Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12500

 1                           Tuesday, 25 November 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, Prosecutor

10     versus Ante Gotovina, et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Good morning, Mr. Theunens.  Mr. Theunens, again, I would like to

13     remind you that you are still bound by the solemn declaration you gave at

14     the beginning of your testimony.

15             Mr. Kehoe will now continue his cross-examination.

16             THE WITNESS:  Thank you, Your Honours.

17             JUDGE ORIE:  And may I invite you to focus your answers very much

18     to the questions that are put to you.  If further details are needed or

19     further explanations are needed, then Mr. Kehoe will ask for it.

20             Please proceed.

21             MR. KEHOE:  Mr. President, in an effort to expedite this

22     particular area, I consulted with Mr. Waespi after the break, and we went

23     through a series of these intelligence reports that are cited by

24     Mr. Theunens in his report.  I have provided the 65 ter numbers to the

25     registrar, and we would like to offer those.  We're just going to talk

Page 12501

 1     about a couple of, questions about a couple of them, but the balance of

 2     them we would like to introduce into evidence, and I don't believe the

 3     Prosecution has any objection.

 4             MR. WAESPI:  That is correct, Mr. President.

 5             JUDGE ORIE:  The Chamber appreciates the initiative and the

 6     result.

 7             Please proceed.

 8             MR. KEHOE:  I'd clarify one point, Judge.

 9             The one document that is not, I believe, in Mr. Theunens' report

10     is the one I did discuss yesterday that was introduced already.  So in

11     fairness to the witness I just wanted to let him know what was in his

12     report and what was not.

13                           WITNESS:  REYNAUD THEUNENS [Resumed]

14                           Cross-examination by Mr. Kehoe: [Continued]

15             MR. KEHOE:  Mr. President, should I -- if I ask a couple of

16     questions should I just continue with the 65 ter numbers, or would it be

17     more efficient if we --

18             JUDGE ORIE:  Of course, how efficient depends on your questions.

19             MR. KEHOE:  I'm talking about referencing the documents.  I don't

20     intend to go through all of these documents, but I will ask a couple of

21     questions, I think on two.

22             JUDGE ORIE:  Yes.  Apparently you have made a significant effort

23     to seem to -- to streamline and to make your cross-examination efficient.

24     So I leave it for the time being in your hands to do it as you think in

25     this approach what would be most suitable.

Page 12502

 1             Please proceed.

 2             MR. KEHOE:  Yes, Mr. President.

 3        Q.   If we could just briefly touch on a few of these documents that

 4     we've introduced, Mr. Theunens, and if I could look at 65 ter 2924.

 5             Mr. Theunens, this is a report dated 18 July 1995 from the

 6     intelligence department.

 7             And if we could turn our attention to the second page of this

 8     document.  In the document it is talks about various positions,

 9     intelligence positions, but at the bottom of the second page going over

10     to the next page, if you could help us out.  It says:

11             "After the successful liberation of the occupied area in Western

12     Slavonia, using infantry the rebel Serbs on the northern Dalmatian front

13     reinforced their defence line, occupied all of the abandoned positions in

14     the zone of disengagement, i.e., after the signing of the Zagreb

15     agreement, they intensified activities to pull out most of the brigade

16     artillery."

17             And there is an explanation of brigade artillery.  If we could go

18     to the next page, please, in the English.  I believe it's -- I'm not

19     exactly sure where it is in the B/C/S, but it is the second page -- the

20     next page at the top.

21             And it talks about relocating artillery and then further down

22     relocating armoured units.

23             Can you help the Chamber out a little bit, Mr. Theunens.  What is

24     happening when the intelligence report's saying they're pulling out of

25     the brigade artillery in Oganj, self-propelled rocket launchers ... army

Page 12503

 1     use.  What's going on there, sir?

 2        A.   The Vance Plan, among other things, prescribed that the zone had

 3     to be demilitarised and the armed forces be demobilized, which meant that

 4     the military equipment of the local Serb forces had to be put in

 5     warehouses which were under a dual-lock system with UNPROFOR.  Of course

 6     there were many violations.  The Zagreb agreement of March 1994 was an

 7     attempt in order to reactivate that component of the Vance Plan, whereby

 8     separation zones of one, ten, and 20 kilometre were agreed upon.  The one

 9     should be two, I apologise.  So that the first zone two kilometre for

10     infantry, ten for tanks, and 20 kilometres for artillery, meaning that

11     the HV and then the SVK had to keep these weapons out of a zone defined

12     by these distances on both sides of the separation line or the UNPA

13     limit.

14             And according to this intelligence report, the SVK are basically

15     violating that agreement by redeploying artillery assets, and I

16     understand from the previous page that they are redeploying them within

17     the 20 kilometre separation zone.

18        Q.   If we could turn our attention next to 65 ter 115.

19             MR. KEHOE:  Now I must say, Mr. President, on this particular

20     document it doesn't have a date line like many of the other documents.

21     However, it does in the class section note that it is in August of 1995,

22     1 of 17.

23        Q.   So, Mr. Theunens, it would appear this is an order that was

24     executed on the 1st of August of 1995.

25        A.   Yes, I agree.  In the first line this is a reference to Ljeto,

Page 12504

 1     Ljeto was concluded on the 30th of July, 1995.

 2        Q.   Yes.

 3             Now if we can turn to the next page of this document, and if we

 4     could just -- it -- in the third paragraph there's a comment in there

 5     about the command post of the 7th Knin Corps in Knin.  I'm interested in

 6     the bottom portion of that paragraph in "the discussion of the 2nd Drvar

 7     Krajina Corps is in the barracks town centre."

 8             Now the 2nd Krajina Corps is the Bosnian Serb army or the VRS, is

 9     it not?

10        A.   It is, Your Honours.

11        Q.   At this point on August 1st, 1995, the VRS, the Bosnian Serbs,

12     were planning joint operations with the army -- of the Serb Krajina, were

13     they not?

14        A.   I have no information of that.

15        Q.   Did you know that in late July they agreed on a mutual defence

16     pack between the Republika Srpska and the Republic of Serbian Krajina?

17        A.   There have been several political and military agreements over

18     time.  But I'm not specifically familiar with the one you refer to, but

19     -- I apologise.  If you show it to me, then I can comment on it.

20        Q.   It's fair enough, sir.  If we can stay on this particular page.

21     If we just scroll down a little bit on that page we note that we're

22     talking about a deployment of Howitzers by the 7th Krajina Corps and of

23     interest -- and at the bottom of the page is a deployment of tanks by the

24     7th Krajina Corps, but of interest to me is the intelligence line, "of

25     the corps fire support group from the 2nd Krajina Corps, 4, H155."

Page 12505

 1             Would that would be 155 Howitzers?

 2        A.   155 millimetre calibre Howitzers, yes.

 3        Q.   As well, as two T 130s and an Oganj multi-barreled rocket

 4     launcher.

 5             Did that indicate to you that the 2nd Krajina Corps was supplying

 6     the ARSK with these ammunitions?

 7        A.   Not at all, Your Honours, it just states that according to the

 8     intelligence available to the -- I assume it's the Split Military

 9     District.  According to their information or their intelligence, these

10     weapons are deployed in that area.  Now there is no indication whatsoever

11     that is this an offensive deployment, a defensive deployment, and there

12     is no mention made whatsoever of ammunition.

13        Q.   I understand.  These being deployed in -- being deployed in

14     support by the 2nd Krajina Corps in support of the ARSK.

15        A.   Your Honour, the document does not allow to draw that conclusion.

16        Q.   Fair enough, sir.  Let us turn our attention to 65 ter 4505.

17             This is an intelligence report that you discussed from the 2nd of

18     August.  And this is an intelligence assessment:

19             "Due to the consequences of the breakthrough of the VRS 2nd

20     Krajina Corps, forces in the area of Bosansko Grahovo and Glamoc.  The

21     highest state of -- highest state leaders of the Serb Para-states on the

22     occupied areas of the Republic of Croatia and the Republic of

23     Bosnia-Herzegovina have intensified the mutual cooperation in order to

24     get the specific military results that should restore the undermined

25     morale and stop the panic among civilians.

Page 12506

 1             The state of war has been declared on the area of both

 2     Para-states with a goal to arm all men fit for military service and to

 3     organise the defence of the Serbhood in all institutions and

 4     organisations."

 5             Just skipping one paragraph :

 6             "The corps special forces with the primary task to carry out the

 7     decisive defence of Knin and RSK were accordingly transferred to Slunj to

 8     the area of -- excuse me?  Slunj -- from Slunj to the area of

 9     Crvena Zemlja, and Strmica."

10             I'm interested sir, when you were -- this talks about the

11     decisive defence of Knin.  When you were a military analyst with the UN,

12     it was your conclusion as well that the ARSK intended to defend Knin

13     should there come an attack from the HV, was it not?

14        A.   Just a minor correction.  I worked as a military information

15     officer.

16        Q.   My apologies.

17        A.   I mean, just for the sake of correctness of the terminology we

18     use.

19        Q.   I understand.

20        A.   It was our -- and when I say our I mean the assessment of the

21     military information office that the SVK because of the -- mainly because

22     of the favourable terrain, would try to defend the wider area of Dalmatia

23     including Knin, but I'm not aware of any special focus of our attention

24     on Knin.  We saw Knin as a symbol of the existence of a (state or

25     Serb-declared state of the Serbs in that area) but we had no precise

Page 12507

 1     information on the nature of the defence of Knin, let alone a specific

 2     assessment in relation it that defence.

 3        Q.   One last document in this area before we move to the next topic

 4     briefly, Mr. Theunens.  I just want to show you D156 in evidence.

 5             I believe you discussed this -- what is this about, sir, this

 6     particular document, and it is 20 July 1995 and signed by

 7     General Gotovina.  If can you scroll down on the English just a bit.

 8        A.   Your Honours, this is a report compiled by the commander Split

 9     Military District which is sent to the assistant chief of the HV

10     Main Staff for combat sector General Stipetic, and it includes

11     information or intelligence available to the Split Military District

12     according to which a number of weapons of the SVK are located within the

13     separation zone I defined earlier.

14             Again, it is information of the Split Military District.  I'm not

15     in a position to say whether this information is accurate or not.  I know

16     that the UN also kept records of these violations.  Now we see very

17     precise information as to the type of the weapon, the number, the general

18     location, i.e., the area as well as the X and Y grid reference, i.e.,

19     when have you a map you can plot the exact position, in particular

20     because of the number of digits that I used, you can plot the exact

21     position or alleged position of the weapon that map.

22             MR. KEHOE:  Your Honour, I'm going to shift subjects.  I don't

23     know if you want to wait for the break for evidence numbers on the

24     documents I provided to the registrar.

25             JUDGE ORIE:  Yes, perhaps we can get it all together so that we

Page 12508

 1     go through it in the numbers.

 2             MR. KEHOE:  And if we could be provided the numbers, if we could

 3     just have the numbers now.

 4             JUDGE ORIE:  Mr. Registrar, if you prepare a list and we deal

 5     with them.

 6             Unless, Mr. Waespi, if there would be any objection against any

 7     document, we'd like to hear that right away.

 8             MR. WAESPI:  No, Mr. President.

 9                           [Trial Chamber and registrar confer]

10             JUDGE ORIE:  Please proceed, Mr. Kehoe.

11             MR. KEHOE:  Frankly, the reader of the transcript flipping back

12     to these particular documents, so in the --

13             JUDGE ORIE:  Yes.  If that's -- that is the case now and then,

14     but I would not mind if it would accommodate you.

15             Mr. Registrar, this document.

16             THE REGISTRAR:  We have seven documents.  I will read the 65 ter

17     numbers followed by the exhibit numbers.

18             65 ter number 609 becomes Exhibit D962; 65 ter 807 becomes

19     Exhibit D963; 65 ter 115 becomes Exhibit D964; 65 ter number 3126 becomes

20     exhibit number D965; 65 ter number 4505 becomes exhibit number D966; 65

21     ter number 5777 becomes exhibit number D967; and 65 ter number 2924

22     becomes exhibit number D968.

23             JUDGE ORIE:  Mr. Waespi, I take it then there are no objections

24     against any of these documents which means that the Chamber now admits

25     into evidence D962 up to and including D968.

Page 12509

 1             Since we're dealing with these matters, I think yesterday there

 2     were two exhibits where you were granted a 24-hour -- the 24 hours are

 3     not completely over, almost.

 4             MR. WAESPI:  Yes, Mr. President.  I don't have an objection in

 5     relation to the maps.

 6             JUDGE ORIE:  Yes.

 7             MR. WAESPI:  And I forgot the exhibit --

 8             MR. KEHOE:  The next one was the audio, Mr. President, and I will

 9     say Mr. Waespi and I did discuss that, and there may have been come

10     confusion on my part about the source of that tape that.  Was the tape

11     that was the clip from the 65 ter the list item already in evidence.

12             So it was a tape that was given to us.  So I think with that

13     clarification, I believe Mr. Waespi's concerns were eased.

14             MR. WAESPI:  Yes, and no.  Obviously the clip you played is part

15     of a larger clip.

16             MR. KEHOE:  That's right.

17             MR. WAESPI:  That is 65 ter 4467, and we would like to move the

18     larger clip into evidence.

19             MR. KEHOE:  And the Defence has no objection to that.

20             JUDGE ORIE:  No objections against that.

21             MR. WAESPI:  Thank you, Mr. President.

22             JUDGE ORIE:  Then it would still be appreciated if we would have

23     somewhere on the record what portion, that means from what minute, how

24     many seconds to what was played in court so that we not only do know what

25     is in evidence but what was played.

Page 12510

 1             MR. KEHOE:  Yes, Mr. President, we can take care of that.

 2             JUDGE ORIE:  Please proceed.

 3             MR. KEHOE:

 4        Q.   Mr. Theunens, now we've talked about the orders coming from the

 5     General Staff, General Gotovina's actions prior to Storm, we have the

 6     intelligence reports, and I'd now like to look at the actual orders

 7     involving Storm which then became Kozjak, as you know, or renamed as of

 8     the 1st of August, it would appear.

 9             And the document that I would like to discuss with you initially

10     is 65 ter 2614, and this is an order of attack signed by General Gotovina

11     of the 1st of August 1995.  If we could just look at the cover page

12     first.

13        A.   Mr. Kehoe, quick question:  Did I discuss it in my report or not?

14        Q.   Yes, sir.  I will give you the reference of where you discuss it.

15             MR. KEHOE:  If I might one moment, I will give you the reference.

16                           [Defence counsel confer]

17             MR. KEHOE:  My apologies, Mr. President.  I'm just trying to find

18     it in the report.

19        Q.   Mr. Theunens, it is on page 97 of part 2, footnote 364.

20        A.   Thank you.

21        Q.   Do you see that, sir?

22        A.   Yes, indeed, thank you.

23        Q.   Okay.

24             MR. KEHOE:  If we could just bring this up.  This is

25     General Gotovina's order of 1 August of 1995.

Page 12511

 1        Q.   And the name up in the right-hand corner is Kozjak 1995.  And I

 2     believe this is the first document in your report that refers to that

 3     name, or if it is not, could you tell us why this name changed?  I mean,

 4     do you know?

 5        A.   I know that Kozjak is the name of a mountain in the area, a

 6     mountain in the Dinara mountains, but I have no specific knowledge of why

 7     the name of Oluja was changed into Kozjak.

 8        Q.   If we can just stay with this order, and if we can go to page 12,

 9     and I'm looking at the artillery support issue.

10             And we talk about the tasks of the rocket groups, and it's a --

11     we now find on this page on the artillery groups, so if we can scroll up

12     a little bit more.  Five artillery groups, one through five.  Now that

13     was a change from the prior orders on Storm, was it not?

14        A.   Yes, it probably is.  I don't know anymore.  But I assume it is.

15        Q.   This order for the first time then took in an artillery group

16     that took into account additions coming from the HVO, did it not?

17        A.   My understanding is that these three artillery rocket groups and

18     two artillery groups organised the artillery assets that are available at

19     the level of the Split Military District Command, whereby the composing

20     units also have their own artillery assets.

21             The document we see does not specify -- I mean, yeah, I correct

22     that, indeed there is mention made of a number of assets provided by the

23     HVO.

24        Q.   This particular rocket groups and the rocket companies were then

25     deployed down to the particular operative groups, weren't they?

Page 12512

 1        A.   That is correct.

 2        Q.   Now, if we go down to where we were in the tasks, and we look at

 3     General Gotovina's line group an organisation TS and TRS-2, TS being an

 4     artillery group and TRS being artillery rocket companies:

 5             "Along the main axis of attack, focussing on providing artillery

 6     support to the main forces in their attack operations by launching a

 7     powerful assault on the enemy's first line, command post, communications

 8     centres, and artillery firing positions, and by targeting Drvar, Knin,

 9     Benkovac, Obrovac, and Gracac with artillery fire."

10             That is basically the language that you quoted in your report at

11     page 180 when you said that there were no specific -- there was no

12     specific targeting information on those towns.

13             I would like you to look at the next page of this -- this order

14     on 13, at the top of this page.  If we can go to the top of the page in

15     English, there's a bit on the top of this page that we can't ...

16             MR. KEHOE:  My apologies on the pagination, and I have it maybe

17     on the bottom of the prior page.

18        Q.   In the middle of the page, it says "... the chiefs of the

19     artillery in the operative groups will draw up artillery plans of use and

20     plans of action appropriate for the groups formed, each for their own TS

21     and TRS."  Again, TS being artillery groups and TRS artillery rocket

22     companies.

23             So pursuant to this order, sir, General Gotovina is ordering the

24     chiefs of the artillery in each of the operative groups to come up with

25     artillery plans.  Is that right?

Page 12513

 1        A.   Yes.  General Gotovina expects as we have seen in the earlier

 2     orders mentioning Oluja where it was the chief of the HV Main Staff that

 3     specified the categories of objectives that were to be engaged by the

 4     artillery.  Here General Gotovina expects his subordinate commanders to

 5     determine the targets they are to engage based on the categories he has

 6     defined.

 7        Q.   Now, I note that in your report, you do not mention that

 8     particular sentence, nor do you discuss that in your report, about

 9     General Gotovina asking the chiefs of artillery in the operations groups

10     to do that.  Let us -- go ahead.

11        A.   Yes, Your Honours, but I have reviewed artillery orders of the

12     subordinate commands, and I would like to draw your attention in that

13     context to part 2 of the report, English page 110, where I give as

14     example the OG Zadar order for attack for artillery which is 65 ter 2209,

15     which literally copies the order included in General Gotovina's Kozjak

16     order, by stating, "Put the following towns under artillery fire

17     Benkovac, Obrovac, and Gracac."

18        Q.   Well, I mean, we'll get to that, sir.  And I observe that, and we

19     will continue on down for the targeting information.

20             MR. KEHOE:  Your Honour, at this time, we'd like to offer into

21     evidence 65 ter 2614.

22             MR. WAESPI:  No objections.

23             JUDGE ORIE:  Mr. Registrar.

24             THE REGISTRAR:  Exhibit D969.

25             JUDGE ORIE:  D969 is admitted into evidence.

Page 12514

 1             MR. KEHOE:

 2        Q.   If I can turn your attention to 65 ter 3124, and this is the

 3     order of attack for the 2nd of August, this one given by the chief of

 4     artillery Marko Rajcic.  And this is the attachment for Kozjak 5 for the

 5     artillery.  Again as we move down we now have the five separate -- three

 6     groups and five separate artillery and rocket units.

 7             On the next page, if we can, we have TS and a TR locations and

 8     firing dispositions of all of those weapons.

 9             If we can go to the next page.  Actually, the following page, is

10     7.  Excuse me, on 7.  Again, it's the order by Rajcic who is the chief of

11     artillery who -- if we can go to the last page, page 4 in the English.

12              "The artillery chiefs and operations groups shall prepare at

13     their own levels.  All necessary documents for carrying out offensive

14     operations."

15             What Rajcic is ordering at this point pursuant to the order

16     coming from General Gotovina is that these artillery chiefs are to -- are

17     to come up with targeting information on all the targets that they intend

18     to engage.  Is -- is that not your understanding from this?

19        A.   It -- what you provide is a bit of a vague description of what

20     should be done.

21             It is correct that the more you descend in the chain of command,

22     the more specific orders become.  That is -- that applies for all orders.

23     However, when we're talking about targeting, and as you have pointed out

24     during my cross-examination, you need intelligence, you need information

25     about the location of the targets.  There is no doubt that the higher you

Page 12515

 1     go through the chain of command, the more intelligence assets, i.e.,

 2     collection organs you have available.  That explains, for example, that

 3     General Gotovina receives intelligence reports from the HV Main Staff,

 4     intelligence administration.

 5             So what I'm trying to say is that the artillery commanders or

 6     assistant commanders for artillery in the OGs need much precise

 7     information from their superior commander, i.e., General Gotovina, in

 8     order to determine the targets their assets have to engage, instead of

 9     just having a one-liner saying, "Shell the towns ever Drvar, Knin,

10     Benkovac Obrovac and Gracac," as we can see again on the previous page of

11     65 ter 3124.

12             It is not only a matter of location of the targets but also of

13     prioritizing, because in general there would be too many targets.  So

14     there has to be a plan in order to determine which targets to engage

15     when, not only because with the priority but also because of the

16     location, because at the meantime you expect your ground forces, infantry

17     armour progress, and it cannot happen that you are going to engage a

18     target which is located in an area you have already taken control of.

19             So in one line, the OG -- the assistant commanders for artillery

20     of the OGs need much more specific information for the targeting of -- or

21     the engagement of targets in these towns.

22        Q.   Mr. Theunens, we talked before about intelligence and the fact

23     that the Split Military District was gathering intelligence on troop

24     deployments, artillery deployments, armour, communications facilities,

25     headquarters, and I think that you refer in your report that, and correct

Page 12516

 1     me if I'm wrong, that this intelligence gathering was an ongoing process?

 2        A.   Yes, that's correct.

 3        Q.   Is it not reasonable to assume as a person in your position that

 4     that intelligence information is being passed down to the artillery units

 5     so they can make target selections?

 6        A.   Yes.  But the manner to transfer that information will actually

 7     be the artillery attachment or the order for artillery that is included

 8     in the attack order Kozjak-95.

 9             So I hope you understand that a town as such is not a military

10     target, and for a military person it is not sufficient in order to carry

11     out the planning.  I mean, in this case of artillery fire, when you say

12     shell the towns of Drvar, Knin, Benkovac, Obrovac, Gracac, there may have

13     been or probably military targets in those locations, but these targets

14     have from the offensive force point of view a different importance.  Some

15     targets are more important than others, and of course will have an impact

16     on the nature of the artillery plan, because as I said, and I apologise

17     for repeating it, an artillery plan doesn't only include the locations

18     and -- in a very precise manner of the targets but also prioritizes them

19     because you always get too much targets, and you don't have enough assets

20     or ammunition to engage all these different targets.  And that is again

21     part of the command and control process, where by the commander in the

22     planning process, assesses the importance based on the mission he has

23     received from the his superior, assesses the importance of the targets

24     and -- and other important aspects that are located in his zone of

25     responsibility.

Page 12517

 1        Q.   We will get to these additional plans in one moment,

 2     Mr. Theunens.

 3             Just briefly, before we move off this document, which,

 4     Mr. President, I would like to offer into evidence, 65 ter 3124, if I

 5     haven't done so already.

 6             MR. TIEGER:  No objections.

 7             JUDGE ORIE:  Mr. Registrar.

 8             THE REGISTRAR:  Exhibit D970, Your Honours.

 9             JUDGE ORIE:  D970 is admitted into evidence.

10             Please proceed.

11             MR. KEHOE:

12        Q.   Yes.  And we need not go back to the document, but in page 2 of

13     this document we have the firing dispositions of these particular units,

14     and I would like to bring up 1D63-0082, which --

15             MR. KEHOE:  I will tell the Chamber and my learned friend, is the

16     information that was taken from the prior order.  These firing

17     dispositions.

18        Q.   Now, Mr. Theunens, we have contain the liberty of using this

19     information and putting it on this map, and I -- laying out the 3 TRS

20     units and the two TS units, the TS-3 being deployed towards Drvar, and

21     TS-2 in -- TRS-2 and TRS-1 being deployed in the Tomislav district, again

22     towards Bosnia.  Well, TS-3 and TS-4 are focussed towards Knin and other

23     locales.

24             Now when you were reviewing this information, Mr. Theunens, and I

25     know you didn't have this particular map, but the information.  It was

Page 12518

 1     clear to you that part of this artillery plan was the shelling of Knin,

 2     but it was also a shelling plan directed towards the VRS or the army of

 3     the Bosnian Serbs.  Is that not correct?

 4        A.   It probably is.  I haven't -- I mean, this is the first time I

 5     see this map.

 6        Q.   I understand, sir.

 7        A.   I don't know whether it can help, but what I just tried to

 8     explain in my previous answer I could also explain it here, in order to

 9     demonstrate that actually you need precise planning also in relation to

10     prioritizing of targeting and determining who is to engage what.

11             Because when you look at TS-4, south-west of Knin, and TS-3,

12     which is located in Bosnia-Herzegovina, you actually see that they

13     overlap.  I mean Knin can be reached, if I understand the map well, by

14     the artillery assets of both artillery groups.

15             Now at least in the military's -- in the military you don't -- if

16     such an overlap exists, you want to determine in very precise term who

17     will do that at what time against which precise target because otherwise

18     you get chaos.  As I mentioned earlier artillery fire has to be observed.

19     The observer has to know, Well, what do I have to observe?  And that's

20     why an artillery plan will cover several pages and will be very specific,

21     and this is the importance of that is, in my view, visualized by this

22     map.

23        Q.   Just taking what you last said with regard to observations, and I

24     think you noted for us when you were discussing your CV that you actually

25     went to forward observers school at one point.

Page 12519

 1             Did not the information that you were in possession of through

 2     the OTP indicate that the HV did, in fact, have forward observers

 3     watching the artillery and correcting fire?

 4        A.   Indeed.  But maybe I'm not sufficiently precise.

 5             Suppose that there is military target in the centre of Knin.

 6     There will be a military observer who will know, I have to engage these

 7     and these targets.  This observer has to know from whether -- from which

 8     units the fire comes, because otherwise he doesn't know whom he has to

 9     speak to about the correction of the fire.  And if we see -- again I'm

10     taking this map as it appears in front of me, if actually two artillery

11     groups, TS-4 and TS-3, can engage Knin, well, maybe they have both

12     observers there, but at least the observer has to know whether it is TS-3

13     or TS-4 which has engaged this specific target at this specific time,

14     where he is expected to send information in relation to the effectiveness

15     of the fire.  He cannot send it to both.  You mean he could, but that is

16     not how militaries work.  He has to know from where the fire comes.

17     Again, explaining why there is an requirement for detailed planning.

18        Q.   Mr. Theunens, in your 700-page report, do you reflect any

19     information that TS-1 was not in communication with TS-3 or that the

20     forward observers were not in communication with these individual

21     artillery groups?  Did you have any information of that you that put

22     forth in your report?

23        A.   No, I didn't because that was not part of my report.  I didn't

24     analyse that map for my report.  Here I am asked to comment on a map, and

25     I take the map as it is shown to me.  I assume that I understand what the

Page 12520

 1     map shows, and that's what I'm providing testimony on now.

 2        Q.   Well, you did have D970 which is the attack order that we just

 3     talked about by Marko Rajcic which sets up the combat disposition of

 4     these five artillery and rocket groups.  And based on that, and the other

 5     information that you had, you didn't have -- did you not come across any

 6     data to reflect that these two groups that were focussed or trained on

 7     Knin were not in communication with one another.  Is that correct?  Put

 8     aside the map, just on the documents that you have.  And I'd like you, if

 9     you can, point to that in the report in some fashion, if it's there.

10        A.   It's correct I did not come across information in relation to the

11     degree of communication between the artillery groups, but again, the

12     answer I give now is based on my military expertise, and in particular

13     the training i had in the organizing of artillery fire at the brigade

14     level during my staff course in Belgium.

15             MR. KEHOE:  Your Honour, at this time, we'd like to offer into

16     evidence 1D63-0082 which is the map on the screen.

17             MR. WAESPI:  No objections.

18             JUDGE ORIE:  Mr. Registrar.

19             THE REGISTRAR:  Your Honours, that becomes exhibit number D971.

20             JUDGE ORIE:  D971 is admitted into evidence.

21             MR. KEHOE:  If I might just have one moment, Mr. President.

22                           [Defence counsel confer]

23             MR. KEHOE:

24        Q.   Mr. Theunens, I'd like to direct your attention to a

25     3  August 1995 order of attack from the Sibenik Operative Group.

Page 12521

 1             Now I will tell you, Mr. Theunens, in fairness, this is a

 2     document in B/C/S that we received from the Office of the Prosecutor that

 3     was not translated and that we had translated.  So I don't believe it is

 4     reflected in your report.

 5             JUDGE ORIE:  Before we continue, Mr. Kehoe, you indicated on this

 6     map the maximum fire ranges for T 130s.  Of course, they're all the same.

 7             What is the maximum firing rage.

 8             MR. KEHOE:  Your Honour.  I will find out exactly specifically

 9     what that range is with data.  I don't want to mislead the Court on that,

10     but I will find that out on the break.  [Microphone not activated].

11        A.   Just to be precise the artillery groups and the artillery rocket

12     groups had also other weapons.  You mentioned the Oganj or the other

13     multi-barrel rocket launchers, there were also Howitzers.

14        Q.   I mentioned the Oganj and the Orkan rockets, those were SVK

15     pieces.

16        A.   But on page, English page 109 of part 2 of my report, I -- for

17     example, when we look at the support provided to OG North, it includes at

18     least, okay, four 203 millimetre Howitzers, and again I can check the

19     ranges, but I don't know them by heart.  Three 155 millimetre Howitzers,

20     four 152 millimetre Howitzers, ten 130 millimetre guns, and four 122

21     millimetre multiple rocket launchers.  And that information is included

22     in 65 ter 3124.

23             So maybe you have another map that shows the rages for other

24     weapons, but this is only a snippet of information which does not reflect

25     the overall situation.  It is one component of the picture.

Page 12522

 1             MR. KEHOE:  Mr. President, we can find the ranges on all those

 2     particular weapons.

 3             JUDGE ORIE:  Yes, I take it that we can find that.  But then, of

 4     course, for us to understand the meaning of this map, if -- well, if I

 5     would say bluntly half the weaponry is presented here the other half not,

 6     I mean, what's -- how -- should we ignore the other weaponry, or is there

 7     any specific reason why you included in this map the T 130s and not the

 8     others?

 9             MR. KEHOE:  What we attempted to do in this map only,

10     Mr. President, and my apologies if I didn't clearly delineate this, was

11     take 65 ter 3124, which is D970.  And the list of combat dispositions, in

12     other words, the locations where they were supposed to be and where they

13     were supposed -- the direction that they were supposed to fire and where

14     the post was that they were supposed to operate from, and on this

15     particular map, it's reflecting of these five different TS and TRS groups

16     only two trained on Knin, and three are trained on the 2nd Krajina Corps.

17     There weren't attended at this point to not take into account that there

18     was weaponry as Mr. Theunens accurately pointed out, but just to clarify

19     exactly what these dispositions of weaponry meant.

20             JUDGE ORIE:  Yes.  But what is then the use of giving us the

21     maximum firing range, if there were other weapons with larger or smaller

22     fire range?

23             MR. KEHOE:  I can -- I can talk to the witness about that, and he

24     can he explain the weaponry going down.

25        Q.   The weaponry, Mr. Theunens, was used both on some occasions --

Page 12523

 1     used for operational targets but also used tactically in support of

 2     brigades, was it not?

 3        A.   I'm not sure I understand the question, but I will try to give my

 4     answer as I understand it.

 5             The assistant commander for artillery, when he establishes or

 6     when he orders based on the instructions received from the operational

 7     commander, to organise the artillery, for example, here in a number of

 8     artillery groups and artillery rocket groups, he will also establish the

 9     composition of these ad hoc units, because in peacetime these artillery

10     groups and artillery rocket groups do not exist.  He will use a different

11     criteria.  I mean, first of all, the location; then the nature, i.e., the

12     distance and again, yeah, the nature of the targets that have to be

13     engaged, because each weapon can be used for a different target.  You're

14     not going to use a multiple rocket launcher if you want to engage a

15     military headquarters that may be located among -- or in an urban area.

16     You will use multiple rocket launchers for dismounted infantry or lightly

17     reinforced positions on the first line.

18             This is again a whole process the assistant commander for

19     artillery carries out before he issues the orders for the establishment,

20     location, and then the specific missions of the artillery groups and

21     artillery rocket groups.

22        Q.   Now, if we take that one step further, you're talking -- you were

23     just referring briefly to these artillery groups and the rocket groups,

24     operating in support of brigades.

25             Now, they were also operating not only in shelling, for instance,

Page 12524

 1     in Knin they were operating in support of brigades that were moving on,

 2     for instance, trenches that were manned by the ARSK, were they not?

 3        A.   Your Honours, in part 1 of my report, I have a section on fire

 4     support, where the -- the use of artillery, i.e., the purpose of the use

 5     of artillery as a component of fire support is explained.  It is obvious

 6     that fire support is used against targets that have -- as I explained

 7     have been determined by the superior commander and have been considered

 8     important by the superior commander to eliminate or destroy or achieve

 9     other goals in relation to these targets, in order to implement the

10     mission he has received from his superior commander.

11             JUDGE ORIE:  Mr. Kehoe, I come back to your answer when I asked

12     you what was the reason to include on the map the T 130s and not the

13     others and you said, Well, what we tried to is to reflect in the map what

14     we find in 65 ter -- you referenced to that document.

15             Now if I look at that document, that document does not just tell

16     us where T 130s are supposed to fire, but, if I'm not mistaken, for

17     example, TS-3, also firing positions of the 203 millimetre Howitzers, 155

18     millimetre Howitzers.  All the weaponry is in that document, so when I

19     ask you what is the reason just to only present the T 130s in the map,

20     the explanation that you limited yourself to the combat disposition as

21     described in this -- in this document under number 2, seems not to be an

22     answer to my question.  Why you mention half -- I don't know exactly what

23     percentage it is, but only a part of the weaponry, especially since you

24     gave maximum firing ranges which suggest more or less that some of the

25     cities are just at the boundary of what you could still reach, and that

Page 12525

 1     is very suggestive.

 2             Your answer -- we limited ourselves to this document.  It's

 3     difficult for me to understand as an answer whether the document gives

 4     them all.

 5             MR. KEHOE:  If I may, Judge, the reason why we limited it to the

 6     T 130s was because the T 130 had the longest range.

 7             JUDGE ORIE:  That's the longest.  If that is the case, if the

 8     others -- if Mr. Theunens could confirm that, that the T 130 have the

 9     longest range of all the weaponry which is mentioned in this -- in this

10     listing of -- of the weaponry, where at what positions to have them,

11     where we find apart from the 130 millimetre guns, we also have the -- and

12     I'm limiting myself to TS-3 155 millimetre Howitzers, 233 millimetre

13     Howitzers, they all have a shorter range?

14             THE WITNESS:  By doctrine, Mr. President, Howitzers have shorter

15     rage than guns because they have a shorter barrel, but I would like to

16     make two comments:  I think it would be useful to check the information,

17     and also then to check the scale of the map in order to see whether the

18     maximum firing ranges, as they are depicted there, are accurate, i.e. --

19             JUDGE ORIE:  I asked for the ranges that were used on this map.

20             MR. KEHOE:  I have the information.  The T 130 has a maximum of

21     27.49 kilometres.  The 203 has a maximum range of 16.8 kilometres.  The

22     T 155 has a maximum range of 14.95 kilometres.  And the T 152 has a

23     maximum range of 17.4 kilometres.

24             We can provide the Chamber with the background information on

25     that which is reflected in some UN documentation on those -- that

Page 12526

 1     particular weaponry --

 2             JUDGE ORIE:  No.  I take it you say we have checked that, and

 3     then of course I have a look at the map to see how this is -- I'm -- I

 4     miss the first one.  The 130 was 27 kilometres?

 5             MR. KEHOE:  27.49.

 6             JUDGE ORIE:  Yes, that's by for the longest.

 7             You would agree with that?

 8             THE WITNESS:  I would agree, Your Honour.  Just for the sake of

 9     -- to be complete, the 120 millimetre multiple rocket launcher should

10     also be included.

11             JUDGE ORIE:  Yes.  We would we find that ...

12             THE WITNESS:  Based on my information that is also included in

13     65 ter 3124, or 65 ter 3119, or 65 ter 3131.

14             JUDGE ORIE:  Yes.  Do you know by heart what the maximum range of

15     such a multiple rocket launcher is?  Would that be shorter any way, then

16     we don't have to go into any further details.

17             THE WITNESS:  I assume it is shorter than 27 kilometres.  I will

18     check it during the break.

19             JUDGE ORIE:  Let's do the following:  If it is longer, please

20     report to us, if not ...

21             So the short answer, Mr. Kehoe, could have been that the weapon

22     mentioned is the one with the longest range, which is a quite simple and

23     quite acceptable explanation.

24             MR. KEHOE:  Maybe I wasn't focussing enough on the point,

25     Mr. President.  It was not only the weaponry but also the direction of

Page 12527

 1     fire that I was trying to demonstrate coming from this particular

 2     document, D970 because it is not self-evident exactly what direction all

 3     this weaponry is pointed in, so that was --

 4             JUDGE ORIE:  [Overlapping speakers] ...

 5             MR. KEHOE:  [Overlapping speakers] ...  I must have missed the

 6     actual range of fire --

 7             JUDGE ORIE:  [Overlapping speakers] ...  then this being

 8     clarified, let's proceed.

 9             Of course, I gave it some thought.  May I take it that the

10     direction of fire is defined by the terrain, for example, obstructions,

11     positions chosen.  Is that the kind of -- and perhaps I should ask

12     Mr. Theunens because you're not supposed not to give evidence.  But would

13     that limit the range?  The direction of fire, of course, it is not

14     360 degrees, it's limited.  May I take it it depends on position and

15     terrain.  If you are on the north side of a hill, you can't easily fire

16     in a southerly direction, isn't it?

17             THE WITNESS:  Depends on your position because artillery fires

18     indirectly, so you don't need -- I mean, that is the important --

19     importance of artillery.  You don't need to see your target, that's why

20     you have a forward observer.  And, for example, guns have a more straight

21     trajectory than Howitzers, but in any event, you can easily be behind a

22     mountain, unless of course it is a one kilometre mountain in front of

23     you.

24             But anyway the assistant commander for artillery will deploy his

25     weapons in such a way that they engage the targets.  And there are

Page 12528

 1     technical limitations, some weapons are bigger than others and cannot be

 2     put in whatever terrain.  But the main factors that determine the

 3     direction are the choice of targets and the location of the weapon.  What

 4     is -- the terrain in between does not have -- in this context at least --

 5     in this context, I mean, knowing the terrain in the area is not of

 6     importance.

 7             JUDGE ORIE:  Yes.  And, Mr. Kehoe, the map, the directions are

 8     they taken from this same document or ...

 9             MR. KEHOE:  They're -- taken from the combat disposition section

10     in D970.

11             JUDGE ORIE:  Yes.

12             THE WITNESS:  If I'm allowed, Your Honours --

13                           [Defence counsel confer]

14             MR. KEHOE:  If I may, Judge, and with the assistance of the

15     witness -- excuse me, with the -- his guidance to the witness, the

16     sources of all of that are down with the ERN numbers in the lower

17     left-hand corner.

18             JUDGE ORIE:  Yes.  I see that in the bottom of the map there are

19     some.  So there we find the directions of fire as well.  Okay, thank you.

20             THE WITNESS:  I just had a question, in a sense, these radiuses

21     that are drawn, are they determined by the fact that they cover the areas

22     where the targets that have been identified in the artillery plan or the

23     artillery order are located, i.e., the targets located in the area of the

24     radius, and just for visual purposes you have covered the entire area, or

25     is it just actually you measured the range and then you draw an ark, and

Page 12529

 1     that should be the area they cover because there is a significant

 2     difference between those two aspects, i.e., is the map based on range of

 3     weapons, or is the map based on information that has been used at the

 4     time of Operation Storm for targets purposes?

 5             MR. KEHOE:  Mr. President, quite clearly this is just a range map

 6     based on these locations.  The targeting purposes are the documents that

 7     were part of the witness's report that we will get into now a specific

 8     targets that were engaged with grid references.  This was the -- a view

 9     to giving the Chamber an idea of the maximum range but also the direction

10     as to where all these particular units were disposed, the TRS units as

11     well as the TS.

12             JUDGE ORIE:  Yes.  And we find that information, perhaps,

13     Mr. Theunens, you're the expert, did you right down the numbers that are

14     at the bottom of this map, and if there is any way to verify this

15     information as far as direction is concerned.

16             THE WITNESS:  Yes, Your Honours.

17             JUDGE ORIE:  You've got them.

18             THE WITNESS:  Yes, Mr. President.

19             JUDGE ORIE:  Please proceed.

20             MR. KEHOE:

21        Q.   If we can just move to a document that we discussed briefly which

22     is 1D63-0010.  And this is order of attack or OG Sibenik on 3

23     August 1995.

24             And again, Mr. Theunens, just to give you a reference point, this

25     particular document was received from the Office of the Prosecutor in

Page 12530

 1     B/C/S but not translated.  So I do not believe that this is indicated in

 2     your report, sir.

 3        A.   That is correct.  I only had access to -- of if I remember well,

 4     the order for attack for artillery of OG Zadar as well as the OG Sinj

 5     order for attack which are referred to on English page 110, part 2 of the

 6     report.

 7        Q.   I'm just trying to reference to you this document that the OTP

 8     had not translated, but it is order of attack dated the 3rd of August,

 9     and I want to turn to page 4 of this document.  And while this was not

10     provided by the OTP -- and this is the only document what he see before

11     you.  There is an note on the bottom concerning annexes from the OG

12     Sibenik command, and the fourth is artillery plans for offensive

13     operations and a map.

14             Now we do not have the actual map and the plan, that was never

15     provided.  Nevertheless, sir, from this document, it is logical to

16     conclude that there was an artillery plan with targets that were -- was

17     done by OG Sibenik with a map setting forth that targeting plan.  Would

18     you agree with that, sir?

19        A.   Yes, I agree.

20             MR. KEHOE:  Your Honour, at this time, we'd like to offer into

21     evidence 1D63-0010.

22             MR. WAESPI:  No objections.

23             JUDGE ORIE:  Mr. Registrar.

24             THE REGISTRAR:  Exhibit D972, Your Honours.

25             JUDGE ORIE:  D972 is admitted into evidence.

Page 12531

 1             MR. KEHOE:

 2        Q.   Now we previously in the documents coming from the Main Staff

 3     talked about the need for an artillery plan with tabular and textual

 4     information in the artillery plan.  And I would like turn your attention

 5     to 65 ter 5819.  And this -- I'll just wait for this to come up.

 6             Now, this is a tabular and textual part of the plan of the

 7     artillery engagement dated 3rd August 1995 for the 2nd Guards Brigade.

 8     And this sets forth, sir, the actual tasks of the artillery and the

 9     actual gun or weapon that is going to engage as well as the particular

10     task.

11             Is that right?

12        A.   Indeed.  And just a minor correction, it's the 7th Guards

13     Brigade.

14        Q.   I thought I said that.  I apologize if I did not.  I stand

15     corrected.  The 7th Guards Brigade.

16        A.   The commander here issues orders in relation to his artillery

17     assets which are separate from the artillery assets we discussed earlier.

18        Q.   Now, with regard to orders concerning 7th Guards Brigade assets,

19     and we have this document coming as a 65 ter document, isn't it

20     reasonable to conclude that every one of these artillery units had a

21     similar type of tabular and textual plan for artillery engagement?

22        A.   That would be what is prescribed by doctrine, and I have included

23     other examples of this on English page 187 of part 2 of the report.

24             MR. KEHOE:  Your Honour, at this time, we'd like to offer into

25     evidence 65 ter 5819.

Page 12532

 1             MR. WAESPI:  No objections.

 2             JUDGE ORIE:  Mr. Registrar.

 3             THE REGISTRAR:  Exhibit D973, Your Honours.

 4             JUDGE ORIE:  D973 is admitted into evidence.

 5             MR. KEHOE:

 6        Q.   And lastly in --

 7             JUDGE ORIE:  Could I just -- I tried to follow the evidence as

 8     precisely as I can.

 9             The issue earlier was that a number of towns were mentioned

10     without specific targets.  Now I haven't had an opportunity to go through

11     the whole of this document.  Are specific targets in this document

12     defined for any of those -- I think there were five villages, Drvar --

13     well, five of them, Gracac was one of them, I think.  Are there any

14     targets defined within these towns?  That's one of the things, in this

15     document, or is it just an example of how it was done elsewhere, so that

16     we could expect a similar thing, similar exercise for the towns that were

17     specifically mentioned as towns to be -- to be under artillery fire,

18     without specific targets.

19             I'm just trying to.

20             MR. KEHOE:  It's a little bit of both, Judge.  [Overlapping

21     speakers] ...

22             JUDGE ORIE:  [Overlapping speakers] ...

23             THE WITNESS:  Your Honours, this document only does not list

24     targets, it only discusses -- this page, in general terms, which fire --

25     I mean, type of fire and these types of fire will have defined are to be

Page 12533

 1     used or -- sorry.  What the tasks will be of these artillery fires at

 2     different stages of the operation.  This is not a list of targets.

 3             I have included a list of targets on English page 187, part 2 of

 4     my report, where we see target number, which will also be marked in the

 5     report and -- on the map and will also be found in the report.  Target

 6     coordinates, X, Y, Z.  East, west, north, south, as well as Z for

 7     altitude.

 8             JUDGE ORIE:  If I may stop you there.

 9             So we have apparently two issues.  You tell us that this document

10     gives instruction on how artillery should be used, what function in the

11     different stages of the operation it should have, without specifically

12     mentioning targets.  That does not yet answer the other question, whether

13     this covers also the towns you -- of which you earlier said that you

14     didn't see any specific targets within those towns.

15             Does it cover it, yes or no?  I'm just trying to -- to --

16             MR. KEHOE:  [Overlapping speakers] ...

17             JUDGE ORIE:  -- digest the huge amount of information we receive.

18             MR. KEHOE:  Mr. President, if I can just be of assistance.

19             This is just for the 7th Guards Brigade.  And as you can see on

20     the first, and we can go on -- this is focussed on Knin, so wouldn't be

21     focussed on some of the other towns.  So if you look at the first entry,

22     for instance, it is neutralizing the command post of garrison and

23     communication centre in the area of the town of Knin.

24             JUDGE ORIE:  Yes, and those kinds of targets in the other

25     document were specifically mentioned do this, do that, do that, and then

Page 12534

 1     at the end it says the towns of so-and-so -- and so have been -- so we

 2     find -- I think I understand, at least a bit.

 3             MR. KEHOE:  Yes, Mr. President.

 4             THE WITNESS:  If I'm allowed.  When we look at the document, it

 5     talks about brigade TS-7.  What I have attempted to explain is that the

 6     Split Military District has artillery assets at its level, its own

 7     artillery assets whereby the subordinate units also have artillery

 8     assets.

 9             This specific table or document discusses the tasks of the

10     artillery of the 7th Guards Brigade which is independent of the artillery

11     units we discussed earlier, the three TSs and the two TRSs which had been

12     established at the level of the Split Military District Command, and of

13     course, that will have -- that will have an impact on the targeting.

14             MR. KEHOE:  If I may, with all due respect, if I can go back to

15     the documents, I can clarify.

16             JUDGE ORIE:  Yes.  But sometime the documents and documents of

17     several pages is on our screen, and in order to follow the evidence

18     sometimes, I just want to check whether I understand what I see at this

19     moment.

20             Please proceed.

21             MR. KEHOE:

22        Q.   Mr. Theunens, going on your explanation when Kozjak was set up,

23     General Gotovina took the artillery and rocket groups and put them down

24     on the operative group level for the five -- for the operative groups to

25     deploy, telling them, If we need you on an operational level, we will

Page 12535

 1     tell you.  But the actual deployment and firing plans are coming down at

 2     an operative group level, and you used it at operative group level and

 3     you also use it at a tactical level.  That was the big difference in

 4     Kozjak, wasn't it?

 5        A.   I don't draw the same conclusion as Mr. Kehoe from the documents

 6     I reviewed.

 7             From the documents I reviewed -- and we discussed the orders of

 8     attack at the level of the Split Military District this morning, we see

 9     that artillery assets at the level of the Split Military District

10     Commands are organised in TSs and TRSs which indeed are there to support

11     the Operational Groups.

12             But in addition to that, the composing elements of the

13     Operational Groups, for example the 7th Guards Brigade, also have their

14     own artillery assets, and that is the concept of artillery fire where you

15     can have, without going into details, artillery fire in general support,

16     direct support, and so on, and so on, depending on who provides the fire

17     support and who determines the targets.

18             Some targets will be determined by the higher commander.  Here

19     the commander of the 7 Guards Brigade can, of course, for his assets

20     which are still with him, can determine his own targets.

21        Q.   Sir, in D969 General Gotovina quite clearly, does he not, say

22     that the artillery plans -- the artillery plans are supposed to be --

23     supposed to go down the operative group level, and that the Split

24     Military District sent those -- those orders down to the operative groups

25     to come up with the artillery plan for each of the individual groups.

Page 12536

 1     And that change was a major change in Kozjak, as of 1 August of 1995;

 2     isn't it?

 3        A.   I have answered the question, I believe, Your Honours.  I mean --

 4             JUDGE ORIE:  Yes, you do share say the conclusion drawn by

 5     Mr. Kehoe.

 6             MR. KEHOE:

 7        Q.   Well, moving from this 7th Guards Brigade -- let us move to the

 8     actual targeting information, that documents that you referred to --

 9     first we will refer to 65 ter 4678.

10             MR. KEHOE:  Mr. President, there are actually several of these

11     that are in the witness's report.  I certainly don't intend to go through

12     all of them.  I'll -- the 65 ter --

13             JUDGE ORIE:  Just take one and see whether it's --

14             MR. KEHOE:  Yes.

15        Q.   Mr. Theunens, this yet a more sophisticated or a more detailed

16     explanation of the actual targets that were to be engaged by TRS-2, and

17     it has the firing position that we had taken from the tabular text.  And

18     in this we have specific coordinates -- excuse me.  We have a target

19     reference and with the specific coordinates.

20             So there are numbers of targets, I mean -- and then from those

21     numbers of targets, this document reflects that they had a specific

22     location that they wanted to hit with the X/Y coordinates.  And that is

23     what you would expect, Mr. Theunens, from an artillery unit once they

24     come up with the artillery plan and what they're supposed to hit, they

25     then get the XY or coordinate information as to what they are going to

Page 12537

 1     hit, and then they make the decision as to who is going to try to it,

 2     right?

 3        A.   Yes.  But the choice and the prioritisation of these targets by

 4     OG Sibenik will be based on the instructions they have received from

 5     their superior command, and I also can't want to comment this is TRS-2 at

 6     the level of OG Sibenik.  It is not the TRS-2 we saw earlier, i.e., the

 7     TRS-2 that was established by General Gotovina at a level of the Split

 8     Military District Command, because that TRS-2, I mean the latter, is to

 9     support OG North.

10             JUDGE ORIE:  Mr. Kehoe, apparently the witness says that the TRS

11     that we saw earlier on the map is not the -- that this TRS-2 is not the

12     same group because it is it at a different level.  The other was at the

13     Split Military District level, if I understood you well, and this is at

14     the level of the Operative Group Sibenik.

15             Let first try to establish whether there is any dispute about

16     that.

17             MR. KEHOE:  That is the major dispute, and the dispute is as it

18     says here, the TRS-2 artillery rocket group, this is a list of targets

19     that are being set forth for the OG Sibenik, the operative group Sibenik,

20     right?  Right?

21        A.   Indeed.  Whereby TRS-2 consists of artillery assets of the units

22     of the OG Sibenik.

23        Q.   And that is in direct response to General Gotovina's order in

24     P969 on page 13, that the chiefs of artillery in the operative groupings

25     will draw up artillery plans of use and plans of action appropriate for

Page 12538

 1     each group formed.

 2             So as of August the 1st, in the first order by General Gotovina

 3     on Kozjak, when it comes to artillery, he tells the operative groups,

 4     come up with the artillery plan.  The documents that you said -- would

 5     demonstrate that there was an artillery plan and that there was a map and

 6     that each individual group as we see in 65 ter 4678, had specific targets

 7     to engage, making a decision as to who was going to shoot it and what the

 8     coordinates of that target were.  And that's all in accordance with the

 9     order of General Gotovina that we saw in D969; isn't that the fact?

10        A.   Indeed.  But the only thing I tried to highlight is that there

11     are artillery assets available at the level of the Split Military

12     District Command.  General Gotovina, organises them in a particular

13     manner and also determines targets for these artillery assets.  He also

14     determines targets for the artillery assets of the OGs in a more general

15     manner.

16             Then the OGs which are composed of different existing units of,

17     for example, OG North includes the 4th and the 7th Guards Brigade.  These

18     brigades in peacetime have already their own artillery assets.  This

19     artillery will then, in the case of OG Sibenik, be organised in a fashion

20     that allows to implement the mission imposed by the superior commander,

21     and, for example, here we see the establishment of a TRS-2 within OG

22     Sibenik.  We saw earlier the establishment of a TRS-7 within the 7th

23     Guards Brigade.  Notwithstanding the fact that the commander Split

24     Military District has also decided that, for example, 7th Guards Brigade

25     which is part of OG North, also enjoys the support of TRS-1, TRS-2 and

Page 12539

 1     TS-3, whereby these three ad hoc artillery groupings are established at

 2     the level of the Split Military District Command.

 3        Q.   If I may, sir, aren't we talking about the same thing, that

 4     Gotovina has put these artillery units out at the operative group level.

 5     They are to come up with the plans.  If, in fact, General Gotovina

 6     decides he needs them on an operational level he would tell them, but

 7     absent that, the operation groups are supposed to come up with their

 8     plans targeting and methodology.

 9             Isn't that so?

10        A.   But I -- the order -- I mean, the order for attack Kozjak, and I

11     still have the 65 ter number, 3119, includes an attack order for

12     artillery, attachment 4.  And I have discussed -- there's -- excuse me.

13     There's also title 7.  Artillery support in the attack order, where,

14     sorry to repeat myself, where he establishes -- where he organises the

15     artillery assets which exist at his level, i.e., at Military District

16     level, and he also issues instructions for the artillery assets at his

17     level as well as the of the subordinate units.

18             And in the course of the operation artillery assets existing at

19     the level of the Split Military District will be engaged, together with

20     artillery assets existing at the lower level depending on the operational

21     requirements.  But it is General Gotovina, based on the guidance he

22     receives from his assistant commander for artillery who issues the orders

23     to the artillery assets existing at the level of the Split Military

24     District Command, i.e., superior to the composing units, for example, the

25     4th Guards Brigade and 7th Guards Brigade and other units of the Split

Page 12540

 1     Military District.

 2             JUDGE ORIE:  Let me see whether I understand your answer because

 3     I think it is important there are no misunderstandings here.

 4             Are you telling us that this specification of the targets as we

 5     find in this document on the artillery rocket group of the Operational

 6     Group Sibenik does not fill in the gap you noticed to exist in the

 7     documents which sets out the targets for the Military District artillery,

 8     which is unspecific, where it makes reference to certain towns, think I

 9     there were five.  That you say this may be well precise targeting

10     information but used at a different level and does not fill that gap you

11     noticed for the Military District artillery, where such specific

12     information is missing in relation to the artillery to be used against

13     towns.

14             Have I understood your answer?

15             THE WITNESS:  That is correct, Mr. President.  That is what I

16     tried to explain.

17             JUDGE ORIE:  Whether the answer is the right one, the wrong one,

18     it doesn't matter, but at least I have understood the answer of the

19     witness.  And then I leave it now to Mr. Kehoe to put further questions

20     to you but then after the break.

21             MR. KEHOE:  Yes, Your Honour.

22             JUDGE ORIE:  Yes, Mr. Theunens.

23             THE WITNESS:  I have tried to explain that these different

24     echelons at page 110 and 111 of the second part of the report, English

25     pages.  I apologise for ...

Page 12541

 1             JUDGE ORIE:  Yes.  Which I still have on my screen, so I can

 2     re-read it again, yes.

 3             Thank you for that.

 4             We'll have a break, and we will resume at 11.00.

 5                           --- Recess taken at 10.35 a.m.

 6                           --- On resuming at 11.04 a.m.

 7             JUDGE ORIE:  Mr. Kehoe, please proceed.

 8             MR. KEHOE:  Yes, Your Honour, again in an effort to streamline

 9     the cross, the document that we have on the screen is 65 ter 4678 again a

10     document that I noted came from Mr. Theunens's report, and we would offer

11     that into evidence in conjunction with similar documents that I don't

12     think we need to go through, and I talked on the break with Mr. Waespi

13     about that, and that would be 65 ter 4679 and 65 ter 5769.

14             I have given those numbers to Mr. Monkhouse, and we would offer

15     all three of those into evidence.

16             MR. WAESPI:  No objection.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Your Honour, 65 ter 4678 becomes Exhibit D974, 65

19     ter 4679 becomes Exhibit D975, 65 ter 5769 becomes exhibit number D976.

20             JUDGE ORIE:  Exhibit D974 up to and including D976 are admitted

21     into evidence.  I think small portions are missing -- yes now we have a

22     complete transcript.

23             Please proceed.

24             MR. KEHOE:

25        Q.   Mr. Theunens, I wanted to turn bark to an item that you addressed

Page 12542

 1     just prior to the break and that would be your 65 ter 3119, which I

 2     believe the Prosecution has already introduced into evidence as P1125.

 3     If we could just put that on the screen.

 4             JUDGE ORIE:  By the way, Mr. Kehoe, is there any way you would be

 5     able to communicate also with the Prosecution, I see on that list

 6     sometimes references which are unclear as to whether it is a bridge,

 7     whether it's a hamlet, whether it is Rogovo, for example.  It also

 8     doesn't indicate what weaponry could be used to target that.  But I've

 9     got a road is clear to me, cross-roads is clear to me, bridge is clear to

10     me, military positions, where just a name could be anything.  And if you

11     would -- if there's a possibility that you would agree with Mr. Waespi on

12     such -- just names whether that -- what that stands for.

13             MR. KEHOE:  Yes, Your Honour.

14             JUDGE ORIE:  Yes.

15             MR. KEHOE:  We can consult on that.

16             JUDGE ORIE:  Yes.

17             MR. KEHOE:

18        Q.   Before we move to this document, in addition to the targeting

19     information, Mr. Theunens, you also note in your report -- this is part 2

20     of 186, that "The Split Military District artillery units compile

21     intelligence reports describing activities and locations during the

22     reporting period.  These reports also contain information on the number

23     of rounds that are fired against various targets, including a brief

24     description."

25             So from the information we have again is just another level where

Page 12543

 1     intelligence targeting locations of those targets with grid reference and

 2     you also note that they also keep track of the number of rounds fired; is

 3     that accurate, sir?

 4        A.   That is accurate.  I was only surprised by the use of the term

 5     "intelligence" in these documents because it is actually operational

 6     information, but that doesn't change anything in my answer.

 7        Q.   Now, if we could just go back to what is P1125 that you talked

 8     about prior to the break, and if we could go to the next page.

 9             MR. KEHOE:  Maybe a page after that, please.  Should be a cover

10     -- a front page.  That's it.

11        Q.   This is, again, the larger order for which there are attachments,

12     1 August 1995, and if we could go to what you referenced in there which

13     is the artillery support section which is on page 14 in the English and

14     12 of the B/C/S.

15             Now, this is what you were referring to prior to the break,

16     Mr. Theunens, and in this, we, once again see the deployment of the

17     artillery and rocket groups down to an operative group level.  Is that

18     correct?

19        A.   That is correct.

20        Q.   And there's nothing in that artillery support note that -- that

21     says that these particular rocket groups are part -- that the Split

22     Military District has some artillery group independent of these five

23     groups, does it?

24        A.   No.  But what I tried to explain before the break was that

25     General Gotovina orders to establish these artillery groups and artillery

Page 12544

 1     rocket groups to support the various units or the OGs as is explained

 2     there and in addition, the composing units of this OGs, and I can draw

 3     your attention to, as I mentioned page 110, part 2 of my report, where we

 4     see here, for example, OG North, we have two TRSs and one TS.

 5             In addition, for example, for the 4th Guards Brigade, and that

 6     can be found in 65 ter 2217, we have a TRS-4 that is established based on

 7     the artillery assets of the 4th Guards Brigade.

 8        Q.   Excuse me, Mr. Theunens, may I just interrupt you for a moment.

 9             MR. KEHOE:  If can he can turn to the next page on the B/C/S.  I

10     believe it is the following page in the B/C/S.  My apologies, I didn't

11     mean to interrupt you.

12        Q.   Continue, sir.

13        A.   Yes.  I mean, this TRS-4 which is according to 65 ter 2217

14     established by the 4th Guards Brigade is not mentioned in the order of

15     the Split Military District.  So I conclude from that, that it consists

16     of different artillery assets existing or being used at a different

17     echelon.

18             The same applies to OG Sibenik.  The previous document, and I

19     only have the 65 ter number, 4682, identifies a TRS-1 and a TRS-2, 4, and

20     I apologise it is it OG Sinj instead of Sibenik, whereby actually the

21     order of the Split Military District does not foresee these two artillery

22     rocket groups for the OG Sinj.  And that is the distinction I have

23     attempted to highlight.

24        Q.   Well, let's come to the crux of this, sir, that if your premise

25     is wrong that artillery support was at the Military District level, if

Page 12545

 1     that premise is incorrect, then, likewise, your premise that there were

 2     no -- there were no specific -- there wasn't specific targeting

 3     information is also incorrect.

 4        A.   I don't understand the question, Your Honours.

 5        Q.   This is the question:  The premise that is put fort is that these

 6     artillery groups that are at the operative group level, your premise is

 7     that there were artillery groups at the Split Military District level.

 8     And your likewise premise is that these artillery units at the Split

 9     Military District level didn't have specific targeting information.

10             Now my question is for you is that if your premise is wrong, that

11     there were not assets at the -- artillery assets at the Split Military

12     District level, your opinion as set forth in 180 to 181 of your report,

13     that there were no -- there were specific targets or specific targeting

14     information, that premise is also wrong.  Isn't that right?

15        A.   I believe these are two distinction questions.  I have answered

16     the second -- the first question, and I maintain the conclusion I draw

17     based on the documents that I reviewed.

18             As to the second aspect of the question, I can only conclude on

19     the basis of the documents I saw, or I was able to review.  I have not

20     seen a document that indicates which specific targets are to be engaged

21     in Benkovac, Knin, Drvar, Obrovac, and Gracac, following the instruction

22     included in title 7, Artillery Support Of The Split Military District

23     Order For Operation Kozjak which states:  "Open fire or shell the towns,"

24     I mean, the aforementioned towns.

25        Q.   Sir, we reviewed very specific target information setting fort

Page 12546

 1     the lists of targets that we noted which are now D974, D975, and D976.

 2     Based on the documents you have reviewed, isn't it reasonable and logical

 3     for you to assume that every target that the HV fired upon was part of a

 4     detailed list of targets with target coordinates and target numbers that

 5     was established throughout the operative groups, operating under the

 6     command of General Gotovina?

 7        A.   Your Honours, Mr. Kehoe is describing the situation as it should

 8     have been.  But as I mentioned in my previous answer, I have not seen any

 9     documents which specify the -- or which determine the targets that were

10     to engage following the instruction on the shelling of towns like Knin,

11     Benkovac, Obrovac, and Gracac.

12        Q.   Sir, you mentioned during the course of your testimony --

13             JUDGE ORIE:  Mr. Kehoe, before we continue.

14             The document we saw before the break, there we had a reference to

15     TRS-2 I think, where the witness said that is not the same TRS-2 as we

16     are talking about at an earlier stage.

17             Now with the three documents which you agreed with Mr. Waespi

18     that they would assist us, do we there have a -- to whom were they

19     addressed?  Do we have a similar apparent disagreement between the

20     position of the Defence and the position of the expert?  That's of course

21     the problem, if you admitted into evidence documents you have not

22     carefully looked at, even if -- I don't know how long they are, I can

23     have a look at them on the screen.

24             Mr. Registrar, I don't know whether they have already been --

25             MR. KEHOE:  Mr. President, I can explain the information.  I

Page 12547

 1     think, in fairness to the Prosecution, I should do it outside of the

 2     presence of the witness on that score.

 3             JUDGE ORIE:  I think if we start explaining that, it should be

 4     done in the absence of the expert witness.

 5             Mr. Theunens, even without asking are -- can you remain stand by,

 6     Mr. Theunens.

 7                           [The witness stands down]

 8             MR. KEHOE:  In fairness to the witness, Your Honour, and it may

 9     have been difficult to sift through all of this information from him, but

10     what happened was that the witness didn't account for the changes in the

11     TS and the TRS numbering going from documents under Oluja to documents

12     under Kozjak.

13             Now, I can argue with him about that, but it is what it is, and

14     certainly at the end of the day we will discuss it.  But was TS-4, for

15     instance, under the initial documentation in Oluja, then when Kozjak was

16     signed on the 1st became TS-2.  And going through the course of the

17     witness's report, he doesn't account for that change in the numbering

18     which leads to yet further confusion.

19             JUDGE ORIE:  So what you're saying that the expert is mistaken

20     where he says that we had artillery or artillery rocket groups at

21     different levels because it was rather due to a change in organisation,

22     names, rather than that these were different --

23             MR. KEHOE:  Correct.

24             JUDGE ORIE:  So if you would -- in your system if you would start

25     counts so many 130, et cetera, et cetera, that would be - of course apart

Page 12548

 1     from some losses and perhaps - what you have bought in addition to what

 2     you had already, not easy at that moment, but then it would come down to

 3     approximately the same number of weapons, and actually and that's your

 4     position that these are the same weapons.

 5             MR. KEHOE:  The same system, except what I wanted to comment on

 6     was that initially Storm didn't incorporate the HVO units that were

 7     deployed towards Drvar and -- and in the Tomislavgrad area.  And when the

 8     -- General Gotovina put them into the ultimate attack order the numbers

 9     changed, and it just wasn't accounted for, and frankly --

10             JUDGE ORIE:  Yes.  I do see where you bought some new ones.  I

11     say that with a smile, because I wouldn't expect to you place an order on

12     the 2nd of August and to have it delivered on the 3rd.  You said other

13     elements of weaponry were added to the potential of the Split Military

14     District and its subordinate units and, therefore, where he is telling us

15     that it's two different sets, that it's actually the same but a bit

16     expanded under perhaps another name, other structures, but it's exactly

17     those same T 130s, these same assets.

18             MR. KEHOE:  Assets, yes.

19             JUDGE ORIE:  Mr. Waespi, of course I asked this question because

20     I didn't know whether in D974 up to D979, the same issue which has now

21     been explained by Mr. Kehoe would arise, and I don't know whether the

22     Prosecution relies on the expert report in respect of these two different

23     levels of issues.

24             MR. WAESPI:  Yes, we do.  And I think, in fairness to the

25     witness, he should be confronted with this interpretation by Mr. Kehoe.

Page 12549

 1     And I'm sure he can give, based on his expertise, based on the review of

 2     his documents, an explanation of how he sees this -- at least one of

 3     these three documents, for instance, the first one, 4678.

 4             MR. KEHOE:  I think the witness has given his opinion on this --

 5             JUDGE ORIE:  I don't know whether it has been -- that -- of

 6     course, I verified with him whether I understood his answer well.  I

 7     would say some reference was made to regrouping and renaming, et cetera.

 8     But perhaps we should put it in a very clear and transparent way.  And

 9     then see whether we get any other answer or not.  Or whether he comes up

10     with an explanation which -- I take it the party also understand for the

11     Chamber that it's not easy to where there seems to be a rather

12     fundamental disagreement on what it means we're looking at, to -- to

13     fully digest and understand that material.

14             I think we could invite the witness to come into the courtroom

15     again.

16             MR. KEHOE:  Yes, Your Honour.

17                           [The witness entered court]

18             JUDGE ORIE:  Mr. Kehoe, yes, please proceed.  Try to put it as

19     clearly to the witness as you can.  And we don't know whether my

20     assistance would be appreciated if I feel that it is not clear enough.

21     But let's try to -- to get to a full understanding of the issue, and --

22             MR. KEHOE:  Mr. President, your assistance is greatly

23     appreciated.  I will try to make it as transparent as possible, and if it

24     is not so --

25             JUDGE ORIE:  Please proceed.

Page 12550

 1             MR. KEHOE:

 2        Q.   Mr. Theunens, with regard to setting up these TS and TRS levels,

 3     did you understand that when Oluja changed to Kozjak that TS -- TS-4 in

 4     Oluja became TS-2 under Kozjak?  Did you understand that?

 5        A.   I understand the question, but I haven't drawn that conclusion

 6     based on the documents I reviewed.

 7             JUDGE ORIE:  Then, of course, the next question is:  Do the

 8     documents you have reviewed exclude for that possibility?

 9             THE WITNESS:  Yes, Your Honours.

10             JUDGE ORIE:  Could you please explain why such an interpretation

11     of -- would be contrary to what you found in the documents?

12             THE WITNESS:  Because, looking at the documents and also taking

13     into consideration the structure of the Split Military District, which

14     consists of brigades, brigades consist the battalions, and so on, and so

15     on, and my understanding of military structures, in peacetime the Split

16     Military District will have its own artillery units, i.e., artillery

17     units which are under the direct command of the commander of the Split

18     Military District.

19             The same applies to the subordinate commanders, a Guards Brigade

20     will include artillery assets, whereby the commander of the Guards

21     Brigade decides on the use of these artillery assets under his direct

22     command based on the orders of the superior commander.

23             I applied that logic to the documents I reviewed.  In particular,

24     the order for attack, which was 65 ter 3119, but I don't have the

25     P number, where, in accordance the doctrine the commander of the Split

Page 12551

 1     Military District, General Gotovina, orders to establish a number of TS

 2     -- sorry, artillery groups and artillery rocket groups which are to

 3     support specific Operational Groups.  Then when I look at the orders of

 4     the subordinate units, I saw that these subordinate units -- you have the

 5     OGs but then we have, of course, the composing unit, for example OG north

 6     includes the 4th Guards Brigade, 7th Guards Brigade as well as other

 7     units.  That these units establish their own artillery formations.

 8     Again, based on their organic or establishment artillery formations.

 9             And it is a bit confusing because you sometimes see the same

10     numbers appear.  You may see twice a TRS-2, whereas in my conclusion, we

11     are talking about different units because they exist at a different

12     echelon.

13             Sometimes it is facilitated the document shown by Mr. Kehoe which

14     addressed the tasks of the brigade rocket group number 7 of the 7th

15     Guards Brigade, facilitated the task.  Why?  Because it is not mentioned

16     in the order by General Gotovina.  So that is an additional indication in

17     my view and based on my experience that we're talking about different

18     units existing at different echelons.

19             JUDGE ORIE:  Yes.  Now just for argument's sake, let's just

20     assume that the artillery was organised as you told us and TS and TRS

21     five units we have seen them.  And you said artillery was organised at

22     the Operational Group levels, could it be that when time moved on that

23     the same assets, which were part of the artillery TS and TRS at the Split

24     Military District level, actually were reorganised and were moved to the

25     -- and became part of the artillery units at the Operational Group level,

Page 12552

 1     so that it was rather a matter of moving the assets and putting it in a

 2     different structure?

 3             Because your answer, until now, from what I understood of it,

 4     does not exclude for that possibility.  For example, if I would see in

 5     one document artillery at the Split Military District level and a

 6     specific reference to the artillery assets at the Operational Group

 7     levels, then would you say, Well, can't be the same, because we find them

 8     in one document.  But the time element may play a role, that what appears

 9     at one moment under a certain name and at a certain level, that it's

10     reorganised and that we find the same assets at other levels under other

11     names, a couple of days later.

12             Is that -- you see what I'm focussing on, whether that can be

13     excluded or whether that could not be excluded on the basis of your

14     review of the documents.

15             Mr. Kehoe, did I put the question in such a way that --

16             MR. KEHOE:  Absolutely, Judge.

17             JUDGE ORIE:  Yes, could you please focus on that aspect in your

18     answer to the question, whether you could exclude on the basis of the

19     documents that there were the same assets.

20             THE WITNESS:  Your Honours, based on the documents I reviewed, I

21     exclude that artillery assets existing in peacetime at different echelons

22     were, as I would understand it, based on your question, mixed up in one

23     unit which would then actually be under the command of the subordinate

24     commander.

25             I have not seen during my education or my experience that

Page 12553

 1     artillery which, for example, in our system exists at the corps echelon

 2     is entirely handed over to a subordinate brigade commander and so that

 3     the brigade commander can use it for the missions he decides and for an

 4     undetermined amount of time.

 5             What can happen is that the subordinate commander can receive

 6     artillery support from an existing unit, separate unit which is normally

 7     under the command of the superior commander, whereby they are -- in our

 8     doctrine, but it is not the same in the HV, but in our doctrine there are

 9     different possibility that, first of all, there is a possibility that

10     it's the commander at the higher echelon who determines the mission of

11     this artillery unit which stays a separate unit and which provides

12     artillery support to the subordinate commander, i.e., a unit at corps

13     echelon, which, for a specific duration in time, provides artillery

14     support to a brigade, whereby the mission has been determined by the

15     corps commander.

16             Another option is that the corps commander decides that this

17     artillery unit which is under corps command during a specific time can --

18     is made available to the brigade commander, and the brigade commander

19     decides about the mission.

20             Coming back to HV and my understanding or my conclusions based on

21     the review of the documents, I maintain that the artillery that existed

22     -- artillery assets that were in peacetime under the command of the Split

23     Military District commander at his echelon, even though -- I mean at the

24     same time we have artillery assets in the composing units, that these

25     assets were not mixed up, but that as pointed out in the order for

Page 12554

 1     attack, the commander of the Split Military District establishes ad hoc

 2     support formation, TS, TRS, to support OGs based on his assessment of

 3     which OGs needs which support at what time and for how long and with

 4     which weapons and at the same time that we see that the composing units

 5     of the OGs organise their own establishment artillery assets.

 6             JUDGE ORIE:  Now in time, when do they do that, in relation to

 7     the issuing of the attack order?  I mean, I asked you to focus on time.

 8             THE WITNESS:  Yes.

 9             JUDGE ORIE:  -- so I gave a theoretical answer on what the

10     options were.  One of them being, apparently the last one that you can,

11     during a specific time, make available to a brigade commander some assets

12     and he then decides how to use them.  Now, in terms of time, is there --

13     could you exclude for such a thing to have happened?  And then you're

14     talking about peacetime and apparently time of war, could that have

15     happened between -- from Oluja to Kozjak, because that ...

16             THE WITNESS:  The documents I have reviewed, Your Honours, and

17     specifically documents on the use of artillery firing during Storm, the

18     conclusions I draw from those documents, i.e., documents starting -- of

19     discussing situation from the 4th of August onwards, show that the

20     artillery assets or the TSs and TRSs exist at different echelons, and

21     they are subordinate to different commanders.  Of course, the TSs and

22     TRSs that may have been established in a brigade, probably only one, are

23     under the command of the brigade commander.  Those established at the OG

24     level, if --

25             JUDGE ORIE:  I think, as a matter of fact, there is no dispute

Page 12555

 1     about difference of levels.  There's a dispute about time.  There's a

 2     dispute about whether these artillery units, at the different levels,

 3     existed simultaneously which would then, of course, exclude that it was

 4     just a re-organisation of the assets to put them somewhere else, under

 5     another name, under another command.

 6             But did you find anywhere a document in which you find

 7     simultaneously described simultaneous operations or planning of use of

 8     these artillery units at different levels?

 9             THE WITNESS:  Indeed, Your Honours, and that is what I have

10     described on pages 110 and 111, where I state that, in addition to the

11     support provided by the TS and TRS at the level of the Split Military

12     District Command, i.e., that OG North -- and then we have the information

13     on the screen -- that subordinate units establish their own artillery

14     formations or ad hoc artillery formations and, yeah, as I stated earlier

15     these units exist at different echelons at the same time based on

16     documents that I have reviewed.

17             JUDGE ORIE:  There is at lease a difference of one day, 2nd of

18     August, 3rd of August.  I don't know exactly -- almost.  We're trying to

19     establish with great precision and detail what may have happened and what

20     we know and what we do not know.

21             THE WITNESS:  I mean, based on my review of the documents, I

22     don't think that is one day distinction or difference is important.  Or I

23     did not conclude that that was relevant.

24             I would also like to -- I mean, not to draw the attention away,

25     but, for example, on page 184, I discuss a document which is D281 where

Page 12556

 1     we see a similar thing being done.  That is in the framework of an order

 2     issued by General Gotovina, three TSs are established based on the

 3     artillery units of the Split Military District.

 4             Again, that shows that there is a reorganisation over time,

 5     because I think the key point we have to keep in mind is that the

 6     commander at each echelon wants to keep his assets under control or wants

 7     to decide himself about the assets he has.  And of course the commander

 8     of the Split Military District, he will have decided about the main

 9     effort for his attack order.  And probably he will have it planned that

10     most of the artillery that is available at his echelon will support the

11     units that carry out the main effort.  And this is independent of the

12     artillery assets these units have, and it again explains, based on my

13     review, at the same time different artillery units exist at different

14     echelons.

15             MR. KEHOE:  Thank you, Mr. President.

16        Q.   First of all they had artillery at the operative group level, as

17     you -- as you noted but they also, the particular brigades, had their own

18     fire support.  Isn't that right?

19        A.   Yes, that's actually the main point of what I tried to explain.

20        Q.   Except, let us go back to your initial premise.

21             Was TS-2 under Storm, the same as TS-2 under Kozjak?

22        A.   About which TS-2 are we talking?  The one being established by

23     the commander of the Split Military District or another one?

24        Q.   When we had the initial orders on Storm describing TS-2, were the

25     units in TS-2 under Storm the same units as TS-2 under Kozjak?  When you

Page 12557

 1     were reviewing the documentation, did you make that determination?

 2        A.   Your Honours, I apologise, but the question is not clear to me

 3     because there can be a TS-2 at the level of the Split Military District

 4     command, i.e., established by the order, I will be more precise, a TS-2

 5     established by the commander of the Split Military District.  It can also

 6     be that subordinate commander a brigade commander, for example,

 7     establishes a TS-2 which is a different unit from his artillery assets.

 8             JUDGE ORIE:  Mr. Kehoe, of course the question is phrased, I take

 9     it, on the basis of a certain assumption which is not shared by the

10     witness.  So, therefore, could you try to split it up in such a way or

11     make reference to documents or whatever so the witness exactly knows what

12     it is you are talking about when you're talking about the TS-2 under

13     Storm.  I think that is not where the major problem lies, but what you

14     exactly mean by TS-2 under Kozjak.

15             MR. KEHOE:

16        Q.   If we can go to your document at page 110 in part 2.

17             And in that you say -- I'm talking about little Roman numeral IV

18     in addition to the support provided to TS and TRS level at the Split

19     Military District Command, OG North supported by TRS-1, TRS-2.

20             Now my question for you is that TRS-2, was the TRS-2 under the

21     first Storm order the same TRS-2 under Kozjak?

22        A.   We would have to compare both documents, but in my understanding,

23     it is the most recent document that is it actually the most authorative,

24     i.e., that an older order is replaced by a newer order.

25             JUDGE ORIE:  Is that an answer to the question?

Page 12558

 1             THE WITNESS:  Well --

 2             JUDGE ORIE:  Let me see under IV.

 3             THE WITNESS:  The first Storm order is older or precedes the

 4     Kozjak order, and irrespective what the first storm order states in

 5     relation to TRS-2, I consider in my report the TRS-2 as it is defined in

 6     the Kozjak order which is the order for attack, as the only authoritative

 7     one.

 8             MR. KEHOE:

 9        Q.   In the particular units, did you look to see what units were in

10     TS-1 under Oluja/Storm, as opposed to the TS-2 units that were under

11     Kozjak?

12        A.   Your Honours, the orders I reviewed only indicated that the

13     weapons that were included in the artillery groups and the artillery

14     rocket groups.  It didn't specifically state which unit was to provide

15     these weapons.

16        Q.   Now, if we go -- if we note in the document on the screen that

17     under Sibenik it's TS-4.  Do you see that?

18        A.   I see that.

19        Q.   Okay.  And if we go to your particular document, you note that

20     the artillery group Sibenik is TS-4.

21        A.   Yes.  This is the artillery group established on the orders of

22     the Split Military District in OG Sibenik.  But -- no, that concludes my

23     answer.

24        Q.   If I can get this particular document ...

25                           [Defence counsel confer]

Page 12559

 1             MR. KEHOE:

 2        Q.     And if we look at D974 -- if we look at that list of targets at

 3     the top of the page, this says TRS-2, Sibenik -- oh, operative group

 4     Sibenik, excuse me.

 5             Now, that, in Kozjak, is TRS-4, isn't it?

 6        A.   My understanding is that the order for Kozjak establishes TS-4

 7     for the OG Sibenik or in the OG Sibenik, and this talks about a different

 8     group, TRS-2 which is based on the subordinate units -- I mean the

 9     artillery assets of the subordinate units of OG Sibenik.

10        Q.   Well, suffice it say, sir, in the review of the document, and

11     maybe we can just clarify in this fashion, you did not go in and clarify

12     the changes in unit structure under Oluja and Kozjak to, as I said

13     before, make a determination whether or not TS-2 under Storm was

14     comprised of the same units as TS-2 under Kozjak, did you?

15        A.   No, did I not, because two reasons, Kozjak, is, in my view the

16     most authoritative order because it is the latest order; and secondly, in

17     relation to the question we have been addressing this morning, I had

18     documents from the level of the Split Military District where I saw how

19     General Gotovina organised the artillery at his level in support of the

20     OGs, and I have also documents from subordinate units and, for example,

21     we saw this mourning a document from the 7 Guards Brigade, where mention

22     is made of a brigade TS-7 which is not mentioned whatsoever in any of the

23     orders I have seen issued by General Gotovina, and I think most

24     importantly in this discussion is that all these units are through the

25     chain of command subordinated to the commander of the Split Military

Page 12560

 1     District, and that also implies the choice of targets, i.e., because

 2     there has to be coherence in the way orders are implemented through the

 3     chain of command and also subordination in the manner as to how they

 4     implement the orders to engage the targets, and I think that is the key

 5     issue.

 6             JUDGE ORIE:  Whether it is or not, Mr. Theunens, the key issue

 7     for the Chamber at this moment is whether there is an possibility that

 8     what we find as described as the five artillery groups under the Oluja

 9     document, that what we find at a later stage at a different level,

10     whether that could be the same assets which were comprised earlier in the

11     Oluja document.

12             Now, when you explain that it would -- the targeting would still

13     be the responsibility of the highest command, so whether they were at a

14     higher level or at a lower level, we have looked at a matter that is how

15     specific is the definition of the targets.

16             Now, if a rather general description of targets is given in the

17     Oluja document, and if it's -- that gap has never been filled, that would

18     be a really unfilled gap, if the artillery units existed on these

19     different levels.  If, however, well, let's say, the five artillery

20     groups were transformed, reorganised, perhaps also replenished from

21     outside by other assets, and if we then find specific targets, then the

22     gap might have been filled because we're talking about the same assets

23     for which, now, more precisely targets have been defined; whereas, if

24     they would exist simultaneously at the different levels which might

25     become clear from planning documents, from reporting documents, from

Page 12561

 1     whatever, then there's a possibility that the gap has not been filled.

 2             That is, I think, but correct me when I'm wrong, Mr. Kehoe, that

 3     seems to me to be the issue at this moment.  And, therefore, apart from

 4     what you would expect, et cetera, to what extent do the documents

 5     positively point at a co-existence, a simultaneous co-existence of the

 6     military -- Split Military District level of artillery groups and the

 7     lower level Operational Group artillery units, so what are the positive

 8     indications and are there any negative indications that they could not

 9     have existed at the same time?

10             It's one of my longer questions; I apologise for that.

11             THE WITNESS:  Your Honours, I believe that your questions covers

12     three aspects.  The first aspect, of course, there can be a difference

13     notice organisation of the artillery assets at the level of the Split

14     Military District Command between the Storm order and Kozjak because it

15     is it the prerogative of the commander to organise his assets, be it

16     infantry, armour, artillery, in the manner he sees fit.

17             Secondly, there is indeed a gap in a sense that we have in the

18     order Kozjak in the title 7 artillery report we have an entry:  "Shell

19     the towns of for Drvar, Knin Benkovac Obrovac and Gracac," which based on

20     my background, I considered unusual because I would have expected more

21     specific information.

22             I have not come across more specific information.  It is true I

23     don't have all artillery records available.  It would have been logical

24     if there had been more specific information already at the level of the

25     Split Military District Command order in order to determine well, what

Page 12562

 1     the subordinate units are to engage in these towns.  Because the units --

 2     I mean, the subordinate units we have seen on the map, and I try to take

 3     it short, two different artillery groups that are to engage -- to that

 4     can reach or cover Knin.  These units have to know who has to do what and

 5     when.  And there has to be coordination with the other forces.

 6             Returning to your question now, the simultaneous co-existence of

 7     artillery groups at the Split Military District level and the Operational

 8     Group level, in the Kozjak order the Split Military District establishes

 9     artillery groups and artillery rocket groups that will support OGs.

10             At the same time, i.e., to address the simultaneous aspect, based

11     on the documents I reviewed they exist, there are artillery assets within

12     the composing units of these OGs, for example, in OG North we have the

13     4th Guards Brigade, whereby the commander of the 4th Guards Brigade

14     decides himself about the organisation of his artillery, assets, and

15     their use.  And, of course, all this is coherent with the initial order,

16     i.e., the Kozjak order, and when I say initial I mean the order at the

17     highest level because that is how the commander controls functions.

18     There has to be coherence through the chain of command, not only in the

19     execution but in the planning, the order itself, and the execution of the

20     orders.

21             If at the level of the Split Military District Command, it

22     stated, Well, that target X, then there will be a unit -- or a unit

23     commander who knows, I have to attack target X, and he will instruct his

24     forces accordingly.  I'm not sure if I answered the question, but I tried

25     to be as specific as possible.

Page 12563

 1             JUDGE ORIE:  One question for you, Mr. Kehoe.  When you presented

 2     this map with the rage, et cetera, was it your intention to reflect what

 3     happened on the ground or what was planned?

 4             MR. KEHOE:  Just the planning, Judge, not a reflection because

 5     that is the reason we were trying to demonstrate some of this targeting

 6     information, and it was just showing a redeployment under Kozjak and the

 7     ground that they potentially could cover, not the actual reality that

 8     they fired left as opposed to right.  And the maximum range, of course,

 9     of the 130s.

10             JUDGE ORIE:  Yes, that's -- so to know what actually what has

11     happened, that map does not assist us.

12             MR. KEHOE:  If the Chamber is looking at that order on

13     disposition of artillery assets, and the Chamber says, What does this

14     mean?  Where is this?  What is this particular locale?  I don't know

15     where this village is.  I don't know where these coordinates are.  What

16     we tried to do with the particular assets, for instance, if the group had

17     a 130, put them in the exact location as set forth in the artillery

18     officer Rajcic's order as to where they were and if they had a 130 firing

19     in that direction, how far it could possibly go.

20             It was an attempt, Your Honour, given the changes in Kozjak to

21     orient the Chamber based on that order.

22             JUDGE ORIE:  Yes.

23             Mr. Theunens, one final question on the matter.

24             We talked about these five towns, including Knin, Benkovac.  You

25     noticed that the orders were rather general in relation to using

Page 12564

 1     artillery for those towns.

 2             Did you, under whatever name, whatever structure, whatever

 3     difference in colour, did you ever come across more detailed targeting

 4     lists or any targeting documents or reports on specifically those towns,

 5     irrespective of whether this was TS-1 or 2, or whether it got another

 6     name, whether the command was at a different level, did you ever come

 7     across at another level a fill-in of the gap you described when you still

 8     considered these orders to relate to the artillery at the Split Military

 9     District level?

10             THE WITNESS:  Indeed, Your Honours.  On English page 188 of the

11     second part of the report, and that corresponds with footnote 799.  I

12     include a report -- it's called general report on carrying out a combat

13     task by the commander of the 134 Home Guard Regiment addressed to the

14     commander of the Split Military District dated the 23rd of August, where

15     Cerinje [phoen] addresses the use of artillery, and this is important

16     because he addresses the situation in Benkovac.  Okay, it is titled:

17     Corrections by the moans of artillery support were done in good time.

18     And then I continue the quotation:

19             "In the first few hours we had no support from the Zadar OG,

20     except for the shelling of the general area of Benkovac, without

21     monitoring and the message at 0530 hours of the following contents is

22     anything falling on Benkovac."

23             Now, there's also -- I included some entries of the war diary of

24     the 4th Guards Brigade where they address shelling of targets in Knin,

25     and that is actually on page 185, English page 185, part 2 of the report,

Page 12565

 1     and, yeah it would be -- maybe I don't know whether it is technically

 2     possible to see it on the monitor, because if I read out it takes a lot

 3     of time.

 4             JUDGE ORIE:  Yes.  We, at least -- I have it on my monitor

 5     because we have access to the documents, but if it can be shown on the --

 6     in the e-court as well.

 7             THE WITNESS:  And so the source I quote from is 65 ter 4581.

 8             There's an entry at 7.00 in the morning where it is reported

 9     that:  "Our forces were hitting the barracks in Knin, and they were doing

10     a good job."

11             Then there's an entry at 9.20.  This is it still for the 4th --

12     excuse me, for the 5th of -- for the 4th of August, sorry.  4th of

13     August.

14             MR. KEHOE:  Excuse me, it is the 5th.

15             JUDGE ORIE:  It reads same order is re-issued by the commander of

16     the 4th Guards Brigade at the 5th of August.  And then these entries in

17     the 4th Guards operative log-book do not specify which ..."

18             It is a bit unclear whether it is the 4th or 5th.

19             THE WITNESS:  When we take the start of the paragraph, Your

20     Honours.

21             JUDGE ORIE:  The entry on the 4th of August, 7.00, and that is

22     apparently what you refer to in the first box.

23             THE WITNESS:  Indeed, Mr. President.

24             So we have the 7.00 entry for the 4th of August.  I'm -- I

25     haven't specified a page number, but the diary is chronologically, so if

Page 12566

 1     you want to see in e-court, we could go to that page.

 2             And then the next entry is indeed for the 5th at 9.20 where there

 3     is reference to an order from the OG not to hit Knin anymore with

 4     artillery.  We have ordered our units and the 7 Guards Brigade to comply.

 5     And then again on the 5th at 10.38 the brigade commander asks not to

 6     pound Knin anymore, since our troops are already there.

 7             This is the information I have been able to review and include in

 8     my report which comes the closest to answering your question,

 9     Mr. President.  I haven't seen any more specific information.

10             JUDGE ORIE:  Thank you for that.

11             Mr. Kehoe.

12             MR. KEHOE:

13        Q.   And lastly -- one last topic, Mr. Theunens.  You noted during the

14     course of your testimony the comment on the effectiveness of fire.  And I

15     note for you, if we can just look at P64.

16             MR. KEHOE:  If we can put that on the screen.

17        Q.   Sir, I know this is not part of your report.

18             And this is a provisional assessment done by the UN, UNMOs on the

19     18th of August, and in paragraph 2 -- excuse me.

20             MR. KEHOE:  I think we have two B/C/S documents up there.  There

21     we go.

22        Q.   This is a provisional assessment which testimony reflected the

23     final assessment was the same, but, in general, shelling was concentrated

24     against military objectives.

25             Now, I understand that this was not part of your report, but in

Page 12567

 1     our discussions in January of this year, the Gotovina Defence provided

 2     you with a copy of this, and I take it that you read it and considered

 3     it.  Is that right?

 4        A.   Indeed.  I mean, it was addressed in January, and I read that

 5     document and I considered it, but I have not included in the addendum of

 6     my report.

 7        Q.   Even after that you didn't include it in the addendum?

 8        A.   Because it didn't fulfil the criteria that apply to the addendum,

 9     i.e., documents that became available after the filing of the report,

10     i.e., after December 2007, or documents that provide additional

11     background to these "new documents."

12        Q.   Well, you would agree with me that an assessment such as this,

13     where it notes that shelling was concentrated against military

14     objectives, it would be logical for you to assume that those military

15     objectives were pursuant to a detailed targeting scheme that was done by

16     the HV during Operation Storm.  Isn't that right?

17        A.   I cannot answer the question directly because there doesn't have

18     to be a link between the planning and the execution of fire and a choice

19     of targets there.

20             And this report -- okay, this report expresses the view of an

21     UNMO team that apparently 18th of August or just before made a number of

22     observations.  I cannot link -- it would be useful for me if I would

23     really want to analyse that to see the list of targets, and then to

24     compare the list of targets whereby the targets are identified by grid

25     reference.  Subsequently with a document where I can see, Okay, this

Page 12568

 1     target, target 1 located at X, Y, Z, this grid, that is the level of the

 2     effectiveness of fire, collateral damage or undesired damage, yes or not,

 3     and in a kind of systematic manner.

 4             Yeah, that's all can I say to this document.

 5        Q.   One last question, but it's clear after receiving this document,

 6     you did not take any of these additional steps to account for -- on the

 7     delay of this opinion that was rendered on the 18th of August, did you?

 8        A.   No, Your Honour, because I think it is also important to

 9     highlight that my task was -- it was not included in my tasks to analyse

10     the effectiveness of the fire -- the effectiveness of the use of

11     artillery by the forces operating under the command of General Gotovina.

12     As we discussed earlier I'm not an artillery expert, so I limited myself

13     to the aspects I can deal with and that is with the planning and the

14     organisation of artillery fire.

15             JUDGE ORIE:  Mr. Misetic.

16             MR. KEHOE:

17        Q.   Thank you, Mr. Theunens.

18             JUDGE ORIE:  Oh, yes, you're shifting.  I ask myself, Mr. Kehoe,

19     would you expect an expert who has presented a document without having

20     systematically, or at least to the best of his possibilities,

21     systematically reviewed that type of document to draw conclusions form

22     that?  That is what you suggesting in the your question.  And I

23     understood from the earlier objections against the expertise of

24     Mr. Theunens that that would be the last thing you would expect from an

25     expert.

Page 12569

 1             MR. KEHOE:  What I would is expect, Your Honour, is to take that

 2     document that was given to him in January and follow it up before he

 3     filed an addendum to see if that particular document altered any of his

 4     previously articulated positions.  That's what I would have expected, and

 5     that's the reason why the Gotovina Defence team gave it to Mr. Theunens

 6     in our meetings months and months prior to his submission of his

 7     addendum.

 8             JUDGE ORIE:  He didn't give him the whole bunch.  We have many,

 9     many documents of who observed what ... [Overlapping speakers] ...  was

10     this the one presented to him.

11             MR. KEHOE:  [Overlapping speakers] ...

12             JUDGE ORIE:  [Overlapping speakers] ...

13             MR. KEHOE:  [Overlapping speakers] ...  we gave him this, and he

14     told us he was never provided a copy of this and never took it into

15     consideration.  We thought it important during our discussion that he see

16     the document.  And expected that the addendum would account for in some

17     fashion, but it did not.

18             JUDGE ORIE:  Thank you for the explanation.

19             Mr. Misetic.

20                           Cross-examination by Mr. Misetic: [Continued]

21             MR. MISETIC:  Thank you, Mr. President.

22        Q.   Good afternoon, Mr. Theunens.

23        A.   Good afternoon, Mr. Misetic.

24        Q.   I would like to start my cross-examination on something that we

25     can agree upon.  And on page 317 of your report, you have a section that

Page 12570

 1     -- that begins on than page, and it is titled:  Notice of alleged serious

 2     crimes in the zone of responsibility of the Split Military District

 3     during and after Operation Oluja.

 4             Do you see that?

 5        A.   Indeed, sir, Your Honours.  I see that.

 6        Q.   Now can we agree that you, having reviewed the documentation of

 7     the Office of the Prosecutor, concluded that there was no evidence that

 8     you found in the possession of the Office of the Prosecutor that

 9     General Gotovina had any notice of any murder having been committed by a

10     member of the HV?

11        A.   Just to be precise, the documents I reviewed are mainly HV

12     documents which were indeed provided by the Office of the Prosecutor.

13             Now, indeed, I have no specific information as to -- or

14     indicating that General Gotovina had any notice of any murder being

15     committed by a member of the HV, but I would like to add what we have

16     mentioned earlier; that is, the importance of situational awareness.

17        Q.   I'm not talking about notice, Mr. Theunens, that is my question,

18     okay?

19        A.   But it is important from the military point of view in order for

20     the commander to carry out tasks.

21        Q.   I'll ask the questions that I'm interested, and if we could focus

22     your answers to answer the questions that are posed to you without the

23     additional comment unrelated to that.

24             Now, had you a --

25             JUDGE ORIE:  That raises an issue for me, Mr. Misetic.

Page 12571

 1             The question was, Can we agree that you, having reviewed the

 2     documentation of the Office of the Prosecutor, concluded that there was

 3     no evidence that you found in the possession of the Office of the

 4     Prosecutor ...

 5             Mr. Theunens, from the previous question put to you by Mr. Kehoe,

 6     I got the impression, but please correct me when I'm wrong, that you did

 7     not analyse the whole of the documentation in the possession of the

 8     Office of the Prosecution but that you focussed specifically on a certain

 9     type of documents, would it -- first of all, is that the case?  Did you

10     review any documents on reporting of crimes to whomever.

11             MR. MISETIC:  This is an area that I intend do cover just so you

12     are aware of.

13             JUDGE ORIE:  Yes, but if you start with, You found no evidence,

14     then of course it's important to know --

15             MR. MISETIC:  In a section that's entitled notice, Judge, so --

16             JUDGE ORIE:  Yes, I'm aware of that.

17             MR. MISETIC:  I would like to explore what your exploring with

18     him right now, if I may.  [Overlapping speakers] ...

19             JUDGE ORIE:  You may proceed.  It was triggered by the way you

20     put your first question.

21             MR. MISETIC:

22        Q.   Now, Mr. Theunens, your section is entitled:  Noticed Of Alleged

23     Serious Crimes, and I think again we can agree in the hierarchy of crime,

24     murder is near or at the top of the list.  Agreed?

25        A.   Probably.  I'm not into criminal science.  But the section is

Page 12572

 1     titled:  Notice Of Serious Crimes, but even without wanting to launch --

 2     engage myself in any legal analysis, there are other serious crimes like

 3     arson, looting, and related crimes.  And the section covers or includes

 4     documents I did review and these are mainly HV documents, i.e., documents

 5     from the Split Military District and its subordinate units indicating

 6     that the commanders of the subordinate units as well as the commander of

 7     Split Military District are aware or are informed and are aware of these

 8     incidents taking place in their zone of responsibility.

 9        Q.   Okay.  Again, Mr. Theunens, I think you're aware I'm focussing on

10     murder, so let's not divert into other areas and let me challenge you on

11     what you have just said.

12             Your section on notice, for example, and page 323, paragraph 5

13     includes an ECMM report of a meeting with General Gotovina.  Correct?

14     And it also includes MUP documentation.  Correct?

15        A.   Indeed I said mainly HV documents I think -- I haven't calculated

16     the statistics, but -- at least 80 percent and that's a conservative

17     estimate are military documents.

18        Q.   But the point is that you had access to ECMM documents, you had

19     access to MUP documents, and let me ask you a more specific question:  I

20     think I stated the earlier on, last week, that if you had a question

21     about something or needed more documentation, you could request that more

22     documents be provided to you, correct, within the Office of the

23     Prosecutor.  Did you ask Dai Morris or someone else in OTP?

24        A.   Yeah.  But maybe it is a translation issue.  I conducted the

25     searches myself and when I -- I mean, it's instances I conducted Dai

Page 12573

 1     Morris or Andrei Shakhmetov was when they would go on a mission to state

 2     archives in Croatia, and I gave them a list of documents I was not able

 3     to find.  And when I asked him to see whether they could access or obtain

 4     these documents in the archives.  So I think we need to be specific here.

 5        Q.   Let's get into that a little bit.  When you're preparing a

 6     section entitled notice of alleged crimes to the Split Military District,

 7     when you were setting out, researching this topic, you would have,

 8     amongst other things, looked for and noted evidence of notice to

 9     General Gotovina of murders taking place, right?

10        A.   But not exclusively murders.  That's what I tried to explain.

11        Q.   I'm not exclusively, sir.  If you found notice of a murder, that

12     would be in your report; wouldn't it?

13        A.   It would be, yes.

14        Q.   Did you ever ask anyone in OTP to say, I can't find the documents

15     which show that General Gotovina had notice of murder, can someone help

16     me find the document?

17        A.   No, I didn't ask that because I was -- yeah the question didn't

18     come up with me because I looked at it from the military point of view,

19     and of course murder is -- is a very serious crime, but there are other

20     serious crimes.  And the intention I had with this section was to verify

21     whether or not the de jure aspect, i.e., that the doctrine that the

22     commander has to be familiar -- the situation in his zone of

23     responsibility was also applied in relation to the aspect of serious

24     crimes, without going into detail into the nature of these crimes.

25        Q.   Well, I guess -- you're saying you looked at it from a military

Page 12574

 1     point of view, and that's is the point of view I want to look at it from

 2     as well.

 3             And when we talk about what -- what measures a commander should

 4     take, you looked at -- you looked at what documents he would be receiving

 5     on a daily basis and perhaps on an even more frequent basis.  You looked

 6     at the political affairs reports, the SIS reports, you looked at the

 7     Split Military District operational diary, you looked at orders, right?

 8        A.   Indeed.  Keeping in mind again when I said about situational

 9     awareness, that for Military Commander it is not only an issue of

10     receiving the information but also of informing himself.  It is it not a

11     -- how -- yeah.  It is not a passive kind of thing.  It is an active

12     thing.  The commander has to be active in order to familiarize himself

13     with the situation.  He doesn't wait until somebody tells him, well, see

14     what is happening.

15        Q.   Your position generally as an expert witness coming to testify

16     here is General Gotovina, if he had notice, should have acted, and if he

17     didn't have notice, should have acted.  Right?  Is that like a heads I

18     win, tails you loose proposition, Mr. Theunens?

19        A.   My conclusion is, based again on Croatian armed forces doctrine,

20     that the commander has to be familiar with the situation in the zone of

21     his responsibility.  That doesn't only apply to the enemy situation but

22     also the situation of his own forces.

23        Q.   Let's get whack to the question I asked you.  You didn't find any

24     evidence in the political affairs reports the SIS reports, orders, or in

25     the Split Military District operational diary of any reference to any

Page 12575

 1     murder having been committed by a member of the HV.  True or false?

 2        A.   I wouldn't be able to answer the question directly.  I would need

 3     a bit of time to check my report in order to see whether the documents I

 4     included in the notice section or the section I call notice, whether they

 5     include murders or not.

 6        Q.   Well, we're going to come upon a break, and I invite you during

 7     the break to review you report and you let me know when we come back if

 8     you found the document.

 9             Let's see if we can agree on something else, Mr. Theunens, page

10     387 of your report, going on to page 388.  This talks about the

11     discipline statistics.  Are you there?

12        A.   Yes, thank you.

13        Q.   It says -- it references a report.  It says:

14             "A total of 1431 disciplinary measures were imposed in the Split

15     Military District between July and September 1995, the three-month

16     reporting period.  This respects almost a 30 per cent increase in

17     comparison to the figures covering the January to June time-period, a

18     six-month reporting period of 1138 disciplinary measures."

19             We have people who are much better at math than I am in this

20     courtroom, Mr. Theunens, but according to my math, if you take that

21     six-month reporting period, divide it by two, so we're talking about what

22     the average was for that three months between January and March, and then

23     the three months from April to June, the average is 569 disciplinary

24     measures were taken in those two separate three-month reporting periods,

25     and then you go to the third quarter which says that in that quarter, you

Page 12576

 1     had an increase, a jump to 1431 disciplinary measures, if my math is

 2     correct, that means that in the third quarter for July, August, and

 3     September, there was an increase of 151 per cent in the number of

 4     disciplinary measures taken in that quarter, as opposed to the average of

 5     the first two quarters.

 6             Do we agree on that?

 7        A.   I would have to review the documents, but I do agree with you,

 8     and I apologise for this error in the report which would have been

 9     covered by the --

10        Q.   I don't think it's an error.  I'm just saying I broke it up

11     myself on what the map is.  I don't think you made a mistake there,

12     because I think the Croatian army changed the reports period requirements

13     from six months to three months, around that time.

14        A.   Yeah.

15        Q.   So what I'm trying to say if you look at it statistically, there

16     is an 151 per cent increase in the third quarter, as opposed to say the

17     first or second quarter.  Correct?

18        A.   From the quantative point of view, yes.

19        Q.   Okay.  Now --

20             JUDGE ORIE:  The witness apologised for the mistake.  You said

21     there is not mistake, but 30 per cent, apparently is the mistake.

22             MR. MISETIC:  I think he said 30 per cent increase if you take

23     the first six months.  So he took the number 1138.

24             JUDGE ORIE:  No.  I think what he has told us is that is not a

25     appropriate comparison.  To that extent, he made a mistake, and he

Page 12577

 1     apologises for that, so --

 2             MR. MISETIC:  [Overlapping speakers] ...

 3             JUDGE ORIE:  [Overlapping speakers] ...

 4             Please proceed.

 5             MR. MISETIC:

 6        Q.   Now, Mr. Theunens, I'd like to take you back to some of what you

 7     talked about on direct.  As a matter of background, in preparing to

 8     testify in this case, I take it you met with Mr. Waespi beforehand and

 9     discussed what topics you would be testifying about on direct.  Is that

10     correct?

11        A.   Indeed.  There were meetings with Mr. Waespi, as well as

12     Mr. Du-Toit, and during these meetings Mr. Waespi decided about the

13     topics that were to be addressed during my examination.

14        Q.   Did you also in advance know, for example, what documents you

15     would be asked to opine about on direct examination?

16        A.   A few weeks before we started preparation of this testimony, I

17     made a selection of what I considered the most important documents.  I

18     handed that over to the Mr. Du-Toit and Mr. Waespi, and then that list

19     was used, as well as Mr. Waespi added his own documents and indeed I was

20     familiar -- or I knew which documents were to be shown to me by the

21     Prosecution during my testimony.

22        Q.   Thank you.

23             MR. MISETIC:  Madam Registrar, if we could have exhibit P1119 on

24     the screen, please.

25        Q.   And Mr. Theunens, if you could take a look at this exhibit.  It's

Page 12578

 1     one covered in direct examination.  Was this one of the documents that

 2     you selected as one of the most important documents.  You recall this had

 3     to do with an order about reporting on disciplinary measures, and then

 4     you noted about a military police post code at the end of the document

 5     and you made specific reference about who was that code.  First tell me

 6     did you select this document as one of the most important?

 7        A.   I selected this document as an important document because it

 8     shows the implementation of the military discipline system by the

 9     commander of the Split Military District over his units prior to

10     Operation Storm.

11        Q.   Now, on direct examination -- if we could go to the next page,

12     please.  You made a special point of one of these military police post

13     codes.  Could you remind me again which one you pointed out and why you

14     pointed it out.

15        A.   It was 2233.  And it's -- you can see it in the B/C/S on the

16     fifth on the left column and VP 2233 is the military post number of the

17     72nd Military Police Battalion.

18        Q.   Now why did you think it was important to highlight the fact that

19     the military police -- 72nd MP Battalion had received this document from

20     General Gotovina?

21        A.   Actually because I was asked by Mr. Waespi during preparation

22     whether the list included all the units --  I mean, the address list

23     included all the units of the Split Military District, and I said yes

24     based on my understanding of the structure of the Split Military District

25     which is also described in part 1 of the report, I checked these military

Page 12579

 1     post numbers, and one of the military post numbers that is included is

 2     that of the 72nd Military Police Battalion.

 3        Q.   My question is why is that important, why is that relevant to

 4     you?

 5        A.   I think you should ask Mr. Waespi.  I didn't volunteer the

 6     answer.  I think he asked me a question about that, if I remember well.

 7        Q.   Okay.  Well, let me ...

 8        A.   And again I have addressed the relation of the 72nd Military

 9     Police Battalion with the Split Military District as to the situation

10     prior to Operation Storm in part 1 of my report, so --

11        Q.   Let me --

12             MR. MISETIC:  Madam Registrar, if I could have 65 ter 3349 on the

13     screen, please.

14             JUDGE ORIE:  We're moving to a new document.

15             MR. MISETIC:  I'll wrap up in hopefully three minutes.

16             JUDGE ORIE:  Three minutes.  Then we'll give you an opportunity

17     to do so.

18             MR. MISETIC:

19        Q.   Now, this is from Mr. Lausic a document goes to the 72nd MP

20     Battalion amongst others dated the 16 August.  It follows up on the

21     document that you just reviewed that was tendered in through direct, and

22     if we could scroll down in English version, please.  To the next page,

23     I'm sorry.  In English.

24             Now it says:

25             "Pursuant to the rules, you are required to record the

Page 12580

 1     disciplinary measures imposed on the SP-2," and that's a form.

 2             It says:

 3             "The Republic of Croatia Ministry of Defence legal affairs

 4     administration has given approval for VP units not to submit the SP-2

 5     forms for the period of three months to the Military District command but

 6     to the military police administration."

 7             Now I note that this document is one that you specifically

 8     referenced in your report.  It's at page 179, footnote 614.  My question

 9     is, is there a reason that you then didn't highlight for the Trial

10     Chamber the fact that this document that was selected on direct to show

11     subordination of the 72nd MP to the Split Military District Command was

12     changed pursuant to a directive by the ministry of Defence and reported

13     upon by Mr. Lausic?

14             Is there a reason you didn't make that clear on direct?

15        A.   There is no reason to make it clear because in my understanding,

16     this has no relevance for the subordination of the military police.

17     Because actually what General Lausic points out here is that with his --

18     this instruction or order we -- there is a -- we do not apply the

19     procedure as it has been established, but there is a special arrangement

20     being made, but I mean he just talks about the submission of a form.  He

21     doesn't talk about any aspects of the command and control or

22     subordination.

23        Q.   Well,' get into that.  But I'm just pointing out to you that

24     there was a document tendered on direct showing -- request for reporting

25     on disciplinary measures.  Less than 30 days later, that was changed, and

Page 12581

 1     so the 72nd MP Battalion would now send its reports to Mr. Lausic and not

 2     to the Split Military District Command.  Do we agree on that?

 3        A.   Yes, for this specific time-period.  We don't know later on we

 4     return to the regular situation.  But here we see, yes, a change to what

 5     is normally done.

 6             MR. MISETIC:  I tender this document into evidence,

 7     Mr. President.

 8             MR. WAESPI:  No objections.

 9             JUDGE ORIE:  Thank you, Mr. Waespi.

10             Madam Registrar.

11             THE REGISTRAR:  Your Honours, this thank would be Exhibit D977.

12             JUDGE ORIE:  D977 is admitted into evidence.

13             Mr. Misetic, time for a break.

14             MR. MISETIC:  Yes, Your Honour.

15             JUDGE ORIE:  We'll have a break, and we resume at five minutes to

16     1.00.

17                           --- Recess taken at 12.35 p.m.

18                           --- On resuming at 1.00 p.m.

19             JUDGE ORIE:  Please proceed, Mr. Misetic.

20             MR. MISETIC:  Thank you, Mr. President.

21             Madam Registrar, if I could please have Exhibit P880 on the

22     screen, please, page 5 in both the Croatian and English version.

23        Q.   Mr. Theunens, I'm going to show you the regulations on the

24     military police, and you talked about this on direct examination.

25             Mr. Waespi indicated in court that it was you who brought to his

Page 12582

 1     attention this issue about the proper translation of in the Croatian text

 2     the words "upravljane zapovjedanje."

 3             Can you tell us why it was important to bring this issue up to

 4     Mr. Waespi?

 5        A.   I consider this important because personally I found the wording

 6     of the translations of Article 8 and 9 not entirely clear.  Especially

 7     because from my background, and previous experience here, I am aware

 8     that, especially in the military, correct definition and correct use of

 9     terminology is of paramount importance.

10             I know the Croatian expression for command and control, as in the

11     military use of command and control.  ViZ is the acronym vodjenje i

12     zapovjedanje.  And when we look at the original of Article 8, and in

13     English it says, "under the command and control," but in Article 8 we do

14     not see the use of ViZ, but we see the use of upravljane zapovjedanje,

15     whereby zapovjedanje stands for command, but upravljane does not stand

16     for control, as it would do in command and control because then would you

17     have had vodjenje.

18             I remember as I explained during examination, but I will cut it

19     short.  There had been questions about that in other trials, and then I

20     checked the JNA military lexicon where there is a definition for

21     upravljane, and I realize that Serbian and Croatian are not the same

22     languages, about still the definition I could find actually shows that

23     upravljane stands for management.  And management in the sense of

24     organizing, equipping, training, aspects of -- yeah, as it is defined in

25     the lexicon, health care, as well as other administrative tasks.  And I

Page 12583

 1     felt it important to highlight to Mr. Waespi because I considered it

 2     important for correct understanding of what is it stated in Articles 8

 3     and 9.

 4        Q.   I'm interested in the last part of your sentence and would like

 5     you to expound on that.  You brought it to Mr. Waespi' attention.  You

 6     then brought it again to the Trial Chamber's attention.  I want to know

 7     why it is that you think this issue is important enough that it needed to

 8     be brought to Mr. Waespi's attention, and more importantly to the Trial

 9     Chamber's attention?

10             What about it is that's important in the context of this case?

11        A.   Because for a military person like myself, Articles 8 and 9 could

12     -- I mean the translation looks at first glance slightly confusing.  And

13     as I pointed out, in each language there is a definition of a way to

14     describe command and control.  It is one concept.  It is not a group of

15     three words.  It is one concept.  The military meaning of command and

16     control, and I attempted to show that in the report when defining command

17     and control, and I apologise for repeating myself, but in the English

18     translation it says, "under the command and control of the chief of the

19     military police administration."  I would then have expected that if it

20     meant command and control as the military meaning of command and control,

21     it would have been expressed differently in the B/C/S version.  The --

22        Q.   I'm sorry to interrupt you.  I need to be more specific, and I

23     apologise.  What I mean specifically is what does this distinction mean

24     in the context of the Split Military District, Operation Storm, and who

25     had command and control over the military police in the Split Military

Page 12584

 1     District during Operation Storm.  What does your interpretation of

 2     Article 8 mean in that context?

 3        A.   It means that for the -- as explained in Article 9 for the

 4     exclusion of regular military police tasks, the military police of the

 5     Split Military District, so the 72nd Battalion and the 73rd Military

 6     Police Battalion which was subordinated -- resubordinated to the Split

 7     Military District, received their orders from the operational commander.

 8     That means the commander of the Split Military District or a subordinate

 9     operational commander because we see that companies of the 72nd Military

10     Police Battalion are subordinated to OGs.

11             It also means that, Article 9, that in relation to what I would

12     administrative aspects -- and this is not using administrative in a

13     negative sense, but aspects like as to how to implement these daily tasks

14     or these regular tasks, I mean the manner, the instructions are given by

15     the chief of the military police administration.

16        Q.   Whose command and control in your view -- and I used the phrase

17     specifically command and control.  Under whose command and control was

18     the 72nd Military Police Battalion during and after Operation Storm?

19        A.   Command and control in the sense of ViZ.  As I explained there is

20     the operational chain, i.e., as I referred to in Article 9, and there is

21     the professional chain as explained in Article 8.

22             Some people call it dual command and control, but I don't think

23     that is the right characterize because unity is one of the principles of

24     command and control in most armies.  So indeed the military police units

25     including the 72nd receive instructions from the military police

Page 12585

 1     administration, but they deal with other aspects than what we call in the

 2     military regular or -- regular operational command and control.

 3        Q.   Let me rephrase my question.  I'd ask you to make reference to

 4     specific individuals in the Croatian hierarchy.  Under whose command and

 5     control was the 72nd Military Police Battalion during and after Operation

 6     Storm?  Was it the military police administration, General Gotovina, or

 7     both?

 8        A.   Both, in applying Articles 8 and 9, whereby General Gotovina or a

 9     subordinate operational commander issued tasks pertaining to the

10     execution of regular military police tasks, and General Lausic or

11     Major Juric issuing instructions or tasks dealing -- not instructions, I

12     apologise.  Dealing with how they should implement these regular military

13     police tasks.

14             This being said, there are documents included in my report,

15     whereby again comparing Articles 8 and 9, Lausic issues instructions

16     which, in my view, would go beyond the level of what is specified in

17     Article 8, and, for example I don't remember the exact document, but I

18     can I find it, there is an instruction or an order from Lausic for the

19     establishment of military police platoons in specific areas.  For

20     example, Knin, Benkovac and other.  I would have expected

21     General Gotovina to do so.

22             Now the document or order from Lausic does not allow to conclude

23     whether or not Generals Lausic or Gotovina or with the involved of

24     Major Juric have consulted about this issue.

25        Q.   Are you surprised by that document -- is your surprise borne of

Page 12586

 1     the fact that you don't believe that Article 8 gave General Lausic

 2     command and control over the 72nd Military Police Battalion?

 3        A.   I don't think I used the word "surprise."  And to answer your

 4     question, actually, I would consider the establishment of -- or the

 5     deployment of military police units in a particular location, located in

 6     the zone of responsibility of a Military District, to fall within the

 7     authority of the operational commander, i.e., to be dealt with or covered

 8     by Article 9.  But that is my interpretation.

 9        Q.   Okay.  So let me try to be focussed and clear here.

10             Was the 72nd Military Police Battalion under the command and

11     control of General Mate Lausic, in your view?

12        A.   Your Honour, I have the feeling that the same question is being

13     asked different times.  And as you see from the doctrine, I mean what I

14     conclude from that the documents that I reviewed is that the doctrine

15     which establishes this, it is not a dual chain, but it establishes an

16     operational chain in Article 9, as well as a professional line, in

17     Article 8.  My conclusion from the documents I reviewed that deal with

18     the situation prior to, during, and after Operation Storm, is that

19     Articles 8 and 9 are implemented.

20             MR. MISETIC:  Your Honour, I would ask for some guidance here.  I

21     mean, I think the question is relatively straightforward.  If he believes

22     that articles 8 and 9 somehow deprived General Lausic of command and

23     control, then the answer is no to my question.  If he thinks that

24     Articles 8 and 9 gave him command and control, then the answer is yes.

25     If it is both that General Gotovina and General Lausic had both command

Page 12587

 1     and control, that is another answer.  But at this point I'm not sure what

 2     the position is on this issue.

 3             JUDGE ORIE:  I think earlier the witness on one of your questions

 4     said that both.  But let me just find it.  Let me just find it.

 5             MR. WAESPI:  It's page.

 6             JUDGE ORIE:  Page 82, line 16.

 7             You asked:

 8             "Was it the military police administration, and I understood that

 9     to be Lausic to be there, General Gotovina, or both?"

10             And the answer starts with both.  And the witness explains --

11             MR. MISETIC:

12        Q.   So the answer is both, right?

13        A.   Including the additional explanations I gave, because that is it

14     actually that it is all about.  I mean it applies to military police.  It

15     also applies to SIS as the doctrine states, and I have explained that in

16     part 1 of my report when I deal with the professional line and the direct

17     or the operational line on English page 130 of part 1.

18             If we deal with specialized units, then there can exist a dual

19     chain, the operational chain and the professional chain.  And this

20     applies also to the command -- command and control and the command and

21     the management of the military police.

22        Q.   How does your opinion then that they both had command and

23     control, house does that not violate the principle of unit of command.

24             Let give you an example.  General Lausic on 9 August issues an

25     order I think if you put it in through direct examination, taking away

Page 12588

 1     the anti-terrorist unit of the 72nd MPs from combat operations.  Do you

 2     remember that document.  Order of the 9th August by General Lausic?

 3        A.   I would like to see the document because I am more familiar

 4     with -- actually with orders whereby General Gotovina removes -- and it's

 5     prior to Storm -- takes away a company of the 72nd Military Police

 6     Battalion as well as the anti-terrorist unit in order to contact combat

 7     operations.

 8        Q.   As we sit here today, you're unfamiliar with the fact that

 9     General Lausic issued such an order on the 9th of August?

10        A.   It is justified from my side to ask to see the order.  I don't

11     see that I am familiar.  I would like to have my memory refreshed.

12        Q.   I'm going to get into that with you later on, but let's ask this

13     question:  Hypothetically, General Lausic says the 72nd -- the

14     anti-terrorist force of the 72nd MPs is to be removed from combat

15     activities in Bosnia.  He issues such an order.  General Gotovina,

16     subsequent to that order, issues his own order to Mr. Budimir that says,

17     Ignore what Mr. Lausic says, you're staying here in Bosnia with me.

18             Who wins?

19        A.   Well, that is exactly the situation that can arise if you have

20     people who have -- hold or were in a position to issue orders in relation

21     to resubordination, who do not interpret the doctrine in a correct

22     manner.

23             Now if you say, Who wins?  Such issues would be normally sorted

24     out by consulting the common superior of the two, but I realize that the

25     military police administration is part of the Ministry of Defence and

Page 12589

 1     does not fall under the chief of the Main Staff, but hypothetically the

 2     chief of the Main Staff would become involved and he would try to

 3     mediated between the two.

 4        Q.   So you're saying that in Operation Storm, if there were

 5     conflicting orders between the Military District Commander and the chief

 6     of the military police administration, they would have to hold a

 7     mediation session to figure out whose order prevails.  That's your

 8     understanding?

 9        A.   I was asked a hypothetical question.  I gave an answer that, in

10     my view, applies to such a hypothetical question.  If you give me now a

11     concrete example with documents, I think then I could try to give a more

12     concrete answer.

13        Q.   I'm just trying to understand your methodology, your rationale.

14     You've given an opinion, and I just want do understand how you understand

15     the system to work.

16             So again my question is:  Your position is that the way Articles

17     8 and 9 are structured, if it ever came to conflicting orders between the

18     depict commander and the chief of the military police administration,

19     someone would have to organise a mediation session to resolve the

20     conflicting orders.  That's your understanding of Articles 8 and 9?

21        A.   Your Honour, when I was asked a hypothetical question, there was

22     no reference made to 8 in 9.

23             In my view, Articles 8 and 9 are clear, at least the original

24     Croatian version.  Now, you can never rule out that in practice there are

25     errors or somebody steps outside his authority and issues an order he

Page 12590

 1     should not have issued, and then indeed through communication, directly

 2     or if that doesn't work the intervention of a common superior, the

 3     situation would be sorted out.

 4             But you have this Articles 8 and 9 and all the others exactly to

 5     avoid these kind of conflicts.  The articles are clear.

 6        Q.   Here is the issue.  You have now just said you can never rule out

 7     that in practice there are errors and somebody steps outside his

 8     authority, and you say, in my view, Articles 8 and 9 are clear.

 9             So my question to you is General Gotovina -- General Lausic

10     issues an order saying the anti-terrorist unit of the 72nd is to not go

11     into Bosnia.  General Gotovina issues an order subsequently says to

12     Mr. Budimir, ignore General Lausic's order, stay in Bosnia.

13             Under your own formulation here, which one of the two has stepped

14     outside of his authority under Articles 8 and 9?  General Gotovina or

15     General Lausic?

16        A.   This is a hypothetical question.

17             JUDGE ORIE:  Yes, it is.  It is, Mr. Theunens.  But --

18             THE WITNESS:  Well, then my answer to the hypothetical question

19     would that be Lausic exceeds his authority, but, of course, it would be

20     useful to know why he issues an order whereby he knows that it actually

21     goes beyond his authority.

22             MR. MISETIC:

23        Q.   Okay.  That is what I wanted to get to.

24             If we could turn to Exhibit D35, please.

25             Mr. Theunens, this is probably a document that you haven't seen

Page 12591

 1     before unless someone gave it to you since this trial began.  I don't

 2     believe it was in the possession of the Office of the Prosecutor.

 3             This is an order by Minister Susak dated 6 July 1994.  It is

 4     issued after the regulations for the military police were issued.  And in

 5     the introduction he says -- he cites his powers under Article 22 of the

 6     Law on Defence.  And he says:

 7             "With a view to removing ambiguities in a system of command and

 8     control - and if you look it the original text, it's the ViZ that you

 9     referred to, vodjenje zapovjedanje - over units of the military police

10     and with regard to the information about the failure to respect the

11     system in the area of responsibility of the 72nd Battalion of the

12     military police, and in connection with ..."

13             I can't see the -- if we could scroll to the right a little bit.

14     In the English, please?

15             "In connection with platoons and HV Brigades on the southern

16     front, I hereby order ..."

17             I'm sorry it says, "in connection with VP platoons brigades in

18     the southern front, I hereby order all units of the military police, both

19     VP battalions and VP platoons -- sorry.  VP battalions 74th SVP military

20     police company and VP platoons attached to brigades are subordinated to

21     the military police administration under the command and control - again

22     in the original, vodjenje zapovjedanje - of the chief of the military

23     police administration as specified in Article 8 of the rules of

24     organisation and work of the military police."

25             Now, does that -- Mr. Susak is the -- I don't know if can I put

Page 12592

 1     it that this way -- the author of the regulations on the military police.

 2     You are aware that those are issued by the Ministry of Defence pursuant

 3     to his authority under the Law of Defence, correct?

 4        A.   Yes indeed.

 5        Q.   It's not a law passed by parliament; it's an internal regulation,

 6     correct?

 7        A.   Yes.

 8        Q.   Minister Susak also has the power to issue his own orders under

 9     the Law on Defence, correct?

10        A.   Yes.

11        Q.   So the regulations and the orders are both issued by the same

12     person, and he says in the introduction, With a view towards clarifying

13     ambiguities, he interprets article 8 to mean that the chief of the

14     military police administration engages in vodjenje zapovjedanje under

15     Article 8, which is command and control.  Correct?

16        A.   Yes.  But I have seen also in an earlier document by

17     Minister Susak a document from December 1992 which is known as 65 ter

18     2406, he indeed uses command and control as ViZ, but then actually the

19     control is defined, and actually what can be found under control is

20     administration.

21        Q.   If that is your issue now, what he said in 1992, let's turn to

22     the last entry here in this order.

23        A.   Mm-hm.

24        Q.   Go to the next page, please.

25             "All orders regulating the system of command of VP units or the

Page 12593

 1     manning of VP units in the manner contrary to the rules of the

 2     organisation and work of the military police of the OS of the RH and to

 3     order shall cease to be in effect."

 4             So in other words, Mr. Theunens, whatever you wrote in 1992, the

 5     only two applicable orders in 1994 and forward are the rules and that

 6     order.  Correct?

 7        A.   Correct.  I didn't try to claim that the document of 1992 still

 8     applied, but I just try to clarify that Minister Susak in the document of

 9     1992 when defined command and control and he states what command includes

10     and what control under the section control, actually lists tasks which

11     falls under administration, but I agree that is not a key issue.

12             In relation to this document, I would like to go back to the

13     previous page and see Article 3 again.

14             Yes.  Article three confirms Article 9, and, in my view, is

15     coherent with my testimony so far.  Both on -- on both Article the 8 and

16     9.

17        Q.   Well, Mr. Theunens, you just testified and made a big point in

18     direct examination about saying Article 8 doesn't mean vodjenje

19     zapovjedanje.  You now see the minister of Defence issued an order using

20     that exact phrase in his interpretation of Article 8.  How do you see

21     that as consistent with what you have been saying?

22        A.   Mr. President, I have not said that Article 8 did not include any

23     -- or cover any authority for General Lausic to issue his orders to the

24     military police.  I only wanted to clarify that the terminology that was

25     used in the original B/C/S was, in my view, not accurately translated and

Page 12594

 1     could therefore lead to misunderstandings for people who only looked at

 2     the English translation.

 3             I have never attempted to change the language in the original

 4     B/C/S which is in my -- in the original Croatian version which is in my

 5     view the only authoritative version.

 6        Q.   What I'm more concerned about is now your apparent conclusion

 7     that what Articles 8 and 9 mean in practice is in a coalition between

 8     General Lausic and General Gotovina, General Gotovina's order would

 9     prevail.  And if I can just draw your attention to 65 ter 2487, please?

10        A.   I think that Article 5 actually here deals with the potential

11     collision, but I have not been able to read the second part of Article 5.

12        Q.   It talks about a collision between a battalion commander and a

13     brigade commander within the 72nd MPs.

14        A.   Okay, I see.  That's fine.

15        Q.   If we could go to 65 ter 2487.

16             MR. KAY:  Just one matter.  It's just so that we have as much

17     accuracy as possible.  I have just looked at 65 ter 2406.  It is not from

18     Minister Susak; it is from General Lausic an order dated the 17th of

19     December 1992.  I don't know whether the witness meant that order or

20     another order, and it has been incorrectly described.

21             Perhaps there can be an explanation so that we can follow.

22             JUDGE ORIE:  Mr. Theunens, what Mr. Kay tells you, does that

23     cause you to correct yourself?

24             THE WITNESS:  Indeed, Your Honours, I believe then that Lausic --

25     I will check the document again after court, but it is my assumption that

Page 12595

 1     General Lausic refers to a decision of General Susak, but I will check

 2     the document, but I take Mr. Kay' point.

 3             JUDGE ORIE:  It's on the record.  Please proceed.

 4             MR. MISETIC:

 5        Q.   This is the annual report on the work of the military police

 6     administration for 1995 that was issued in January of 1996.  It is it

 7     prepared by the military police administration and reviews its work in

 8     1995.

 9             MR. MISETIC:  If we could go please to the last page here in

10     English which is I believe is numbered page 3.

11             THE WITNESS:  Could you please give the 65 ter number again.

12             MR. MISETIC:  2487.

13             THE WITNESS:  Thank you.

14             MR. MISETIC:

15        Q.   Now, I draw your attention on the screen to the area that is in

16     bold in the original as prepared by Mr. Lausic and he says:

17             "The control and command or command and control system at the

18     level of the VP administration,"

19             And again it you look to left he used the phrase himself,

20     vodjenje zapovjedanje.

21              "At the level of the VP administration and daily operations

22     command at the level of commanders of the HV Military Districts,

23     et cetera, functioned perfectly and received the highest assessment mark

24     in the Flash, Summer 1995, Storm, Maestral, and southern stretch

25     offensive operations by the OS of the RH ..."

Page 12596

 1             And then he continues on.

 2             Now do you agree with me, Mr. Theunens, that Mr. Lausic himself

 3     says that command and control over the military police during Operation

 4     Storm was at the level of the VP administration and that daily

 5     operational command was at the level of the Military District?

 6        A.   Yes.  And that is what I have been saying from the beginning.

 7        Q.   Well, if that is what you have been saying from the beginning,

 8     how is it that someone with daily operational command, his order trumps

 9     the order of someone with command and control over the force?

10        A.   But -- well, the reason for my -- are we back at the hypothetical

11     question, or what is your question about?  Are you referring to a

12     concrete example here?

13        Q.   I think you understand my question here.  I'm asking you now from

14     a military theory perspective, okay, how is it that someone who only has

15     daily operational command, his order is superior to the order of the

16     person who has command and control over that units?  How can that be?

17        A.   But I don't understand the question.  How can we conclude -- when

18     you refer to the example of the use of the anti-terrorism unit of the

19     72nd Military Police Battalion and whether it would be Lausic -- General

20     Lausic or General Gotovina who would have the last word in a conflict of

21     authority as to the use of that unit, I understand -- understood that as

22     a hypothetical question, and my reply was based on the fact that

23     participating in combat operations is, according to Article 10, one of

24     the MP tasks, even though it is it not listed as the first task, and it

25     is Article 10 of P880.

Page 12597

 1        Q.   Okay.  Let me phrase this a different way.

 2             Do you agree with me now that both General Gotovina and General

 3     Lausic did not have command and control over the 72nd, but that command

 4     and control rested with Mate Lausic and daily operational command rested

 5     with General Gotovina.  Do you have any reason to dispute what Mr. Lausic

 6     wrote in his own report?

 7        A.   Yes, I agree that daily -- that command and control in accordance

 8     with the professional chain rested with Lausic or his representative.

 9     And that command and control in accordance with the operational line,

10     i.e., Article 9, whereby the first comment I made refers to Article 8,

11     that, in relation to Article 9, so the operational chain command and

12     control resided with General Gotovina.

13        Q.   Well, you again are imputing command and control to

14     General Gotovina, so first I may tender this exhibit into evidence 65 ter

15     2487?

16             MR. WAESPI:  No objections.

17             JUDGE ORIE:  Madam Registrar.

18             THE REGISTRAR:  Your Honours, that would be exhibit number D978.

19             JUDGE ORIE:  D978 is admitted into evidence.

20             MR. MISETIC:  Madam Registrar, if could I please have D567,

21     please, at the bottom of page 2 in the English.

22        Q.   What I'm bringing up for you now is General Lausic's assessment

23     and report on the work of the military police in Operation Storm.  You

24     looked at this on direct examination.  It is from the 16th of September,

25     1995.  And if we could look that bottom paragraph on page 2.

Page 12598

 1             Here's what he wrote, and if we could -- I can't read the -- if

 2     we could make a little smaller so I can read to the end in the English.

 3             "The combination of the preparation, planning, leading, and

 4     commanding by the VP administration and the daily operational commanding

 5     by the commanders of the HV ZP and the HV OS made it possible to carry

 6     out all the tasks within the competence of the military police and use VP

 7     units in assault operations."

 8             My question to you is why is General Lausic making a distinction

 9     between where he says "commanding by the VP administration" and "daily

10     operational commanding," why, if they're the same thing, why wouldn't he

11     just say commanding by the VP admission and commanding by the commanders

12     of the Military District?  Why the qualification of daily operational?

13        A.   Actually, General Lausic talks about preparation, planning,

14     leading, and commanding which is one group of activities which

15     corresponds with Article 8.  And then he talks about daily operational

16     commanding, by the commanders of the Military Districts.

17        Q.   May I stop you there.  There is an translation issue here.  I

18     want to make sure -- if you look at the original.  He says in the

19     original he uses your acronym ViZ, so command and control, whereas it was

20     translated as "leading and commanding," it should have been translated

21     command and control by the VP administration.  Do you see that?

22        A.   I'm not sure where I have the corresponding Croatian page.

23        Q.   You look at the paragraph above number 2.  Do you see it?

24        A.   I see it, yes, indeed.

25        Q.   He used that phrase vodjenje zapovjedanje.  So he says not

Page 12599

 1     leading and commanding, but command and control by the military police

 2     administration and the daily operational commanding.  Why doesn't he say

 3     there -- why is -- what does this phrase mean, daily operational

 4     commanding, if, in fact, both General Gotovina and General Lausic have

 5     command and control?

 6        A.   Because it is actually -- I mean, what is defined in Articles 8

 7     and 9.  The existence of a professional chain and an operational chain.

 8     The professional chain deals with preparation, planning, commanding and

 9     controlling.  The operational chain deals with daily operational command.

10     And as I mentioned this can be found English page 130.  If you want I can

11     read out what I quoted there from the HV regulations, but special -- or

12     units with special missions like, for example, military police or

13     specialized personal like SIS, there is a dual chain for commanding,

14     controlling, and reporting, which means that -- yeah.  I'm repeating

15     myself, but the operational commander, he is responsible for the daily

16     operational command, i.e., he tells them in very simple terms what to do.

17             The professional chain then will determine how to do it.  Now --

18     the how is not on a daily basis, but it is the military police

19     administration that issues the regulations, i.e., the rules as to the use

20     of the military police.  The military police administration determines

21     the uniform, determines the structure of the military police with the

22     different services, will also state, for example, how traffic control has

23     to be organised because it -- you cannot leave that up to the operational

24     commander as he doesn't have the specialized knowledge for that.  And

25     also if each operational commander would be allowed to take care of these

Page 12600

 1     kind of basic himself, there would be a risk of incoherence in the use of

 2     the military police.  And this is exactly covered also by this entry in

 3     the document.  It is just an implementation of Articles 8 and 9 of the

 4     rules in addition to the documents you present which is in my view is a

 5     clarification of Articles 8 and 9, but doesn't change the Articles as

 6     such.  Because then there would have also have been a reference in the

 7     document you showed as to, well, we hereby amend the 1994 rules on the

 8     use of the military police and replace these articles by the new

 9     articles.

10        Q.   Mr. Theunens, let me give you an alternative definition of what

11     daily operational command means, and see if you agree with that.

12             Daily operational command meant that the zone commander could

13     utilize the military police to the extent it was necessary to fulfil his

14     tasks.  Do you agree with that?  And then with respect to the

15     anti-terrorist unit, any combat that the military police is in gets

16     subordinated to him for combat purposes, but that he can -- he can

17     utilize at his discretion the MPs to the extent that it facilitates or

18     assists him in accomplishing his tasks.

19        A.   Your Honour, first of all the documents I have reviewed do not

20     support this opinion.

21             Secondly, again, based on my military experience, I have

22     difficulties to understand how such a system could be put in practice

23     because it would mean that actually the military police administration

24     has to organize an order, I mean plan, organize an order.  The military

25     police, the use of the military police battalions and companies, in each

Page 12601

 1     and every Military District.

 2             I have not seen any documents from the military police

 3     administration indicating that this was the fact.

 4        Q.   Well, let me challenge that, Mr. Theunens, because what I have

 5     understood from the last 40 minutes, you specifically mention yes

 6     General Lausic issued this order about moving military police units to

 7     Knin and other towns, and then you say your opinion is based on your

 8     interpretation of the documents.  But there you said -- in your opinion

 9     General Lausic did not have the authority under Article 8 to issue the

10     order.

11             So correct me if I'm wrong.  You have your opinion when you

12     encounter a document such as the order by General Lausic, you disregard

13     it by saying Lausic must not be acting in accordance with his authority

14     under Article 8.

15             JUDGE ORIE:  Mr. Waespi.

16             MR. WAESPI:  I think this is argument now, and we saw it from his

17     introduction.  I'm going to challenge you now.

18             JUDGE ORIE:  Of course an expert opinion can be challenged by

19     putting questions to the expert witness.  I mean, it is not a witness of

20     fact.  It is an expert witness.  So that's a bit different, Mr. Waespi.

21             But --

22             MR. MISETIC:  Let me ask you -- sorry.

23             JUDGE ORIE:  Apparently this expert witness -- and that's of

24     course the issue whether he ignores it or whether he has a certain

25     interpretation of what is within the scope of the authority of the one

Page 12602

 1     and of the other.  And I think it is legitimate to explore why he draws

 2     the line five centimetres to left or five centimetres to the right or in

 3     the middle, and that is what you apparently doing, Mr. Misetic.

 4             At the same time we're using other notions which may create

 5     similar problems, such as you can utilize him for -- for performing your

 6     own tasks.  That of course requires a clear definition of what the own

 7     task is, would that include taking care of a malfunctioning military

 8     police within your -- I'm --

 9             MR. MISETIC:  I will tell you --

10             JUDGE ORIE:  No the only thing I wanted to say is that that

11     question raised new questions for me, whatever the answer would have

12     been.

13             MR. MISETIC:  I will say -- I will put my position because I

14     always put my position on there.  General Gotovina's tasks are those that

15     he received an order from his superior commands to execute.  So to the

16     extent -- you know, obviously there are room for interpretation about

17     something specific in an order, but if he received an order to establish

18     check-points and control the area, then that would fall within his use of

19     fulfilling his task.  If his order is to attack a certain point, reach a

20     certain position, then -- but we can discuss this at length.  When a

21     future witness comes, Mr. President.

22             But let me -- I'm sorry.

23             JUDGE ORIE:  I'm looking at the clock, and I notice that we have

24     two minutes remaining.

25             MR. MISETIC:  Can I try to use one?

Page 12603

 1             JUDGE ORIE:  Yes, please proceed, do so.

 2             MR. MISETIC:  Let me get back to what my initial point was which

 3     is, correct me if I am wrong, but when you were encountered by a document

 4     and order by Mr. Lausic, specific orders of where a military police unit

 5     would go, and I think you mentioned establishing one in Knin and

 6     establishing some in other places, your conclusion wasn't, well, this

 7     must be within his powers under Article 8, and perhaps I should

 8     reconsider my own understanding of Article 8.  Your conclusion was

 9     General Lausic issued that order, even though he didn't have the

10     authority under Article 8.

11             Is that correct?

12        A.   No.  I compared that order with indeed with the doctrine as well

13     as with all the other military police as well as Split Military District

14     documents on the use of the military police, and which are discussed in

15     the section on use of the military police during and after Operation

16     Storm.  And in my view, that specific order went -- or I will rephrase

17     that.  Lausic in that specific order, gave instructions with which in my

18     view go beyond what is stipulated in Article 8.  And again I don't know

19     the background for that order, whether he consulted with General Gotovina

20     or not, whether he had particular motives to do so, I cannot draw

21     conclusions on those aspects.

22             JUDGE ORIE:  Thank you.

23             Mr. Theunens, we'll adjourn for the day.  Knowing the position of

24     your language, if I would ask you to repeat my instruction, you would

25     immediately tell me that you should not speak with anyone about the

Page 12604

 1     testimony already given or still to be given, so that is valid today as

 2     well.  We'd like to see you back tomorrow morning at 9.00.

 3             We adjourn, and we resume tomorrow, Wednesday, 26th of November,

 4     9.00, in Courtroom I.

 5                            --- Whereupon the hearing adjourned at 1.46 p.m.,

 6                           to be reconvened on Wednesday, the 26th day of

 7                           November, 2008, at 9.00 a.m.