1 Monday, 1 December 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.30 p.m.
6 JUDGE ORIE: Good afternoon to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
9 everyone in the courtroom. This is case number IT-06-90-T, The
10 Prosecutor versus Ante Gotovina, et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 First of all, the Chamber was kept busy with an urgent matter,
13 which did not allow any further delay and that caused the late start this
15 Mr. Misetic, are you ready to continue your cross-examination?
16 MR. MISETIC: I am, Your Honour.
17 JUDGE ORIE: Then, Mr. Theunens, I would like to remind you that
18 you are still bound by the solemn declaration that you gave at the
19 beginning of your testimony.
20 Please proceed.
21 MR. MISETIC: Thank you, Mr. President.
22 WITNESS: REYNAUD THEUNENS [Resumed]
23 Cross-examination by Mr. Misetic: [Continued]
24 Q. Good afternoon again, Mr. Theunens.
25 A. Good afternoon Mr. Misetic.
1 Q. Before we pick up where we left off on Friday, I would like to
2 see if you can help us with respect to a document already admitted into
4 MR. MISETIC: Mr. Registrar, if I could please have Exhibit D182
5 on the screen, please.
6 Q. And this question I'm asking you based not only the fact that
7 you've reviewed documents, but also that you worked in UNPF at the time,
8 so you may be able to assist us with the identity of a particular person.
9 This is a document that both the Prosecution and the Defence
10 stipulate has the wrong date on it. It should be dated 4 August 1995.
11 MR. MISETIC: If we could get the English.
12 Q. You'll see that it's sent from Knin by a Colonel Ratsouk. Can
13 you tell us and help us understand who Colonel Ratsouk was?
14 A. I know a Colonel Ratsouk who when I arrived at the -- it was
15 still called UNCRO headquarters in December 1994 -- was working in the
16 office called CMNAT, and I think that stands for chief military
17 negotiation an analysis team, and he was working there together -- or I
18 think he was a deputy to a Belgian Brigadier, Pierre Peeters now in what
19 position Ratsouk was in Knin in August 1995, I'm not sure. I know he had
20 to leave the UNPROFOR headquarters in January or February of 1995, and my
21 understanding was that he was sent to the headquarters of Sector East.
22 He returned to the UNPF headquarters, but I don't remember
23 exactly when.
24 Q. Do you know if, in fact, Colonel Ratsouk was member of UN
25 Sector South on the 4th of August, or was he affiliated UNPF or UNCRO in
2 A. I wouldn't be able to tell. So it could be that UNPF
3 headquarters dispatched him for a certain time-period to Sector South,
4 but I have no further information on that.
5 Q. Now, going back to where we left off on Friday, I would like to
6 show you an exhibit which is --
7 MR. MISETIC: Mr. Registrar, is 1D63-0218, please.
8 Mr. President, is not yet ready to be released, do we'll show it
9 via Sanction or ...
10 Q. You recall we were talking about the 134th Home Guard's Brigade
11 at the end of the day.
12 A. Yes, I do.
13 Q. And this is a report dated 21 August 1995 about -- which was a
14 list that was prepared of participants in Operation Storm of the 134th
15 Home Guard Regiment. And you will see there at the bottom -- if we could
16 actually turn the page.
17 The last sentence there says: "The 134th Home Guard Regiment has
18 a total of 2302 members on its list."
19 That's as of 21 August 1995
20 MR. MISETIC: One moment.
21 [Defence counsel confer]
22 THE WITNESS: Indeed. And when we see the document we also see
23 that the 134th Home Guard Regiment, like the other units, has its own
24 artillery assets. For example, under heading 10 and 11, just to clarify
25 a point that was discussed earlier during my testimony.
1 MR. MISETIC:
2 Q. Okay. Now, if we could go back to -- actually, Your Honour, I
3 ask that this exhibit be marked, and I tender it into evidence.
4 MR. WAESPI: No objections.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Your Honours, this becomes Exhibit D986.
7 JUDGE ORIE: D986 is admitted into evidence.
8 MR. MISETIC: Mr. Registrar, if we could now have 65 ter 1335,
10 Q. You will recall, Mr. Theunens, that I took you through a series
11 of documents at the end of the day on Friday about the commander of the
12 134th being unable to implement orders effectively, a problem with
13 respect to burning and looting in that unit. That's what was in the
14 operational diary for the 18th of August. Then subsequent orders to
15 establish a check-point as well as to demobilize problem soldiers,
16 including soldiers in the 134th.
17 If we could turn here to page -- numbered page 37 in the English.
18 This is the report of the inspection of the Split Military District from
19 the 30th of October that was done by the Main Staff.
20 MR. MISETIC: I think -- we showed the page on Friday, so ...
21 THE REGISTRAR: Your Honours, I show the English translation is
22 26 pages, so we can't show page 37.
23 MR. MISETIC: Okay. Well, it is numbered paragraph 3.1, so I may
24 have an earlier draft translation. There we go.
25 Q. Now for the 134th, it says:
1 "By the order of the defence minister, based on the proposal
2 submitted by the operative group and the order of the Split Military
3 District, the approved numerical strength of the regiment was 581
4 soldiers. After the demobilization the number fell to 579 and the
5 regiment's structure was adapted accordingly."
6 MR. MISETIC: If we could turn the page, please.
7 "According to the commander's order, the regiment sent 392
8 members on leave..." And then talks about the 187 are doing.
9 Now based on the prior document I showed you, as well as this
10 document, it would appear that between 21 August 1995 and
11 30 October 1995
12 demobilized. Would you agree with that?
13 A. Yes, I do.
14 Q. And of the remaining 581, 392 were sent on leave.
15 So if we could turn now to the next page, please. Actually this
16 is section 3.2, the proposed measures under section B at the Split
17 Military District level, the last recommendation is:
18 "Make the necessary training analysis, and in cooperation with
19 the Split Military District, organise --" oh, sorry.
20 It says:
21 "In according with the requirements, take into consideration the
22 demobilization of the unit retaining only the corps regiment command?"
23 Now it would appear, Mr. Theunens, would it not, that since that
24 report on 18 August about, the commander of the 134th Home Guard Regiment
25 having difficulty implementing the orders of the operative group, the
1 decision was implemented to essentially first get rid of 75 per cent of
2 the soldiers in the unit, and then with a recommendation of getting
3 demobilizing the entire unit except for the corps regiment command,
5 A. The report on 18 August is a -- at D885, or ...
6 Q. Yes, I believe so. The SIS report.
7 A. Oh, okay. It's another document.
8 Indeed we can see there is a demobilization or to a large extent
9 of the 134th Home Guard Regiment. However, it is not clear why this
10 demobilization is taking place. In relation to D885, I would like to add
11 that the document which states that the commander can demobilize people
12 at his own wish, in priority, those who are -- who don't behave in
13 accordance with the Code of Discipline. That document was not indicate
14 that dismissal is used as a disciplinary punishment, as it is specified
15 in Article 13 of the Code of Discipline which is P1017.
16 Q. Let's go to P1017 then, please.
17 JUDGE ORIE: Mr. Misetic, before we continue can you also make
18 reference to page numbers for -- for example, 3.1 appears both on page 8
19 and on page 19. Apparently, you were referring to the latter.
20 MR. MISETIC: Yes, Your Honour.
21 JUDGE ORIE: But the numbering of this document is not in every
22 respect conclusive.
23 Please proceed.
24 MR. MISETIC: If we could scroll down, because I can't see the --
25 I don't have this copy. Page 20 is the recommendation to take into
1 consideration the demobilization of the unit. And, Mr. President, I will
2 be referring back to this document so I ask that it be marked, and I
3 tender it received into evidence.
4 MR. WAESPI: No objection, Mr. President.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Your, Honours, that becomes Exhibit D987.
7 JUDGE ORIE: D987 is admitted into evidence.
8 MR. MISETIC: Thank you, Mr. President.
9 Mr. Registrar, if we could have Exhibit P1007, please. And if we
10 can go to Article 13, which I believe is probably page 6.
11 Q. Okay. Now if we could go back to -- I see what you're referring
12 to, Mr. Theunens, and if we could back now -- scroll up, please, I
13 believe Article 11 is there.
14 Now, these measures, one of the measures that can be taken under
15 Article 11, subpart 5, is termination status as active serviceman,
17 A. Yes. But Article 11 refers to disciplinary punishments and not
18 disciplinary measures. And there's a distinction. Disciplinary measures
19 can be decided upon by a brigade commander and higher, and these
20 disciplinary measures are also specified in the various Articles, whereas
21 when you read the Code of Discipline, disciplinary punishments or
22 sentences are actually of a more serious nature, and they are used in
23 case of violations of discipline, i.e., what is described as more serious
24 violations, whereas the breaches -- I mean, you have the breaches. Are
25 you getting response of a breach, you get a disciplinary measure. In
1 response of a violation, i.e., a more serious violation, you get
2 disciplinary punishment. And disciplinary punishments are in my
3 understanding, the prerogative of the disciplinary prosecutor and the
4 disciplinary Court. And that can be also found in Articles 6 and 10.
5 Q. You're referring to Articles that talk about active duty
6 servicemen, right? And what's the distinction between active duty
7 servicemen and mobilised members of the Home Guard Regiment, if you know?
8 A. I haven't seen any distinction in relation to those categories
9 which is relevant in the context of your question int he code of
10 Discipline. But if you point me to an Article, then, of course, I'm
11 willing to have a look at that time.
12 Q. Well, I'll see if I can do that for you. But as of right now
13 what I'm interested in is, at this moment, you're not aware of any
14 distinction between active duty serviceman and mobilised soldiers,
15 correct? Under the Code of Conduct?
16 A. Not in the context of the issues we are discussing.
17 Q. Okay.
18 MR. MISETIC: If we could now go back to D987, please. And if we
19 could -- if we could now to section 7.1. It's page 14 in the English,
21 Q. This is now talking about the situation in the 142nd Home Guard
22 Regiment as found during the inspection. It gives the numbers present.
23 There's only 337 left -- present, I should say.
24 MR. MISETIC: And if we go to the next page, Mr. Registrar,
1 Q. That paragraph that begins: "Displaced persons from Drnis ..."
2 It says:
3 "Displaced persons from Drnis make up 70 per cent of this unit.
4 They had suffered heavy losses ... the demobilization after Operation
5 Storm went too fast, and it was impossible to make better preparations.
6 The decline in the number of unit members should be approached in a much
7 better way in the next demobilization.
8 And this last sentence:
9 "There is an certain degree of concern on the part of the members
10 of this unit - displaced persons - about what to do after the - it says
11 mobilisation; It should be demobilization - about what to do after the
12 demobilisation, and some of them have little time to prepare their
13 houses, find accommodations for their family, and work."
14 Now, in your analysis of Split Military District, you were aware,
15 were you aware you not, that mobilized soldiers, in many cases, were
16 displaced persons whose only source of income was, in fact, from the HV
17 and their service in the HV, correct?
18 A. I know in many cases, there were displaced persons, but I'm not
19 familiar with the social system in Croatia as to know whether or not they
20 received any kind of assistance when they were not mobilized. I know
21 they were paid when they were mobilized, but I don't know about their
22 financial status or social status when they are demobilized.
23 MR. MISETIC: Mr. Registrar, if we could go to ...
24 [Defence counsel confer]
25 MR. MISETIC: Your Honour, if I may have one moment. I have a
1 hard time now because of the differences in the translations.
2 [Defence counsel confer]
3 MR. MISETIC: It's page 18 in the English, please.
4 Q. This is now the proposed measures concerning the 113th Sibenik
5 Motorised Brigade. And in contrast with the suggestion that the 134th be
6 demobilized except for the corps command, this one has a recommendation:
7 "Suggest that the Brigade be commended by the chief of the
8 Main Staff for its distinguished and proper execution of tasks?"
9 Now, there were, in fact, distinctions being made between units
10 in this inspection, correct, in terms of some that he were being
11 commended and others that were being suggested for total demobilization,
13 A. Indeed we would have to see the reasons for this difference in --
14 in opinions that are expressed in relation to these units because whether
15 -- whether the commendation has to do with the manner in which, for
16 example, the records are kept or command and control is functioning at
17 the time of the inspection or whether the commendation is related to
18 other aspects is something that I would have to see in the document.
19 Q. Well, this is a document that you cite in your report, correct?
20 A. I do, but I haven't seen the page with reference to the 113th
21 Brigade on the screen now.
22 Q. Okay.
23 MR. MISETIC: Mr. Registrar, if we could now go to ...
24 [Defence counsel confer]
25 MR. MISETIC: Page 7 in the English, Mr. Registrar.
1 [Defence counsel confer]
2 MR. MISETIC: I'm sorry, Mr. Registrar, it's page 3 in the
4 Q. This is now in the introductory section of the inspection, and at
5 the top it says:
6 "Planned inspections and controls of the liberated areas have not
7 been fully established yet, but considerable progress has been achieved
8 in the prevention of theft, destruction of houses, and similar, which
9 should continue to be considered a priority and permanent task."
10 Now, if we could go to the last page of this report.
11 MR. MISETIC: I believe it should be the signature page.
12 Q. You'll see that the report has as attachments, among other
13 things, the last entry is -- an attachment is the inspection of political
14 activities, and that, in fact, is Exhibit P1138.
15 MR. MISETIC: Mr. Registrar, if we could have that.
16 And if we can go to page 3 in the English, please.
17 Actually, if we could scroll up. It may be the previous page; I
19 Q. Now, this at the bottom of this under "Discipline and Order," you
20 had highlighted this sentence that said:
21 "Due to undisciplined conduct and in the absence of sanctions
22 against what has occurred, the theft of property and arbitrary occupation
23 of premises still persists and could cause wider political damage."
25 A. I put the entire paragraph actually in my report on English page
1 353, so I -- maybe Mr. Waespi highlighted that sentence during my
2 examination, but the entire paragraph under the heading "Discipline an
3 Order" can be found on English page 353 of part 2 of my report.
4 Q. Okay.
5 MR. MISETIC: Can we go to the next page, please, Mr. Registrar.
6 Q. At the top it says -- the conclusion reached, however. It says,
7 the among other things:
8 "The problems troubling this Military District are no different
9 from problems of other Military Districts."
10 And my first question to you is: This was an attachment to an
11 overall inspection was done by the HV Main Staff which had a conclusion
12 which I have read to you now, which said that, in fact, progress was
13 being made on the prevention of -- let me quote it correctly.
14 "Considerable progress has been achieved in the prevention of
15 theft, destruction of houses, and similar, which should be continued to
16 be a priority and permanent tasks."
17 Would you agree with me that the report you cited was, in fact,
18 something that had been considered by the inspectors of the Main Staff,
19 and they came to the conclusion that I've read out to you?
20 A. It's possible. I mean, I believe that the report by the
21 political department stands as it is. Now, whether anyone else looked at
22 other aspects and took those to draw the conclusion you have cited, it's
23 possible. I don't know.
24 Q. Okay. Going back now to the 18th of August -- first of all, let
25 me ask you from a military perspective and as someone who was in the
1 military, whether it is the Belgian army, the US army, or the Croatian
2 army, is there a certain stigma attached when a unit is disbanded?
3 A. Everything depends of the reasons why it was disbanded. If it is
4 disbanded for disciplinary reasons, yes, indeed the senior NCOs and the
5 members of the officer corps of that unit would be looked at in a
6 probably negative way by other officers and NCOs in the military. But if
7 is disbanded just as a result of cutting of budgets, for example, some
8 people may even feel sorry for them.
9 My unit was disbanded because of budgetary constraints in
11 and so on, and so on, and the traditions, but there was no question
12 whatsoever of any stigmatization or other negative considerations.
13 MR. MISETIC: Mr. Registrar, if we could please have Exhibit P71
14 again, which is the operational diary. And if we could go, please, to
15 page 115 in the English.
16 Q. This is now going back, and he is now reporting at the meeting
17 what was in the SIS report that I showed you where Colonel Fuzul says:
18 "Lack of discipline among 134 Home Guard Regiment."
19 Coric, whoever that is, reports that the order is issued to carry
20 out the control and inventory in 134th Home Guard Regiment.
21 Next entry is the military police:
22 "Control in Otric area. The MP check-point was established. The
23 burning of houses and killing of cattle is being continued."
24 Now, Otric was an area that was being used as a staging area for
25 combat activities in Bosnia
1 A. It's possible. I have no specific recollection, but if you say
2 so, I'm willing to accept that. It depends also on the time.
3 Q. Okay.
4 A. Depends also obviously on the time. I guess this is still around
5 the 18th of August.
6 Q. Yes.
7 A. Okay.
8 Q. From an UNMO report, UNMO analysis which is Exhibit P176, at page
9 8, the UNMO analysis reported that in the entire Otric area, which
10 includes Otic and all surrounding villages, there were a total of 70
11 destroyed houses and 16 partially damaged. And if I could call up --
12 MR. MISETIC: Mr. Registrar, if I could have 1D63-0202, please.
13 Q. Now --
14 MR. MISETIC: If we could zoom in on that, please.
15 Q. You see where Strmica is and Otric is?
16 A. Mm-hm.
17 Q. On the left there. Resanovci in Bosnia. You see that the brown
18 line is the international border?
19 A. Yes, yes, I do.
20 Q. The blue line is the HVO line. The red line is the VRS line.
21 When we're talking about Otric, we're talking about an area that
22 was being used by the HV to resupply into Bosnia. If you follow -- you
23 can't really see the roads here, but there is only one road that goes up
24 into the Resanovci area.
25 Are you familiar with that?
1 A. No, on general terms, I'm familiar with the terrain, so I'm
2 willing to accept that.
3 Q. Okay.
4 A. If we could --
5 MR. MARGETTS: Mr. President, if I could have this marked. I'm
6 going to use this later.
7 MR. WAESPI: No objection.
8 JUDGE ORIE: Mr. Registrar.
9 THE REGISTRAR: Exhibit D988, Your Honours.
10 JUDGE ORIE: D988 is admitted into evidence.
11 MR. MISETIC: Thank you.
12 If we could go back to P71. Mr. Registrar, again, page 119.
13 Q. This is now at a meeting, I think you highlighted this in your
14 direct or Mr. Waespi did. This is now the 19th of August and an entry at
15 the very top of the page:
16 "The problem is the 6th Home Guard Regiment that is burning down
17 the houses in..." and it's written as Rasanovci; I believe it should be
18 Resanovci. And then it goes on.
19 Now, from the map that I just showed you and admitted into
20 evidence, Resanovci is a village in Bosnia, correct?
21 A. Yes, Resanovci is a village in Bosnia-Herzegovina.
22 Q. Now, in your direct examination at page 12375 to 12376, you spoke
23 about the importance of the war diary at lines 20 to 25. It says:
24 "It includes all the information that is considered important in
25 order to understand the development of the operations, as well as the
1 orders that have been given, degree of implementation, as well as minutes
2 of - or records, I apologise - records of meetings that are held at the
3 command post."
4 At page 12376 you said at lines 10 to 14 when discussing these
5 meetings, you said:
6 "Then the members of the subordinate units or other attendees
7 will provide their views on operations they have conducted, proposals
8 they may have for future operations, problems they have encountered, and
9 all other issues that are considered relevant in the context of this
10 command meeting."
11 Now, Mr. Theunens, after that entry about Otric on the 18th, and
12 the 134th, and the military police setting up a check-point, in the
13 operational diary of the Split Military District, there are no further
14 entries about any reports of burning, or looting problems on the
15 territory of the Republic of Croatia
16 A. I would have to look again at the diary. I don't know the diary
17 by heart. Even if -- even if you're right, on the same page we see it in
18 front of us, the assistant commander for political activities at the end
19 of the page states: "Burning down of houses is a huge problem." He
20 doesn't specify whether it is in Croatia
21 From my point of view, there is no distinction, whether it is --
22 it -- it's not the area where these -- these crimes are being committed
23 that is important. It is important that the commander knows that
24 subordinate units of his on -- still on the 18th, whereas we know from
25 the diary that similar crimes are already perpetrated in Grahovo and
1 Glamoc around the 28th July, that three or four weeks the same activities
2 are still being done by units that are subordinated to him, and that is
3 the key issue in my view for the commander.
4 Q. That may be your view, but I may have a different view later, so
5 let me ask you again:
6 When you were reviewing these materials, is it correct to is say,
7 and if you need time during the break, that's fine, that in the Split
8 Military District operational diary after the 18th of August, there's no
9 reference to burning and looting taking place on the territory of the
10 Republic of Croatia
11 A. If I'm allowed so, I will check it during the break.
12 Q. Okay. The same question, then, with respect to reports from the
13 political affairs department. There are no additional reports from
14 political affairs after the 18th of August about burning and looting
15 taking place on the territory of the Republic of Croatia
16 General Gotovina.
17 A. On English page 342, second part of the report, I have a
18 reference to looting and arson in the municipalities of Glamoc and
19 Grahovo which is indeed in Bosnia-Herzegovina, so it is not Croatia
20 it is still units of the Split Military District.
21 Q. Well, let me before you -- let me get there first.
22 Is it units of the Split Military District or units of the HVO?
23 A. I should be more precise. It is units of OG North, whereby
24 OG North is subordinated to General Gotovina. So it is indeed, it is not
25 just Split Military District, but are also units of the HVO included.
1 Q. You say it is included, but does it specify whether the people
2 doing the burning are members of the HVO or members of the HV?
3 A. We would have to look at the document, and that is 65 ter 3461.
4 But in any event, what I included of that document in my report is also
5 the following quotation that is that:
6 "During the command briefing at the OG North forward command
7 post, the detrimental effect of such behaviour for the 'Croatian people
8 and the promotion of our state in the world' is emphasised."
9 So even if it is in Bosnia-Herzegovina, the person who mentions
10 this information at the command briefing has the impression that these
11 activities are detrimental to the Republic of Croatia
12 Q. Well, let's clarify this further. The report you're citing is,
13 first of all, not from a meeting of the Split Military District and does
14 not concern burning on the territory of the Republic of Croatia
15 A. It is a report from the SIS operative team at OG North.
16 Q. Of the HVO, right?
17 A. It is it OG North, which is operating as a force under the
18 command of General Gotovina, and OG North is the -- I just have to look
19 at the date.
20 OG North used to be known as OG Vrba, but on 18 August there has
21 been an order by General Gotovina to rename the OGs. And that document
22 is 65 ter 3361.
23 Q. Okay. But the SIS group there, that report is sent to Mostar,
25 A. That may well be possible. But as I pointed out later --
1 earlier, the commander should not be waiting for a SIS report to arrive
2 on his desk in order to know what his forces are doing in his zone of
4 Q. Okay. Mr. Theunens, let me just see if can I cut to the chase
6 Do you agree with me that this is not a report of burning and
7 looting on the territory of the Republic of Croatia
8 A. I agree with you.
9 Q. Okay. Now, let's go back to my original question, which was: I
10 take it from the fact that you pointed to this document, that you can't
11 point to any political affairs or SIS report which says that there is
12 burning and looting taking place on the territory of the Republic of
14 A. I would like to -- to look at my report during the break before I
15 give an answer to that question. If I'm allowed to do so.
16 Q. That's fine.
17 Mr. Theunens, let me show you Exhibit P20.
18 MR. MISETIC: Please, Mr. Registrar.
19 Q. I'm going to show you a witness statement that has been admitted
20 into evidence by Mr. Edward Flynn.
21 MR. MISETIC: And if we could go to page 21 in the English,
23 Q. Now if we go to lines 17 to 24. He says in his statement -- and
24 Mr. Flynn was the head of the human rights action team in Sector South
25 after Operation Storm. And he says:
1 "Considering the total number of houses that were destroyed by
2 fire during the three weeks following 7th of August, it's, of course,
3 very difficult to say, but in almost every village we visited, or, let's
4 say in many villages we visited, that would be more accurate, at least
5 half the buildings had been burned and the numbers easily and quickly
6 exceeded 100 and 200. So I have no doubt that at least 500 structures
7 must have been burned down during those few weeks. But when I think of
8 the size of Sector South, it would seem to me that it -- may have been
9 more than that, but I would feel very comfortable in saying at least 500
10 structures were burned."
11 MR. MISETIC: And if we could go to the next page, Mr. Registrar.
12 Q. Lines 29 to 30, he says:
13 "When I mentioned that estimate of 500 houses destroyed, I'm
14 referring to houses that were destroyed in the couple of weeks or two or
15 three weeks after Operation Storm."
16 MR. MISETIC: And if we could go to the next page, Mr. Registrar.
17 Q. Lines 5 to 8 he says:
18 "In the following period of two or three weeks, beginning around
19 the 20th of August, the frequency of burning buildings was reduced, but
20 we were still struck by the fact that every day more buildings were seen
21 to be on fire, and it seemed that some other areas were being targeted
22 that had not been targeted earlier."
23 Now, Mr. Flynn, just for the record, also testified in this case,
24 at trial transcript 1314, lines 9 to 17, in similar terms.
25 MR. MISETIC: If we go ... Mr. Registrar, if I could please have
1 65 ter 5658, please.
2 Q. Now this is a report that's sent to Josko Moric from the chief of
3 the Split-Dalmatia police administration, Ivo Cipci. This is a report
4 dated 24 August 1995
5 MR. MISETIC: And if we go to page 2, please.
6 Q. He writes at point 2:
7 "From receipt of your previous telegram (18 August 1995) no cases
8 of burning and destruction of houses in the aforementioned area were
10 Then he talks about thefts, some of the perpetrators in three
11 cases were HV members, were turned over to the military police. Six
12 cases of the goods were confiscated, and criminal report was submitted
13 against the perpetrators.
14 Now, we're going to talk, Mr. Theunens, about Bosnia, but you
15 reach a conclusion in your report, and by the way, I noted that having
16 reviewed the first draft that you submitted to OTP in March of 2007, you
17 did not include a conclusion or an opinion that the number and frequency
18 of General Gotovina's orders indicated that the orders were not
20 And then -- one moment.
21 THE WITNESS: Can I answer to that or ...
22 MR. MISETIC:
23 Q. I'll pose a question. I will allow you to answer the question.
24 Just let me complete the question, if you would.
25 I'll show you a portion of -- via Sanction a portion of the
1 pre-trial brief that was filed by the Prosecution after you submitted
2 your initial report.
3 There is paragraph --
4 MR. WAESPI: Just for the sake of clarity, there was no
5 submission of the official report. As we all know it was a first draft
6 was sent to the -- to Mr. Tieger.
7 MR. MISETIC: He submitted a draft so ...
8 Q. At 62, then, the Prosecution filed its pre-trial brief on the
9 17th of March, 2007, which had a conclusion at paragraph 62 that
10 General Gotovina issued a number of orders between 4 August and 18 August
11 "... that criminal activities cease and that disciplinary measures be
12 taken, yet he failed to implement these orders to reign in the widespread
13 lawful acts of his subordinate."
14 Then the General Gotovina Defence filed a defence brief that
15 commented on that. I noted in your April draft of the 2007 is the first
16 time then that you include a conclusion that the number and frequency of
17 the orders indicated that they lacked effectiveness.
18 Did that conclusion -- was that impacted by the Prosecution's
19 pre-trial brief and the Defence position -- I know you at least read the
20 Defence brief. Did you conclude that conclusion because you had seen
21 argument about it in the pre-trial briefs?
22 A. No, Mr. President.
23 Q. Okay.
24 A. And if you wanted, can I elaborate.
25 JUDGE ORIE: I leave it to Mr. Misetic whether he seeks any
1 further elaboration.
2 MR. MISETIC:
3 Q. Mr. Theunens, my question to you is this, and can you look at
4 that time during the break, but you reached this conclusion that the
5 number of orders indicates that they lack effectiveness, and you base
6 that on the fact that he issued additional orders on the same subject.
7 However, if after -- if on the 18th of August orders are issued,
8 and after the 18th of August, there are no additional reports to
9 General Gotovina or the Split Military District Command about burning and
10 looting in the territory, and there are no orders from General Gotovina
11 regarding burning and looting and discipline in the liberated territory,
12 isn't it the case, then, then all those orders together culminating on
13 the 18th of August were effective, if I were to follow the logic that you
14 used in concluding that they were ineffective?
15 A. No. Because From the review did - and I can point you to these
16 documents - there are still orders being issued after the 18
17 August and --
18 Q. [Overlapping speakers] ...
19 JUDGE ORIE: Let him finish his answer.
20 THE WITNESS: While reviewing that material, I did not make a
21 specific distinction as to whether these orders applied to
22 Bosnia-Herzegovina or Croatia
23 view, the fact that these orders were issued by units, be it Operational
24 Groups or their subordinate units, subordinated to General Gotovina
25 independently or whether they were majority HV or HVO, the fact that
1 these orders continued to be issued, as well as there continued to be
2 reports, maybe not in Croatia
3 units were active, to me showed or indicated that indeed these orders
4 lacked effectiveness.
5 Just to finalise, in relation to the 134th Brigade we have --
6 Home Guard Regiment, 134th Home Guard Regiment we have been discussing at
7 length, General Gotovina knew at the latest on the 6th of August that
8 there were problems with the 134th Home Guard Regiment in Benkovac. So
9 the fact that this unit around the 18th August again, based on the report
10 we discussed, is involved in activities like burning and looting, in my
11 view, shows that there is a problem.
12 MR. MISETIC:
13 Q. Mr. Theunens, you used the word "problems," but you used that
14 very vaguely when you say "problems in Benkovac." Tell me specifically
15 what Mr. Grncaric reported as the problems in Benkovac?
16 A. The situation in Benkovac is discussed on -- starting on page
17 325. I will just take maybe 65 ter 2471 which is discussed on English
18 page 328. I don't know whether you want me to read out what Grncaric
19 reported to Major Juric, but I think -- I will focus on the
20 paragraph which shows also the involvement of the operational commander
21 in the area. I'm starting on:
22 "On that occasion --" that occasion is the meeting with the
23 operation group commander Colonel Mladen Fuzul.
24 "On that occasion I pointed out the real causes of the situation
25 which, at one point, developed into a state of anarchy. Namely, since
1 this was a unit whose members were mostly from this area, most of them
2 stayed in town drinking the entire night. Law and order were violated
3 and various crimes were committed, after which the OG commander issued a
4 strict order forbidding all HV members from entering the town of
5 Benkovac. He - and in my understanding that the OG Commander Fuzul,
6 Colonel Fuzul - also summonsed the leadership of Benkovac municipality
7 and the chief of the PU, police administration, to point out the
8 omissions of both sides. At the meeting we - and I understand by that -
9 Colonel Fuzul - the military police, and civilian police agreed on how to
10 eradicate such incidents and established, i.e., I proposed measures."
11 That is just one example of several reports on the situation in
12 Benkovac, situation that develops upon the arrival of elements the HV
13 operating under the command of General Gotovina in Benkovac between the
14 6th and the 8th of August.
15 Q. So they were drinking?
16 A. If you want to have more information, I can also point you to --
17 Q. Mr. Theunens, I mean, you're comparing, there is no report in
18 there about the unit went in there and burned down Benkovac, right?
19 A. No. But if the an officer of the military police states that the
20 real cause of the situation which at one point developed into a state of
21 anarchy, I assume he is referring to more than a few individuals having a
22 beer or two.
23 Q. It is you're assumption the is what we're talking about?
24 A. I call it assumption or conclusion.
25 Q. Okay. I'll call it an assumption. Thank you.
1 Now, let's get back to how we veered off on this topic, which is
2 again fundamentally you and I agree is that your report made no effort to
3 distinguish between HVO and HV, and I'm glad we agree on that.
4 HVO --
5 JUDGE ORIE: If you do. If do you not, please tell us.
6 THE WITNESS: I think it should be rather more precisely. I
7 didn't make a distinction between the forces that were subordinated to
8 General Gotovina at that moment in time.
9 MR. MISETIC:
10 Q. You cited a document now, a 65 ter. Before we move on I do want
11 to --
12 JUDGE ORIE: Mr. Waespi.
13 MR. WAESPI: I think it was 65 ter 5658 which is still open, and
14 I would have no objections.
15 MR. MISETIC: Actually he said 65 ter 2741.
16 THE WITNESS: I can check the number. I don't know whether it
17 helps to give you the ERN?
18 JUDGE ORIE: Well, not for the Chamber.
19 MR. MISETIC: That's okay. Okay. I will move on. There is some
20 confusion on my part here.
21 THE WITNESS: It is footnote 1325 in the second part of the
22 report, and I will check whether have I the right 65 ter.
23 MR. MISETIC: [Overlapping speakers] ... It's actually a
24 different document that I will be referring to later on.
25 Q. Getting back to this issue of -- you now acknowledge you didn't
1 make a distinction between the forces that were subordinated to
2 General Gotovina at that moment in time.
3 Would you agree with me that the HVO was subordinated to
4 General Gotovina, but was, in fact, a military that was part of a
5 different country without getting into the legalities now of how we would
6 argue this, but it was subordinated to General Gotovina pursuant to an
7 agreement between President Izetbegovic and President Tudjman, correct?
8 A. The forces that were included in OG North were subordinated to
9 General Gotovina based on, yeah, probably agreement or an order. I'm not
10 sure -- you mean, I can make a leap to the Split agreement, but I assume
11 there would be more specific agreement even though I haven't seen them.
12 But I understand that what pointing at with the agreement between
13 Mr. Izetbegovic and Tudjman, i.e., the Split agreement of 22nd July 1995.
14 Q. Let me ask you this question hypothetically: In NATO, the forces
15 of one country could be operationally subordinated to the commander of a
16 different country, correct?
17 A. That is correct. And there would be particular subordination.
18 Relationships will be established for that.
19 Q. Correct. Now the operational commander from that other country
20 doesn't typically discipline the forces of the army of the other country
21 that is subordinated to him, correct?
22 A. That is correct. But I think it is important in that context to
23 make a distinction between the subordination relationships that exist in
24 NATO and those that exist been the HV and the HVO at that time.
25 Q. Let's make those distinctions. Is it your position that the Code
1 of Military Discipline of the HV gave commanders the powers to discipline
2 members of the HVO?
3 A. Starting with the basics, I believe -- I consider Article 26 of
4 the Code of Discipline very relevant in that context.
5 Q. Mr. Theunens, please. Is the HVO part of the HV in the Code of
6 Military Discipline?
7 A. It is not.
8 Q. Okay. Then Article 26 does not apply to forces that are not part
9 -- that are not the HV, does it?
10 Let me put it a different way. If the United States army
11 subordinated itself to General Gotovina in Bosnia in the fall of 1995,
12 General Gotovina couldn't say, Well, under Article 26 of my Code of
13 Military Discipline, I can discipline members of the US army, could he?
14 A. No. But I think -- I mean you cannot compare the relationship
15 between the HV and the HVO, which did not, by the way date from the Split
16 agreement but dated from such earlier, with a kind of hypothetical
17 scenario where US forces would be subordinated to the HV in
19 And in that context we have discussed documents like, for
20 example, D656 where General Gotovina appoints an HVO officer as the
21 commander of the town of Drvar
22 image that General Gotovina has no authority over the HVO, whereas at the
23 same time he is issuing very strict orders as to how order and discipline
24 has to be maintained in areas where the HVO is operating under his
1 We also have the order for the -- the curfew in Jajce.
2 Q. Mr. Theunens, cite me one disciplinary measure taken by
3 General Gotovina against a member of the HVO, and I mean disciplinary
4 measures defined by the Code of Military Discipline or disciplinary
5 sentences. Let me talk about minor and major violations, both. Give me
7 A. There is obviously a distinction between --
8 JUDGE ORIE: Mr. Theunens, would you please first answer the
9 question whether you are able to give such an example. If you wanted to
10 add anything to that, we will hear from you after the direct answer to
11 the question.
12 THE WITNESS: I have no example on the imposition of disciplinary
13 measures by General Gotovina against members of the HVO.
14 MR. MISETIC:
15 Q. Do you have an example of any HV officer issuing a disciplinary
16 measure pursuant to the HV Code of Military Discipline against a member
17 of the HVO?
18 A. I would to have check, but I don't think so.
19 Q. Did you see in the monthly or quarterly reports prepared by the
20 Split Military District or any other Military District, when they break
21 it down according to unit in terms of measures taken, that the HVO was
22 included for reporting purposes in reports of disciplinary measures that
23 were being taken?
24 A. No. I haven't seen such reports.
25 Q. Is there any document that you can cite me to, putting aside your
1 military experience, education, et cetera, any document that you can
2 point me to, to support your conclusion that General Gotovina could issue
3 disciplinary measures and/or sentences against members of the HVO?
4 A. Well, if General Gotovina can issue an order to appoint a town
5 commander with clearly defined responsibilities in the area of discipline
6 and military justice or the prevention of crimes for the town of Drvar
7 and that is D656, and if he can decree or impose a military curfew in the
8 town of Jajce in Bosnia-Herzegovina, if he has no powers to enforce these
9 orders or at least there are people who violate that order, to have the
10 procedures started, i.e., send reports to the appropriate authorities in
11 the HVO, these orders do not make much sense.
12 So I agree with you that it was most likely again from the
13 material that I reviewed, it is not -- General Gotovina did not impose
14 the disciplinary sentences -- measures or sentences to members of the
15 HVO, but at least he was in a position to discover violations and report
16 them to the appropriate authorities in the HVO. And that applies also to
17 the subordinate officers, I mean commanding officers of General Gotovina.
18 Q. Well, Mr. Theunens, your report cites the fact that it's the SIS
19 HVO the SIS -- I mean the HVO military police, et cetera, that is, in
20 fact, reporting these measures to Mostar, right? You wouldn't know about
21 there stuff if it wasn't being reported.
22 A. That is not entirely correct because the orders -- I mean the two
23 orders I referred to by General Gotovina, the town commander and the
24 curfew, General Gotovina would not issue such orders if he didn't see a
25 requirement to do so.
1 Q. Yes. But let's talk about this right now.
2 Are -- do you understand the difference in General Gotovina's
3 role as an occupation commander in Bosnia and as a commander in his home
4 country who turned over matters to the civilian government on the 6th of
5 August, 1995? Do you as a military expert acknowledge a difference -- a
6 different obligation that a commander would have when he is occupying
7 territory and when he is a -- in effect, in peacetime in his home
9 A. Such a distinction may be relevant for maybe legal discussions as
10 to whether what was the authority of General Gotovina in
11 Bosnia-Herzegovina, as pointed you out a different country or not, but
12 from the point of view of enforcement of military discipline, in my view,
13 there is no drinks between the two areas.
14 Q. Well, it is it not just -- it's not just a distinction for legal
15 discussion. You, at page 314, subparagraph S, you reach the following
16 conclusion. You say:
17 "Based on the documents reviewed for the preparation of this
18 report, it appears that only in after the launching of
19 Operation Maestral, Colonel General Ante Gotovina takes more vigorous
20 action to prevent or punish crimes. On 17 September 1995, Gotovina
21 appoints a military town commander in Drvar, BiH, to protect the town
22 from looting and destruction as the area is designated for the settling
23 of displaced Croats. On 22 September 1995, General Gotovina imposes a
24 military curfew in Jajce and so on."
25 That is it your opinion in your conclusion. Isn't it essential
1 in reaching that conclusion that you first understand the authority of a
2 commander as an occupying commander versus the authority of a commander
3 where constitutional law has been restored in his area in his home
5 A. I have answered the question. I do not see a reason to make a
6 distinction when we are referring to the imposition or the enforcement of
7 military discipline among subordinate forces.
8 Q. So it's your view when you say that paragraph that only in active
9 and launching of Operation Maestral does he take more vigorous action.
10 That it is your conclusion, for example, that on the 10th of August he
11 could have imposed a town commander to control Benkovac, let's say?
12 A. Well, Your Honours, from what I read out of -- what I considered
13 65 ter 2714, in any event, English page 328, part 2 of my report, we can
14 see there that the operational commander, General Fuzul, he calls the
15 civilian authorities to him.
16 Q. On what day?
17 A. This is the 6th or the 7th August, because the report by Grncaric
18 is dated 8th of August.
19 And there we see that the operational commander, based on the
20 report of Grncaric, called the military police commander the chief of the
21 civilian police or the representative of the civilian police, as well as
22 -- it is described as the leadership of the Benkovac municipality. In my
23 view, those are the civilian authorities. And based again on the report
24 of Grncaric, the operational commander tries to coordinate the whole
25 matter and tries to solve the situation. He seems to take -- he is
1 taking the lead in this area at that moment in time.
2 Q. Okay. And again my question is: So it's your position as of the
3 10th of August onward, General Gotovina could name a town commander to
4 control Benkovac like did he in Drvar in late September 1995?
5 A. I -- I am not stating that he could, for example, impose a town
6 commander. It is obvious that there should have been for such a decision
7 there needs to be coordination with the civilian authorities.
8 Q. No, no, no. Let me stop you there.
9 THE INTERPRETER: Please make pauses between the questions and
10 answers. It is becoming impossible for the interpreters. Thank you.
11 MR. MISETIC: Yes. I apologise to the interpreters and to the
12 court reporter.
13 Q. The point is this: Would you agree with me that if
14 General Gotovina after the proclamation that the constitution order had
15 been restored in Croatia
16 if General Gotovina imposes a town commander or a military curfew on the
17 territory of the Split Military District, without permission from the
18 civilian government and or President Tudjman, he has executed effectively
19 a coup d'etat?
20 A. Obviously the way how you word it now it is it clear that the --
21 that would not be regular.
22 What I was trying to explain before the interruption was that the
23 military structures based on the documents I have seen, i.e., the forces
24 under command of General Gotovina, are best organised structures in the
25 area at that moment in time that. That is one aspect.
1 The second aspect is it there are problems with the enforcement
2 of law and order. Now, one would expect that the military commander,
3 i.e., General Gotovina, based on his own observations as well the
4 reporting he has received from subordinate commanders SIS political
5 affairs and the military police would inform his superior, that, well,
6 maybe it is it too early to hand over power to the civilian authorities,
7 or maybe we should establish mechanisms in order to provide assistance to
8 the civilian police and the civilian authorities in order maintain or
9 restore law and order in this area.
10 Q. So your suggestion that General Gotovina should suggest to his
11 superiors the suspension of constitutional law and the imposition of
12 military law in the area. That's what he failed to do.
13 A. I think -- I'm sorry for the transcript.
14 That is not what I was proposing or what I was stating. How --
15 General Gotovina can inform his superiors about the problems he has. I
16 would expect that as a military commander, he wants to have the largest
17 degree as possible over his forces and over his zone of responsibility,
18 because as we see from the documents, the fighting is not over on the
19 10th of August. And that then based on the -- on the constitution and
20 the -- and the legislation of the Republic of Croatia
21 developed involving the civilian authorities at the highest level as well
22 as military authorities in order to allow the commander on the ground to
23 indeed control the situation in his zone of responsibility.
24 MR. MISETIC: Mr. President, I don't know if now is a time for a
1 JUDGE ORIE: It's a suitable time for the break.
2 We will have a break and resume at quarter past 4.00.
3 --- Recess taken at 3.51 p.m.
4 --- On resuming at 4.21 p.m.
5 JUDGE ORIE: Please proceed, Mr. Misetic.
6 MR. MISETIC: Thank you, Mr. President.
7 Q. Mr. Theunens, during the break were you able to find any
8 reference in the -- operational diary to burning and looting by HV on the
9 territory of the Republic of Croatia
10 A. No, not -- not in the operational diary.
11 Q. Before we get into -- back to the topic of the HVO, let me show
12 you one additional document.
13 MR. MISETIC: And, Mr. President, I forgot to tender into
14 evidence 65 ter 5658, if I could do that now.
15 JUDGE ORIE: Mr. Waespi.
16 MR. WAESPI: No objections.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: Your Honours, that becomes Exhibit D989.
19 JUDGE ORIE: D989 is admitted into evidence.
20 MR. MISETIC: Mr. Registrar, if I could have 65 ter 4609, please.
21 Q. This is a report sent by the Split Military District to the
22 Main Staff on the 29th of August. And it is a report of a survey of
23 military infrastructure facilities that are being -- in addition to
24 facilities, it talks about those being guarded by HV. For example, if we
25 go to page 4, there's a subsection, facilities that the HV used and
1 guarded before the Storm operation and is still using and guarding it.
2 Go two pages in.
3 Now, this is a report by General Gotovina, and in it he says, he
4 is talking about transferring authorities of these to the civilian
5 authorities and he says:
6 "In the case of 31 facilities that are on our list, it is
7 necessary, according to our statements to assign around 900 people to
8 carry out guard duties.
9 Engagement of the Split Military District units at the front line
10 from Martin Brod to M. Ticevo and the execution of the demobilization
11 order will make guarding of so many important military facilities even
12 more complicated.
13 In our opinion it is very important to solve the question of
14 future needs of the Split MD ZP units, and in accordance with that, solve
15 the question of allotment of facilities and question of their guarding
16 and maintenance."
17 Now, would you agree with me that the demobilization -- Let me
18 rephrase that.
19 General Gotovina points to the fact that he still has a front
20 line in Bosnia
21 guarding facilities, military facilities, and he says the execution of
22 the demobilization order will make guarding of these facilities even more
23 complicated. Would you agree with me that the demobilization that was in
24 progress at that time imposed certain hardships on the Split Military
25 District Command given its ongoing responsibilities for combat in Bosnia
1 which was about to take place and its guarding of facilities in Croatia
2 A. That is what the document says.
3 MR. MISETIC: Mr. President, I ask that the exhibit be marked,
4 and I tender it into evidence.
5 MR. WAESPI: No objections.
6 JUDGE ORIE: Mr. Registrar.
7 THE REGISTRAR: Your Honours, that becomes Exhibit number D990.
8 JUDGE ORIE: Exhibit number D990 is admitted into evidence.
9 MR. MISETIC:
10 Q. Now, some of the documents you looked at, Mr. Theunens,
11 particularly in the fall of 1995, have in the heading section as to who
12 is issuing the reports or orders, it says "Croatian forces" instead of
13 Split MD
14 A. If I want to discuss them, I assume that will you show them, but
15 I have no particular recollection of these documents.
16 Q. Well, do you -- are you familiar with the fact that
17 General Gotovina was using the title Commander of Croatian Forces in the
18 fall of 1995?
19 A. I would have to see the specific documents again. It is probably
20 the case, but it is helpful if you're going to discuss a specific
21 document that we can see it.
22 Q. Okay. Let me show you one.
23 A. Because I mean, the one where he appoints --
24 Q. Let me show you one document, 65 ter 5545, please.
25 A. Yeah. Just for the sake of completeness, D656 where he appoints
1 the town commander in Drvar used the heading "Split Military District
2 Command, Vrba Forward Command Post." There's a similar one --
3 Q. Let look at the one on the screen.
4 A. Okay. Yeah.
5 Q. The upper left-hand corner says: "The Croatian Forces." In
6 Croatian, "Hrvatske Snage."
7 A. That's correct, yes.
8 Q. That is an operational formation; isn't it?
9 A. Yeah. The author of the document must have had reason to use
10 Croatian forces. It would indicate that -- and I don't want to go too
11 far in drawing the wrong conclusion, but it would indicate that there is
12 no distinction made between HV and HVO. I mean, on the face of this
14 Q. Well, would it indicate that there's a coalition force between
15 the HV and the HVO, which the coalition is being referred to as Croatian
17 A. That is possible. Whereby, at least from the military point of
18 view, the expression coalition should be defined.
19 Q. What is a coalition force?
20 A. As long as I have not seen a document defining what the coalition
21 means, i.e., who is the commander, what is his authority, what are the
22 composing elements, then it is impossible for me to draw a conclusion by
23 what is meant by a coalition force.
24 Q. Well, if you haven't seen a document defining what the coalition
25 means, who is the commander, what is his authority, what are the
1 composing elements, with respect to the HV and HVO, then what were you
2 able to draw the conclusion -- upon what were you aware you drawing the
3 conclusion that General Gotovina could issue disciplinary measures to the
5 A. First of all, I have not used the expression "coalition" in my
6 report. I didn't specifically use the expression "Croatian forces."
7 Secondly, the fact -- and I apologise for repeating myself, but
8 the fact that General Gotovina issues an order to appoint a town
9 commander in Drvar, and he does that under the heading "Split Military
10 District Command Vrba Forward Command Post," that's D656, there's also
11 the order for the transfer of a platoon of the 72nd Military Police
12 Battalion to Drvar on the 17th of September.
13 Q. Mr. Theunens.
14 A. Yes.
15 Q. I'd like to get to ...
16 A. But to answer the question, if General Gotovina issues all these
17 orders, it means he has the authority to do so, otherwise it would have
18 stopped after the first order and he would not issue such orders anymore.
19 Q. Yeah, but --
20 A. An order needs to result in certain effects. It is not -- yeah.
21 Q. But if, again let's go hypothetical. If the US army imposes
22 military law on a city in Iraq
23 disciplinary authority over British forces in Iraq?
24 A. I think I understand the question, even though I would like to
25 have it clarified because I would first need to know what is the relation
1 between the British forces and the US
2 army imposes military law.
3 Q. Well --
4 JUDGE ORIE: Mr. Misetic, you asked the witness whether he was
5 familiar with the fact that General Gotovina was using the title
6 Commander of Croatian Forces. This -- then later on, the coalition
7 forces were introduced as a term.
8 Now, the only thing I really heard the witness say until now is
9 that he doesn't have the details of forces that may have been under a
10 Joint Command or not. Let's try to find out not on the basis of
11 hypothetical matters, but please put the question to Mr. Theunens which
12 brings us --
13 MR. MISETIC: I will, Your Honour, but his answer it precisely
14 where I would like to get to. Because I would like to know -- when
15 talking about different forces, you say, Well, I need to know -- just the
16 fact that one country's forces are controlling a town, you can't tell
17 what the relationship is with the other country's force because you say,
18 first you would first need to know what is the relation between the
19 British forces and US forces in the city where the US army imposes
20 military law.
21 So now going back to the HV/HVO, you keep going back to Drvar and
22 Jajce. Let me ask you, using your own methodology, first let's look at
23 what is the relationship and the agreement between the HV and the HVO.
24 A. Well, as I explain -- I'm sorry. Do you mean the relation during
25 Operation Maestral?
1 Q. I mean from the Split Agreement until the Dayton Agreement.
2 A. I mean, I will start with Maestral, but if you want we can go
3 page by page from the relevant sections in my report, but from Maestral,
4 as it --
5 Q. No, no, no. I gave you the time-frame because I don't think
6 there is any difference between Maestral, Storm, summer 1995,
7 Southern Sweep, the starting point that I'm giving you is from the Split
8 agreement on the 23rd of July, 1995, until the Dayton Agreement, what is
9 the relationship, and using your phrase again, you need -- you first need
10 to know what is the relation between the forces. So what is the relation
11 between the HV and the HVO between the time-period I just gave you?
12 A. Your Honour, I will start with Operation Maestral where --
13 JUDGE ORIE: Mr. Theunens, a specific question is put to you,
14 starting 23rd July 1995
15 But you could tell us perhaps whether that date is in the course of what
16 operation so that we would then know.
17 THE WITNESS: Your Honours, the 22nd of July refers to the
18 conclusion of the Split
19 President Tudjman, and the president of the so-called Croatian Republic
20 of Herceg-Bosna, and this agreement among other things allows for the
21 presence of Croatian forces, i.e., HV forces of the Republic or Croatia
22 on the territory of the Republic of Bosnia-Herzegovina
23 Bosniak authorities to ask Croatia
24 summarizing the agreement.
25 Two days later Operation Ljeto is launched under the command of
1 General Gotovina, whereby General Gotovina is in command of forces
2 belonging to the HV, i.e., Split Military District, including 7th Guards
3 Brigade and the 1st Croatian Guard, as well as forces of the HVO, and all
4 these forces operate under the command of General Gotovina.
5 During Operation Storm, elements of the HVO continued to
6 participate in the operations on the -- call it the HV side, under the
7 command of General Gotovina, and we see the same situation during
8 Operation Maestral, as well as Juzni Potez in October 1995. Maestral was
9 in September 1995.
10 MR. MISETIC:
11 Q. Thank you. Now in all those operations, what is the -- again
12 going back to your question, what is the nature of the relationship
13 between the HV and the HVO?
14 A. The forces of the HVO that are participating in these operations
15 are subordinated to General Gotovina.
16 Q. Yes. But again I'm talking it -- trying to ask you the question,
17 because you have raised the issue of what is the definition of coalition.
18 Because you said you didn't see how it was defined, et cetera. What is
19 -- when you subordinated to General Gotovina, you mean operationally
20 subordinated, correct?
21 A. Your Honours, in the beginning of my testimony, I explained that,
22 for example, in NATO there are specific subordination relations --
23 relationships that are applied in different situations. Without going
24 into detail, one of these concept is the concept of the combined joint
25 task force, whereby, for example, in the case of KFOR, there is an
1 American or an Italian or a German Force Commander, whereby for each and
2 every troop-contributing nation there are agreements established as to
3 what the authority is over the Force Commander over these national forces
4 that are part of the combined joint task force.
5 In general, countries do not give -- hand over disciplinary
6 authority. However, there will be a force provost marshall, i.e., a
7 force, military police force, which has the authority to investigate
8 alleged violations of discipline or even military justice committed by
9 members of the national contingents whereby depending on the specific
10 situation, but in general, the results of the investigation will be
11 handed over to a national contingent commander who is then expected to
12 take the appropriate measures.
13 Again I'm talking about in general because these agreements, they
14 can be an encyclopedia of hundreds of pages. I know that for the HV/HVO
15 no such specific subordination relations existed, i.e., I haven't seen
16 any document limiting the authority of General Gotovina over the HVO
17 forces that were subordinated to him during Ljeto, Storm, Maestral, and
18 Juzni Potez.
19 Q. Interesting conclusion at the end, Mr. Theunens. Because as you
20 were talking about NATO, the disciplinary authority of the other
21 country's commander only comes if the agreement of the first country --
22 with the agreement of the first country, right? You don't say in NATO
23 every commander, unless there is an agreement otherwise, an operational
24 commander can discipline the troops of another country, right?
25 In other words, you are talking about in the NATO context,
1 agreements on -- you say in general countries do not hand over
2 disciplinary authority. And then -- and then, right? That's the first
4 A. That's in the concept of NATO.
5 Q. Well, hold on now. Now, they can hand it over if they reach a
6 specific agreement with that country to allow disciplinary authority by
7 the other country's commander, right?
8 A. I must say I have not seen such an agreement and again --
9 Q. Well, I apologise to the court reporter --
10 JUDGE ORIE: The issue seems to be, but correct me if I'm wrong,
11 that if there is agreement in which disciplinary powers are transferred,
12 then the situation is clear. If there is no agreement, then you would
13 have to consider whether it is remained with the command under which
14 those forces usually operate, or whether it, as a consequence of
15 subordination, is moved to the operative command under which that unit is
16 operating. That seems to be the issue.
17 Now, Mr. Theunens explained to us that, at least that's how I
18 understood your testimony, that you're not aware of subordination under a
19 foreign command without any specific agreement; that's clear. Now
20 apparently Mr. Theunens says that he is not aware of any specific
21 agreement here between HVO and HV, and apparently you, Mr. Misetic, and,
22 Mr. Theunens, disagree on what the consequences of that situation are.
23 That seems to be the issue if I --
24 MR. MISETIC: I'm not sure we disagree when it comes to what
25 happens in NATO.
1 JUDGE ORIE: No, no, but --
2 MR. MISETIC: [Overlapping speakers] ...
3 JUDGE ORIE: We're not NATO.
4 MR. MISETIC: That's what I'm saying. I don't understand how he
5 got from the conclusion where he says countries reach agreements on
6 subordination. Countries reach agreements on these disciplinary
7 provosts, I believe he said.
8 A. The Force Provost Marshall, which is the NATO slang for the -- I
9 mean, it existed also in UNPROFOR. There was a Force Provost Marshall.
10 Q. Which by agreement then has the subordinated troops subject to
11 discipline of the Force Provost Marshall, right?
12 A. They will investigate the matters, but they can -- -- excuse me,
13 they will investigate the matter, and again it -- you really have to look
14 at the specific agreement, but in general they will investigate
15 violations of discipline or justice, and then hand over the matter to
16 national authorities, whereby, of course, it is expected that the
17 national authorities, i.e., the authorities of the country to which the
18 perpetrator of the violation of military discipline or military justice
19 belongs. That these authorities will take the appropriate measures, and
20 because, just to finalise, I know examples of UNPF, for example, that the
21 Force Commander can send members of the force home.
22 Q. Okay. My -- this very specific issue for me is this: I agree
23 with you that, at least I think agree with you, that, for example, this
24 Force Provost Marshall
25 the matter which is fine, then you go and say you haven't found any
1 agreements between HV/HVO, and therefore, your conclusion is there were
2 no agreements limiting General Gotovina's disciplinary power over the
3 HVO, as if without agreements General Gotovina has that power, whereas in
4 the into the context, I think you're saying absent agreement the
5 commander of the -- the operational commander doesn't have that power.
6 So I'm wondering why in the NATO context you -- I agree with you,
7 say operational commanders absent agreement don't have disciplinary
8 authority, but when you talk about General Gotovina you say he as an
9 operational commander has that authority absent agreement otherwise.
10 A. I mean, the answer is short. It's a different situation. When
11 reviewing Croatian military doctrine, I haven't seen any reference to the
12 specific command and control relations that exist within NATO armies,
13 even in the national context.
14 If I as a battalion commander of a armoured battalion receive an
15 infantry company under my command, it can be operational command,
16 tactical command, it can be under control. That -- the arrangement that
17 is made and even if is from the same country, can have an impact on my
18 disciplinary authority.
19 As I mentioned Croatian doctrine I have not seen any such
20 restrictions. I haven't seen it in the Code of Discipline, and when we
21 look at the practical implementation during Ljeto, Storm, Maestral, and
22 Juzni Potez, I see indeed that, for example, in his book, P482,
23 General Gotovina states -- I mean that all forces operated under the
24 commander -- under the command of the command for the Croatian forces,
25 whereby for military documents I have reviewed, well, the commander of
1 all forces conducting these operations in the zone of responsibility of
2 the Split Military District for what Storm is concerned by Ljeto,
3 Maestral, Juzni Potez, the overall commander for these operations is
4 General Gotovina.
5 Q. Again, we seem to go off an end up someplace that I'm not sure
6 answers my question.
7 You say you haven't seen any agreement that would subordinate the
8 HVO for disciplinary purposes to the commander of the Split Military
9 District. You have already testified you see no examples of any
10 discipline ever being meted out by any HV commander to a member of the
11 HVO, right? And yet you then talk about Croatian doctrine -- and let me
12 just put to you: The HV commanders had no disciplinary authority over
13 members of the HVO, and you haven't found any document to support any
14 conclusion to the contrary, correct?
15 A. No. Because the documents I have seen, for example, to appoint a
16 town commander in Drvar to send or to order a platoon of the 72nd
17 Military Police Battalion to monitor an access road to Drvar to impose a
18 curfew in Jajce, if General Gotovina had no disciplinary authority over
19 the HVO, he would issue such an order to an HVO commander, instead of
20 issuing such an order to all the forces. At least from the military
21 point of view.
22 Q. I'm sorry.
23 JUDGE ORIE: Let me see whether I understand what keeps you
25 Mr. Misetic, you very much emphasise that under NATO that without
1 an explicit consent or agreement, disciplinary powers would not be with
2 the commander to which the units, which are usually are not under his
3 command, are subordinated. I understand Mr. Theunens's testimony, but he
4 will certainly correct me if I'm wrong. That a situation where no
5 specific regulations are made for disciplinary command is as they say in
6 latin casus non dabilis, a case which doesn't exist because there always
7 is a specific arrangements. Which leads to the next question,
8 Mr. Theunens, would you be in a position if this hypothetical situation
9 that in NATO, if there would be no specific regulation for the
10 disciplinary powers, would you be able to answer with whom the
11 disciplinary powers would be once a unit is subordinated to a -- to say a
12 foreign command? Or is it so hypothetical that you say well --
13 THE WITNESS: I'm not -- I'm not in a -- it is very hypothetical,
14 but military logic that would that be it would be the highest national
15 member in that multi-national force, i.e., national means members of the
16 same country as the alleged violators.
17 JUDGE ORIE: So you say if there is no specific regulation,
18 disciplinary powers would be within the command of all units of
19 subordinated, whether.
20 MR. MISETIC: No.
21 THE WITNESS: No, no, excuse me, Mr. President. What I'm saying
22 is that in the hypothetical case that is there no agreement, then of
23 course the -- the call it the multi-national commander he can discover or
24 even report a violation, but he will have to send it to the highest
25 national representative of the alleged country --
1 JUDGE ORIE: [Overlapping speakers] ... so reporting by the
2 highest commanders, but finally to deal with the by the national
4 THE WITNESS: Exactly.
5 JUDGE ORIE: Okay.
6 Now we move away from NATO. We find ourselves, as I understand,
7 in a situation where no specific regulations exist.
8 Mr. Misetic asks you what's the basis for your conclusions you
9 present, that the highest command to which the -- and that's now become
10 specific, the HVO units were subordinated, what role and why that highest
11 command which you said was General Gotovina, what his role was in
12 disciplinary matters.
13 THE WITNESS: Based on the documents I have seen, and I refer for
14 that to -- for Ljeto to the entries in the operational diary for Maestral
15 what is included in second part of my report, for example page 370,
16 General Gotovina at least has the authority to task his military police
17 to report all violations to him. The same applies to the town commander
18 he appoints.
19 Now, I have not seen any documents indicating that
20 General Gotovina takes disciplinary measures against members of the HVO,
21 and I have not seen documents indicating that, for example, the
22 prosecutor at the military disciplinary court in Split takes or decides
23 about sentences against members of the HVO.
24 JUDGE ORIE: And does that mean because that apparently is the
25 question when it didn't happen that there was no authority to do so, or
1 do you say, I don't know, or what's -- what's your position.
2 THE WITNESS: Your Honours, and I'm just quoting from a document
3 in P71 the operational diary, we see -- or we may remember the entry
4 where it is said that shoot in the legs of all members of the -- of the
5 armed forces who loot, I'm paraphrasing a bit, but we can find reference
6 back. And there's no distinction made between members of the HV or the
7 HVO. Now there is no Code of Discipline that says people who commit
8 violations of military discipline or even who commit crimes should be
9 shot in the legs.
10 JUDGE ORIE: No. I do take it, but do you understand this to be
11 do everything can you do to prevent looting or further looting.
12 THE WITNESS: Exactly, Your Honours, and there is no distinction
13 made between members of the HV or members of the HVO.
14 JUDGE ORIE: I do understand. But the way in which I phrased it,
15 I said: "Do everything can you do," the issue is what can you do
16 apparently or what you are competent to do, not to say to your next door
17 neighbour, don't loot, but if he continues, what action to be taken?
18 Could I ask you one very factual question. Are you aware of
19 disciplinary measures or disciplinary sentences imposed on HVO servicemen
20 when they were subordinated to General Gotovina, because you have already
21 told us that you have no examples of disciplinary measures or
22 disciplinary sentences imposed upon them by the HV command, by General
23 Gotovina. Now any other command you are aware of that ever imposed
24 disciplinary measures to these HVO service members when they were
25 subordinated to General Gotovina?
1 THE WITNESS: No, Your Honours, and I will check my report again
2 tomorrow morning, but based on the knowledge I have now, I am not aware
3 of such cases.
4 JUDGE ORIE: So either they never committed any disciplinary
5 violations, or there was a vacuum or -- we'll see. I'm asking you
6 whether you could give us an explanation.
7 THE WITNESS: Yes, Your Honours, I mean -- another option would
8 be that we don't have the document, even though maybe measures were
10 JUDGE ORIE: Yes.
11 Mr. Misetic.
12 Q. You didn't make it part of your task to review all the archives
13 of the HVO as well for this report, did you?
14 A. No. But I did, for example, searches like "Gotovina" as the
15 search term within 30 discipline, and then discipline with a star, for
16 example. That is how the database functions, and it would not make a
17 distinction between the origin of the document, whether it would be HV,
18 HVO, or another document.
19 Q. Following up where we got to this point. The highest national
20 force commander, if we were to use that terminology, of the HVO within
21 the Croatian forces was General Blaskic, correct?
22 A. Yes, certainly at the time of Ljeto. I'm not sure for Maestral
23 and Juzni Potez.
24 Q. To check on what disciplinary measures General Blaskic may have
25 taken, you would have to do a search in your database that says "Blaskic
1 within 30 of discipline," right?
2 A. For example. Or I could also do a search Gotovina within, for
3 example, 30 HVO, because it may well be, and that brings us back to
4 Article 26. And I'm just trying to explain the practical importance of
5 the whole issue.
6 JUDGE ORIE: Let me stop you here for a second. When you ever
7 Gotovina in your search, you miss all the disciplinary measures and
8 sentences in which Gotovina is not involved or not within 30 words of
9 that; isn't it?
10 THE WITNESS: Indeed, Your Honours, of course when it comes to
11 discipline, I also used other criteria. One of the things I was
12 interested in was disciplinary measures imposed by General Gotovina, for
13 example. And then that search criteria would be relevant, but of course
14 in relation to the issue of discipline, I did many more searches using
15 other key words, not just restricting me to the name of Gotovina.
16 JUDGE ORIE: Yes.
17 Mr. Misetic.
18 MR. MISETIC:
19 Q. But you don't recall doing a specific subsearch for Blaskic and
20 discipline or HVO and discipline, right?
21 A. Blaskic and discipline, I don't remember. HVO and discipline, I
22 think I did. I don't recall exactly whether I focussed on a specific
23 unit, but certainly in the context of Ljeto, I did so.
24 And --
25 Q. Well, Ljeto is prior to Operation Storm.
1 A. Yes. But from the documents I have reviewed, I have not seen any
2 indication that there was a different command and control arrangement
3 between the forces of the HV and the HVO that were -- that participated
4 or that conducted these operations under the command of General Gotovina.
5 And if you allow me, I would like to give --
6 JUDGE ORIE: But even under the same arrangements, the facts
7 could have been different, isn't it? I asked you whether you searched
8 for disciplinary measures or sentences imposed on HVO members. Now you
9 said I'm not aware of it. You didn't find any of them under -- in
10 relation to Gotovina, you didn't find any of them in relation to HVO
11 commanders, which means that even if the arrangements were the same, it
12 could be that examples could be found under the same arrangement, but in
13 a different time-frame, isn't it?
14 THE WITNESS: That is correct, and that is why the aspect of time
15 -- I would have to check again which search terms I exactly used, because
16 there are hundreds of terms and I haven't saved all of them, but it is
17 true that sometimes I imposed also time limitations because just for the
18 facility of the searches.
19 If you allow me, I would like to give a brief practical
21 JUDGE ORIE: No. As a matter of fact, I allow Mr. Misetic to put
22 the next question to you.
23 MR. MISETIC: Thank you.
24 Q. Mr. Theunens, looking at the document on the screen, you will
25 note the security situation upon the entry of the Croatian forces into
1 Mrkonjic Grad. It says: "Not a single case of arson has been
3 I'm interested in the second paragraph.
4 It says: "The livestock is a huge problem. The animals wander
5 through the town and the neighbouring villages. A certain number of
6 animals are still in the stables, and they have to be collected in the
7 coming several days, since there is a possibility that they will die."
8 Now, in a situation where a force takes over an area where forces
9 and people have left and livestock is left behind with no one to tend to
10 it, what should a military do in that situation concerning that
12 A. Procedures for the dealing with livestock should be included in
13 the order for attack. For example, the logistics service -- and I will
14 phrase it, logistic service, they will have specific assets available.
15 There will also be veterinarians within the attacking force in order to
16 take care of these issues because that animals will be a huge problem as
17 they can create diseases. That is also why, for example, killed soldiers
18 will have to be evacuated as soon as possible and buried as soon as
20 JUDGE ORIE: Mr. Misetic, may I interrupt you here.
21 Apparently Mr. Misetic asked you what should be done, which is a
22 matter of substance, take them away, kill them, whatever. Your answer,
23 however, is about procedure.
24 Now, both may be relevant, but I'd like to make a clear
25 distinction between the two. You said you should regulate it. Where
1 Mr. Misetic asked you what you a regulation or at least what action
2 should look like. So could we distinguish between procedure and
4 You understand what I mean?
5 THE WITNESS: Indeed. Substance follows from the procedure so
6 there should be -- I mean, the animals should be secured. Measures
7 should be taken to prevent them from wandering around the battlefield, so
8 lock them up in stables or facilities where they can be kept under
9 control. If you're in a position to feed them, then you feed them. If
10 you can't feed them well, you find other solutions, but you avoid that
11 they are killed at random because then corpses will stay where they have
12 been killed, and there is a risk of disease.
13 JUDGE ORIE: And this they starve at random because there is
14 no --
15 THE WITNESS: Then you make arrangements to have them buried as
16 soon as possible in a way that prevents -- again, that diseases can
17 spread. That is one of the problems at least in the military that dead
18 bodies that are spread on --
19 JUDGE ORIE: Yes.
20 THE WITNESS: Okay.
21 JUDGE ORIE: That goes without saying.
22 Mr. Misetic.
23 MR. MISETIC: Thank you, Mr. President. May this document be
24 marked and tendered into evidence.
25 MR. WAESPI: No objections.
1 JUDGE ORIE: Mr. Registrar.
2 THE REGISTRAR: Exhibit D991, Your Honours.
3 JUDGE ORIE: D991 is admitted into evidence.
4 MR. MISETIC:
5 Q. Mr. Theunens, I'd like to take you to first to page 315 of your
6 report, paragraph W. And there you conclude:
7 "Based on the documents that have been reviewed for the
8 preparation of this report, Gotovina and his subordinate commanders only
9 enforce the military discipline system when the violations or breaches or
10 crimes directly affect the combat readiness and/or operations of the
11 Split Military District or the immediate interest of Croatia, i.e.,
12 relations with UNCRO?"
13 And now I'd like to take you to page 160 of part 1 of your
15 And there at paragraph D, in talking about the Croatian system
16 you say:
17 "Military discipline refers to the exact full and timely conduct
18 of military service."
19 And what I'd like you to explain is what is the difference
20 between General Gotovina's understanding of military discipline, which
21 you described at page 315, paragraph W, and your understanding of it, in
22 the Croatian system, which is described at page 160, paragraph D.
23 A. The difference I see, Your Honours, is that based on the review
24 of the documents included in my report, I conclude that General Gotovina
25 has a rather narrow interpretation of the concept of military discipline,
1 i.e., he sees military discipline exclusively focussed on the
2 accomplishment of the specific combat tasks and combat operations.
3 So, for example, if a soldier fails to present himself in time at
4 the morning assembly, disciplinary measures maybe taken in that case.
5 He also reacts very swiftly when there is a problem with UNCRO.
6 Example, the incidents between the commander of the Split garrison and
7 UNCRO members at an UNCRO check-point on the -- on the 4th of August,
8 General Gotovina almost immediately orders to arrest the commander of the
9 Split garrison.
10 In other cases, and I refer now to the incidents of looting and
11 burning that are reported during and after Operation Storm, the fact that
12 they continued to be reported and that at the same time orders are issued
13 at a high rate, indicates to me that there is no -- or not the same
14 willingness as there is in the -- to earlier situations I described to
15 act against violations of discipline.
16 Q. Well, let's first get to the first part where you say it's a
17 narrow interpretation. You say:
18 "He sees military discipline exclusively focussed on the
19 accomplishment of the specific combat tasks and combat operations."
20 First of all, if you reviewed the 1300-plus disciplinary measures
21 taken into the third quarter, you would have found that all of those
22 disciplinary measures were not related exclusively to failure in combat
23 operations, right?
24 A. Well, can I only conclude on the material I have reviewed and
25 that starts on page 381. For example, on page 384 I list the various
1 breaches and violations of military discipline, which one can find in the
2 reporting of the Split Military District Command.
3 Q. Yes. But so from your answer, then, I take it that you didn't
4 review what all the 1300 disciplinary measures were, right?
5 A. I -- I don't remember the exact number of -- what I reviewed,
6 whether it was 1300 or less. I believe there were less.
7 So if you have examples, I mean, of other violations and
8 breaches, of course, I am available to review them.
9 Q. Well, you're the one who is given the conclusion that he only
10 issues disciplinary measures when they're related to combat tasks. So
11 I'm asking you, did you review all the disciplinary measures first before
12 arriving at a conclusion as to what he only imposes discipline for?
13 A. I don't exclude that he issued disciplinary measures or had
14 disciplinary proceedings started or launched in other cases, but the
15 majority, I mean, the overwhelming majority of the measures I have seen
16 deal with matters that are almost exclusively focussed on -- combat
17 readiness and the execution of combat tasks and operations. In a very
18 narrow sense.
19 Q. Now you at page 160 say: "Military discipline refers to the
20 exact full and timely conduct of military service."
21 What is the distinction between General Gotovina's -- in your
22 view, General Gotovina's interpretation and your interpretation?
23 A. The distinction based on the reports is that General Gotovina's
24 interpretation focuses exclusively on combat aspects, i.e., that the
25 forces achieve the mission within the imposed time-frame, with a minimum
1 of losses, almost -- I don't like to use the express at any cost, but
2 from the documents I reviewed, it seems that the manner in which they
3 accomplished the mission, as long as friendly losses are minimal and the
4 goals or the objectives are reached within the imposed time-frame, then
5 the mission is accomplished. Whereas, the regulations also include
6 elements like limitation of collateral or undesired damaged during the
7 execution of the mission and also afterwards, i.e., military discipline
8 also applies to the fact that armed forces should not loot or -- members
9 of armed forces should not loot or burn or kill animals during the
10 execution of the task as well as afterwards.
11 Q. Okay. Well, I think we've already covered the relationship
12 between the criminal law and the disciplinary law, so I won't go back
13 into that with you now.
14 Mr. Theunens, let me ask you this: What are a -- an occupation
15 -- occupying commander's -- well, let me take it back.
16 Generally speaking, are you familiar with what an occupation
17 commander's responsibilities are under international law in occupying
18 territory of a foreign country?
19 A. I'm not a legal expert, so I'm not familiar with the details of
20 the international law in relation to the authority of the -- of a
21 commander or the responsibility of a commander under the occupational
23 Q. Do you think that General Gotovina as an occupational commander
24 in western Bosnia
25 or should have been familiar with his international obligations as an
1 occupying commander?
2 A. Well, he should at least have been familiar with his obligations
3 as a military commander as such. And if the fact that he is an
4 occupational commander in -- what you describe as a foreign country,
5 includes additional obligations I would expect him to be also familiar
6 with those obligations.
7 Q. Well, first of all, is there any dispute that Bosnia was a
8 foreign country at that time?
9 A. There's no dispute about that. But even before the signing of
10 the Split
12 Q. Well, so what? I mean, his duties as an occupational commander
13 -- well, let me -- let me ask it a different way.
14 In evaluating -- and you have evaluated General Gotovina in your
15 report in western Bosnia
16 Gotovina was issuing orders pursuant to his duties as an occupational
17 commander, it should have been incumbent upon you to learn what the
18 obligations of an occupation commander are before evaluating General
19 Gotovina's actions in western Bosnia
20 A. The orders I have reviewed, orders by General Gotovina, do not
21 make reference to a status that you have introduced of occupational
23 Q. Well, the orders don't need to make reference to it. Whether
24 they make reference to it or not doesn't change the fact that he is an
25 occupying commander in western Bosnia
2 A. I have -- I mean, the documents I have reviewed do not mention
3 the term occupying commander or occupation commander, and I don't
4 consider it of relevance, I mean this concept for the conclusions that I
6 Q. Well, if you don't know what the responsibilities of an
7 occupation commander are, do you take into consideration that that might
8 affect how you are looking at issues like appointing a town commander for
9 Drvar, imposing a military curfew in Jajce. Do you think would be maybe
10 useful for you to first find out what the duties of an occupational
11 commander are?
12 A. Your Honours, I don't think that is relevant because when we look
13 at D204 --
14 JUDGE ORIE: Mr. Theunens, what Mr. Misetic puts to you, if I
15 understand him well, is the following: You relied several times on
16 examples of the way in which General Gotovina exercised what you say,
17 must have been his powers, because otherwise he couldn't have given that
18 orders or could not have made those appointments.
19 Now Mr. Misetic is asking you where you draw parallels from that
20 system, whether this, as you testified, rather broad concept or at least
21 broad exercise of these powers, whether the position of a commander whose
22 troops occupy foreign territory might be a clue to understanding this
23 situation, if I -- Mr. Misetic, if I understood you well.
24 MR. MISETIC: [Overlapping speakers] ...
25 JUDGE ORIE: So as to see whether the conclusions you have drawn
1 from those examples to what you said would have been within his
2 disciplinary powers of units which are subordinated to him, although not
3 part of the regular forces he commands over, whether we have to adjust or
4 to reconsider, or whether you would have to adjust or reconsider such
5 conclusions, that is, I think, the relevance of what Mr. Misetic puts to.
6 Now, although, I'm not under an obligation to explain to you the
7 relevance. Perhaps it's good that you are aware of my understanding of
8 the relevance of this question is.
9 Could you please try to answer the question, whether you have --
10 whether you have explored the duties of a commander of an occupying
12 THE WITNESS: I have not explored the duties of a commander of an
13 occupying force in this context.
14 MR. MISETIC: Thank you, Mr. President.
15 Q. Mr. Theunens, one moment, please.
16 Let me put this to you. You've looked at a series of orders
17 yesterday -- Friday and today from before Storm, during Storm, and after
18 Operation Storm issued by General Gotovina, and we've established that
19 you don't know of any reports after the 18th of August going to
20 General Gotovina about a problem of burning and looting by units in the
21 Split Military District on the territory of the Republic of Croatia
22 So let me put it to you this way: Concerning your opinion that
23 the orders lacked effectiveness, if, in fact, as Mr. Flynn says the
24 burning peaked at the 20th of August, if, in fact, there is no evidence
25 of notice to General Gotovina or the Split Military District Command of
1 reports of burning and looting after -- on the territory of the Republic
2 of Croatia
3 on the 18th of August, and if, in fact, General Gotovina's orders
4 particularly the order of the 10th of August, resulted in an increase of
5 151 per cent in the number of disciplinary measures being taken in the
6 Split Military District in the third quarter of 1995, didn't those orders
7 have effectiveness?
8 A. Your Honours, I would like to draw your attention to D654, which
9 is issued on the 31st of August. It is by the commander of OG West, but
10 he refers to an order by General Gotovina, and the order starts:
11 "Commander of Split Military District units in their zones of
12 responsibility in newly liberated territory of the RH, Republic of
14 infrastructure facilities are placed under full supervision and
16 The next paragraph states:
17 "Stop all devastation regardless of what the facility's purpose
18 is (barracks, depot, training ground, residential building, and so
20 The order continues then.
21 "What I'm trying to say is that the fact that on the 31st of
22 August, an order of a subordinate unit of the Split Military District
23 when referring to what is described as the liberated territory of the
24 RH shows that actually the problem or the problems that existed prior to
25 the 18th of August, at least based on the fact that on the 31st an order
1 dealing with similar issues is again issued, shows that these problems
2 still exist. And whether they are less of them or more, that may be
3 another matter. But the commander of OG West, and he refers to an order
4 of General Gotovina, considers it important to repeat to his subordinates
5 in an order that they should not devastate buildings, whatever the
6 building may be.
7 Q. Well, Mr. Theunens, let me put to you I think we saw a document
8 before where General Gotovina was talking about handing over buildings
9 that were under military control to the civilian authorities. That was
10 on the 29th, I believe. This is an order on the 31st. You don't know,
11 or you have no information to know whether this is simply a reminder to
12 everyone as the process of the handover takes place or whether there is
13 any additional reports. As I said in my question, you didn't find any
14 reports of any additional burnings or lootings by HV units, right? There
15 are no reports? Political affairs, SIS, the Split Military District
16 operational diary, right, after the 18th August?
17 A. That is probably correct. But orders are just not issued for
18 reminding people or just issuing them again, I mean, for the sake of
19 issuing them. An order is only issued if one expects it to be abided by.
20 And in this case, if this is an reason, i.e., a problem which convinces
21 the commander to issue the order. A commander who just issues orders
22 well, when he feels like it, he will see that his authority will be
23 undermined, because an order without measures to verify its
24 implementation works counter-productive
25 Q. Let me put it a different way. Prior to that order on the
1 screen, are you familiar between the 18th August and the date of this
2 order, which is I believe is the 31st of August, any reports of burning
3 of military facilities on the territory of the Republic of Croatia
4 Split Military District? Do you know of any reports?
5 A. I answered that question before. I said that the conclusion you
6 draw is probably correct, but again the fact that there is no report does
7 not necessarily mean it doesn't happen.
8 Q. And it doesn't necessarily mean that it did happen?
9 JUDGE ORIE: It is as if I'm listening to two politicians. One
10 emphasizing how much the situation has improved due to the diligent
11 measures taken by the government, the other one stating that poverty is
12 still not over yet, and that therefore, it was a failure.
13 It is clear, and has been repeated several times that in the
14 questions we find repeatedly reference made to no reports, increased
15 number of disciplinary actions taken, et cetera, and in the answers we
16 find again was the reporting complete, et cetera. I think the positions
17 are relatively clear.
18 MR. MISETIC: Yes, Your Honour.
19 JUDGE ORIE: And a point --
20 MR. MISETIC: [Overlapping speakers] ... end of my cross, and I
21 wanted to put my case to him because it is his opinion, and later on you
22 could say that I put it to their expert witness as to what our case is,
23 and now I can thank Mr. Theunens for his time. Thank you, Mr. President
24 for allowing me the time, and I concede the floor.
25 Thank you.
1 THE WITNESS: Thank you.
2 JUDGE ORIE: Yes.
3 MR. KAY: Looking at the clock, Your Honour, it is probably best
4 to have the break now so we can rearrange the furniture.
5 JUDGE ORIE: That would be preferable.
6 Could I get an estimate on the basis. I haven't asked
7 Mr. Misetic before, and I am not in any way threatening you because I do
8 understand that this is an important expert for you, and the Chamber has
9 considered that it should perhaps be a bit less pushing to.
10 MR. KAY: Yeah.
11 JUDGE ORIE: -- could you nevertheless give us an indication.
12 MR. KAY: I was hoping Your Honour was going answer the question
13 for me.
14 I think about a week, Your Honour.
15 JUDGE ORIE: Whole week.
16 MR. KAY: Yeah, five days.
17 JUDGE ORIE: I hardly dare to address the third Defence team.
18 Mr. Kuzmanovic I saw earlier on the transcript that I already
19 allowed you to put a next questions to the witness, but, of course, I
20 said Mr. Misetic.
21 Mr. Mikulicic.
22 MR. MIKULICIC: Well, Your Honour it very much depends on the
23 progress of Mr. Kay. But for this moment, I could predict a day, not
25 JUDGE ORIE: Yes. We will consider the estimates, and we'll
1 first have a break.
2 Mr. Theunens, I do not know whether are you free for Christmas,
3 but ...
4 THE WITNESS: No plans yet.
5 JUDGE ORIE: No plans yet.
6 We'll resume at ten minutes to 6.00.
7 --- Recess taken at 5.32 p.m.
8 --- On resuming at 5.53 p.m.
9 JUDGE ORIE: Mr. Kay, the Chamber will closely follow how the
10 cross-examination develops, and then we'll finally see to what extent we
11 can meet your -- your needs.
12 In order to avoid whatever misunderstanding when I made the
13 reference to Christmas, it certainly was not to Orthodox Christmas.
14 Please proceed, Mr. Kay.
15 MR. KAY: Thank you.
16 JUDGE ORIE: Mr. Theunens, you will now be cross-examined by
17 Mr. Kay, Mr. Kay is Defence counsel for Mr. Cermak.
18 THE WITNESS: Thank you, Your Honour.
19 Cross-examination by Mr. Kay: [Continued]
20 Q. Mr. Theunens, first of all, can I ask you what exactly you see
21 your subject of expertise in these proceedings, if you could explain
23 A. Your Honours, my subject of expertise is that I am familiar with
24 command and control issues in the armed forces, as well as with aspects
25 of the conflict in former Yugoslavia
1 these proceedings.
2 Q. In relation to your expertise, the sources of information that
3 you have primarily relied upon, if you could explain that.
4 A. Just to clarify, do you mean the sources for this report or the
5 sources on which I -- yeah, I base my knowledge and understanding of
6 command and control on the one hand, and the conflict in the former
8 Q. The sources for your role as an expert, what you have drawn upon
9 to provide your report as evidence to the Court.
10 A. Well, the report is based on mainly military documents
11 originating from the HV, including documents by the HV Main Staff, Split
12 Military District Command, Knin garrison command, as well as subordinate
13 units and that applies specifically to the Split Military District
14 Command, special police, as well as legislation and doctrinal manuals and
16 Q. If there are documents that you have not seen in the preparation
17 of this report that are material to the evidence that you have given, how
18 would you view the provision of such material?
19 A. Well, I would of course welcome any new documents that can assist
20 me in -- in -- or any other documents that can assist me in assessing the
21 conclusions or reviewing the conclusions I have drawn based on the
22 material available to me, and if needed, amend these conclusions.
23 Q. Thank you. I'm going to try and proceed through this in a very
24 orderly way, Mr. Theunens, but taking it subject by subject, and the
25 first matter we'll deal with concerns the service rules, laws of the
1 garrison that you refer to in your report that may bear some examination.
2 MR. KAY: If, first of all we go to D32, Your Honours, with is
3 the service regulations a document that the Court familiar with, and go
4 to page 21 in the English where we have the section called: Garrison.
5 Q. As you have expressed in your report, Mr. Theunens, these were
6 rules that were produced in 1992, and do you agree they were at a stage
7 when the armed forces of the new Republic of Croatia
9 A. If I could see the English first page to see in which month in
10 1992 they were established.
11 Q. These were produced in May 1992.
12 A. Well, the Main Staff of the HV was established in -- in, yeah,
13 after September 1991, and I agree with you that at that stage the HV is
14 still in very early stage of its development.
15 As I have described in part 2 of the report also in 1992, 1993,
16 1994, the HV continues to develop. So whether in May 1992, they're still
17 at earlier stage, it's difficult to conclude. One can state that --
18 Q. That's probably enough of the answer for the moment.
19 A. Okay.
20 Q. Because we will proceed through it.
21 You've cited the regulations in your report, regulation 50. I'm
22 turning to regulation 52, first of all, and to deal with what this
23 regulation is about.
24 And what it is about is the function of the garrison commander
25 within the military system. Is that right, as a general heading?
1 A. Yes, it is correct.
2 Q. And it tells us what the garrison commander is responsible for.
3 We see billeting, order, discipline, and service in the garrison. We see
4 all units and institutions within the garrison being subordinate to the
5 commander, as regards the issues of order, discipline, and service.
6 And then in Rule 54, we see what the responsibilities of the
7 garrison commander are, and they're to issue rules on order, discipline,
8 and supervision of the behaviour of military persons in the garrison.
9 No need to turn to page 22, which deals with other aspects, but
10 we're looking at this issue of order and discipline primarily. Isn't
11 that right, Mr. Theunens?
12 A. Yes. That is what the first paragraph of Article 54 states.
13 Q. Thank you. And now the garrison commander is someone who, within
14 an area in which the military has a -- a presence runs various facilities
15 for the armed forces who may be part of that area, or who may be passing
16 through the area. Isn't that right?
17 A. That is correct, Your Honours.
18 Q. And to achieve order and discipline within a garrison, the
19 garrison commander is entitled to issue various local rules by which
20 those forces would have to comply with. Isn't that right?
21 A. Yes, that is correct, Your Honours.
22 Q. Just taking an example. We have a garrison in a town. There is
23 an old bridge, service vehicles cross that bridge. The garrison
24 commander may put up an order saying that service vehicles must only
25 cross that bridge at 30 kilometres per hour. Isn't that right?
1 A. Yes, that is one example.
2 Q. In fact, there can be rules by the garrison commander relating to
3 the married quarters where soldiers may live. Isn't that right?
4 A. If -- if they are outside of the barracks of the unit, I mean,
5 the particular unit where these people live, yes.
6 Q. In the English army it is known as "the patch." Is that an
7 expression you know of?
8 A. I haven't heard that expression yet, Your Honours, but ...
9 Q. And the garrison commander may tell the wives of soldiers not to
10 hang out their washing on Sundays or on Saturdays. That would be a local
12 A. If that is the case in the British Army, then I'm willing to
13 believe that.
14 Q. Yes. And in relation to these rules that we are looking at here
15 concerning the garrison, it is those matters within Regulation 52 that is
16 the object of the regulation. Isn't that right?
17 A. Yeah, I would say 52 and 54, but probably we mean the same.
18 Q. I'm taking it in stages, as others are following.
19 A. Okay.
20 Q. And in some bases there may be -- I don't know how familiar you
21 are with garrisons. Perhaps if you can answer that question before I go
22 on further.
23 A. Well, for -- I mean, each military unit is part of a garrison.
24 And like when I was stationed in Germany, our next operational command
25 level was located 60 kilometres more to the east, but we were part of a
1 garrison known as the Spich garrison, S-p-i-c-h, which was a smaller city
2 south of Cologne
3 When I was part of the military intelligence and security service
4 in Brussels
5 for example, that included that we could sit on court martials. There
6 was a duty role for that.
7 Q. The garrison, then, has within it this commander who provides
8 those local rules which are the rules that others have to follow to
9 enable there to be order and discipline of the military forces, whilst
10 they are within the garrison. In summary, that is it, isn't it?
11 A. Yes, that is a correct summary.
12 Q. To achieve that, of course, under Regulation 54, you have to
13 issue those rules, which has as a precondition -- you know the place that
14 you're serving at, that it is, in fact, a garrison in existence. That`s
15 right; isn't it?
16 A. I'm not sure I understand the question, but if it is not
17 established whether or not the garrison exists, then it is hard to
18 imagine there would be a commander. But, again, I'm not sure I
19 understand the question well.
20 Q. Thank you. Let's turn to Knin.
21 Knin we know wasn't liberated by the Croatian forces until the
22 5th of August, 1995. And on that day, Mr. Cermak was appointed as a
23 garrison commander for Knin. There had previously been someone appointed
24 as an acting garrison commander, a Major Gojevic. But Major Gojevic was
25 never sitting in Knin in that period before the 5th of August to enable
1 him to draft any rules that may be necessary for order and discipline
2 that may have to apply within Knin. Would you agree?
3 A. It is correct that Major Gojevic was not sitting in Knin. D33
4 describes the municipalities that are covered by the Knin garrison, where
5 it is put between --
6 Q. We're going to that in a moment.
7 A. Okay.
8 Q. I'd like to you take this in stages. We will cover every
9 document. That's why I've said the time I have, and I want to make sure
10 that you follow the argument in stages. I think it is better having
11 observed matters over the last week. But be assured, I will be covering
13 A. Okay. So indeed Major Gojevic was not sitting in Knin. I have
14 not seen any orders or rules he established as the acting commander of
15 the Knin garrison "pending its move" as is specified in D33.
16 Q. Yes. And in Regulation 52, when we look at it, it is correct
17 that those rules that are the garrison rules are issued and thereby cause
18 units and institutions within the garrison to be subordinate to those
19 rules, because that is part of the system of running the garrison. Isn't
20 that right?
21 A. Yes. I agree.
22 Q. Taking our example of the road bridge with the speeding limit
23 upon it, if a military truck from a unit not based in our garrison, we
24 don't even have to think of Knin as I don't think there were such rules
25 issued, but a truck from another military district area crossing that
1 bridge would -- would have to respect that rule of the garrison put up by
2 the commander.
3 A. Yes.
4 Q. Thank you. Failure to do so, if a military policeman is standing
5 at the other end of the bridge, he may stop the vehicle and thereafter
6 take a number of steps, in relation to a disciplinary breach. Isn't that
8 A. Yes. So even a member of the garrison command could do the same,
9 if he sees the violation.
10 Q. Exactly.
11 A. Mm-hm.
12 Q. I'm taking the military police because that is a subject within
13 this case, but someone else may also do that, and thereby be an
14 enforcement of that rule on that particular soldier. Isn't that right?
15 A. Yes. In according with the procedures established in the Code of
17 Q. Moving on now to the setting up of the garrisons, and we see at
18 D33 a document that the Court is familiar with, dated the 16th of
19 February, 1993, setting up of garrisons of the Croatian army, an order
20 that was issued by the Chief of Staff, General Bobetko.
21 And this, in 1993, as we know, set up the areas that were to be
22 part of the particular garrisons, and we know at page 4 that this
23 included Knin. Isn't that right? And if we just look at page 4.
24 A. I agree that it is in the document. It may be page 3. But any
25 way, the Knin garrison is defined in this order of 16th February of 1993.
1 Q. Right.
2 A. D33.
3 Q. (E), Knin garrison, it's page 4 of the document that I have, but
4 that doesn't matter. Who is ever on the control there, if we go to page
5 3. Page 2. Page 2. We'll see it. Because at this time in 1993, Knin
6 garrison had been given an area, but it had not been established and
7 subject to the jurisdiction and control of the Croatian armed forces as a
8 geographical area. That's right, isn't it?
9 A. That is correct. We know that there is a body known as the Knin
10 garrison operating in Gospic, but it is it not yet in Knin and obviously
11 is not carrying out its duties in the actual Knin garrison.
12 Q. We will be looking at all those documents very soon.
13 It says here: "Within the command of the Home Guard battalion of
14 the Knin garrison."
15 Do you know what that means?
16 A. My understanding is that the personnel for the Knin garrison is
17 to provide it by a Home Guard Battalion that would normally be located in
18 Knin but is -- consists of people originating from Knin.
19 Q. Thank you. If we turn now to further documents within this
20 exhibit that were annexed to it so that we can just cover a few details
21 on the way.
22 Turning to page 9 of the document that I have got, which is where
23 this is a report on troop numbers.
24 MR. KAY: Page 5 on the document on the screen.
25 Q. First of all, that's the right document. Are you familiar with
1 this document, Mr. Theunens?
2 A. I don't remember seeing this specific page which is on the left,
3 but from other Split Military District documents, yeah, the figures on
4 manpower are familiar to me.
5 Q. Yes. The sort of garrison headquarters you were talking about in
7 A. I have no recollection except -- no specific recollection except
8 that in our system, normally that position would be a cumulative
9 position, i.e., the first garrison I was part of, the garrison commander
10 was actually the commander of the -- of the largest battalion in the
12 And in Brussels
13 where the -- the General Staff was located, but I'm not sure. And he may
14 have had maximum one company available to him which was actually the
15 headquarters company, i.e., a company which is tasked with the -- which
16 is responsible for the functioning --
17 Q. You say "may," do you know?
18 A. I don't have an exact recollection.
19 Q. Well, best not put things in if you don't actually know, as it
20 may cause further research.
21 But we see there, the numbers certainly in the 31st of August,
22 1995, turning to the next page in the document, current status of unit
23 being 10 people.
24 If we turn to the next page, in September.
25 The page after that, current status in unit, some eight people.
1 And then if we could move to another document now. 65 ter 3514.
2 This is a document dated the 28th of June, 1995. It's from the
3 Split Military District Command, sent to General Gotovina, and it
4 concerns numerical strength. And the document, first of all, if you look
5 at the first page, is this a document that have you seen before?
6 A. I have seen it, and I believe that it is included in my report.
7 Q. If we turn to page 3 in the English.
8 A. Yeah. I think it is actually at the bottom of the page. Yeah.
9 Q. There we are.
10 The establishment should have nine people, but on the 28th of
11 June, 1995, that third column, current number, shows three. So a few
12 weeks before Operation Storm and the entry into Knin, it was a unit of
13 three people.
14 Is that a fact that you have considered in the production of your
16 A. Indeed.
17 Q. Very well. Let's move on now to D34.
18 MR. KAY: Can the last document be made an exhibit, please, Your
20 MR. WAESPI: No objection, Mr. President.
21 JUDGE ORIE: Mr. Registrar.
22 THE REGISTRAR: Your Honours, that becomes Exhibit D992.
23 JUDGE ORIE: D992 is admitted into evidence.
24 MR. KAY:
25 Q. This document is the organisational order regarding work, order,
1 and discipline at garrison HQs, dated the 27th of August, 1993. And at
2 that time in August 1993, it says, on the first page:
3 "Garrison headquarters have not all been set up yet. They've not
4 assumed their functions, and their locations, personnel recruitment, and
5 prescribed tasks have not been assigned."
6 The next paragraph refers to the desire to a comprehensive system
7 in place and working so that command, cooperation, control at the level
8 of garrison headquarters can take place and ensure comprehensive work
9 order and discipline.
10 If we turn to page 2 of the English. And just pausing here
11 before we look at rule number 2, would you agree that on the 6th of
12 August, 1995, the Knin garrison was not established as a working and
13 functioning part of the Split Military District, to enable it to take on
14 its role within the system.
15 Would you agree with that?
16 A. Your Honours, I think there are two components in the question.
17 First, the aspect of the 6th of August. I can only answer that already
18 on the 5th, General Cermak issues an order. Now to what extent the Knin
19 Military District is established -- excuse me, the Knin garrison, I
20 apologise, the Knin garrison is established as a functioning garrison, I
21 cannot conclude from the documents I reviewed. I can only say that
22 General Cermak issues an order which is known as P506.
23 Q. We will be looking at that. Don't worry.
24 A. Okay.
25 Now, the second part is that the Knin garrison, as a working and
1 functioning part of the Split Military District, without wanting to jump
2 already now, I include in my report, English page 258, a section on the
3 relations between the commander of the Knin garrison, General Cermak, and
4 the commander of the Split Military District, General Gotovina, and
5 that's in part 2 of the report, I should have said, whereby I state that
6 the relation between the two of them is not as clear-cut as one would
7 expect from military discipline.
8 And again I just mention that here because I wasn't sure that I
9 understood the question well.
10 Q. I will just tell you -- on the 6th of August, when the doors open
11 at the garrison HQ in Knin, from the documents that have you seen, do you
12 agree or disagree with the proposition that this was not functioning part
13 of the Split Military District. As simple as that. We know the history
14 of the matter. They go into Knin. The doors open. Are we looking at a
15 well-oiled machine, or are we looking at something that is not
17 A. I cannot answer that question, Your Honours, based on the
18 documents that I have reviewed.
19 Q. Thank you. We'll have a look at some you have reviewed and some
20 maybe you haven't reviewed.
21 Looking at rule number 2 here, as you know, the garrison
22 headquarters commands don't have an operational function, and the next
23 part of the English.
24 "... and the right to issue orders to Croatian army units, accept
25 precisely prescribed authorities regarding work, order, and discipline at
1 the garrison headquarters, et cetera."
2 And that is referring to those rules that I was mentioning right
3 at the start of my questioning of you, isn't it?
4 A. That is correct.
5 Q. I won't repeat it because I'm sure the Court has the point.
6 And there are other tasks that are set out in number 3, requiring
7 to establish cooperation and coordination with various bodies of a civil
8 nature, as well as military, Ministry of Defence nature; and in four
9 concrete tasks requiring to be set out regarding work, order, and
10 discipline; and the need in 5 to monitor that.
11 I refer to those last matters, just to refresh the Court's memory
12 on the matter.
13 If we go to the instructions that come with this document, at
14 page 3 of the exhibit, and this was issued in August 1993 about how to
15 set up the garrisons, and they were at various orders of tasks to be
16 performed, as well as the other jobs that had to be done within the
18 In summary form, is that right, Mr. Theunens?
19 A. Yes. I mean, that's what the document states so ...
20 Q. Yes. And we can see in 1 that prepared documents for the
21 organisation of work, order, and discipline following their return to
22 their garrison's territory, that was something that was required to be
23 done in advance, so far as it could be. Would you agree with that?
24 A. That is correct. But it is not, for example, I mean, to answer
25 the question you asked earlier, whether or not the Knin garrison could be
1 a well functioning body on the 6th of August, in a military organisation,
2 these procedures and these rules are standardized, and are most likely
3 common to all garrisons with the exception of some geographic
5 So which means that the rules as such should already have been
6 prepared prior to establishing the garrison. There will be checklists
7 and templates and so on being used, whereby only specific issues or
8 specific details or specific locations may have to -- to be specified at
9 a later moment, so --
10 Q. Shall I just stop you there, because have you seen any in
11 relation to Knin garrison?
12 A. You mean specific rules for the functioning of the garrison?
13 Q. Yes.
14 A. No, I have not seen such rules.
15 Q. Thank you. Going through the rest of the pages. Page 4, we can
16 see along with arranging swimming, employing military police units, that
17 a procedure needed to be arranged to enable a unit within the garrison to
18 call the military police if it was wanted that they intervened in a case
19 of unrest. Do you agree?
20 A. Or in any other case where the garrison commanders -- excuse me,
21 garrison commander considers it necessary to have the intervention of the
22 military police.
23 Q. Where's that?
24 A. I mean, that's --
25 Q. Sorry. We're looking at -- are you and I looking at the same
2 A. Yeah, but you used the expression "unrest," and the document also
3 says "accidents, et cetera when a military police unit is indispensable
4 to establish order and disciplinary in the area of the garrison."
5 I wasn't reading out document. I was just explaining what I had
6 seen or what my understanding was of the garrison's commanders relations
7 with the military police, and when I look at the document, it is actually
9 Q. This is quite a simple obligation for the garrison commander. He
10 provides something to a standing orders that any unit within the garrison
11 may see on the barracks wall or be in a handbook which is a procedure
12 telling him that if he's got any problems how to call out the military
13 police. It's as simple as that; isn't it? This is standard?
14 A. You mean -- for the garrison command as such, that the garrison
15 commander establish there is the procedure for the personnel of the
16 garrison command that when they need military police, that they actually
17 know which number to dial, or do you say that the garrison commander does
18 it for all the units in the area?
19 Q. No, he doesn't do it for all the units in the area.
20 A. Okay.
21 Q. You agree.
22 It is an internal order that when you arrive as a unit into the
23 garrison, that the company commander or whoever knows how to get in touch
24 with the military police. It's as simple as that; isn't it? It's
1 A. Yeah. But you would as a company commander who is not familiar
2 with the area and who is planning to move there, one would expect -- I
3 mean, it is among the basics of how the military works, that he collects
4 that information prior to arriving in the garrison or in the area.
5 Q. That's why the garrison commander has to write a procedure in
7 A. Yeah. Or there has to be somebody at the -- in the office of the
8 garrison with a telephone and whereby the number is known to the people
9 outside the garrison commander -- outside the garrison command and
10 whereby that somebody can answer questions, like that one, for example.
11 Q. Yeah. It's a call-out.
12 Turning now to the Code of Military Discipline and Article 26;
13 English page 9. This is -- I've got it as 65 ter 1834, but I know it's
14 P1007. And it's the Code of Military Discipline that you have been
15 already discussing, dated May 1992, Article 26, is the one that refers to
16 commanders of units, institutions and garrisons, et cetera, "shall issue
17 disciplinary measures to offenders who are not members of their organic
18 unit, if such measures are required for maintaining order and
20 Disciplinary measures, just for referencing the matter, in
21 Article 6 are defined as mild violations of the rules. Article 10 has
22 minor breaches of military discipline and the various punishments. And
23 so Article 26, when we look at it, this refers to when an offender is
24 brought before the garrison commander for breach of discipline, and there
25 is an issue to be dealt with as a disciplinary measure.
1 That's right; isn't it?
2 A. Yeah. And I think, more specifically, if this offender is not a
3 part or member of the garrison command.
4 Q. Yeah. And let's take our example of the bridge and the speed
5 limit, and someone breaching the 30-kilometre-per-hour-limit who may be
6 taken to the garrison commander, offender brought before him, explained
7 -- asked for an explanation, and he may deal with it by one of those
8 disciplinary measures, Article 6, and Article 10 in that way. Isn't that
10 A. Indeed. And, of course, Article 26 applies to, eh?
11 Q. That is why I'm talking this as Article 26, just so we know
12 exactly what we're dealing with here in relation to the authority of the
13 garrison commander.
14 Just turning to some other aspects concerning legal provisions so
15 that we deal with everything as one, if we could see page 86 of your
16 report, and it's page 86 of part 1, and you refer there to the military
17 police administration document of the 17th of December, 1992. And you
18 cite the rules from that document. And I'm reminded your report is
19 P1113, Exhibit P1113.
20 MR. KAY: Page 86 of -- I don't -- it's not the one I see on the
22 THE WITNESS: No.
23 MR. KAY: On the screen. That's page 45.
24 Q. You've got it, though, Mr. Theunens, haven't you. Because you
25 have your report there. You have a look at it as it comes up. There we
1 are. We see it on the page there for Your Honours.
2 Because you cite this matter and refer to these regulations. We
3 can see what you cite from it. You refer to a marked vertical
4 subordination and an effective horizontal coordination. You refer to
5 other passages of the document on page 86.
6 Turning now to page 87, you refer to the garrison commanders,
7 page 3 -- paragraph 3 and 4 on the screen now, and you cite from that
9 "Commanders of Croatian army units and garrison commanders are in
10 charge of the military police units operating in their zones of
12 You cite further matters. And in paragraph 4, you refer to
13 garrison commanders again.
14 Were you aware you aware that this document was repealed?
15 A. I am indeed aware of that, but I included the document because it
16 actually provided additional background to what is stipulated in the 1994
17 military police rules, which are P880 --
18 Q. We will be looking at them, but I want to take this in stages.
19 A. Mm-hm.
20 Q. Why isn't it in your report that these rules were repealed?
21 A. Because it seemed logical to me that when you have a more recent
22 military regulation, that that automatically supercedes or replaces the
23 older regulation, and that is also how I worded it on the English page
24 86. So the 1994 --
25 Q. If we can turn back to page 86 so that can you show the Judges.
1 A. Under the title (B) between brackets the 1994 rules and so on
2 confirm the subordination relations that were established through ... and
3 that is the old document then. It is correct that I didn't explicitly
4 put that the 1994 rules replace the 1992 document, but for me that was
6 Q. In fact, the 1994 rules do not contain those provisions about the
7 garrison commands that you have cited in your report. Isn't that right?
8 The 1994 rules is Article 8 and Article 9, Mr. Theunens.
9 A. That is correct.
10 Q. Well, do you think that that could have been misleading --
11 A. Well --
12 Q. -- to the Court who may be relying upon you for an explanation?
13 A. Article 9 states:
14 "While performing their regular military police tasks, MP units
15 are subordinated to the commander of the Military District. The
16 commander of the HRM, which stands for Croatian navy, the commander of
17 the HRZ
18 commander in the military police units area of operations."
19 Q. Well, we see that you cite garrison commanders, and would I be
20 correct in saying that you cited garrison commanders in page 87 of your
21 report, because you are dealing with a case against a garrison commander?
22 A. Your Honours, if we can see --
23 Q. Just answer my question.
24 A. No. I am citing the garrison commander from the 1992 document,
25 which you can see on page 87, and the text is in italics, and it
1 originates from the 1992 document.
2 Q. And if we just turn to page 87 while you're referring it so that
3 Their Honours can see it.
4 A. So -- if we go to the top of the page, the reference to garrison
5 commander is in italics. It is between quotation marks, so it originates
6 from the 1992 document.
7 Q. Just stop there. Was that extracted because you are dealing with
8 a case against a garrison commander, yes or no?
9 A. No, it was not extracted from --
10 Q. Very well.
11 Turning to 4, you refer to the bottom three lines of
12 subparagraph 4:
13 "Subordinated to relevant garrison commanders, commanders of
14 relevant HV Guards Brigades, et cetera."
15 Was that cited because you are dealing with a case against a
16 garrison commander?
17 A. No. It is cited in order to identify the relevant aspects of
18 this 1992 document. Because the --
19 Q. As you said yourself a few days ago, once a new law is into
20 place, the old law is replaced. Isn't that right?
21 A. I mean, I'm not going to give a general opinion in relation to
22 legislation, but I know for military documents and regulations that is
23 the case, and that will also be specified most of the times as such in
24 the new military regulation, i.e., there will be a paragraph at the end
25 or in the beginning stating that this new regulations replaces all other
1 regulations -- older regulations, I'm sorry, in order to avoid any
3 Q. Is there any reason why you didn't cite these rules of the 17th
4 of December, 1992 as having been imposed as temporary rules under the
5 temporary instructions for the work of the units of the military police
6 of the Croatian army?
7 MR. KAY: 65 ter 3106, if that could be brought up as the first
9 There we are. It's just coming on the screen. The temporary
10 instructions for the work of the units of the military police of the
11 Croatian army dated January 1992, exhibit 65 ter 3106, were the temporary
12 rules that can -- that caused those 1992 rules to be made, were you aware
13 of that, Mr. Theunens?
14 A. I don't think so. I don't remember seeing this document before.
15 I may have seen it, but I have not referred to these temporary
16 instructions in my report.
17 Q. Were aware of this document, because -- first of all, were you
18 aware you aware of it?
19 A. I have no clear recollection. So, I mean, if I have to say yes
20 or no, I will say no. I think I have seen them, but I have not used them
21 in my report, so...
22 Q. Did you realize those 1992 rules that you cited in your report at
23 pages 86 and 87 were invoked because of the temporary rules of
24 January 1992?
25 A. I was not aware of this specific relation between these two
2 MR. KAY: Your Honour, can 65 ter 3106 be made an exhibit,
4 MR. WAESPI: No objections.
5 MR. KAY: Thank you.
6 JUDGE ORIE: [Microphone not activated]
7 THE REGISTRAR: Exhibit D993, Your Honours.
8 MR. KAY: We will now move to Exhibit P880, which is the
9 governing rules of 1994.
10 Q. And that is Articles 8 and 9 that Mr. Misetic put before you in
11 his questions.
12 MR. KAY: For the record, just so that everyone knows, the 1992
13 rules were repealed under Article 77 of the 1994 rules. We have no need
14 to go there and waste time.
15 Q. But it is Article 8 and 9 which govern the relationship between
16 the military police, under command and control. Isn't that right?
17 A. Indeed. And as I have explained, the relations that are
18 established in Articles 8 and 9 are also known as the professional line
19 and the operational line. And that can be found in 65 ter 1336, which is
20 explained on English page 130 of part 1 of the report.
21 Q. Let's just have a look at that.
22 MR. KAY: Shall we get up exhibit, then, 65 ter 3116 while we're
23 there, if it can be put on the screen.
24 Q. What is the date of this document?
25 A. It is October 1995.
1 Q. Yes. Well, that's -- that's after the liberation of Knin. So
2 this was passed in October 1995.
3 A. I --
4 Q. Was there anything in force before October 1995 called the direct
5 line and professional line?
6 A. I have not seen a specific regulation, but the command and
7 control relations that are established here, are -- did also exist, for
8 example, in the JNA. They also exist in other armies. So based on my
9 background, I concluded that even though the document dates from
10 October 1995, the information that is included in it also applied to the
11 situation that existed prior to October 1995.
12 Q. And on what date did it come into effect?
13 A. Well, if we have the corresponding English page of the B/C/S page
14 that is now visible on the screen, we may be able to determine that.
15 Q. After the 30th of October.
16 MR. KAY: Maybe that's a little bit difficult to achieve.
17 Q. But is that essential for to us look at, Mr. Theunens?
18 A. I thought you wanted to have, like, the exact date. But
19 regulation -- regulation dated from October 1995, and I have explained
20 why I consider that the information included in it also applies to the
21 situation prior to October 1995.
22 Q. And does it apply to the military police?
23 A. The command and control relationship that is established by
24 Articles 8 and 9 actually corresponds with what is in this regulation
25 described as the -- on the one hand, the professional line, or functional
1 line, and, on the other hand, the operational or direct line. And it
2 applies not only to the military police but also to specialized services
3 like SIS and political affairs.
4 Q. Thank you. Just turning to Articles 8 and 9, those are the
5 governing Articles relating to the issue of subordination of the military
6 police. Isn't that right?
7 A. That -- that is correct. I mean 8 --
8 Q. Thank you.
9 If we turn now to Exhibit D35. Before this became an exhibit in
10 the case, was this a document that you had seen in your preparations?
11 Exhibit D35 is the order issued by the Minister of Defence, Mr. Susak, on
12 the 6th of July, 1994.
13 A. No. I hadn't seen it prior to becoming an exhibit, but I have
14 reviewed and we discussed it, and we discussed it also with Mr. Misetic.
15 Q. Any reason why you hadn't seen it before it became an exhibit?
16 A. Yeah. The only conclusion I can draw is that it didn't pop up in
17 the searchs that I did, and I was very surprised by that.
18 Q. Just looking at those searches, is that how things happen, that
19 they pop up?
20 A. No, Mr. Kay, that is not how it happens. But just to explain,
21 for example, when you do searches on numbers of documents, for some
22 reason a number of translated documents put the text handwritten when the
23 number is handwritten, the number of the document. So when I would do a
24 search like, for example, here on 512?, 01?, 94?, 2897, that would not
25 give a hit in English if the number had been put in handwritten. Of
1 course, I checked that for as many documents as I could, but it is a
2 human process. Humans are not perfect unfortunately, and I am afraid
3 that this one of the document I missed due to imperfection.
4 Q. Would you agree it's an important document regarding the issuing
5 of orders to the military police?
6 A. It is an important document, I agree, but it doesn't change what
7 is stipulated in Articles 8 and 9 of P880.
8 Q. And what it deals with, because there were ambiguities in the
9 system of command and control over the military police units, set out a
10 procedure regarding the issuing of orders. Do you agree?
11 A. Indeed. For the largest party D35 reiterates was is stipulated
12 in Articles 8 and 9 of P880. Of interest, I mean, in addition to the
13 other paragraphs is paragraph 5 here which describes the procedure in
14 case of conflict of authority between an operational commander and a
15 military police unit commander.
16 JUDGE ORIE: Mr. Kay.
17 MR. KAY: Yes. This is it the last document in this section,
18 Your Honour, which --
19 JUDGE ORIE: We have one and a half minute left.
20 MR. KAY: We can deal with it.
21 Q. And in 10, if we look at page 2 in the English:
22 "All orders regulating the system of command of VP units or
23 manning of VP units in a manner contrary to the Rules ... shall cease to
24 be in effect."
25 Would you agree that that is a very important clause?
1 A. It is very important, and if I remember the document well, it
2 refers to a specific situation described in the introduction of this
3 order, whether there seems to have been a problem on the southern front.
4 Q. So it would be right under your rules of interpretation, as you
5 say, that this coming after the main rules, this would assist in
6 interpreting the main rules and was issued by the minister of defence for
7 that purpose?
8 A. That is correct. If I had known that we had the document, I
9 would have certainly included it in my report.
10 Q. Thank you very much.
11 MR. KAY: Your Honour, that completes this section of my
13 JUDGE ORIE: Thank you, Mr. Kay.
14 Mr. Theunens, I would like to issue the same instructions that I
15 did before; that is, not to speak to anyone about the testimony, whether
16 already given or still to be given. We would like to see you back
17 tomorrow at quarter past two
18 We adjourn for the day and will resume tomorrow, 2nd of December,
19 quarter past 2.00, Courtroom I.
20 --- Whereupon the hearing adjourned at 7.02 p.m.
21 to be reconvened on Tuesday, the 2nd day of
22 December, 2008, at 2.15 p.m.