --
5 MS. GUSTAFSON: I didn't ask --
6 JUDGE ORIE: I asked about whether reports were made about the
7 behaviour which caused --
8 MR. MISETIC: No, no. I was asking something about Ms.
9 Gustafson's question earlier.
10 MS. GUSTAFSON: The question was: Was there a request ever made
11 to your knowledge; it wasn't whether the witness made such a request.
12 MR. MISETIC: Okay.
13 Q. Well, a request by the Split Military District for that
14 information would haven't about necessary for the purposes of the
15 statistics because you weren't under a legal obligation to provide the
16 statistics of demobilized soldiers to Zagreb, were you?
17 A. No. I have repeatedly emphasised that this was not part of my
19 Q. Okay. So, now to my next point, which is this issue about
20 territoriality the principle of territoriality, did anyone from Zagreb
21 the legal affairs department ever come and contact you and say,
22 "Ms. Botteri, we're not getting any statistics from you about
23 disciplinary measures being taken by attached units. You're required to
24 give us those statistics when they're attached to your military
1 Did anybody ever -- in the years you worked in the district, did
2 anyone ever say that to you?
3 A. No.
4 MR. MISETIC: Thank you, Your Honour. I have no further
6 JUDGE ORIE: Thank you, Mr. Misetic.
7 May I take it that other Defence counsel that the questions by
8 the Bench have not triggered the need to put any further questions to the
10 Then I have to deal with another rather practical matter, which
11 is that we were informed that neither the Markac or the Cermak Defence
12 object against the Prosecution's proposed bar table submissions.
13 What is the position of the Gotovina Defence?
14 MR. MISETIC: No objection.
15 JUDGE ORIE: No objection.
16 This leads me to the following: Ms. Gustafson, I think there was
17 some guidance of the Chamber about how to present bar table submissions
18 about what we had to look at specifically, because we - I'll just give an
19 example - we have heard questions put to this witness in relation to all
20 these statistics, first six months, last quarter, 18th of October, then a
21 new report, 25th of October, and then another report on 10th of November,
22 all about the same substance.
23 These documents, the 18th of October we have had extensively on
24 our screens, I don't know whether -- I don't think that the others were
25 tendered into evidence. Now I see on your list the 18th of October,
1 1995; that is, 3391. We also see the supplementary report on
2 disciplinary matters and sanctions of 25th of October.
3 The 10th of November report, is that also somewhere? Can we find
5 MS. GUSTAFSON: That was admitted, Your Honour, and the 18th of
6 October was admitted in cross-examination.
7 JUDGE ORIE: Yes. So, therefore, it's finally only the 25th of
8 October which gives the additional numbers. The Chamber has never seen
9 that document. The Chamber, therefore, is also not in the position to
10 see whether all the calculations made, I would say, in the Defence
11 statement, reference is made there under ERN numbers to numbers of
12 disciplinary measures. The Chamber is not in a position to verify, until
13 after this witness leaves this courtroom, which is not only because I'm
14 often focussing on concrete information, but we are not in a position to
15 that, if we proceed this way, because it's introduced in the OTP
17 It's then further dealt with in paragraphs 28, 29, 30, where
18 reference is made to it in question, I think, 19 in the Defence
19 statement. We are there, and we read about ERN numbers and we have no
20 possibility even in preparing for the testimony of this witness to
21 verify, for example, the numbers 25 percent, 50 per cent, what periods of
22 time. We just don't know.
23 So, therefore, we should find one way or another a solution so
24 that, apart from the parties understanding the evidence for the full
25 100 percent, that the Chamber who will finally have to make
1 determinations is also in a position to fully and in every detail verify
2 the evidence.
3 That being said, the Registrar is invited to assign numbers,
4 after having consulted with Ms. Gustafson, to the documents appearing on
5 the Botteri bar table exhibit lists; and once this has been done and once
6 those that are not needed to be admitted into evidence anymore are
7 stricken from the list, the Chamber will beside on the matter.
8 I am aware that there are a few other procedural issues pending,
9 urgent issues pending. Unfortunately, we can't spend any time on it
10 today anymore, so we'll leave that for next Monday.
11 Meanwhile, Ms. Botteri, knowing that you're a lawyer, otherwise I
12 would have asked Madam Usher to escort you out of the courtroom, but to
13 give you some additional insight in proceedings before this Chamber, I'd
14 like to thank you very much for having answered the questions put to you
15 by the parties and put to you by this Bench, and I wish you a safe trip
16 home again.
17 THE WITNESS: [Interpretation] Thank you.
18 JUDGE ORIE: We adjourn until Monday, the 3rd of November, 9.00,
19 in this same courtroom.
20 --- Whereupon the hearing adjourned at 1.57 p.m.
21 to be reconvened on Monday, the 3rd day of
22 November, 2008, at 9.00 a.m.