Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12906

 1                           Tuesday, 2 December 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 2.21 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             Mr. Theunens, although it may sound like a routine, it is not.

13     But you're still bound by the solemn declaration you gave at the

14     beginning of your testimony.

15             Mr. Kay, are you ready to continue your cross-examination?

16             MR. KAY:  Thank you, Your Honour.

17                           WITNESS:  REYNAUD THEUNENS [Resumed]

18                           Cross-examination by Mr. Kay: [Continued]

19        Q.   Mr. Theunens, good afternoon.

20        A.   Good afternoon, Mr. Kay.

21        Q.   Can we look at a document now, 65 ter 2618.  And just to brief

22     you on the subject that we're going to go through, we're going to look at

23     various documents, pre-Operation Storm, relevant to the Knin garrison, as

24     it was set up under Major Gojevic, all right?

25        A.   Yes, thank you.

Page 12907

 1        Q.   The first document is dated 1st of March, 1994, and we can see

 2     that it was a temporary assignment of Major Gojevic, as acting commander

 3     of the Knin garrison HQ.

 4             If we turn to page 2 of the English, we see that Major Gojevic

 5     was the commander of the Knin Home Guard Battalion.

 6        A.   Yes, that's correct.

 7        Q.   And you remember that yesterday in our brief hour and a quarter,

 8     we looked at a document that referred to the Knin garrison being set up

 9     under the organisational order of work in the garrison, the particular

10     districts that the garrison -- Knin garrison was going cover, and it

11     referred to the Home Guard Battalion.  You recollect that?

12        A.   I do.

13        Q.   Thank you.  And you see that Major Gojevic is the acting

14     commander of Knin garrison.

15        A.   Yes, I do.

16        Q.   Yes.  Thank you.  That just sets the scene.

17             Shall we go to the next document, which is 65 ter 4399.  This is

18     a document which actually has typing errors on the front page in the

19     English.  I'll warn the court.

20             While it is coming up, may we admit the previous document into

21     evidence, please, Your Honour.

22             MR. WAESPI:  No objection, Mr. President.

23             JUDGE ORIE:  Mr. Registrar.

24             THE REGISTRAR:  Your Honour, that becomes Exhibit D994.

25             JUDGE ORIE:  D994 is admitted into evidence.

Page 12908

 1             MR. KAY:  Ah, we've got an improved translation from the original

 2     document that was in the 65 ter list, so no worries.

 3        Q.   This is the 10th of November, 1994, some nine months before

 4     Operation Oluja.  Do you see that?

 5        A.   Yes, indeed, and I have also included this and the previous

 6     document in part 1 of the report, English page 99.

 7        Q.   Exactly.  That's why I didn't ask whether you had seen them

 8     before.

 9             And this document, nine months before Oluja, assigns people to

10     various positions, and we can see that on the page, that a number of

11     appointments are made.

12             So you would agree with me, if we turn to page 3 of the English

13     that this is an attempt to start the establishment of the Knin garrison.

14     Is that right?

15        A.   I haven't seen any documents indicating that Major -- that

16     General Gotovina or anybody else appointed another -- or a commander to

17     the Knin garrison at an earlier moment.  So based on the documents I

18     reviewed, I agree with -- with your suggestion.

19        Q.   Yes.  Because we know that the first appointment of the first

20     document that we looked at arose as a result of the order dated the --

21     February 1993 to ensure continuity of work and command in the Split

22     Military District, and these are the first appointments that are made.

23     Agreed?

24        A.   Yes, I do.

25        Q.   And you'll notice there on the third page of the English we have

Page 12909

 1     Knin DB which refers to Knin Home Guard; isn't that right?

 2        A.   I don't see it, but DB should stand for, domobranska, and then

 3     battalion, so the Home Guard Battalion.

 4        Q.   Yes.  And we know that Major Gojevic was the Knin Home Guard

 5     commander.

 6        A.   Yes, commander of the Knin Home Guard Battalion.

 7        Q.   Yeah.  I don't know whether you can just deal with this general

 8     matter then.  Nine months before Operation Storm, some personnel being

 9     assigned to this new position of the Knin garrison.  Agreed?

10        A.   Yes.  According to these documents and as you have mentioned, the

11     document appointing Gojevic refers to the February 1993 order, so that

12     would suggest that he is the first acting garrison commander for the Knin

13     garrison.

14        Q.   In your report, you pointed out a number of functions that

15     Major Gojevic undertook, and we will be looking at each and every

16     document, and made various comments about the kind of tasks that

17     Major Gojevic was undertaking.

18        A.   That is correct.  And that can be found on English page 69 of

19     part 1 of the report.

20        Q.   Yes.  And we will going to those and having a look at them

21     because those tasks that you were pointing out, weren't they actually

22     tasks that Major Gojevic was doing as the Knin Home Guard commander but

23     using his new title as the Knin garrison commander.  The actual tasks

24     themselves didn't fit with the duties and responsibilities of a garrison

25     commander.  We'll be looking at them in a moment, but I'm putting it to

Page 12910

 1     you in the round to see if that is something that you were aware of when

 2     writing your report.

 3        A.   One can indeed conclude that the tasks I have derived from the

 4     documents I reviewed which can be found on English page 69, part 1 of the

 5     report, do not correspond with the tasks that are listed under

 6     paragraph 54 of D32.  The main reason for that obviously is that the Knin

 7     garrison is not located in its establishment area, and therefore cannot

 8     carry out the duties one would expect it to implement because there is no

 9     garrison area at that stage.

10        Q.   Thank you.  Let us also look, and we will go it those documents

11     in a moment, but what the position was with the other garrisons within

12     the Split Military District, because you make a number of comparisons in

13     your report, don't you, concerning what the Split garrison commander did

14     and what his powers were?

15        A.   I have indeed included documents that provide information on the

16     activities of the commander of the Split garrison; in particular, in the

17     area of maintaining order and discipline, as it is foreseen in the

18     doctrinal documents establishing the duties of garrison commanders in

19     that area.

20        Q.   And would it be right to say that you have included those

21     documents of comparison with the Split garrison commander to draw a

22     parallel as to what the Knin garrison commander should be doing?

23        A.   Not exactly.  The documents I mentioned in the previous reply can

24     be found on English page 175, part 1 of the report, and I have used these

25     documents to illustrate how a garrison commander, in that -- in this

Page 12911

 1     case, the Split garrison commander, carries out his duties in the area of

 2     maintaining order and discipline.  I have not drawn a comparison or a

 3     parallel, as you call it, with what the acting commander of the Knin

 4     garrison was doing in that area.  One of the reasons being that I didn't

 5     have specific documents on how the commander, or acting commander, of the

 6     Knin garrison was implementing his duties in the area of maintaining

 7     order and discipline prior to Operation Storm.

 8        Q.   And if there are no documents on that, that indicates he was

 9     doing nothing.

10        A.   No, Your Honours.  The fact that I don't have documents does not

11     mean that nothing was done.  I mean, the documents can exist but are not

12     available to the OTP.  Maybe there were no document, maybe the documents

13     were destroyed, maybe he did nothing.  So it is a possibility, but I

14     don't think we can draw a simple conclusion as the one you are

15     suggesting.

16        Q.   Let's see, shall we, and see who is right.

17             MR. KAY:  Can we go to the first document that I wish to produce.

18             May the document we've just looked at be admitted into evidence,

19     Your Honour.

20             MR. WAESPI:  No objections.

21             JUDGE ORIE:  Mr. Registrar.

22             THE REGISTRAR:  Exhibit D995, Your Honours.

23             JUDGE ORIE:  D995 is admitted into evidence.

24             MR. KAY:  Can we look at 2D07-0042.

25        Q.   This is a document dated the 16th of February 1995 --

Page 12912

 1             JUDGE ORIE:  Mr. Kay, may I first seek some clarification on a

 2     previous ...

 3             The 10th of November documents which was --

 4             MR. KAY:  Yes.

 5             JUDGE ORIE:  -- on our screen a minute ago, you wanted to turn to

 6     page 3 of the English.

 7             MR. KAY:  Yes.

 8             JUDGE ORIE:  In my version, I have got only two pages, I think,

 9     if I'm --

10             MR. KAY:  Your Honour --

11             JUDGE ORIE:  -- correct.  So therefore I wonder if have I the

12     wrong document in front of me.

13             MR. KAY:  Your Honour, I remember I pointed out that I was using

14     a document that had a typing error on it --

15             JUDGE ORIE:  You say a previous version may be [Overlapping

16     speakers] ...

17             MR. KAY:  A previous version.

18             JUDGE ORIE:  Thank you.  Please proceed.

19             MR. KAY:  Yes.  Your Honour is quite right.  It is now a two-page

20     document correctly typed.

21        Q.   2D07-0042.  First of all, Mr. Theunens, is this a document that

22     you have seen before?

23        A.   I don't think so, because otherwise I would have included it in

24     my report, and I have no recollection that I included this document in my

25     report.

Page 12913

 1        Q.   You certainly didn't.  Shall we just start at the top of the

 2     left-hand corner, first of all.

 3             You notice the stamp and Republic of Croatia, Ministry of

 4     Defence, Croatian army Main Staff, garrison command, Split.

 5             Shall we deal with one matter in your report that you mentioned

 6     that indicated to you that General Cermak had some higher authority

 7     within the system, and that concerns the Knin garrison having above its

 8     title:  Croatian army Main Staff.

 9             Do you recollect that part of your report?

10        A.   Yes.  That is in the second part, English page 258.  But I have

11     not drawn the conclusion you are suggesting in your question.

12        Q.   Could you read out what you say so that we are not ambiguous

13     about it.

14        A.   Okay.  So the title is:  4, Relations Between the Split Military

15     District Command (Gotovina) and the Knin garrison Command (Cermak), 6th

16     August to October 1995.  Shall I also read out the introduction, or

17     directly --

18        Q.   Just read out what you wrote about the stamp.

19        A.   Okay.

20             "(A), introduction, the functional relationship between Cermak

21     and Gotovina while Cermak is the commander of the Knin garrison is not as

22     clear-cut as what is set out in HV doctrine on the relations between

23     garrison commanders and MD Commanders."

24             And then I have a subtitle (B).  So (A) is the introduction.  (B)

25     is the next title, that is Cermak's point of view.  I have then a

Page 12914

 1     paragraph 1:

 2             "The written orders or other documents Cermak issues during his

 3     tenure of commander of the Knin garrison, discussed here above, do not

 4     make reference to the Split MD, but mention only the 'Croatian army

 5     Main Staff' as the superior command."

 6             Then there is a footnote.

 7             The next sentence:

 8             "On 8th of August a Split Military District unit stamp is issued

 9     to Cermak, following the order by Colonel -- General it should have been,

10     Colonel General Ante Gotovina."

11        Q.   Let's just stop there.  That's all we need now.  But you will

12     notice here that the Split garrison command is headed in the same way.

13        A.   That is correct.

14        Q.   And every single garrison command is also headed in the same way,

15     be they from Imotski [phoen], Benkovac, Zadar, Sinj, is headed the same

16     way?

17        A.   I'm not sure for all the other garrisons.  We would have to look

18     at documents.  But I agree with you that, for example, 65 ter 5781 and

19     5782 which are documents issued by the commander of the Split garrison do

20     not mention the Split Military District in their heading, and -- yeah,

21     indeed, that's -- corresponds with what you're saying.

22        Q.   We should be picking up a few more examples on our way.  But it's

23     -- it's right, then, that the point you were making in your report is

24     wrong.

25        A.   I do not entirely agree, because I find it interesting in the

Page 12915

 1     context of -- of discussing the relations between Generals Cermak and

 2     Gotovina, to see that based on the documents I reviewed, General Gotovina

 3     orders to issue a Split Military District stamp to General Cermak.

 4             I have not drawn any particular conclusion on the fact that the

 5     heading in the left top or the letterhead of the orders and reports

 6     issued by General Cermak do not mention the Split Military District, but

 7     I --

 8        Q.   Can I just stop you there.

 9        A.   Yes.

10        Q.   Why didn't you mention in your report that the Split garrison

11     also had the same heading, that the Zadar garrison has the same heading,

12     so that it wasn't giving an impression that the Knin garrison was somehow

13     different?  Why didn't you point that out to these Judges?

14        A.   Because I hadn't seen any documents indicating that

15     General Gotovina ordered to hand over or to hand out a stamp with

16     mentioning of Split Military District to these other garrisons.

17        Q.   It's nothing to do with the stamp.  It's to do with the heading:

18     Main Staff.  Please don't try and divert the attention, Mr. Theunens.  It

19     is to do with that sentence about the Main Staff.  Not the stamp.  The

20     stamp is entirely different.  The stamp is the number, 3231.  It's about

21     the heading:  Main Staff.

22        A.   I -- I see your point, and if the wording as it is in the report

23     now is misleading, then I'm willing to amend it in order to avoid any

24     misunderstandings on that aspect.

25        Q.   Thank you very much.  I think you have corrected it --

Page 12916

 1             JUDGE ORIE:  It's not entirely clear to me now, Mr. Theunens.  I

 2     do understand that orders from other garrisons, not Knin garrison, have

 3     the same letterhead.  You were asked why you did not point at this.  It's

 4     not clear to me whether you would draw similar conclusions as you did,

 5     right or wrong, in relation to the Knin garrison, because, if so, there

 6     would be no reason to refer to the others being exactly the same and

 7     justifying the same conclusions.

 8             If, however, that would mean something different for you,

 9     especially in relation to the Knin garrison, then I understand the

10     question why you did not clarify that.  So it's not entirely clear to me

11     at this moment.

12             THE WITNESS:  Mr. President, I will try to clarify it.

13             I was under the understanding when I saw the order by

14     General Gotovina for the stamp that this was a stamp that could be used

15     for the letterhead in the reports and orders, the letterhead used by the

16     Knin garrison.

17             Following Mr. Kay's clarification, I realize that was probably a

18     wrong conclusion from my side, i.e., that the stamp, Split Military

19     District, or the unit stamp Split Military District, was not intended for

20     the letterhead used by the Knin garrison in its written communication.

21             JUDGE ORIE:  So I have to relate your observations primarily to

22     the heading in the report which says:  Cermak's point of view; that the

23     fact that Mr. Cermak was not using the stamp issued to him has no

24     significance, although you suggested that it had some significance.

25             Is that --

Page 12917

 1             THE WITNESS:  That is correct.  Because I was under the erroneous

 2     understanding that the stamp had relevance for the letterhead, but after

 3     clarification the stamp was not to be used in the letterhead but for

 4     other purposes now --

 5             JUDGE ORIE:  The say the clarification is what one would find in

 6     the letterhead of other garrisons.  Have you verified that, or have you

 7     just accepted that from Mr. Kay.

 8             THE WITNESS:  I checked on a -- actually on one document -- no,

 9     at least two documents from the Split garrison, and there indeed there is

10     it no reference made to the Split Military District.  I'm willing of

11     course --

12             JUDGE ORIE:  I'm not asking you.  I'm just trying to verify for

13     myself exactly on what basis you made this distinction and what it

14     actually means here.  I now do understand.

15             Please proceed, Mr. Kay.

16             MR. KAY:  I'm grateful to Your Honour.

17        Q.   Let's look at the letter that is written, because I have asked

18     you certain questions about the functioning capacity that would have been

19     possible from the Knin garrison, and we see on the 16th of February, 1995

20     this letter, which is from the Split garrison commander, Mr. Zoricic.  If

21     we go to page 3, we can see that, and then can we go back to page 1.

22             MR. KAY:  With Your Honours' leave I'm trying to enable as much

23     information to come before the court in that way.

24             Can we go back to beginning now as we see that this is from the

25     garrison commander, Colonel Zoricic, whom you had referred to in

Page 12918

 1     cross-examination by Mr. Misetic.

 2        Q.   He has written to the chief of the Main Staff, General Bobetko at

 3     that time, and the subject is on the functioning of the Split garrison.

 4             And it says:

 5             "In practice, the Split garrison has still not been completely

 6     put into operation, especially in establishing command, cooperation,

 7     coordination, and security of complete work, order, and discipline in the

 8     garrison."

 9             If we just stop there for a moment.  You agree that the Split

10     garrison, of course, was an established entity at a garrison that was in

11     existence within the Split Military District.

12        A.   Yes, I agree.

13        Q.   It's not the Knin situation.

14             We can see that he refers to the order with which it was

15     established, that the work of the garrison shall be based on the rules of

16     service, and he refers to certain problems in practical work and that

17     commanders are obliged to define concrete tasks.  He says:

18             "It has not been done so far."

19             And that's relevant to those questions I've asked you about

20     Major Gojevic's preparations in advance.  Do you understand?

21        A.   Well, this document addresses the functioning of the Split

22     garrison.  It does not address the functioning of the Knin garrison.

23             JUDGE ORIE:  I do understand Mr. Kay uses it is as a comparison

24     to the stage of development of the operations of a garrison.  Was that

25     clear to you?

Page 12919

 1             I'm just checking whether you understood the question as I

 2     understood it.

 3             MR. KAY:  Absolutely, Your Honour.

 4        Q.   You remember yesterday I showed you a document dated the 20th

 5     June 1995, 28th of June, 1995, where we saw current manpower for Knin

 6     garrison was three.

 7             Do you remember that?

 8        A.   I remember.  But I'm just -- I mean --

 9        Q.   We're going through every paragraph in this letter, by the way,

10     so you can see what the Split garrison was facing.

11             JUDGE ORIE:  I had some concern whether Mr. Theunens exactly

12     understood what you were aiming and give him an opportunity to tell us

13     what he apparently has on his lips at this moment.

14             THE WITNESS:  I do understand also from other documents; for

15     example 65 ter 5781 --

16             MR. KAY:  Shall we pull that up, then?  Because I want to see

17     what you're referring to.  Is it necessary for us to pull that up and

18     look at to see the point?

19        A.   Maybe I can just say what I want to say and then you decide

20     whether you want to see the document or not.  Because I can do it in two

21     lines.

22             65 ter 5781 and 5782 are actually the cover page and a report

23     called, Records Of The Work And Disciplinary Analysis Meeting of the

24     Split garrison, dated May 1995, where --

25        Q.   We'll be looking at all these.  Don't worry.

Page 12920

 1        A.   Okay.

 2        Q.   Just follow me, Mr. Theunens.

 3             JUDGE ORIE:  Mr. Kay, it's -- that's good guidance for the

 4     witness.  At the same time, Mr. Theunens, if there's anything in the

 5     course of what Mr. Kay puts to you, if there's anything missing, if you

 6     just make a small note that you want to draw attention to a certain

 7     matter, and then after we have finished a chapter of the

 8     cross-examination, you will be given, by Mr. Kay -- I take it, you will

 9     take the initiative, Mr. Kay, to give you an opportunity to add anything

10     that has not been dealt with and you consider to be important.

11             Because if we continue to say that you want to say something, and

12     Mr. Kay says don't be afraid, it will be there, then that might create

13     some unrest which better be avoided.

14             Please proceed.

15             MR. KAY:  Thank you, Your Honour.

16        Q.   We'll go -- if you follow my route, Mr. Theunens, it's not a

17     document you've seen before, and I suggest you read it and you think

18     about it.

19             So let's go through what he says in February 1995, six months

20     before Operation Storm.

21             Next paragraph:

22             "Commands are obliged to provide garrison commands with all

23     necessary material and means in order to enable efficient work in the

24     garrison.  It has not been done either."

25             Next paragraph :

Page 12921

 1             "Commanders are obliged to control work, order, discipline in the

 2     garrison ..." refers to a quarterly analysis.

 3             "Something similar has never been done in Split garrison,

 4     established 1993."

 5             Let's go to page 2.  He says, in his view, the Split garrison was

 6     not established on the basis of the organisational order.  It's a

 7     question I have put to you about Knin.

 8             "Another practical problem is the authority of the garrison

 9     commander, garrison control officer, and garrison duty officer.  I have

10     no authority over military police, and I do not even cooperate with them,

11     since the garrison institution has been ignored by the 72nd Military

12     Police Battalion commander.  Without the assistance and possibility of

13     using military police, it is impossible to reach the required level of

14     order and discipline."

15             Let's just stop there.

16             That's a very important matter, don't you think, in relation to

17     the evidence that you have been submitting to the Court concerning the

18     institution of the garrison.  Would you agree?

19        A.   It is important, but I do consider that this information should

20     change any of the conclusions I draw in relation to relations between

21     garrison commanders and military police because the conclusions I draw

22     applied to different situations.

23             And if you want, can I draw your attention to -- I mean for the

24     situation prior to Storm, to 65 ter 5626, whereby Generals or

25     Colonel Zoricic asks the 72nd Military Police Battalion, if I'm not

Page 12922

 1     wrong, in March 1995 to provide manpower for the monitoring as well as

 2     the maintaining of law and order during a football game between Hajduk

 3     Split and --

 4        Q.   That's the next document we are going to look at.  I'm putting

 5     all the documents in, Mr. Theunens.  There is no concealment.  Your

 6     footnotes have been studied.  They have been then be analysed and further

 7     materials, mainly from the Prosecution, assembled, all right?

 8             But surely would you agree this paragraph and this letter would

 9     have had to have featured as an important explanation by you to the

10     Judges in this Court, in relation to the subject matter of your

11     expertise.  Do you agree with that?

12        A.   As I told you earlier, if I had had a document I would have

13     included it, and [indiscernible] 65 ter 5781 and 5782, but they basically

14     say the same about relations between the Split garrison commander and the

15     72nd Military Police Battalion, and these two 65 ters numbers refer to a

16     document of May 1995 and are included in the addendum of my report.

17        Q.   When he says he has no authority over the military police, that

18     is because those laws that we looked at yesterday do not, in fact, give

19     him power to order the military police.  That's right, isn't it?

20        A.   Your Honours, I would disagree with that interpretation because

21     if indeed the garrison commander had no powers over the military police,

22     he would not address the chief of the Main Staff to discuss that problem

23     because it is a non-existing problem.  It is only because he -- he sees

24     that the laws and regulations are not being implemented, that as one

25     would do in the military, he -- the garrison commander, consults in this

Page 12923

 1     case, the most senior officer, i.e., the chief of the Main Staff, to

 2     inform him of the problems he is facing in -- with the aim of having

 3     these problems solved.

 4             JUDGE ORIE:  Mr. Theunens, let me try to understand your

 5     testimony in relation to this question.

 6             Mr. Kay asks you whether you would agree with him that the

 7     garrison commander says that he has no authority over the military

 8     police, and Mr. Kay suggests to you that -- that that is because the

 9     legislation in force doesn't give him such powers.

10             Your answer is about another matter.  Your answer is about

11     someone who complains that he sees all kind of problems which he can't

12     solve because he has no authority over the military police.  Isn't it,

13     that is your answer.

14             Now that can mean two things.  First it is wrong that I have no

15     authority over the police; or I have no authority over the police, could

16     someone do something in order to resolve these problems because I can't,

17     isn't it?

18             Now everything whether right or wrong comes down to whether he

19     has these powers under the existing legislation, and that appears to be a

20     question which you have not answered.

21             So let's first look at the formal legislative framework and see

22     whether that any power is granted to a garrison commander, any exercise

23     of authority over the military police.  That's the question.

24             THE WITNESS:  Article 9 of P880 does not mention the garrison

25     commander.  So that is correct.

Page 12924

 1             However, it states that in addition to the military district

 2     commander, commander of the navy or commander of the air force, the

 3     military police is for the implementation of the regular military police

 4     tasks subordinated to the highest -- excuse me, to the highest HV officer

 5     in the area.

 6             MR. KAY:

 7        Q.   By function.  The translations were amended, Mr. Theunens.  It's

 8     by function.  There was an old translation before the Court, and it was

 9     amended during the testimony of the witness -- after the witness Dzolic.

10        A.   I'm willing to accept that.  I was surprised that I am only

11     informed of that now.  But, anyway.  Now from other documents I have

12     seen, for example, the document about the football game, I agree it is

13     only one document, but it suggests that a garrison commander, i.e., the

14     Split garrison commander in March 1995 can request the military police to

15     provide him with assistance in order to maintain order and discipline in

16     the city during a football game.

17             JUDGE ORIE:  I do understand that Mr. Kay will take to you that

18     document and request order, authority, might be an issue to be discussed

19     there, but I --

20             But therefore you say, on the basis of Article 9 of which

21     apparently the translation you worked with is not a correct one and that

22     seems to be agreed upon by the parties, Mr. Waespi, from what I

23     understand.

24             MR. WAESPI:  I will check that.

25             JUDGE ORIE:  Yes.  You will check that.

Page 12925

 1             Yes, from the reference to the highest -- let me just ...

 2             MR. KAY:  Article 9 is in the rules concerning the military

 3     police, Your Honour.

 4             JUDGE ORIE:  Yes.  The highest HV officer, that's for you, and

 5     you're now informed about the translation not being fully correct, that's

 6     for you the basis to say that there is some basis in the law for the

 7     exercise of authority.  That's an answer to Mr. Kay's question.

 8             Please proceed, Mr. Kay.

 9             MR. KEHOE:  Well, that is totally wrong, Mr. Theunens.

10             JUDGE ORIE:  [Overlapping speakers] ...  just wanted to

11     establish.

12             MR. KAY:  [Overlapping speakers] ...

13             JUDGE ORIE:  At least it answers your question and that was my

14     first question.  The answer would be about what you asked the witness.

15             MR. KAY:

16        Q.   Article 9 doesn't make the garrison commander more senior by

17     function to other commanders of brigades, battalions, Military Districts,

18     whatever, does it?  The garrison commander is way down in the scale.

19     You're bluffing, Mr. Theunens, aren't you?

20        A.   Mr. Kay, I think that you should review my answer because I have

21     never made any suggestions about the level of the garrison commander

22     anywhere in the scale.

23        Q.   It was implicit in your answer to His Honour Judge Orie that,

24     under Article 9, the commander of the military police would report to the

25     garrison commander and that that would mean that what Mr. Zoricic,

Page 12926

 1     Colonel Zoricic, was saying was wrong in law.

 2        A.   My interpretation of this paragraph here on the relations

 3     Colonel Zoricic has with the military police, to me, shows that the lack

 4     of authority he has over the military police is not as a result of a

 5     total absence in the law of -- sorry of a total absence of a basis for

 6     such authority in the regulations but is due do his -- due to the

 7     situation is he facing, in particular, his relationship with the

 8     commander of the 72nd Military Police Battalion.

 9        Q.   We've got many more documents to come, so I'm not going to stay

10     further on this, because the reporting line will be a matter we'll be

11     looking at, at one of the occasions over the next few days.

12             Let's just have a look at further matters here.  Under proposal

13     of the solution, so what you said about him taking up the matters of

14     authority is being followed by him to a very high level, wouldn't you

15     agree?

16        A.   Yeah, I agree because I would expect Colonel Zoricic to first

17     address the matter with the commander of the Split Military District, as

18     the latter is according to the doctrine responsible for the order and

19     discipline in the garrison.

20        Q.   Of course you don't know whether he has or hasn't.

21        A.   No.  On the basis of that document or this document, I mean what

22     I have seen from the document, we cannot draw that conclusion.  There

23     doesn't seem to be a reference to an earlier discussion by

24     Colonel Zoricic and General Gotovina of the matter.

25        Q.   You can't -- draw any conclusions about it from this document,

Page 12927

 1     and if we look at it in number three of his proposals he says -- and I

 2     want you to look at this very carefully as it is directly relevant to

 3     those matters you were talking about before you'd studied this document.

 4             "The garrison commander shall be given authority and one military

 5     police company in the city of Split area shall be subordinated to him."

 6             He is asking for powers over the military police.  He is saying,

 7     That is a solution to the problem.  Wouldn't you agree?

 8        A.   Indeed.  And it is important to note that he suggest to have a

 9     military police company subordinated to him on a permanent basis, which

10     goes even further than being in a position to exercise authority over the

11     military police.

12        Q.   He asks for authority and to have a company subordinated to him.

13             Let's move then --

14             MR. KAY:  May this document become an exhibit, Your Honour,

15     unless the Court is wanting to look at that time further.

16             MR. WAESPI:  No objections.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Your Honours, that becomes Exhibit D996.

19             JUDGE ORIE:  D996 is admitted into evidence.

20             And, Mr. Theunens, you specifically pointed at the fact that a

21     military police company subordinated to him in a -- on a permanent basis,

22     which suggests that, although on a not permanent basis, he exercised

23     already authority over the military police.  Where do we read that, or

24     what makes you conclude that what he asks for is not being granted

25     authority at all, but authority -- but then on a different basis.  Where

Page 12928

 1     I do find this in the wording of this letter?  Because I read under 3:

 2             "The garrison commander shall be given authority, and one

 3     military police company in the city ... shall be subordinated to him,"

 4     which suggests that he has no authority and that he has no unit

 5     subordinated to him.

 6             Nevertheless, you give it a different explanation.

 7             THE WITNESS:  What I'm trying to say, Your Honours, is that in

 8     his proposal, Colonel Zoricic says that he should be given authority,

 9     i.e., should be allowed to issue orders or make requests to the military

10     police.  When I say "make requests," it is, for example, to ask for

11     manpower for specific task related to the maintaining of order and

12     discipline.  So that, for example, Colonel Zoricic can ask well, Can I

13     have a section of military policemen for a week or for a few days for

14     this specific activity I foresee, which is aimed at maintaining order and

15     discipline within the district, or within the garrison, I apologise,

16     whereby he requests the manpower from the command of the military police

17     battalion, but it doesn't mean that he needs to have an entire company

18     subordinated to him on a permanent basis.  Why?  Because if he would have

19     a company subordinated to him -- and I add the word permanent because his

20     request does not include the mentioning of temporarily or for a specific

21     time-period.  He just says subordinated to the garrison command, well, if

22     he has his own military police company, he doesn't have to send such a

23     request for manpower to the battalion commander, i.e., the commander of

24     the military police battalion.  That's why I made the distinction.

25             JUDGE ORIE:  Yes.  But my question was, where in this document or

Page 12929

 1     where in any related document we find support for this analysis of --

 2     because what you say is to be given authority means to be given authority

 3     to make requests.

 4             Now, the difference -- but that is -- I'm not a native-speaking

 5     person, but authority and requesting, usually people are -- do not need

 6     much authority to make a request.  I can make requests to anyone as long

 7     as it's not -- so therefore you give a very specific meaning to these

 8     words where I'm asking you on what basis exactly.

 9             THE WITNESS:  Your Honours, when we go to the top of the page ...

10             JUDGE ORIE:  Yes.

11             THE WITNESS:  The second paragraph :

12             "Another practical problem is the authority of the garrison

13     commander.  I have no authority over military police."

14             And then Zoricic says a bit further, "since the garrison

15     institution has been ignored by the 72nd Military Police Battalion

16     command.

17             Of course everybody can make a request, but in the military when

18     you make a request --

19             JUDGE ORIE:  Let's then first analyse that sentence.

20             MR. KAY:  Yes.

21             JUDGE ORIE:  Because it reads as follows:

22             "I have no authority over military police, and I do not even

23     cooperate with them, since the garrison institution has been ignored by

24     the 72nd Military Police Battalion commander."

25             Which at least raises the following issue:  Whether the -- the

Page 12930

 1     fact that the garrison institution was ignored had an effect on

 2     cooperation, cooperation alone, or also on authority.  If someone ignores

 3     that I exist, he might not be inclined to cooperate with me because he

 4     just ignores my existence.

 5             With authority it might be different that if I ignore the

 6     institution of the garrison, if the garrison would have authority over

 7     me, that it's just a matter of enforcing that authority.

 8             So that sentence is -- leaves open quite a few questions.  For

 9     example, what makes you conclude that it's rather about the authority

10     than about the cooperation that the ignoring of the institution of the

11     garrison is relevant?

12             THE WITNESS:  It was not -- or I don't think I drew that

13     conclusion.  What I'm trying to explain is the word "authority" in this

14     context means that when the district commander -- excuse me, the garrison

15     commander sends a request to the commander of the 72nd Military Police

16     Battalion for assistance, for example, manpower for a particular

17     activity, authority means that actually the request will be granted

18     except if there are really good reasons for the 72nd Military Police

19     Battalion not to grant the request.

20             JUDGE ORIE:  So it is not formal authority but authority

21     informally that to take serious what someone says who is in a certain

22     position.  Is that --

23             THE WITNESS:  No, Your Honours.  Maybe it has to do with the

24     difference between military language and civilian language, but in the

25     military language if you make a request, in this context, i.e., from the

Page 12931

 1     garrison commander to the military police, the garrison commander expects

 2     the military police to fulfil that request.

 3             Now, we see a reference to that garrison commander considers that

 4     he is being ignored by the 72nd Military Police Battalion.  In this

 5     particular context of the request, I conclude that actually the 72nd

 6     Military Police Battalion commander is not even answering to the request,

 7     doesn't even send a reply, doesn't say, well, impossible, or possible,

 8     or, well, you have no doctrinal basis or legal basis for making this

 9     request.  Based on this paragraph here, it seems that the commander of

10     the 72nd Military Police Battalion simply doesn't answer.

11             Now, authority can also mean that, again -- and that will be

12     based on a request, the military police battalion can assist the garrison

13     commander in other areas.  Not specifically with the provision of

14     manpower, but, for example, if the commander of the garrison -- and that

15     is actually what is explained in 5782.  He invites representatives of the

16     units in the Split garrison to attend the regular meeting or analysis.

17     It's a monthly meeting.  The monthly meeting on the analysis of the

18     disciplinary situation.

19             JUDGE ORIE:  I think we're moving away a bit from my question at

20     this moment.

21             I leave it to Mr. Kay to continue his cross-examination.

22             MR. KAY:

23        Q.   We looked yesterday at D34, which set out the fact, and that's

24     the 27th of August 1993 organisational order regarding work, order and

25     discipline at garrison HQs, Exhibit D34, paragraph 2:

Page 12932

 1             "The garrison headquarters do not have an operational function

 2     and the right to issue orders to Croatian army units, except precisely

 3     prescribed authorities regarding work, order, and discipline at the

 4     garrison headquarters outside of barracks," et cetera.

 5             And that is quite clear as to the authority or power of the

 6     garrison commander, in relation to the issuing of orders, that they have

 7     to be precisely prescribed authorities, and as I questioned you

 8     yesterday, those are the regulations, the laws of the garrison concerning

 9     order, discipline, do not cross the bridge at more than 30 kilometres an

10     hour, other life of the garrison rules that are required of the garrison

11     commander.

12             Isn't that right, Mr. Theunens?

13        A.   That is correct.  But one of the -- I mean, the basic principle

14     if you impose rules, that is, that you are also in a position to verify

15     whether they are abided by.  And the military police is one of the tools

16     you can use as a garrison commander to verify as to whether your orders

17     which apply to the disciplinary situation outside of the barracks are

18     abided by, yes or no.

19             And that requires that you have what is here described as

20     authority over the military police.  For example, that you request the

21     military police to post a few men at your bridge to verify the speed at a

22     specific date for a specific time-period which is something else than

23     having a military police company subordinated to you.

24        Q.   You can request that, but the military police commander may

25     accept it or reject it.  Correct?

Page 12933

 1        A.   That is correct.  But as I explained earlier, in the situation as

 2     it is prescribed by the rules, the commander of the military police - in

 3     this case a battalion - will have to explain why he rejects or why he

 4     cannot fulfil the request.  That exactly explains also why

 5     Colonel Zoricic is addressing the chief of the Main Staff with the

 6     particular problems he is facing with the command of the 72nd Military

 7     Police Battalion.

 8        Q.   If we turn to page 7 of Exhibit D34 and look at paragraph 17, it

 9     was one I didn't produce before the Court yesterday in the interests of

10     time, but maybe this will be the moment to -- to look at it, because it

11     says -- there we are.

12             Under regulating order, discipline, and supervision of conduct of

13     military personnel, how the garrison commander shall lay down those

14     instructions and what they cover:  Working hours; time of exchange of

15     internal service organs; conduct of military personnel in public places;

16     type of supervision of conduct at the ZM through patrols, et cetera;

17     restricted locations; use of public transport, et cetera.  Exactly the

18     type of issues that I was putting to you yesterday afternoon about

19     regulating behaviour to ensure good order of the armed services within

20     the garrison area.  Isn't that right?

21        A.   That is correct.  And I would just like to draw the Trial

22     Chamber's attention to the fact that for the fourth bullet, type of

23     supervision of the conduct of people in the garrison area, mention is

24     made of military police patrols.

25        Q.   Yes.  No mention of orders but just how the instructions are to

Page 12934

 1     be laid down.  Isn't that right?

 2        A.   That is correct.  But as I explained in -- in the military -- an

 3     order or an instruction without mechanisms to verify its implementation

 4     will not be very effective.  I mean, if you're talking about your bridge

 5     and speed limits, if you don't check whether that order is implemented

 6     and if you don't -- cannot convince those using the bridge that indeed

 7     there with can be speed checks and that indeed there will be measures

 8     taken against those who violate the 30-kilometre speed limit, I think we

 9     can be pretty sure that there will be many violations of the 30-kilometre

10     speed limit.

11             JUDGE ORIE:  It seems to keep you apart.  And that is -- the

12     first one is the authority to lay down instructions and the authority to

13     supervise the enforcement of such instructions, which you put on the same

14     level and you, Mr. Kay, you do not say that much at this moment but at

15     least that is not included as Mr. Theunens suggests.

16             MR. KAY:  Yes.

17             JUDGE ORIE:  I also noticed that that's specific, and that is

18     what Mr. Theunens draws your attention to, that the military police

19     patrols as subject of a regulation on the type of supervision is

20     mentioned here.

21             MR. KAY:  Yes.

22             JUDGE ORIE:  I mean -- the points seem to be clear to me in this

23     respect at this moment on this subject.

24             MR. KAY:  Thank you, Your Honour.

25             JUDGE ORIE:  Please proceed.

Page 12935

 1             MR. KAY:

 2        Q.   Let's just look at this, Mr. Theunens, as you told us were an

 3     experienced military officer.  What we're looking at here are peacetime

 4     matters when the garrison and the military structure is in circumstances

 5     of being non-operational.  Isn't that right?

 6        A.   I would not agree with that because we have, of course, the

 7     appointment of General Cermak to the position of the commander of the

 8     Knin garrison, and then I think it's at the end of -- I mean, the formal

 9     end of Operation Storm, even though there are still skirmishes with

10     isolated enemy resistance pockets, as well as operations along the border

11     of Bih, that an order given by General Cervenko to the military district

12     commanders to establish the territorial organisation, i.e., to have

13     garrison commanders appointed and the structures established in what is

14     described as the newly liberated areas, and I remember the appointment of

15     -- I believe it is captain or Major Ashley Minak to the position of --

16        Q.   Benkovac.

17        A.   Yes, exactly.  Thank you.

18        Q.   We'll be looking at that.

19             Do you think you are being unduly legalistic and relying on

20     analysis and leaving common sense about how the military functions in

21     giving this Court your opinions about those matters?

22        A.   Actually, Your Honours, I have tried to adopt the opposite

23     approach, when drafting my report and also providing answers during my

24     testimony.  It is correct that I took the regulations as a starting

25     point, but then the documents that describe the situation as it was

Page 12936

 1     during Storm are actually, in my view, more important as a basis to draw

 2     conclusions upon than purely the regulations.

 3             Looking at the regulations without looking at their

 4     implementation may be useful for what you call a legalistic discussion

 5     but is not a purpose of my report.

 6        Q.   Have you discussed this with more experienced military officers

 7     than yourself or garrison commanders or people with experience of these

 8     situations, as to what should be expected of a garrison in these

 9     circumstances.  Have you discussed it --

10        A.   Could you please explain what you mean by "these circumstances."

11        Q.   Have you -- have you discussed whether in a conflict

12     circumstances where a garrison is not set up, where the rules of the

13     garrison are shaped for peacetime rather than the circumstances we have

14     in Knin in August, September, October, and November 1995?  Have you taken

15     advice?  Yes or no?  It's simple.

16        A.   Yeah, but you're making a number of suggestions.

17             MR. KAY:  [Overlapping speakers] ...

18             JUDGE ORIE:  I think Mr. Kay puts a question whether you have

19     taken advice.  Whatever his suggestions are in his question talking about

20     legalistic or being lawyers, the Chamber, of course, is not unaware of

21     what he suggests, but he doesn't seek confirmation of the suggestions.

22     He seeks an answer and whether you did seek advice, yes or no.  And how

23     to deal the suggestions I think, just as Mr. Kay said several times to

24     you, wait, just trust me, that I had not overlook anything, same is you

25     don't have to be afraid that the Chamber will overlook suggestions which

Page 12937

 1     were not directly put to you for confirmation.

 2             THE WITNESS:  During the compilation of my report, I have not

 3     taken specific advice or sought specific advice as to the functioning of

 4     garrisons in peacetime or wartime.

 5             I do wish to mention that I attended a conference in Oslo in

 6     September which is, of course, after the filing of the report where there

 7     were members also of the British military, military prosecutors, and

 8     other people who deal with legal issues in the armed forces and where we

 9     had discussions -- I mean, informal discussions about the difficulties

10     military commanders face when they have to maintain law and order -- I

11     mean, military discipline, sorry, maintain military discipline among

12     their forces during different types of conflicts because I think it is

13     also important to make a distinction between the different types of

14     conflicts we are looking at.

15             MR. KAY:

16        Q.   The question is about the garrisons.  There are many big issues

17     you discuss elsewhere, Mr. Theunens, please confront the issues because

18     it is the garrison that I'm concerned with.  That's what's on trial here.

19     You have you taken advice about whether the rules concerning garrisons

20     apply more to a peacetime situation, a regular set of circumstances,

21     rather than the situation we have here.

22        A.   Your Honours, I have not taken, as I mentioned specific advice as

23     to the functioning of garrisons.  I wish to add that the documents -- I

24     mean, the Croatian doctrinal documents I reviewed do not indicate that

25     there is a difference, as suggested by Mr. Kay, in the functioning or

Page 12938

 1     role or other procedures that apply to garrisons.

 2        Q.   Thank you.  Let us turn to 65 ter 5626, which is the document you

 3     wanted to -- to look at dated 27th of February, 1995, and arises 11 days

 4     after the letter to the Chief of Staff by Colonel Zoricic.

 5             And there we see the stamp again at the top left-hand corner

 6     about the Main Staff.  The 27th of February.  This is a subject:  Order,

 7     to the 72nd Military Police Battalion, to the commander:  "In order to

 8     control the conduct of military personnel in public places and to improve

 9     discipline, the Split garrison commander shall personally exercise

10     control during the day during the football match with the assistance of

11     the military police and supervisory officer."

12             Note the heading order, but note what comes next:

13             "You are requested to provide two military policemen to assist

14     the Split garrison commander, Colonel Zoricic, and the supervisory

15     officer on the 1st of March."

16             We can see the terms there.  The next page which we have no need

17     to look at is signed Split garrison commander, Colonel Zoricic.

18             First of all, do you know if Colonel Budimir, the commander of

19     the 72nd Military Police Battalion, did provide the officers to

20     Colonel Zoricic.  Do you know?

21        A.   No, Your Honours, I have not seen any documents indicating

22     whether this order was abided by or not.

23        Q.   Secondly, do you agree that, in fact, if the Split garrison

24     commander was to make any order, if he was to make any order, right or

25     wrong, instead of issuing it against the commander of the 72nd, he should

Page 12939

 1     have issued it against the commander of the 1st Company of the Split

 2     Military Police.

 3             That would be the appropriate method, don't you agree?

 4        A.   It depends of the relation that exists between the Split garrison

 5     command and the 1st Company of the Split Military Police.

 6        Q.   So you can't answer the question.

 7        A.   On the basis of the -- the manner how the question is asked now,

 8     no, I can't.

 9             I can only assume that Colonel Zoricic, as a senior officer, knew

10     why he addressed the order to the commander of the 72nd Military Police

11     Battalion and not as you suggest to the commander of the 1st company of

12     the battalion.

13        Q.   Having looked at the previous document, dated the 16th of

14     February, and then this document, dated the 27th of February, are you

15     aware whether Colonel Zoricic was, in fact, trying to push an argument

16     with the commander of the 72nd, Colonel Budimir?

17        A.   I -- I do not think that this document allows to -- to draw such

18     conclusions.

19        Q.   Let us look at the terms of the document.  It's headed order.

20     You yourself have said several times to Mr. Misetic, one document doesn't

21     make to establish that something is right, that if you take one document,

22     that it proves necessarily the case.  Do you agree?

23        A.   Of course.  It depends of the nature of the document and the

24     contents, and if the contents is -- is appears to be incoherent with what

25     is established in the other documents discussing the same issue or

Page 12940

 1     related issues, then there should be a good reason or one would have to

 2     investigate why one particular document appears to indicate or suggest a

 3     totally different situation from what has been established in other

 4     documents.

 5        Q.   There is no other document like this that you have seen.  Is that

 6     right?

 7        A.   If you mean like --

 8        Q.   No.  Just yes or no, otherwise we're going to be here following

 9     Christmas, I can promise you.

10             JUDGE ORIE:  Mr. Kay, that is however -- if you say a "document

11     like this," could be anything, could be about documents -- about football

12     matches, could be documents signed by Mr. A or Mr. B, could be documents

13     in which an order is presented as a request.  Could be anything.

14             So, therefore, the witness may inquire with you what you meant by

15     "like this."

16             MR. KAY:  I think the witness understands, Your Honour, the

17     question --

18             JUDGE ORIE:  Apparently, if from his answers it becomes clear

19     that he does understand, then, of course, we'll ask ourselves what the

20     reason is that he further inquires into the matter.

21             Mr. Theunens.

22             THE WITNESS:  Yes, Mr. President.  If the question is whether I

23     have seen other orders by Colonel Zoricic to the 72nd Military Police

24     Battalion, then, indeed, the answer is no.

25             JUDGE ORIE:  Did you see any documents in which a garrison

Page 12941

 1     commander orders request bits for assistance of military police?

 2             THE WITNESS:  I have --

 3             JUDGE ORIE:  To assist them in this task.

 4             THE WITNESS:  I have, Your Honours, and these are, for example,

 5     documents that or orders or requests issued by General Cermak when he is

 6     the commander of the Knin garrison between the 5th of August, 1995, and

 7     approximately November 1995.

 8             JUDGE ORIE:  Please proceed, Mr. Kay.

 9             MR. KAY:  Thank you.

10        Q.   Looking at this document, it's, in fact, not a proper order, is

11     it, because he says, You are requested.

12        A.   In my view, the use of the term "requested" is a reflection of

13     what has been discussed first in relation to Article 9 of the MP rules

14     and then, more specifically, what was addressed by Colonel Zoricic under

15     the -- in the paragraph on his authority over the military police.  And

16     he could have said, You are ordered.  He says, You are requested, but

17     above it, it says order, and in the subject it also says order.

18             So for a military person this should be clear, whether he

19     requests or whether he orders, the result Zoricic wants to achieve is the

20     same.  He wants the military police to provide him manpower to assist

21     with the task described in the document, and he further more, the use of

22     the term military policemen shall report to the supervisory officer at

23     the garrison command at 1700 hours is another indication that he expects

24     the military police to do something he has requested/ordered.

25        Q.   There it is.

Page 12942

 1             Let move now, having admitted it into evidence.

 2             MR. KAY:  May this go into evidence, Your Honour.

 3             MR. WAESPI:  No objections.

 4             JUDGE ORIE:  Mr. Registrar.

 5             THE REGISTRAR:  As Exhibit D997, Your Honours.

 6             JUDGE ORIE:  D997 is admitted into evidence.

 7             MR. KAY:  I think it's the break, Your Honour.

 8             JUDGE ORIE:  Yes.  It's at least a quarter to 4.00.

 9             We will have a break, and we will resume at ten minutes past

10     4.00.

11                           --- Recess taken at 3.46 p.m.

12                           --- On resuming at 4.12 p.m.

13             JUDGE ORIE:  Please proceed, Mr. Kay.

14             MR. KAY:  Thank you, Your Honour.

15        Q.   Mr. Theunens, the next document we can look at is P1120, which is

16     the sort of document you wanted to look at, dated the 27th of February,

17     1995.  And it's a subject:  Annual analysis of the state of order, work,

18     discipline and unusual incidents.

19             We can see on the first page that it's to be conducted for the

20     Split Military District in reviewing 1994 in the barracks in Sibenik.

21             Are you familiar with this document?

22        A.   I am, or at least with similar documents talking about the same

23     analysis which is to be held.

24        Q.   Yes.  That's why I said you'd have an opportunity to look at

25     these documents.

Page 12943

 1             And it is setting up what will take place in the meeting, who's

 2     to be there, and due to shortage of time, if we can just go to page 6 in

 3     the English.  I don't think it bears any further examination other than

 4     the fact it is just a meeting arranged by which the Split Military

 5     District reviews the subject matter for the year.  Obviously very

 6     important, but the point of me bringing it to your attention, because

 7     it's linked with other questions I have asked --

 8             MR. KAY:  Can we go to the page before the programme there.  On

 9     mine it's page 6.  There we are.

10        Q.   Just there, you'll notice the participants.  You'll notice

11     left-hand corner, Zborno Mjestos, the garrisons who are listed to attend.

12     No ZM Knin.  Do you see that?

13        A.   I see that.

14        Q.   Yes.  Indicating that Knin garrison out of the loop in relation

15     to this conference.  Would you agree?

16        A.   I think there's also follow-up document in relation to this

17     conference, just to check whether they are included there.  Because

18     sometimes, even though it shouldn't be, but sometimes addressees are

19     missed, but, yeah, I have no reason not to believe what you are saying.

20        Q.   You hadn't noticed this, then, I take it?

21        A.   I have no specific recollection.

22        Q.   Thank you.

23             MR. KAY:  Your Honour, may this document become an exhibit.  Your

24     Honour, I have many documents to go through, and I'm using my judgement

25     on what I need to go into for the purposes of my cross-examination.  The

Page 12944

 1     Court can look at the full content, and I'm trying to give a general

 2     description on the way if that meets with the Court's approval.

 3             JUDGE ORIE:  Yes.  If we get lost, we will let you know.

 4             MR. KAY:  Thank you.  I'm grateful.  And may that be made an

 5     exhibit.

 6             MR. WAESPI:  [Overlapping speakers] ...

 7             MR. KAY:  Thank you, sorry, too much talking.

 8             THE WITNESS:  Your Honour, I think if we check P1121.

 9             MR. KAY:  We're going to that now.  Exhibit P1121, please.

10        Q.   And P1121, which is a report to the commander personally about

11     that conference that we have looked at, and an unsatisfactory level of

12     order and discipline was established primarily concerning, we can see

13     there, what is listed.

14             Page 2 -- ah, leave this page here because it gives the flavour

15     of the document about the experiences, lessons, and views to be obtained.

16             If we now go to the last page where I answer your question.  Knin

17     ZM not included within the people circulated with this information.

18     Would you agree?

19        A.   I agree.  And the Benkovac garrison is not included either, as is

20     --

21        Q.   Don't worry --

22        A.   As is Dubrovnik, Imotski, Vrgorac garrison, they're not included.

23        Q.   We don't need to go further into it.

24        A.   Okay.

25        Q.   Thank you.

Page 12945

 1             MR. KAY:  If we can look at the next document, 65 ter 3438.

 2        Q.   This is a document dated the 22nd of March, 1995.  And you see

 3     it's from military post Knin 3231.  And we've no need to go to the end

 4     yet, but it's from Major Gojevic, and it's to the Split Military District

 5     Command and it's his report on jobs and duties in the period between

 6     November 1994, March 1995, and it's a document with which you're

 7     familiar; is it not?

 8        A.   Indeed, I have included that report --

 9        Q.   Yes.

10        A.    -- in my report.

11        Q.   Again, this concerns steps taken by him.  And if we turn to page

12     2, we can see the kinds of jobs.  And turning to page 3.  And it's

13     something that I raised with you earlier in cross-examination, about, in

14     fact, how these reports actually indicate more what he is doing as the

15     commander of the Knin Home Guard, rather than the garrison commander of

16     Knin, which you agreed with.  Isn't that right?

17        A.   Yes.  But I would also like to draw your attention to

18     paragraph 6 --

19        Q.   That's why I have put it there, Mr. Theunens.

20        A.   Because it is obvious that -- I mean, the tasks you first showed,

21     listed under paragraph 4, appear to be more in relation to his duties as

22     commander of the Knin Home Guard Battalion, which from the military point

23     of view is logical because there is no functioning Knin garrison command

24     at that stage as Knin is still under Serb control.  However, as we can

25     see in paragraph 6, for example, Major Gojevic is attending a training

Page 12946

 1     course, training course related to activities of garrison headquarters.

 2        Q.   One matter I'm interested in, in relation to your report when you

 3     identify the tasks that acting commander of the Knin garrison,

 4     Major Gojevic is doing, you refer to collecting intelligence, you refer

 5     to the duties he is doing as commander of the Knin Home Guard, as to why

 6     you didn't make it clear in your report that those were not tasks and

 7     duties of a garrison commander but consistent with his position as the

 8     commander of the Knin Home Guard, why you didn't make that distinction

 9     but chose to point out features as to what he was doing pre-Oluja.

10        A.   I did not include any specific conclusion on the aspects you

11     indicate because I considered it logical that the acting commander of the

12     Knin garrison could not implement the tasks determined in the regulations

13     on the garrisons commanders at a stage when the Knin garrison was

14     actually not existing, i.e., there was a formal structure, but it was

15     located somewhere else.  And as you can see from paragraph 54, the duties

16     are -- the duties of a garrison commander are mainly territorial, i.e.,

17     maintain order and discipline outside the barracks, well, Gojevic could

18     not implement these duties as long as the Knin garrison had not been

19     established.

20        Q.   The purpose of question --

21             JUDGE ORIE:  Mr. Kay, it would assist me if you put to the

22     witness why he described a certain matter and not pay attention to

23     another relevant element in your view.  It would assist me to know

24     exactly on what page to find that so that we can --

25             THE WITNESS:  It's page 69, on part 1 of the report.

Page 12947

 1             MR. KAY:  Yes.

 2             JUDGE ORIE:  Thank you.

 3             MR. KAY:  I was just putting it, Your Honour.

 4             THE WITNESS:  And basically this is under the heading

 5     "Relationship Between Garrison Commanders and Military District

 6     Commanders," where I have an introduction referring to D33, and then I

 7     explain, okay, we see that garrison commanders are required to keep the

 8     Military District Commanders to whom they are required to keep the

 9     military district commanders to whom they are subordinated informed of

10     their activities, and I list the reports Major Gojevic sends to

11     General Gotovina prior to Operation Storm.

12             MR. KAY:

13        Q.   Yes, it interests me why you referred to gathering information,

14     intelligence, participation in operations, and you didn't make clear that

15     that was not part of the garrison command's duties?

16        A.   Well, I have answered that question.  In my view, as long --

17     based on the tasks of a garrison commander as established in doctrine on

18     the one hand, on the other hand, at that moment in time, the Knin

19     garrison is not operating as a -- as a regular garrison, because Knin is

20     under the control of the Serbs.  The logical --

21        Q.   The point is whether you agree that this is potentially

22     misleading, in relation to garrison commanders, because the heading

23     concerns the relationship between garrison commanders, Military District

24     Commanders, and then these features of an operational nature are put in

25     your report.  And anyone reading this may be led to believe that that is

Page 12948

 1     part of their tasks and duties.

 2        A.   I don't think so, Your Honours, because I have explained these

 3     tasks at an earlier stage in my report, referring to the doctrinal

 4     regulations.  I have also explained at an earlier stage in my report that

 5     the Knin garrison is not operating as a regular garrison, i.e., it is

 6     still located in Gospic, pending its move.  Same applies to the Benkovac

 7     garrison.  So I don't think that this is misleading.  And, now, if anyone

 8     is mislead, it was certainly not my intention.

 9        Q.   Thank you.  The next document after this is made an exhibit,

10     please, Your Honour.

11             MR. WAESPI:  No objections.

12             JUDGE ORIE:  Mr. Registrar.

13             THE REGISTRAR:  Exhibit D998, Your Honours.

14             JUDGE ORIE:  D998 is admitted into evidence.

15             MR. KAY:  65 ter 5624.

16        Q.   This is a document dated the 3rd of April, 1995.  It is from

17     Colonel Zoricic again, and it's a call to a meeting and a requirement or

18     call to a meeting.

19             "All independent unit commanders are called to attend a regular

20     monthly meeting at which ... orderliness, operations, and discipline

21     shall be analysed."

22             Is this a document you are familiar with?

23        A.   I'm not sure whether I have seen this specific document, but the

24     5718 and 5782 deal with a similar issue.

25        Q.   Yes.  Again, this is a meeting organised by the garrison

Page 12949

 1     commander on the subject that it speaks to.

 2             As part of the work of that garrison commander, he was able to

 3     undertake in Split at that time.  Do you agree?

 4        A.   Yes.  And it's not question just a question of being able to

 5     undertake.  This falls among his duties as established in the 1993

 6     regulations.

 7             And I would also like to mention that this was the copy that was

 8     sent to the 72nd Military Police Battalion, as we can see from the stamp

 9     on the right top corner.

10        Q.   Yes.  Why I put the question this way is that all these documents

11     that you produce on this matter in your report are all pre-Operation

12     Oluja.  Did you appreciate that?

13        A.   I mean the report -- the report is established in two parts.  The

14     documents on the way how the garrison commands are operating and how

15     garrison commanders are implementing these -- their tasks prior to

16     Operation Oluja are all included in part 1 of the report.

17             I have not come across, for example, a document by

18     Colonel Zoricic on a similar meeting during or after Operation Oluja.  If

19     I had come across such documents, I would have included them, probably in

20     the second part of the report.

21        Q.   Why I put the question that way is because of those questions I

22     asked you about earlier today concerning the different situation, after

23     Operation Oluja, to the situation that existed pre-Operation Oluja, and

24     the examples in your report of the running of a garrison in a particular

25     way, all your footnotes giving these types of documents are all

Page 12950

 1     pre-Oluja, no documents of this nature post-Operation Storm.

 2             Isn't that right?

 3        A.   I have answered the question.

 4        Q.   Thank you.  And if we turn to page 2 of this document, we will

 5     see, again, the Knin ZM and other garrisons not included within the list

 6     of units to attend.

 7        A.   But I think that is logical because we're talking here about an

 8     invitation or an order for an invitation by the commander of the Split

 9     garrison, and as garrisons are -- can be defined as territorial commands,

10     there is no reason for the commander of the Split garrison to invite the

11     commander of another garrison to the meetings he holds to analyse the

12     disciplinary situation in his garrison.

13        Q.   Thank you very much.

14             The next document is --

15             MR. KAY:  May that document be made an exhibit.

16             MR. WAESPI:  No objections.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Exhibit D999, Your Honours.

19             JUDGE ORIE:  D999 is admitted into evidence.

20             MR. KAY:

21        Q.   Exhibit 65 ter 1809, which is dated the 22nd of April, 1995, and

22     it's a report, again, from Major Gojevic from the Knin garrison HQ, as

23     its heading.  His anticipated work plan for April.  We've dealt with the

24     types of issues here in previous questions.

25             MR. KAY:  If we turn to page 2, in the middle of the page.

Page 12951

 1        Q.   The appointment of Major Marko Gojevic necessitates the

 2     employment of additional personnel at the garrison.  And IN point 2, Knin

 3     garrison HQ sent archive material to the Military District, and they're

 4     organizing their document after they've sorted them.

 5             Again, this isn't covered in your report about the difficulties

 6     setting up these Knin garrisons, other garrisons, because of lack of

 7     personnel.  Do you agree?  You don't say, Look, the situation we have

 8     here is that garrisons started in 1993, they plainly face difficulties

 9     establishing themselves.  When Knin was liberated on the 5th of August,

10     the available evidence indicates that the previous acting commander of

11     the Knin garrison had not been able to establish a garrison command as a

12     functioning unit.  You don't address the issue like that, do you?

13        A.   No.  Because as I have explained, the Knin garrison prior to

14     Operation Storm cannot be defined as a functioning or regular garrison

15     because it is not located in its normal zone of activity, and the

16     municipalities that are to be covered by that garrison are still under

17     control of the Serbs.

18             So it wouldn't make, at least from a military point of view, make

19     much sense to establish a Knin garrison command which has no zone of

20     responsibility at that stage.  The zone of responsibility only exists on

21     paper, I mean, you have -- described in D33, Knin garrison covers the

22     municipalities of Knin, Nadvode, Kistanje, Ervenik, Orlic, Kijevo, and

23     Civljane.


25             Prior to Operation Storm, all these municipalities are under Serb

Page 12952

 1     control.  There are no units of the HV present in these areas so the

 2     duties, for example, listed under paragraph 54 of the 1993 regulation do

 3     not apply, because they cannot be implemented.

 4             I'm just looking at the question if --

 5        Q.   We've got the point on that --

 6        A.   Okay.

 7        Q.   And you have answered it for me.

 8             JUDGE ORIE:  Then please proceed.

 9             MR. KAY:  Thank you.  May this document be made an exhibit, Your

10     Honour.

11             MR. WAESPI:  No objection.

12             JUDGE ORIE:  Mr. Registrar.

13             THE REGISTRAR:  Your Honours, this becomes Exhibit number D1000.

14             JUDGE ORIE:  D1000 is admitted into evidence.

15             MR. KAY:  Your Honour, I have a series of documents in exactly

16     the same vein following this.  There is no need to go through them, in my

17     judgment.  I think the Court is aware of the issue and has heard the

18     witness's evidence on the matter, and it would be in the interests of

19     justice to save time, but I would like the documents to be admitted

20     because they go to my point.

21             JUDGE ORIE:  Then, of course, they become bar table documents, I

22     think the Chamber gave guidance as to how they should be introduced so

23     that the chamber knows what is to specifically pay attention to and a

24     brief description of -- and then a brief description of the content of

25     the document or the -- what the document is about, then this to be shown

Page 12953

 1     to the other party to see whether there are any comments on that, so that

 2     if we receive the documents that we have guidance.  And if, for example,

 3     a document is a ten-page document where you want us to focus especially

 4     on a subject dealt in the paragraph 6 and -- page 6 and 7, that we know

 5     where to primarily look at.

 6             So that guidance is still there.  And with this proviso in view

 7     of the fact that Mr. Waespi has expressed no objections, they can be

 8     admitted.

 9             MR. KAY:  Yes.  Your Honour, I was hoping to read out the 65 ter

10     numbers, as they're all on the same issue and have them made exhibits

11     straight away.

12             Is that possible?

13             JUDGE ORIE:  Well, reading out 65 ter numbers -- I think what the

14     Chamber wants, is that if documents are introduced into evidence without

15     by questioning a witness on a certain document, having drawn the

16     attention of -- of what the purpose is of bringing this to the attention

17     of the Chamber, that we have no objections as long as by other means, the

18     same aim is achieved, so as to say if it's a one-page document, then of

19     course just a description, Mr. X requesting support by military police

20     for football match or for boxing match, or whatever, then it is clear.

21     But if they are longer documents -- and just from the 65 ter numbers, we

22     cannot see whether they're longer documents or not, whether we need

23     specific guidance how to look at -- at this document for what purpose to

24     look at that document, then we might easily miss the point you want to

25     make with the documents.

Page 12954

 1             If they are in a series, I would not mind if I say six documents

 2     all the same, this is the purpose or this is the importance of the

 3     document, like garrison commanders, several garrison commanders reporting

 4     to headquarters or to whatever, so that we know what we are talking about

 5     and what to focus on, if we receive these documents.

 6             MR. KAY:  Thank you, Your Honour.  What I propose to do is refer

 7     to the transcript where the evidence is taken place, and I think that

 8     would be of additional help.  [Overlapping speakers] ...

 9             JUDGE ORIE:  There again I do not know whether these are one-page

10     documents, whether they're all invitations.

11             MR. KAY:  They're the same.

12             JUDGE ORIE:  I mean, looking at this document, it's --

13             MR. KAY:  Your Honour, we get the point --

14             JUDGE ORIE:  If you say they're all -- and let me now just ...

15             If you say these are all reports on the main, special, and

16     regular tasks completed prior to Operation Storm from various garrison

17     commanders or all of them by their Knin garrison headquarters, then we

18     know what you want.  Because that's the document which is in front of us

19     at this moment.

20             MR. KAY:  Yes.  Thank you, Your Honour.  We've taken on board

21     that guidance, and we will be dealing with it in that way.

22             JUDGE ORIE:  Yes.  If you get it in a short piece of paper

23     then --

24             MR. KAY:  Yes.

25             JUDGE ORIE:  Please proceed.

Page 12955

 1             MR. KAY:

 2        Q.   The next matter I am going to ask you about concerns the passage

 3     in your report where you refer to the Split garrison commander,

 4     Colonel Zoricic, issuing disciplinary proceedings against military

 5     personnel.

 6             JUDGE ORIE:  Page would be, Mr. Kay.

 7             MR. KAY:  Yes, Your Honour, linking up footnotes with documents.

 8     65 ter 5988, page 593, part 1.  Footnote 593, part 1 of the report, page

 9     175.  And it's:  Report on concluded disciplinary investigation.

10        Q.   And as you have footnoted it, the sentence you are concerned with

11     is:  "Garrison commanders have the authority to order disciplinary

12     investigations."

13             And you produce this document as to that fact.  Isn't that right,

14     Mr. Theunens?

15        A.   That is correct.

16        Q.   Did you appreciate that the subject of the disciplinary

17     investigation was, in fact, a subordinate within the Split garrison?

18        A.   I did.  And when I read again in my report, it could have

19     assisted to include that reference.  But I agree with you, that the

20     subject is a member of the Split garrison command.

21        Q.   And this is not the case of a wider use of disciplinary

22     investigations, which your sentence in your report might have led people

23     to believe.  Do you agree?

24        A.   Hmm, I don't agree, because for -- I mean -- the system is that

25     for every sentence, there is a footnote, and the references in the

Page 12956

 1     footnote show what the sentence is based on.

 2        Q.   It doesn't say that Petar Bilobrk, apologies to him for miss

 3     pronunciation of his name, was a lieutenant working at the Split garrison

 4     command, does it?

 5        A.   No.  And I agree with you as I said earlier that the specific

 6     indication could have been included, but it doesn't change what is -- or

 7     it doesn't affect what I put in the report.  Adding that he is a member

 8     of the Split garrison command would clarify or provide additional

 9     information, but doesn't change anything to the principle idea.

10        Q.   Let's have a look at that, shall we.

11             A disciplinary investigation may be conducted by a commander in

12     respect of his subordinates.  Is that not right?  Article 19 of the Code

13     of Military Discipline, exhibit number -- I don't have the exhibit

14     number, but it was 65 ter 1834, Article 19 of the Code of Military

15     Discipline.  Exhibit P1007 is the particular Article.  Isn't that right?

16        A.   I don't have the Article in front of me, but, I mean, it's in

17     line with the other contents of the -- of the Code of Discipline, P1007.

18        Q.   I'll read it out, no need to put it on the screen as we will lose

19     time:

20             "Superior officers shall decide the disciplinary responsibility

21     of their subordinates in accordance with prescribed procedure and shall

22     hand down disciplinary measures as authorised by this Code."

23             Isn't that right?

24        A.   Yes.

25        Q.   There is no order, Article, saying that the garrison commanders

Page 12957

 1     order disciplinary investigations.  That is a matter for the criminal

 2     section of the military police.

 3        A.   But when we look at the document on the screen, we can see by

 4     your decision, and "you" refers to the addressee, command of the Split

 5     garrison, I have been appointed to carry out an investigation in the

 6     violation of military discipline, and so on, and so on, and then the

 7     person who to conducted the investigation submits the report to the

 8     commander of the Split garrison.

 9        Q.   This is it not a disciplinary investigation of someone who is not

10     a subordinate of the garrison commander.  That is the point,

11     Mr. Theunens.

12        A.   Then your previous question doesn't count.  I think I have

13     mentioned twice during the past over the previous questions that indeed,

14     the entry in my report could have been clarified by adding disciplinary

15     investigations of their subordinates.  But of their, subordinates in my

16     view, doesn't change anything to the principle that based on this

17     document, the commander of a garrison can order a disciplinary

18     investigation.

19             And as I mentioned, I agree with you that I could have been more

20     specific.  I mean if I were to look at it again, I would probably add

21     "against members of their units" just to clarify it because it appears

22     that it has created some misunderstanding.

23        Q.   It is limited to the garrison staff who were subordinated --

24             JUDGE ORIE:  Mr. Kay, I think the matter is clear enough.  If I

25     read -- if I read 6 (A) and 6 (B) on page 175 which is apparently the

Page 12958

 1     issue we're talking about, and B starts with:  "In March 1995 the Split

 2     garrison commander Zoricic, for example ... "

 3             I understood "for example" to be a reference to 6 (A), which I

 4     would say limits --  they have the duty to issue rules on order ...

 5             Let me just see.

 6             6 (A) limits the behaviour of military personnel in the garrison.

 7     I understood this to be the garrison.

 8             MR. KAY:  Thank you, Your Honour.  It was pointed out me there

 9     may have been some ambiguities in this matter, in fact, from people

10     watching, and I wanted to make sure that the point was clear.

11             Thank you very much.  I have other documents going further into

12     Mr. Bilobrk at the garrison, but I have no need to produce those.

13             THE WITNESS:  Your Honours, I would just like to clarify that

14     6(A) is a reference to, as the footnote states, Article 52 of D32,

15     whereby the garrisons are defined as a geographic concept.  The area

16     covered by the garrison.  Whereas this specific document is a

17     disciplinary investigation of a member of the garrison command which is,

18     of course, much more restricted.

19             JUDGE ORIE:  So you would say 6(A) refers to issuing rules for

20     the whole of the -- could I say the territory of the garrison; whereas,

21     6(B), I then -- be, for example, then comes as a surprise, because taking

22     disciplinary action is, of course, something totally different from

23     issuing rules on -- on military discipline.  But the matter has been

24     clarified.  The example you give in (B) is the exercise of disciplinary

25     power limited to those working in the garrison staff.

Page 12959

 1             THE WITNESS:  Actually, the example refers to the -- the personal

 2     initiative by Colonel Zoricic to control the conduct of military

 3     personnel during the Ajax/Hajduk Split football game assisted by the

 4     military police, and then there's a full stop.  So the next sentence is

 5     the sentence we're dealing with.  And just to repeat, for example, is

 6     part of the first sentence under(B), and does not refer to the second

 7     sentence under --

 8             JUDGE ORIE:  So in (B) we find first an example of how the

 9     function to -- of being responsible, enforcing military discipline in the

10     garrisons was exercised in the specific example.

11             THE WITNESS:  Mm-hm.

12             JUDGE ORIE:  And then footnote 593 refers to a different matter

13     which is where disciplinary action was taken not as a -- by way of a

14     regulation or not by initiating supervision of certain conduct of larger

15     groups, but one specific example.  It's clear to me.

16             Please proceed.

17             MR. KAY:  Thank you, Your Honour.

18        Q.   That finishes that particular matter.

19             MR. KAY:  May that document be made an exhibit, Your Honour.

20             MR. WAESPI:  No objections.

21             JUDGE ORIE:  Mr. Registrar.

22             THE REGISTRAR:  Exhibit D1001, Your Honours.

23             JUDGE ORIE:  D1001 is admitted into evidence.

24             MR. KAY:  Can we go to document 65 ter 2304.

25        Q.   This is a document you're familiar with, Mr. Theunens.  It's

Page 12960

 1     dated the 10th of August, 1995.  It is P1134, Exhibit P1134.

 2             And we're now moving from pre-Oluja, Operation Storm, to

 3     documents post-Operation Storm.  And this is a document from the security

 4     and information service to the central command, signed by the assistant

 5     commander Zeljko Pavic.  You're familiar with this document, aren't you?

 6        A.   Indeed, Your Honours, it's included in my report, and it was also

 7     tendered during my testimony.

 8        Q.   Yes.  You went through various aspects of it.  Shall we go

 9     through to page 4.  Just look at the information at this date.  We see

10     that there is an -- a paragraph -- ah, we've got different numbering.

11             MR. KAY:  May we go to the previous page, please.  Previous one

12     to that; I'm sorry.  I'm looking at paragraph 3.

13        Q.   Relations and problems with UNCRO.  And we need the next page.

14     But we can just look at the last words there, with the arrival and

15     appointment of General Cermak.

16             MR. KAY:  If we go to the next page.

17        Q.   Commander of the Knin garrison.  "Direct contact was established

18     with UN members stationed in Knin."

19             In this document, there is an analysis by -- by SIS concerning

20     those first days after Operation Storm.  Is that right?

21        A.   That is correct.  But it also addresses the situation, for

22     example, when elements of the Split Military District enter Knin.  So

23     during Storm.

24        Q.   Yes.  I'm actually interested in after, because General Cermak

25     comes after, and some of those matters have been dealt with already.  But

Page 12961

 1     that is in paragraph 5 where that is referred to.

 2        A.   Your Honours, General Cermak is appointed on the -- on the 5th of

 3     August, and in my report I have included an order he issued already on

 4     the 5th, and formally Operation Storm finishes, I think, around the 9th

 5     or the 10th, just to clarify.

 6        Q.   We're going to be looking at that order on the 5th of August as

 7     -- have you analysed the date on that order and how it could have been

 8     issued on the date it say it is?  You're analyst.  Have you analysed it,

 9     yes or no?

10        A.   Yes.

11        Q.   The date?

12        A.   Yes.

13        Q.   Thank you.  We will look at it in due course.

14             It's clear from this report, if we turn to paragraph 11, page 9

15     of my document.  Yes.  There we are.

16             "According to our assessment, the establishment of civil

17     authorities started in a disorganised and euphoric manner.  There was no

18     coordination with the current military authorities in the town following

19     the arrival of civilian structures in Knin large groups of civilians

20     roamed the town without control posing a security threat.  The commander

21     of the Knin ZM is overburdened with many problems and is not able to deal

22     with them all successfully."

23             Again this goes to the issue that I put to you several times

24     concerning the ability of the Knin garrison to function properly as a

25     unit after Operation Storm.  Is there any reason why you didn't bring

Page 12962

 1     Their Honours's attention to this kind of information in your analysis?

 2        A.   Your Honours, this paragraph can be found on -- in part 2 of the

 3     report, pages 262 and 263.  In addition, I, of course, looked for

 4     documents showing General Cermak's views on his situation as the

 5     commander of the Knin garrison from the 5th of August till November 1995,

 6     and I have not come across a document in which General Cermak, for

 7     example, mentions that he has no ability to carry out his duties or that

 8     he lacks manpower, I mean, in significant numbers.  There is a document

 9     where he orders the reassignment of one officer of the logistics base of

10     the Split Military District to the Knin garrison command, but, again, I

11     haven't seen any documents by General Cermak in which he expresses

12     difficulties concerning the implementation of his duties, and I find that

13     an important observation.

14        Q.   Thank you.  That is already an exhibit.

15             MR. KAY:  If we can go to 65 ter 2305.  Exhibit D982.  A document

16     from the political activities department of Operation Group North.

17     Problems and shortcomings perceived following the liberation of occupied

18     areas.  And we can see the various problems that are set out on this

19     first page of the report, the various tasks that are being completed due

20     to non-existence of the communication system in Knin, it became

21     operational only today.  Our communication was impeded.  Instances of

22     lack of maintaining contacts and coordination.  Several individuals

23     performing the same work at the same time.  Problems with the civilian

24     bodies looking at the issues there.

25             If we go to paragraph 5, page 3 of 5.

Page 12963

 1        Q.   And these are matters that you brought out in your report about

 2     the problems being faced at the time.

 3             "Activities of all civil structures are mainly reduced to making

 4     use of the right moment for individuals's appearance in the media ...

 5     unsatisfactory coordination of civil authorities has its roots in the

 6     incapacity of the government's commissioner for Knin whose organisational

 7     ability is not credible.  He does not behave in accordance with the level

 8     of his responsibility, while, at the same time, he is involved in

 9     everything but his assignments."

10             And we see down at the bottom who this document is to be

11     delivered to.

12             These issues, Mr. Theunens, in these documents, which are

13     internal documents of the Croatian system, are very important in relation

14     to identifying responsibility, aren't they?

15        A.   Yes.  And this specific document is discussed on page 263,

16     part 2.

17        Q.   Yes.

18        A.   But from a military point of view, they're first and foremost

19     important to inform the commander about the problems that exist and to

20     encourage him to take action, if he is in a position to take action, or

21     if is he not a position or has the authority to take action, to bring up

22     these problems with those who are in a position to take action.

23             So of course they also allow to determine responsibility, but in

24     first instance such reports are intended to encourage the commander to

25     take appropriate measures in order to sort -- solve these problems.

Page 12964

 1        Q.   Isn't it important that in this report, the previous report that

 2     we've looked at, and another report to come, that there is no

 3     responsibility for problems laid at the door of Mr. Cermak?  Not a single

 4     criticism that, within the scheme of things of what is happening, that he

 5     is failing to do his tasks?

 6        A.   As I mentioned in my previous answer, this is not the first -- I

 7     mean, blaming people is not the first purpose of a military report, even

 8     though I agree with you, that is there is particular emphasis, for

 9     example, on Petar Pasic on members of the, call it, purely civilian

10     authorities, whereas in relation to General Cermak it is stated in P1134

11     that the command of the Knin garrison is overburdened with many problems

12     and is not able to deal with all of them successfully.

13        Q.   The previous document we looked at laid blame on the commanders

14     who lost control of their men when they entered Knin, and we looked at

15     that when you gave evidence a few days ago.  I have pointed here to the

16     civil aspect of it.

17             You have made a statement in your expert report that Mr. Cermak

18     is the most senior authority, civilian and military, in the area, and yet

19     we are looking at internal reports that do not mention him as having

20     failed in his responsibilities and duties on these matters that are being

21     criticised by these organisations.  Isn't that right?

22        A.   That is correct.  I mean --

23        Q.   Would you have considered it to be fair in the production of your

24     expert report to this Chamber to have pointed out that information to the

25     Judges?

Page 12965

 1        A.   I'm just reviewing page 262 to 264.

 2        Q.   The internal documents do not hold Mr. Cermak responsible for the

 3     problems that are happening.  Instead, they are sympathetic to him being

 4     overburdened.

 5        A.   That is correct.  And, of course, when we're talking about the

 6     aspect of responsibility, it is much easier to determine the

 7     responsibility of an operational commander if members of his units engage

 8     in the kind of activities that are described in paragraphs -- for

 9     example, 8 of this document, as -- I mean -- I'm talking now about P1134.

10             I agree with you that there is no specific, call it blame or --

11     blame laid on General Cermak in -- in 1134, and also the document on the

12     screen suggests the same.

13        Q.   Thank you.  Let us look at the next document, which is the third

14     in this series, Exhibit D810, dated the 13th August, 1995.

15             Again, from the department of political activity, the chief,

16     Major-General Tolj who writes a report on that date.  I believe this is a

17     report you are familiar with.  Is that right?

18        A.   I am, indeed.  And I'm just looking where I mention it in my

19     report.

20        Q.   It's in the same section that I have just been referring to.

21             MR. KAY:  If we turn to page 3.

22        Q.   You're familiar with this.  It's the passages concerning the

23     churches.

24        A.   Indeed.

25        Q.   And Mr. Misetic asked you questions.

Page 12966

 1             On page 3, we see that it is mentioned about fires being the

 2     largest a day or two following the entry of HV units into liberated

 3     villages.  Killing of cattle.

 4             If we go to page 5, foreign and local journalists are mentioned.

 5     The paragraph after that:

 6             "The work that has been done most poorly and which is of vital

 7     significance of the return of displaced persons is the rounding up of

 8     cattle.  At this juncture this should be one of the civilian organs of

 9     government's priority tasks.  In Knin itself, civilian authorities have

10     demonstrated weaknesses in organizing public utility services,

11     et cetera."

12             And we can see the text there.

13             "Some of their work had to be completed by Croatian army

14     services," which meant that they had to reduce some of their operation

15     tasks in this report to Major-General Tolj by the coordinator Colonel

16     Zelic.

17             Again, same issue:  The problems that being faced are frankly

18     expressed in these reports concerning law and order as well as crimes

19     that have been committed as well as problems, but none of them hold

20     Mr. Cermak responsible.  Isn't that right?

21        A.   That is correct.

22        Q.   But they do show a set of circumstances where it is

23     understandable that a man of pragmatism would be needed in Knin to

24     undertake tasks to get the city going.  Don't you agree?

25        A.   I agree, and in the document Zelic also states that "a number of

Page 12967

 1     incidents could have been reduced with better and more coordinated work

 2     between the civilian and military police and all structures of civilian

 3     and military government."

 4        Q.   Yes.

 5        A.   And I believe that the word "government" should be authority, but

 6     I'm not going to pretend to be a linguist here.  But military government,

 7     in my view, refers to military authority, and, yeah, that is in line with

 8     your question.

 9        Q.   Yes.  Knin is entered on the 5th of August, and it had been a

10     town within an area that had been very closed to the outside world since

11     1991.  Don't you agree?

12        A.   Yes.  And since the latter half of 1991, indeed, since the time

13     it was under Serb control.

14        Q.   It had been shut off from the outside world to a large extent.

15     Isn't that right?

16        A.   That is correct.  But as I mentioned yesterday, that does not

17     prevent those who are supposed to take over power in the area, be it

18     civilian or military authority or the military commanders whose units are

19     to operate in the area to do contingency planning prior to carrying out

20     operations in that area.

21        Q.   I quite agree.  And as you know, General Cermak was appointed on

22     the 5th of August and had not been responsible for any contingent

23     planning.  There's no evidence to that.  Isn't that right?

24        A.   I have not -- I mean we have mentioned that he was appointed on

25     the 5th.  I have not seen any documents as to his activities immediately

Page 12968

 1     prior to the 5th of August or his involvement in any contingency

 2     planning.

 3        Q.   I have got the documents as to what he was doing beforehand, and

 4     we will be looking at those, but you have given the answer on the other

 5     matter.  Thank you.

 6             Would you accept that there was a realization on this matter

 7     after Operation Storm by the Chief of Staff, the Main Staff of the

 8     Croatian army, just on this matter that they needed to be better

 9     organised and have an aerial command imposed, or imposed isn't the right

10     word to use, but better structures and organisation.

11             MR. KAY:  If we look at D559, Exhibit D559, which is the order

12     from General Cervenko who was the Chief of Staff at this time.

13        Q.   Is that what you were searching for?

14        A.   Indeed.  That is the order where General Cervenko mentions the

15     establishment of area or garrison commands.  It is mentioned on page 151

16     in part two of the report, and it's dated 14th of August.

17        Q.   Let's have a look at this, because the point you raise about the

18     lack of preparedness is something that I don't challenge.  14th of

19     August, 1995, successful completion of Operation Storm.  Conditions

20     created for the establishment and functioning of all aspects of

21     government of our state within its internationally recognised borders.

22     We see the order there.  The commands to the Military Districts being

23     required to prepare and carry out the following main tasks in their areas

24     of responsibility.  Protection of the state border.

25             MR. KAY:  Can we go to the next page.

Page 12969

 1        Q.   We can see the issues that are the concern of the Chief of Staff.

 2     If we go up from the bottom:  "Urgent establishment of an aerial command.

 3              Structure that must be enabled to efficiently carry out tasks of

 4     a logistical nature.  For this purpose, I particularly order:

 5     Immediately propose to the Chief of the Main Staff commanders and other

 6     personnel of the Military District commands in the liberated parts of the

 7     Republic of Croatia, who, by an order of the commander-in-chief, were

 8     assigned to the garrisons."

 9             And we see them named there and prescribed.

10             MR. KAY:  And if we turn to the next page, we see expedite the

11     clearing up of the liberated areas [sic].  We see in according with the

12     earlier order:  Continue collecting and inspecting war booty ...

13     warehousing ammunition ... assets, mines, explosives, logistics

14     facilities.

15             If we look through the rest of this document it is a

16     reenforcement and preparation of combat units and Home Guard units with

17     personnel, training of combat units.  Page 7 has the Split Military

18     District.  And then if we get to page 8, we see that it is signed by

19     General Cervenko and to whom it is sent.

20        Q.   And, of course, it is not sent to the Knin ZM?  Do you agree?

21        A.   That is correct.

22        Q.   Now if the Knin garrison was the superior military authority in

23     the area, this document would have been sent to it, wouldn't it?

24        A.   Not necessarily.  Only if the author of the order considered it

25     important for the Split garrison command to receive the order.  Excuse

Page 12970

 1     me, the Knin garrison command, I apologise.

 2             So if the author, i.e., the chief of the Main Staff, considered

 3     this particular order relevant for the Knin garrison command or had

 4     included instructions for the Knin garrison command --

 5        Q.   Let's look at it.  In your report at paragraph 49, you say that

 6     General Cermak is the superior military and civil authority in the area.

 7     And we're now looking at a document, and there are many documents, aren't

 8     there, from the Chief of Staff issued before this period, none of which

 9     go to General Cermak.  Isn't that right?

10        A.   That may well be correct.  But it also depends on the contents of

11     documents.  Orders are sent to those who are intended to implement the

12     order.  If the Knin garrison command is not among the organs or units or

13     structures who are to implement the specific order, there is no need for

14     them to receive the order.  But again we would have to look at specific

15     documents in order to be able to provide a more specific answer.

16        Q.   There are many documents in this case, and the Judges will be

17     able to look at them and take this point on board.  I'm not going to go

18     through every document now to make my point.  But this document I

19     selected because it refers to the garrisons and your barrister or counsel

20     in presenting this matter referred to your Article 49 about Mr. Cermak

21     being the superior authority, and all can you come up with is not

22     necessarily it would -- that it would not be sent to the superior

23     authority, General Cermak.

24        A.   Your Honours, the conclusion included in paragraph 49 of the

25     executive summary is based on a review of the documents that address

Page 12971

 1     General Cermak's activities while he is the commander of the Knin

 2     garrison.

 3             As to why the order, D559, by General Cervenko, is not

 4     specifically sent to the commander of the Knin garrison, I have answered

 5     that question.

 6             JUDGE ORIE:  Mr. Kay, I'm a bit puzzled by your language where

 7     you said your barrister or counsel, was that in relation to this expert,

 8     because I'm not aware of this expert being anything else than appearing

 9     as an expert before this court called by the Prosecution.  The

10     Prosecution is represented by counsel for the Prosecution.

11             MR. KAY:  Yes, I apologise, Your Honour.  It's just that

12     Mr. Theunens works for the OTP.

13             JUDGE ORIE:  Please proceed.

14             MR. KAY:  And --

15             JUDGE ORIE:  Yes.  But that should not be confused.

16             MR. KAY:

17        Q.   There we are.  That's that document that deals with that.  And

18     let's go to the document that follows on, 65 ter 2093.  So the document

19     D559, Exhibit D559 we've been looking at which you are familiar with, has

20     a follow-up document, 65 ter 2093.

21             Do you recognise this document?

22        A.   I do.  It is the order by General Gotovina, which follows from

23     the order of General Cervenko, and it is discussed on pages 157 and 158

24     of part 2, and I'm referring to English pages.

25        Q.   Thank you.  This is dated the 20th of August, 1995.  It's from

Page 12972

 1     General Gotovina.  Order on the operative deployment of HV units and

 2     commands.  And we can see on page 1, it actually sets out, if we can

 3     scroll down the page, the same matters that General Cervenko did:

 4     Protection of the state border.

 5             MR. KAY:  Can we go to the next page.

 6        Q.   Routing of lagging enemy groups and mopping up.  Guarding of

 7     roads and communications.  Urgent establishment of a territorially based

 8     command, which shall be enabled to efficiently execute the logistics

 9     tasks.  For that purpose, I hereby command.  The Home Guard, in

10     cooperation with the personnel affairs to submit proposals to him for

11     commanders and other officers for the garrison commands, which, in the

12     liberated areas, which have been defined as garrisons, Benkovac, Knin,

13     mentioned.

14             Next page:

15             "To speed clearing up the terrain."  Dealing with the logistics.

16     And just stopping there, that is because the garrison is primarily a

17     logistics base, as a concept in the military.  Isn't it, Mr. Theunens?

18        A.   No.  That is not correct.  The Split Military District has a --

19     has its logistics base.  It's 306th Logistics Base, and even though the

20     garrison can assist in logistical issues or matters, logistics is

21     according to the doctrine, both in Croatian armed forces as well as in

22     other armies, not -- predominantly an organisation that is preoccupied

23     with logistics.  And if you want, I can explain why I draw that

24     conclusion.

25        Q.   No.  You have given your answer.

Page 12973

 1             And the next page, page 4.  We're dealing here of -- to

 2     establishing an efficient defence of the state border, area of

 3     responsibility.  We can see on page 4 orders for the protection of

 4     facilities of interest to the state, military and economy.  Operative

 5     reserve being deployed in barracks, and it's to be delivered to -- and if

 6     we look on the next page, we can see the recipients of this which do not

 7     include the Benkovac and Knin ZM garrisons.  Do you agree?

 8        A.   That is -- I agree.

 9        Q.   And if, as you describe, Mr. Cermak was the superior commander in

10     Knin, he would have received a document like this, wouldn't he?

11        A.   I believe I used the wording the highest military/civilian

12     authority, which is not necessarily the same as the superior commander.

13     And I think the point you raise illustrates what I called that the -- the

14     lack of clarity in the relation between Generals Gotovina and

15     General Cermak, i.e., that the relation between the two of them,

16     professional relation, is not as clear-cut as is established in the

17     doctrine, whereby, according to doctrine, garrison commanders are

18     subordinate to Military District Commanders.

19             JUDGE ORIE:  Could you please point at where you use that --

20             MR. KAY:  In paragraph 49.

21             JUDGE ORIE:  Yes, 49, I see that.  When you are describing the

22     areas covered whether it is civilian, military authority.

23             MR. KAY:  And then it goes Cermak is the most senior authority in

24     Knin, superior to the military police --

25             JUDGE ORIE:  And civilian police.

Page 12974

 1             MR. KAY:  And civilian police in Knin.

 2        Q.   Do you want to change that?

 3        A.   No.  Because, as I mentioned earlier, I draw that conclusions on

 4     orders issued by General Cermak as well as subsequent orders by, for

 5     example, the civilian police following an order by General Cermak.  I

 6     just drew your attention to the fact that I didn't use the expression

 7     "commander," I used the term "authority."

 8             MR. KAY:  Your Honour, that is probably a convenient moment for

 9     the adjournment.

10             JUDGE ORIE:  It is, Mr. Kay.

11             We will resume at five minutes to 6.00.

12                           --- Recess taken at 5.37 p.m.

13                           --- On resuming at 5.58 p.m.

14             JUDGE ORIE:  Please proceed, Mr. Kay.

15             MR. KAY:  Thank you, Your Honour.

16        Q.   Mr. Theunens, just taking up on the last matter that we were

17     discussing, page 241 of your report -- sorry, I've forgotten the exhibit

18     number.

19             JUDGE ORIE:  You've forgotten to --

20             MR. KAY:  I've forgotten the exhibit number of the report, Your

21     Honour.

22             JUDGE ORIE:  Well, have I the report constantly on my screen, so

23     the page -- the expert report of Mr. Theunens.  Oh, for the registrar,

24     yes, of course.

25             MR. KAY:

Page 12975

 1        Q.   Page 241.  And in this section of the report, we can see (A),

 2     you're focussing on the role as the civilian and military role in Knin.

 3     And in (C), you indicate within this Exhibit P1113, a review of military

 4     documentation between the 6th of August and 15th of November, indicates

 5     Cermak's duties covers two areas, civilian/military authority, and then

 6     you refer to a number of matters, including law and order.

 7             We've considered your earlier three drafts to that final report,

 8     and in each one of those earlier three drafts, you describe

 9     General Cermak as being the civilian authority in Knin.  Your third draft

10     taking it as the last one, at page 257, heads the section as this:

11             "This section describes the duties of Colonel General Cermak

12     during the time-period is he commander of the Knin garrison, focussing on

13     his role as civilian authority in Knin."

14             "A review of military documentation" - this at paragraph (C) -

15     "between 6th August and 5th November 1995 indicates that Cermak's duties

16     cover two areas:  Civilian authority and point of contact for the

17     international community."

18             We will go before I ask you specifically about it.  Final report,

19     page 245.  So Exhibit P1113, page 245, paragraph 2, a review of military

20     documentation covering Cermak's role as commander of Knin garrison.  Same

21     period we have looked at.  First bullet point:

22             "Civilian/military authority, including all aspects of the

23     normalisation of the conditions of life in the area, return of displaced

24     persons and refugees.  Law and order situation of Serbs in UNCRO

25     barracks."

Page 12976

 1             Bullet point:

 2             "Point of contact for international community.  (B),

 3     civilian/military authority from the date he is appointed to the position

 4     of the commander of the Knin garrison."

 5             In each of the previous three drafts of your report, first draft,

 6     page 117; second draft, page 117; third draft, page 261; Mr. Cermak is

 7     described as the civilian authority.

 8             What I want to ask you, Mr. Theunens, is this:  What happened for

 9     your final report that changed your previous opinion in the drafts, from

10     civilian authority to civilian/military authority?  Why did your position

11     change, for your final draft for these proceedings?

12        A.   I don't see it so much as a change in position.  I think the fact

13     that you have read out different page numbers, 117, 261 and now actually

14     we're looking at page 245 in the version of the report, the final version

15     that has been filed.  It has to do with reviewing the material.  There

16     may have been additional material that became available.  I have also

17     reviewed the report obviously in order to try to clarify certain issues

18     which may not have been entirely clear.  That was especially the case

19     when I drafted the summaries for each and every section, which I did at

20     the very end for logical reasons and then use these summaries to compile

21     the executive summary.

22             So it may -- or it probably was the case that the qualifications

23     civilian authority, looking at all the material I considered for the

24     report, is, in my view, not entirely correct, and that's why I included

25     also the military aspect, i.e. -- I put civilian/military authority.

Page 12977

 1        Q.   Can I tell you that in this section of the final report that you

 2     did not use any further documents from the documents that you had used

 3     previously in draft number three?

 4        A.   That is -- that is possible.  And then we refer to the second

 5     part of my answer to the previous question, that is, that when I reviewed

 6     the report, you will probably have noticed that the structure sometimes

 7     changed.  Some headings changed.  And I see the inclusion of the

 8     "/military" as one of the changes I made during that process.

 9        Q.   Did you have discussions with any other members of the OTP about

10     these conclusions in your report?

11        A.   There was no discussion about the conclusions.  The -- when I

12     sent the final draft to Mr. Tieger, and I'm not sure anymore, I think it

13     was in November.  I mean, I don't recall the exact date.  He asked me a

14     number of questions about certain aspects whether they could be clarified

15     or what they really meant or not, but there was no change or there was no

16     request by Mr. Tieger to change any conclusions or to change the contents

17     of the report.  The only questions or -- or -- or requests I remember was

18     about, for example, location of certain parts of the report in order to

19     streamline the -- the layout.

20        Q.   If not discussions, was there any other influence upon you to

21     change your drafts so that your final report included the military

22     dimension to Mr. Cermak's responsibility?

23        A.   No.  And, again, I'm not sure whether I understand the question,

24     but there was no --

25             JUDGE ORIE:  If there's any doubt about the question, simply

Page 12978

 1     this:  Was any line on which the words "civilian authority" appear in

 2     drafts, which was subsequently changed in "civilian/military authority"

 3     whether it would be in the executive summary, whether it would be on

 4     whatever page, was that ever referred to or mentioned or quoted, or was

 5     that ever part of any conversation you had with any member of the Office

 6     of the Prosecution.

 7             THE WITNESS:  Not to my recollection, Mr. President.

 8             JUDGE ORIE:  Mr. Kay, please proceed.

 9             MR. KAY:

10        Q.   In that section I put to concerning page 245, also inserted in

11     the final report which is not in the drafts is the phrase "law and

12     order."

13             How did it come about that you changed your position to insert

14     that concept of "law and order" into your final report?

15        A.   As I mentioned, I see these changes not as fundamental changes or

16     changes in conclusions or changes in positions.  I see these changes as

17     a, call it, a streamlining of the contents of the report.  It is correct

18     that the discussion I referred to -- I mean, the discussions with

19     Mr. Tieger, addressed several parts of the report.  This part of the

20     report, I think, if I remember well, was also part of it.  But it's not

21     that I suddenly invented a title:  Law and order, where as I had no

22     material to support that conclusion or that comment.

23             As you see from the structure and mainly the contents of the

24     report, the titles or the headings reflect what follows afterwards, and

25     the material that is included in the body of the report has indeed

Page 12979

 1     changed over time because I had access or I had the opportunity to review

 2     more documents.  And obviously while reviewing more documents, it could

 3     be that in some situations a conclusion changed, but I have no specific

 4     recollection of that.  It could also that be a heading changed just for

 5     the -- for the sake of clarifying or streamlining the report or coming

 6     back to the discussions or the meetings with Mr. Tieger after the

 7     submission to him of the final draft, that he asked me to clarify what I

 8     meant because, as have you noticed, I'm not a native speaker, so some

 9     things may have lacked clarity to native speakers.  So, therefore, there

10     was a discussion about what do you mean by that, what do you want to say,

11     without any suggestion to me about what I should put in my report.

12        Q.   In fact, in this section of the final report, which is the

13     garrison section, the documents that you used in your final draft were

14     the same ones that you'd used in your final report, so there'd been no

15     change in the materials that you used.

16        A.   I think this is the second time you asked that question, and I

17     have already provided an answer to the question.

18             If you want me to elaborate further, I noticed that --

19        Q.   Well, I said it, because you said you had the opportunity to

20     review more documents.  And obviously while reviewing more documents, so

21     I was actually dealing with something that you had said, Mr. Theunens,

22     and I'm not repeating a question, I'm actually saying, Well, hang on, you

23     have said this, but actually the documents remain the same.

24        A.   I -- as I mentioned in my previous answer to the same question, I

25     made that -- I said that in the general context of the report.  You

Page 12980

 1     mentioned yourself page numbers.  You noticed that these page numbers

 2     changed.  One of the reasons for the change in page numbers is that

 3     additional material was included structure was changed, and so on, and on

 4     so on.  I was giving a general answer.

 5        Q.   I'm concerned about this section --

 6        A.   To provide clarification to my attempt to answer the previous

 7     question, when I reviewed the documents that are relevant in the context

 8     of -- of General Cermak's role as the commander of the Knin garrison, and

 9     I specify here, in particular, his orders, one of my immediate

10     conclusions was that his role was much wider than what was established in

11     the doctrine of the Croatian armed forces in relation to the duties of

12     garrison commanders.

13             I must say that I was also -- it was unclear to me at that stage

14     in the beginning when I was reviewing the material whether General Cermak

15     was a military authority a civilian authority.  It was clear that he was

16     doing more than a garrison commander.  I saw, for example, and he

17     mentions that in the press interview he gave, D38, that he talks about a

18     Petar Pasic, who, according to General Cermak, was to begin with the

19     establishment of the civilian organisation of government on 16th of

20     August.  Well, I did searches on Petar Pasic, and I found very little

21     documents on him except for a number of ECMM reports which were from much

22     later than the time-period relevant in the context of the report.

23             So I had this material on General Cermak, and then I tried to

24     structure it and to find -- to identify headings as to how I should

25     describe his role, and it may well be that in the earlier drafts, I put

Page 12981

 1     civilian authority.  But it is obvious from when you review, when you

 2     look at the material included in this section of the report that General

 3     Cermak also carries out duties that fall under somebody who has military

 4     authority, and that explains, in my view, why the heading changed from

 5     "civilian authority" to "civilian/military authority."

 6        Q.   So it seems it wasn't obvious to you in your first three drafts.

 7     Don't you agree?

 8        A.   Well, again they are drafts.  Whether I had changed the headings

 9     already at that stage -- as I mentioned at the very beginning of my

10     testimony, conclusions or the main conclusions were drawn by me at the

11     end.  Why?  Because only at the end I was in a position to -- yeah, to

12     draw conclusions because then -- I had been able to review all the

13     material I wanted to review.  Not in the beginning, because then I was

14     starting with the review.

15             It may be purely for logistics that headings of documents --

16     sorry, headings of sections of the report were only systematically

17     reviewed by me at a later stage, and even I may have changed headings,

18     some headings earlier and others later.  I have no specific recollection

19     of which heading I changed at which time and even whether there was --

20     what the specific reason for that was.

21        Q.   The questions that Mr. Tieger gave you, did they include

22     questions that referred to Mr. Cermak being a military authority?

23        A.   When you say the questions that Mr. Tieger gave you, do you refer

24     to the 10- and then the 17-point lists?

25        Q.   No, no.  No.  What Mr. Tieger communicated to you that you told

Page 12982

 1     us about.

 2        A.   Mm-hm.

 3        Q.   After your third draft, did that concern questions relating to

 4     Mr. Cermak having military authority?

 5        A.   Mr. Tieger didn't specifically give me questions.  I remember

 6     that there was at least one meeting between him and myself in his office

 7     where we went through certain aspects, parts of the report.  He also

 8     pointed out certain typos, and he may -- he asked me to clarify certain

 9     aspects of the report including also probably certain headings, or asked

10     me, Well, what do you mean by that?

11             As I mentioned, Mr. Tieger never suggested to me which heading or

12     which conclusion I was to draw.

13        Q.   But did that include the discussion with you that Mr. Cermak had

14     the military authority as well?

15        A.   I believe that I have answered the question.

16        Q.   No, you haven't.  No, you haven't.  You have answered other

17     questions, and you have raised other matters, and you've got more

18     focussed in relation to these matters, and you've said that he raised

19     matters concerning the report.  Did that include Cermak, in relation to

20     military authority?

21        A.   It -- it did not include Cermak in relation to military authority

22     specifically.  We did indeed discuss the -- the general layout or

23     structure of this section.  I mean, the section number 3.  But as I

24     mentioned, Mr. Tieger did not suggest or -- or propose or influence me

25     otherwise in relation to the choice of headings or the -- the drawing of

Page 12983

 1     conclusions.  He may have asked me or he probably asked me, What do you

 2     mean by this?  What are you trying to say?  Maybe this word is better,

 3     but -- I mean, when I say this word is better, it is a linguistical

 4     issue.  I'm not a native speaker.  That is it.  I think I have reiterated

 5     it three or four times during the past minutes.

 6             JUDGE ORIE:  Mr. Kay, if you would allow me.

 7             Would this be the versions that we're talking about?  That is,

 8     you had a discussion with Mr. Tieger not after having sent the first

 9     draft which was within the deadline, but at a later stage, and then you

10     had a communication with Mr. Tieger about that.

11             Could I take you back to one of the answers, and I will read it

12     slowly and carefully to you, and I'm quoting page 12159.

13             You said that:

14             "I knew that March 2007 was withdrawn, but I had not received

15     information for the new deadline which I find a bit difficult in a sense,

16     as I was working on several cases.  I tried to organise my work and, of

17     course, what is more urgent, you try to do first.  What is less urgent,

18     you do later.  So that is why I'm sent him - apparently you're talking

19     about Mr. Tieger - more drafts in order to keep him updated of the

20     progress I made, and I don't remember receiving any feedback on these

21     other drafts I sent."

22             Then you were asked:

23             "Well, Mr. Tieger and Mr. Moore did, in fact, give you feedback

24     on your table of contents and approved that table of contents; didn't

25     they?"

Page 12984

 1             And then you explained that that was -- the table of contents was

 2     in January.  Then you explain about -- I'm just trying to find where you

 3     said, in -- only feedback was the deadline does not apply.  Please

 4     continue.

 5             I'm just trying to remember where you, at that stage, told us

 6     that you had discussions with Mr. Tieger, as you described them now.

 7             THE WITNESS:  Your Honours, I received feedback for the last

 8     draft, which I think was sent in November or early December --

 9             JUDGE ORIE:  I'm not asking what happened.

10             THE WITNESS:  No, no.

11             JUDGE ORIE:  I'm asking you to assist me in where you said this

12     when you were questioned about this on -- on 19th November.

13             I may have missed it, but then please assist me.

14             THE WITNESS:  Your Honours, I don't know exactly when on the 19th

15     I said it.  There were many questions in relation to similar issues.  But

16     I have a recollection that I said that I received feedback only for the

17     last draft.

18             JUDGE ORIE:  If that's the case, I might have missed.

19             If the parties could assist me.

20             MR. MISETIC:  Your Honour, our position is that I don't think

21     that was disclosed.

22             JUDGE ORIE:  Let's ...

23             MR. KAY:  I had no contact with the team.  I also want to

24     emphasise that except for the initial tasking I received from Mr. Tieger

25     and the sending of the draft, I had no contact with the team.  I didn't

Page 12985

 1     receive any phone calls.  I didn't receive any -- or e-mails.  I heard

 2     when I insisted when I sent the draft in, March 2007, I'm not sure

 3     anymore how I was informed that, actually.

 4             JUDGE ORIE:  We'll carefully check this, Mr. Theunens, and I'm

 5     cautious now in my wording.  But if it would turn out that you were

 6     questioned quite in detail as to feedback and where you clearly testified

 7     that the only reason why you sent them is to keep them updated on what

 8     progress you made, rather than to receive any feedback.  And where

 9     specific questions were put to you, I just read a portion of it where you

10     said, No, that was all in that January.  Clearly questions focussing on

11     feedback that you may have received or further conversations you may have

12     had, if that would turn out the situation, then I would like to remind

13     you that you gave a solemn declaration, not only that would you speak the

14     truth, nothing but the truth, but also the whole truth.

15             Please proceed, Mr. Kay.

16             If I'm mistaken, and, of course, we will check that carefully,

17     but unfortunately we're not in a position to analyse it.  I did quite a

18     few searches, and it is your experience that now and then if you do a

19     search that you miss something.  If I missed something, then, of course,

20     I'll -- I'll -- we'll clearly express my regret if I did that.

21             The parties are invited to join me in the exercise I tried to

22     undertake.

23             Please proceed, Mr. Kay.

24             MR. KAY:  For the record the passage I read from was 12158.1.

25             JUDGE ORIE:  Please proceed.

Page 12986

 1             MR. KAY:  Thank you.

 2             Your Honour, may I have the last order that we produced before

 3     the break, 65 ter 2093, be admitted please.

 4             MR. WAESPI:  No objections.

 5             JUDGE ORIE:  Mr. Registrar.

 6             THE REGISTRAR:  That is Exhibit D1002, Your Honours.

 7             JUDGE ORIE:  D1002 is admitted into evidence.

 8             MR. KAY:  The next document is 65 ter 755.  It's a document dated

 9     the 25th of August.  It's from the 4th Guards Brigade commander,

10     Brigadier Krsticevic - apologies again - and this document concerns an

11     order issued on the 20th of August, 1995, concerning the units at the

12     state border with Bosnia and is in order to ensure an effective

13     operational deployment of units and commands of the 4th Guards Brigade.

14     And it's an order that we see on page 1, refers to operational reserve of

15     the 4th Guards Brigade, under the Military District Commander.

16             If we go to page 2, we see the operational area of

17     responsibility.  In point 2, further down the page, we see that the units

18     of the 4th Guards Brigade operationally deployed various sections in

19     Knin.

20             If we go to page 3, the signals are in barracks in Knin,

21     logistics in barracks in Knin.

22             Page 4 gives details concerning the taking over of buildings,

23     warehouses, et cetera.

24             Page 5 at .34, commander of the Knin barracks, Major Turic,

25     preparing a plan for the deployment of units in the Sjeverni Logor

Page 12987

 1     barracks, which we know are in the Knin, making commanders responsible

 2     for the premises.  Prohibited, at the bottom of the page, to store

 3     weapons, ammunition, explosives.

 4             And the last page, we see it's from the Brigadier, as I said, to

 5     whom it's sent, and not including the Knin garrison.  Isn't that right?

 6        A.   That is correct.

 7        Q.   And if Mr. Cermak was the superior military authority in the

 8     area, this is the sort of detail that he would have to know, isn't it?

 9        A.   I agree, General Cermak should, as the garrison commander, should

10     have been informed of this order.

11        Q.   And, again, all these orders from the Split Military District of

12     which there are many, aren't there, Mr. Theunens, of a similar nature, do

13     not copy in Mr. Cermak as the garrison commander of Knin.

14        A.   I have included 65 ter 2315 on -- in part 2, English page 260,

15     which is an order by General Gotovina, on the 10th of August, for part of

16     the 7th Guards Brigade to be accommodated in the barracks in Knin, and I

17     mention in my report no mention is made of General Cermak in General

18     Gotovina's order.

19        Q.   Yes.  Again, this -- this rather defies that proposition, doesn't

20     it, Mr. Theunens, concerning Mr. Cermak's authority and position, because

21     he would be copied in on all these documents, wouldn't he?

22        A.   He should have been copied in, but the fact that General Gotovina

23     does not -- or -- I apologise, subordinate commanders of General Gotovina

24     do not include General Cermak in these orders was, for me, an indication

25     that the professional relationship between General Cermak as the garrison

Page 12988

 1     commander and General Gotovina as the Split Military District commander,

 2     is not as I use the expression "clear-cut" as is established in the

 3     doctrine.

 4             My conclusion in relation to the position of General Cermak as

 5     the most senior civilian/military authority in Knin is based on a review

 6     of the orders issued by General Cermak.

 7        Q.   We will be looking at those, and the Judges have seen all those

 8     orders already and know what you refer you.  But you told us you're an

 9     expert on command and control, and the question I have is this:  If all

10     this is happening and all these orders are being issued, it doesn't seem

11     that the man you described as being the superior military authority is

12     within the command and control system.  Isn't that right?

13        A.   Yes.  And that is why I have included this section on the nature

14     of the professional relations between the commander of the Split Military

15     District and the commander of the Knin garrison, starting on page 258 of

16     the second part of the report.

17             Even independently of the position of General Cermak as -- what I

18     described as the most senior military authority in Knin, even as a

19     garrison commander, with a -- at a much lower military rank than the rank

20     of Colonel General, one would expect that, at least in according with the

21     doctrine, he, as the garrison commander, would have been included in

22     orders that deal with the relocation of units to barracks in the zone of

23     the Knin garrison.

24        Q.   In fact, in relation to all these units, you couldn't have

25     effective command if you're outside the system, if the system is not

Page 12989

 1     working with you in it as a component commander, could you?

 2        A.   That is correct.  But I have not put in my report that

 3     General Cermak has command over these units.

 4        Q.   No.  That's right.  But you have read the indictment, and you may

 5     have forgotten the indictment, and the indictment at paragraph 7

 6     describes Ivan Cermak as possessing effective control over members of the

 7     HV units or elements who comprised or were attached to or operated in the

 8     Knin garrison and also over the civilian police who operated in the

 9     garrison area.  And then it describes the HV units without limitation.

10     The 4th, 7th Brigades, 1st Croatian Guards Brigade, 113th, 142nd, 144th,

11     126th Home Guard.  The 6th, and 7th, 134th, a combined military police

12     company, members of the Zadar-Knin-Kotar police administrations.

13             I appreciate the civilian area is outside in a way that you are

14     positioned.  But looking at all these Military District documents, we've

15     looked at a few here which go to a particular issue, but there are, as

16     you know, thousands in relation to all those units, General Cermak is --

17     is copied in on a handful of matters; isn't he?

18        A.   It is correct, and I think it is visible through my report that

19     there are very few orders by General Gotovina to the Knin garrison

20     command or the Knin garrison commander during the time-period

21     General Cermak is the commander of the Knin garrison.

22        Q.   My question is about General Cermak having effective control over

23     all those units.  They're all operating every day, in relation to their

24     activities, where they go, what they do, completely independently and

25     without General Cermak.  That's right, isn't it?

Page 12990

 1             What I'm putting to you is that paragraph 7 on this indictment

 2     doesn't fit with your expert's report.

 3        A.   That may well be possible.  I mean, I haven't -- I read the

 4     indictment once, as I mentioned, at the very start of the -- the report

 5     project, in order to determine time-frame, locations, and other relevant

 6     aspects.  Otherwise, I have not been influenced or was bound any way by

 7     what is in the indictment.

 8             My findings or my conclusions in relation to the role of

 9     General Gotovina as the Knin garrison commander are included in my report

10     and more specifically in paragraphs 49 to, I believe, 51 of the executive

11     summary.

12        Q.   I hesitate to say you demoted General Gotovina to the garrison

13     commander.

14        A.   I apologise.

15        Q.   That would be controversial.

16        A.   It should read Cermak.  I'm sorry.

17        Q.   Yes.  But what I'm putting to you is right.  On that passage of

18     the indictment that I read out in relation to paragraph 7 which asserts

19     that Ivan Cermak possessed in various structures of power and

20     responsibility and possessed effective control over all those units -

21     they're all the Split Military District units that we are familiar with -

22     is, in fact, not borne out by your expert's report, and, indeed, all the

23     documents that you have seen.

24             It's right, isn't it?  I'm right.

25        A.   Yeah, I mean, I haven't addressed effective control, and I

Page 12991

 1     haven't seen any material or, I mean, documents on that aspect concerning

 2     the role of General Cermak as the commander of the Knin garrison.

 3        Q.   Thank you very much.

 4             MR. KAY:  Your Honour, I have had a note that Mr. Misetic needs

 5     to address you urgently, and if I just ask that document 65 ter 755 be

 6     admitted into evidence, please.

 7             JUDGE ORIE:  Mr. Waespi.

 8             MR. WAESPI:  No objections.

 9             JUDGE ORIE:  Mr. Registrar.

10             THE REGISTRAR:  That's Exhibit D1003, Your Honours.

11             JUDGE ORIE:  D1003 is admitted into evidence.

12             Mr. Misetic, you want to address us in the presence of the

13     witness or in the absence of the witness?

14             MR. MISETIC:  Yes, the presence is fine.  It wasn't urgent.

15             JUDGE ORIE:  Is it fine, or do we need him?  [Overlapping

16     speakers] ...

17             MR. MISETIC:  [Overlapping speakers] ...  it's a document that he

18     prepared, so I don't have a --

19             JUDGE ORIE:  So it directly relates to --

20             MR. MISETIC:  Yes, Mr. President.  It wasn't urgent.  I was just

21     -- it follows on the discussion we had before this line of questioning.

22     I did not wish to interrupt Mr. Kay while he was cross-examining.

23             JUDGE ORIE:  Another matter.  How much time would it take?

24             MR. MISETIC:  Less than three minutes.

25             JUDGE ORIE:  Less than three minutes, and it cannot wait until

Page 12992

 1     the last three minutes of today's session?  If you think it is better

 2     positioned here, then I'll let you go, I will trust that you --

 3             MR. MISETIC:  Yeah.  I was waiting for Mr. Kay to change -- to be

 4     ready to change topics before I raised this.

 5             It relates to the issue before that you had raised about

 6     Mr. Theunens prior testimony on communications with the Office of the

 7     Prosecutor.  And if Mr. Randunic would be so kind, I would like to show

 8     something via sanction which is -- the Gotovina Defence asked for --

 9     asked the OTP to disclose communications that had been had between

10     members of the trial team and Mr. Theunens.  We were given a report on

11     the 12th of November, and if we could show that via sanction.

12             This is it the disclosure.  It is a 24-page document.  It says

13     that -- it's pursuant to our request.  If we then turn to the next page,

14     this is an apparently --

15             JUDGE ORIE:  Could I first read the first page so that I know

16     what is offered.

17             MR. MISETIC:  Yes.  Sorry.

18             JUDGE ORIE:  One second, please.

19             Yes.

20             MR. MISETIC:  If we could go to the next page, please.

21             This appears to have been prepared by Mr. Theunens himself and

22     signed on 11th November of this year, and it discloses certain

23     communications.  It talks again about January of 2007, and then it refers

24     to the next communication identified as in paragraph 5 which is a

25     communication from Mr. Tieger about new documents, and that memo is

Page 12993

 1     disclosed further on in this disclosure.  And there are no other

 2     references or disclosures to -- in response to our inquiry about any

 3     communications that were had about changing, clarifying matters in the

 4     report, et cetera, and that this occurred after the third -- submission

 5     of the third draft.

 6             So I would request, Mr. President, that in addition to us

 7     reviewing the transcript from last week if -- if the Office of the

 8     Prosecutor would, in fact, go back and tell us exactly what transpired

 9     and what communications, in fact, were had because we thought we had

10     resolved this matter pursuant to this communication from the Office of

11     the Prosecutor and based on what Mr. Theunens has said today in Court, I

12     think that this disclosure is incomplete.

13             Thank you, Mr. President.

14             JUDGE ORIE:  Mr. Waespi, I think the question is clear.

15             MR. WAESPI:  Well, I'm not sure this disclosure here addresses

16     oral communications between Mr. Tieger and -- and the expert.

17             JUDGE ORIE:  [Overlapping speakers] ...  could we go back to the

18     first page to see how it is.

19             MR. MISETIC:  Mr. President, I will just point out paragraph 1 on

20     page 2, Mr. Theunens discloses what appears to be a meeting that took

21     place which would not be a written, as I understand it, a written

22     communication.  It was a meeting between the two STAs.

23             So I, when I got this, assumed that Mr. Theunens was --

24             JUDGE ORIE:  [Overlapping speakers] ...  a discussion is

25     described.  This was followed by a discussion, so therefore apparently

Page 12994

 1     this -- this document does not limit itself to -- and ...

 2             MR. WAESPI:  Our understanding, my understanding was that what

 3     the issue was, was the tasking.  Original tasking of the expert.  That's

 4     what the Defence was interested in, and we asked Mr. Theunens to address

 5     that.  We looked at the e-mail communications that appeared to be

 6     relevant under this heading and the other issues about communications,

 7     oral communications, whether phone meetings, that is something that the

 8     expert can be cross-examined about, and that's exactly what happened.

 9             We were never hiding any piece of information.

10             JUDGE ORIE:  Cross-examination has taken place on this issue

11     already, as you may be aware of.

12             Could I have again the first page in which ...

13             Of course the Chamber has not seen the e-mail of the 4th of

14     November.

15             MR. MISETIC:  I can display that.  I believe it would just take a

16     minute but ...

17             JUDGE ORIE:  But there's another question, of course.

18             Mr. Waespi.  You were present when quite a lot of questions were

19     put to the witness which certainly were not limited to written

20     communications but were about feedback and not limited in any way or

21     form.  I had on my mind to address you in the absence of the witness at

22     the very end of this -- of this session, but since the issue more or less

23     has been raised and in view of what we find here, I would ask you to

24     carefully review the transcript, all the questions and all the answers

25     that we find in the transcript, and then to also ask you to consider

Page 12995

 1     whether it would have been within your duties to specifically ask the

 2     witness on conversations at a rather late stage, where, if that's the

 3     case, if such a conversation has taken place, no one could know about it,

 4     perhaps certainly not on the basis of this document, whereas the Office

 5     of the Prosecution, the team, could have known about it, and should

 6     consider whether it would have left the Chamber without relevant

 7     information, where questions were specifically asked to Mr. Theunens in

 8     this respect.

 9             Well, that request, now that invitation is now with you anyhow.

10     The e-mail, you said perhaps we can do it within a minute.

11             MR. MISETIC:  Yeah, I can read it to you briefly, Your Honour.

12     It is correct that because our request had to be pursuant to Rule 66(B),

13     which by definition, seeks documentation, it says, we hereby request a

14     copy of all communications between OTP and Mr. Konings and Theunens.

15             JUDGE ORIE:  [Overlapping speakers] ...  Yes, and you say the

16     conversation cannot be copied.

17             MR. MISETIC:  Right.  So nevertheless, when we got the -- one of

18     the -- I will tell you this by way of background.  I had a conversation

19     with Mr. Russo recently because they did produce e-mail communications

20     between Mr. Konings, who will testify next week, and the OTP, but did not

21     wish do disclose the e-mail communications between Mr. Theunens and

22     members of the trial team.  And in my conversations which would have then

23     perhaps enabled us to cross-examine Mr. Theunens about meetings and stuff

24     like that that would have been evident from e-mail communication.

25             Mr. Russo represented to me that the problem that OTP was having

Page 12996

 1     was the fact that the volume and the having to search various individuals

 2     e-mails was unduly burdensome on them and that there was nothing of any

 3     substance in the e-mails, and that was a representation that he made, and

 4     I relied on that, as well as disclosure on the 12th of November.

 5             JUDGE ORIE:  Mr. Misetic, you have addressed us.  That's what you

 6     wanted to do.

 7             MR. MISETIC:  Yes, Mr. President.

 8             JUDGE ORIE:  Do the other parties want to add anything to that

 9     before we continue?

10             Then, Mr. Kay, you may proceed.

11             MR. KAY:  Thank you, Your Honour.

12             If we go do 65 ter 370, and this was a document you referred to,

13     Mr. Theunens, about the appointment of a garrison commander at Benkovac.

14     And I promised you we'd get there.

15             4th of August, 1995, the appointment is made by the commander,

16     Colonel Fuzul.  And the heading is:  On the basis of a need for best

17     quality organisation and a coordinated establishment of civilian

18     authority, I hereby make a proposal ... appointment of commander of

19     Benkovac garrison HQ, Captain Ashley Minak."

20             You were going to draw our attention to something in relation to

21     this appointments, and I said to that you we would be looking at the

22     document.

23        A.   Indeed, this is a proposal, and there is also a -- an order by

24     General Gotovina --

25        Q.   We'll be looking at that next.

Page 12997

 1        A.   Okay.

 2        Q.   Shall we pull that up next.  But what I'd like to look at here

 3     actually is best quality organisation, coordinated establishment of

 4     civilian authority, which are obviously important concepts; don't you

 5     agree?

 6        A.   Yes.

 7        Q.   Thank you.  65 ter 4621 is the next document.

 8             It's an order dated the 6th of September, 1995 by General

 9     Gotovina.  And it's due to frequent needs and for the purpose of ensuring

10     continuity in operations and command of Split Military District units.

11     And we see that Ashley Minak, a captain, is appointed Benkovac garrison

12     commander.  And he is to take over from Ante Maksan, who is the present

13     garrison commander, immediately to be completed on the 9th of September.

14     And Colonel Fuzul was responsible for the implementation of the order.

15             On page 2 of the English we see who is copied into it.  Again, no

16     Knin ZM is the point that I would point out.  What did you wish to draw

17     your attention to with this document?

18        A.   The fact that General Gotovina appoints a replacement for an

19     existing garrison commander.  The fact that it's not sent to the Knin

20     garrison command is not unusual because, as I pointed out earlier, the

21     Benkovac garrison is a separate unit from the Knin garrison as are the

22     other garrisons that are located in the zone of responsibility of the

23     Split Military District, so there is no requirement to send an order for

24     actually a transfer of authority for one particular garrison to the

25     commanders of other garrisons of that Military District.

Page 12998

 1        Q.   I don't disagree with you on that.  The reason why I pointed out

 2     is because of that paragraph 7 you and I have just looked at from the

 3     indictment.  But I don't disagree with what you have told us about it.

 4             MR. KAY:  May 65 ter 370 and 65 ter 4621 be admitted into

 5     evidence, please, Your Honour.

 6             MR. WAESPI:  No objections.

 7             JUDGE ORIE:  Mr. Registrar.

 8             THE REGISTRAR:  Your Honours, 65 ter 370 becomes Exhibit D1004.

 9     65 ter 4621 becomes Exhibit number D1005.

10             JUDGE ORIE:  D1004 and D1005 are admitted into evidence.

11             Before we move into our next subject, Mr. Kay, I wonder whether

12     we should not adjourn for the day, but if you would give me one moment.

13                           [Trial Chamber confers]

14             JUDGE ORIE:  Mr. Theunens, we have a procedural matter to very

15     briefly discuss but not necessarily in your presence.  We'd like to see

16     you back tomorrow afternoon, and I give you the same instructions as I

17     gave you all the other days; that is, that you should not speak with

18     anyone about your testimony, whether given already or still to be given.

19             THE WITNESS:  Thank you, Mr. President.

20             JUDGE ORIE:  Mr. Usher.

21                           [The witness withdrew]

22             JUDGE ORIE:  Mr. Waespi, I didn't want to further discuss the

23     matter in the presence of the witness, but I looked at some of your

24     statements in this courtroom, and I'm taking you back to page 12125, last

25     line, you said:

Page 12999

 1             "Second, this was, as we explained, a work in progress.  Yes, a

 2     draft was submitted to the Prosecution team at one time.  There was no,

 3     absolutely no inference from the Prosecution team to the expert about

 4     changing anything.  I'm not aware of any substantive changes.  If there

 5     was inference from the Prosecution into the way that the expert drafted

 6     his report, advanced it after the draft, we would have disclosed it under

 7     Rule 68, that's for sure.  That's our obligation."

 8             Now I leave totally apart whether the report ever changed in a

 9     way where the earlier draft would have been exculpatory.  I refrain from

10     any assessment at this moment about that.

11             However, if I look at your statement, and if I read again the

12     answers of the witness, and I sincerely hope I that have overlooked

13     something.  If not, then it's at least worrying the Chamber.  The

14     transparency which we would expect might not be given.  Therefore, you

15     are really invited to report tomorrow on the matter, on any follow-up

16     discussions with -- between Mr. Theunens and Mr. Tieger.  And also

17     perhaps an explanation why you have not raised that issue once you had

18     heard the answers the witness gave, which was an answer, and now I'm

19     summarizing, that there was a discussion after the 10-point tasking,

20     after there had been discussions before, that this resulted in the

21     17-points tasking, and that, later on, sending drafts was merely an

22     administrative matter to keep you updated that there was no risk that

23     finally the report would not be received but feedback, interfering with

24     and -- nothing of this kind we should even think about.

25             Now on the basis of the answers the witness gave today, it looks

Page 13000

 1     as if we do have to think about these matters.  I am not saying what it

 2     resulted in, what the impact was, but the Chamber would like to receive

 3     in the absence of the witness tomorrow a short report on behalf of the

 4     OTP.

 5             MR. WAESPI:  Yes, Mr. President, what I can only say at this time

 6     is I believe that there is a certain misunderstanding.  I think what the

 7     issue was at that time, I think on the 19th of November, was the

 8     submission of the draft in March 2007, and that's what I led in evidence

 9     what kind of communication there was between Mr. Theunens and the trial

10     team, and you quoted correctly what happened there.

11             What Mr. Theunens now talked about today, and I'll address that

12     as well, is after the final report his final product was submitted to the

13     trial team, and then apparently there were discussions as pointed out by

14     Mr. Theunens about --

15             JUDGE ORIE:  Was that after the final report had been --

16             MR. WAESPI:  Yes.

17             JUDGE ORIE:  Is that the understanding, or was it just before.

18             MR. WAESPI:  Just before.  After Mr. Theunens submitted his final

19     report.

20             JUDGE ORIE:  Draft.

21             MR. WAESPI:  Final.  Except for typos, it was finished, and then

22     the trial team looked over it, and as Mr. Theunens testified, Mr. Tieger

23     apparently asked him to clarify a couple of headings.  There were typos.

24     That is what I understand happened in, I think, November and December

25     2007.  But expect, Mr. President, that perhaps even that part, I should

Page 13001

 1     have, could have led life, and I will look into that issue.

 2             But I think there are two very distinct issues:  The conversation

 3     between expert and trial team in March 2007 when certainly the last --

 4     the fifth draft was produced, and what happened after the final final

 5     product was delivered from Mr. Theunens to the trial team.

 6             That is the understand I have.

 7             MR. MISETIC:  Just for the record, my understanding is that he

 8     talking about November 2007, which is one month before the final final

 9     was filed.  So the final brief was filed I believe the 17th or 18th of

10     December of 2007, which means any conversations he had with Mr. Tieger

11     would have been before the submission of the final final report.

12             JUDGE ORIE:  Yes.  Now, Mr. Theunens was so kind to provide you

13     with you the draft.  The chamber has not seen them.  The Chamber doesn't

14     know about dates of these drafts.

15             So, therefore, whether there was a final version that was finally

16     filed, unchanged, or whether there was a version which was discussed and

17     then resulted in another final version, that's for the Chamber a bit

18     difficult at this moment to assess on the basis of the information we

19     have.  But, at least the witness testified that he wanted to emphasise

20     that except for the initial tasking he received from Mr. Tieger, and the

21     sending of the draft, I had no contact with the team, which of course

22     perhaps we should ask him more details about -- about this.  But you will

23     understand, Mr. Waespi, that it worries the Chamber and, of course,

24     without having any contact with the witness, the Chamber would like to

25     receive all information the OTP has on this matter.

Page 13002

 1             MR. WAESPI:  Yes.  And in relation to that draft which was

 2     produced to the trial team a month prior to the official filing, I'm sure

 3     that this draft will be available to see any changes that were made

 4     pursuant to -- to talks between Mr. Tieger and the expert.

 5             JUDGE ORIE:  It seems that the important issue is whether at a

 6     stage where, still, the final draft -- I do understand that once it's

 7     there when it has been presented that it is not filed within five

 8     minutes.  Of course, that's -- of course, the Prosecution introduces it,

 9     and that may take some time.  But what we, of course, want to know is

10     that at any stage where changes like civilian, military, were still being

11     made and Mr. Kay has, of course -- we have not received the earlier

12     drafts, but at least it is not contradicted.  It is it even confirmed by

13     the witness that he said, well, in the earlier versions, we find

14     civilian.  I want to know whether there has been any contact,

15     conversation, e-mail, I would exclude telepathic, but any other

16     communication between the team, members of the team, assistants to the

17     team, and this witness on the content, whether it is titles, whether it's

18     structure, whether it's footnotes, whether it's numbering, whether such

19     communication has taken place at all.

20             That's what we'd like to receive, your report on tomorrow, at the

21     beginning of the hearing.

22             MR. WAESPI:  And that relates to the final product filed the last

23     months between the submission of Mr. Theunens's report about end of

24     October/November and December, that period.

25             JUDGE ORIE:  I'm not talking about a period.  Let me just check

Page 13003

 1     that.

 2             MR. MISETIC:  Your Honour, our position would be that there

 3     really is no need to put a date on it.  Whatever conversations were had

 4     about substance of the report, they should be disclosed to us.  Or any

 5     communications about any substantive in the report.

 6             JUDGE ORIE:  We will adjourn for the day with our apologies for

 7     interpreters.  Let me also include security.  Always forget them.

 8     Interpreters, transcribers.

 9             We adjourn, and we'll resume tomorrow, the 3rd of December,

10     quarter past two, in this same courtroom, I.

11                            --- Whereupon the hearing adjourned at 7.12 p.m.,

12                           to be reconvened on Wednesday, the 3rd day of

13                           December, 2008, at 2.15 p.m.