1 Wednesday, 3 December 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 JUDGE ORIE: Good afternoon to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
8 everyone in the courtroom. This is case number IT-06-90-T, the
9 Prosecutor versus Ante Gotovina, et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Mr. Waespi, we asked you to report on the communications between
12 the expert, Mr. Theunens, and the Prosecution. Could you --
13 MR. WAESPI: Yes.
14 JUDGE ORIE: -- deliver your report.
15 MR. WAESPI: Yes. I -- I did e-mail to my team and got e-mails
16 back discussing any communications they may have had with Mr. Theunens on
17 the contents of the report. I've received these e-mails. I have
18 reviewed them. None of the contacts -- and there were indeed contacts on
19 the report but none of them involved any suggestion or any due influence
20 on Mr. Theunens, on the substance of the report. Rather, they were
21 related to drawing Mr. Theunens's attention to typographical or
22 translation errors.
23 In one example, there was the numerical designation of an HV
24 unit, the MP unit wrong, and that was brought to Mr. Theunens' attention.
25 There was also input from the former supervisor, Mr. Phil Coo, of
1 Mr. Theunens as to the introductory part called "Scope" in the report.
2 You remember there were a couple of pages, I think three pages, in the
3 final report, P1113, which addresses, you know, the scope of
4 Mr. Theunens' report, and Mr. Coo made a few suggestions. Unfortunately,
5 I have only seen the e-mail but not the changes to the scope but I'm
6 confident that Mr. Theunens, who keeps his e-mails, can tell you what
7 suggestions were made by Mr. Phil Coo as to changes in the scope in this
8 introductory part.
9 There were also a couple of meetings, I think two -- I know two
10 meetings between Mr. Theunens and lawyers. One meeting was with
11 Mr. Tieger which happened either on the 12th or 13th of December, 2007.
12 Mr. Tieger just came back from a private emergency trip to the US, and
13 that must have been either on the 12th or 13th December, a couple of days
14 before we filed the actual report and that's a meeting to which
15 Mr. Theunens referred to, and Mr. Tieger has reviewed last night's
16 transcript and he says he has no doubt that the -- about the contents of
17 the meeting with Mr. Theunens. He doesn't have a specific recollection
18 of the meeting.
19 There was a second meeting between lawyers of the trial team and
20 Mr. Theunens. Mr. Steve Margetts and probably Prashanti Mahindaratne met
21 with Mr. Theunens, and again, there was no undue influence, suggestions
22 as to the contents of the report.
23 So all these contacts the team had over time, specifically
24 November, December of last year when the report was filed, was on
25 accuracy. There was a long e-mail, one, two pages, by
1 Mr. Andrei Shakhmetov, the military analyst, Mr. Theunens talked about
2 him in his evidence, who brought quite a number of translation errors to
3 the attention of Mr. Theunens, and I believe Mr. Theunens accepted these
5 This is, Mr. President, the report on e-mail contacts or other
6 contacts between the broader team, the Gotovina team not just members of
7 the trial team but also analysts and other members of the trial team with
8 Mr. Theunens, on the contents, the substance of the report.
9 JUDGE ORIE: The second meeting, Mr. Margetts, Ms. Mahindaratne,
10 is there a date for that.
11 MR. WAESPI: We asked Mr. Margetts and Ms. Mahindaratne. They
12 believe -- they are not sure, but they believe it might have been
13 March 2007, so that would relate to the first draft of Mr. Theunens's
15 JUDGE ORIE: Yes. When was the report, as it appears now,
16 delivered to the Prosecution, including typos, whatever? So when did you
17 receive the report which did not undergo any further changes anymore?
18 MR. WAESPI: I have not specifically inquired, but must have been
19 just a day or on the day it was filed, which, I believe, was the 14th of
21 JUDGE ORIE: So that was after the meeting Mr. Tieger had with
22 Mr. Theunens.
23 MR. WAESPI: This is certainly correct, yes.
24 JUDGE ORIE: Yes. Of course, whenever you said there was no
25 undue influence, of course, that requires a judgement, what influence is
1 due or undue is, of course, your assessment of it. It's -- therefore,
2 the Chamber very much -- is focussing on facts primarily.
3 MR. WAESPI: Yes. This is obviously my assessment but more
4 importantly the assessment of the team members who met with
5 Reynaud Theunens. I'm relying on their --
6 JUDGE ORIE: They are just as involved as you are, so that they
7 are benefiting, as team members, from the report to the extent that the
8 Prosecution sought this report to be produced, because the Prosecution
9 took the position that such a report would support the Prosecution's
10 case. To that extent, your team members and you, Mr. Waespi, are in a
11 similar position.
12 MR. WAESPI: Maybe just one point. That two e-mails, the one
13 from Mr. Shakhmetov and one from Mr. Phil Coo specifically state that
14 they knew about the sensitivity of sending something to -- to the expert
15 and they say that, of course, you know, it is up to you, Mr. Theunens, as
16 the expert, to determine whether to accept even these typographical and
17 other changes.
18 JUDGE ORIE: Yes. Before we ask the witness to enter the
19 courtroom, is there anything in relation to what Mr. Waespi just said,
20 that the Defence would like to raise.
21 MR. KAY: Whether Mr. Waespi has any other comments to make
22 concerning the testimony of Mr. Theunens, as to the matters that he -- he
23 looked at, such as the indictment on one occasion, any other material
24 details that go to the substance of this issue, in relation to
25 Mr. Theunens's involvement with the OTP concerning this case.
1 JUDGE ORIE: And you're referring to the genesis of the report,
2 any context whatsoever, broad sense.
3 MR. KAY: Yes.
4 JUDGE ORIE: And may I take that you consider it to be an
5 obligation for the Prosecution to be transparent and disclose any
6 knowledge on that matter.
7 MR. KAY: Considering what has happened, I think it is important
8 for Mr. Waespi to say -- state his position on it. I propose to ask
9 further questions, having considered the transcript with my team
10 overnight and looked at various matters, and would like Mr. Waespi to
11 state his position as fully as possible about the involvement with -- of
12 Mr. Theunens in relation to this case.
13 JUDGE ORIE: When you say ask further questions, to Mr. Theunens
14 or ...
15 MR. KAY: I will. Whether Mr. Waespi has any other information,
16 anything else that needs to be said, so that the OTP position is before
17 the Court now.
18 JUDGE ORIE: Mr. Waespi, is there anything that could be of
19 relevance in this context, which we may not have asked you but what you
20 would like to tell us, in order for the Chamber to be fully informed
21 about every aspect of this issue.
22 MR. WAESPI: Not at this point in time, but given what I heard
23 from Mr. Kay and also his reference to the indictment, I will consult
24 with team members again, think myself whether there is anything which
25 should be brought to Your Honours' and the Defence's attention, but there
1 is nothing at this point I can think of.
2 JUDGE ORIE: Yes. Mr. Waespi, a question. Having considered the
3 matter overnight, and you certainly will have done it, do you agree or
4 disagree with me if I suggest that it would have been appropriate to put
5 specific questions to the witness at the moment where he said that there
6 was no feedback at any later stage?
7 MR. WAESPI: Thank you for this question, Mr. President. In
8 fact, I thought about that, I looked at the transcript, and of course it
9 is unfortunate that this meeting with Mr. Tieger and Mr. Theunens came
10 out for the first time in cross-examination. I was aware of that
11 meeting, but only that it related to typographical errors and stylistic
12 changes. That's what I heard when I prepared Mr. Theunens. When I
13 prepared my examination-in-chief, I didn't pay any attention because for
14 me it had no relevance as to the substance of the report, methodology,
15 and so on. And if you review my examination-in-chief you see that I
16 focussed, like most of us here in court, on the March 2007 report. So it
17 didn't cross my mind. Maybe it should have. That I should also have
18 focussed more about what transpired in December 2007, but, again, at that
19 time, I didn't think of anything that was relevant for Your Honours and
20 for the Defence, and if I knew at that time about the importance now
21 placed on that meeting, I would have disclosed it in my proofing note to
22 the Defence. That's for sure and perhaps even led it live. That's
23 really I can say about this issue.
24 And likewise --
25 JUDGE ORIE: Listening to your answer, I do agree with you that
1 much of the focus was on feedback on the March 2007, the unfinished
2 report, although specifically questions were put to him in relation to
3 later versions, and even one of the questions where -- but let's not -- I
4 take it that we have all read overnight the transcript, also of the --
5 thank you for that answer.
6 Mr. Misetic.
7 MR. MISETIC: Thank you, Mr. President.
8 I also read the transcript last night and one of the issues
9 specifically for the Gotovina Defence is that in my cross-examination of
10 Mr. Theunens, I did not pose a specific set of questions to him about his
11 contact with members of the Office of the Prosecutor about the military
12 police issue, which we spent a long time in cross-examination on, because
13 I accepted his answer that he had given earlier that there was no
14 communication; and therefore, I felt that the Chamber would not have
15 appreciated me going back in once the witness had given an answer as
16 broad as the answer was in the first place.
17 However, now I believe that -- we have now passed the baton to
18 the Cermak Defence, but I believe that the question now becomes relevant
19 in light of the difficulty that transpired in cross-examination for the
20 witness to accept certain propositions relating to the military police.
21 I call the Chamber's attention specifically to the Prosecution's
22 pre-trial brief beginning at paragraph 61 and going through paragraph 67,
23 and the importance to the Prosecution's case of the issue of the
24 subordination, alleged subordination, of the military police to
25 General Gotovina. And I would like --
1 JUDGE ORIE: Let's keep matters short. You would like to have an
2 opportunity to put further questions on the matter.
3 MR. MISETIC: Well, what I wanted to say was, either -- if there
4 is going to be more questioning of this witness, I don't have a problem
5 if the Bench is going do questioning that it be put to him, Did you have
6 any communication. And particularly now that I've heard that
7 Ms. Mahindaratne and Mr. Margetts had a conversation with him, as far as
8 I understand, Ms. Mahindaratne handles the military -- some of the
9 military police issues for the Office of the Prosecutor. If the question
10 can be put to him, Did you have any communications with anyone from the
11 trial team about the issue of the military police; or alternatively, that
12 I wanted to alert the Chamber, then, that I would need time for recross
13 so that I could pose questions to the witness on this limited issue.
14 JUDGE ORIE: I don't think the Chamber will immediately put
15 questions to the witness in relation to this. If only because I have not
16 reread paragraph 61 to 67 of the pre-trial brief, and since you link it
17 to that, it is it more likely that -- but we'll consider the matter that
18 we would give you an opportunity for re-cross.
19 MR. MISETIC: Thank you, Mr. President.
20 JUDGE ORIE: And now very practically, when? Would that be ...
21 MR. MISETIC: I don't wanted to interrupt Mr. Kay --
22 Mr. Kay is gracious enough to -- that can I deal with it now if
23 the Chamber wishes or whenever the Chamber pleases is fine with me.
24 MR. KAY: I was going to deal with the drafts first off this
25 afternoon so that we have this issue before us. If it meets favour with
1 the Bench and it's more appropriate to compartmentalize Mr. Misetic's
2 cross-examination to follow that.
3 JUDGE ORIE: Yes. If you could agree on that, what would be a
4 suitable moment, then the Chamber will accept that.
5 [Trial Chamber confers]
6 JUDGE ORIE: May the witness be brought into the courtroom.
7 [The witness entered court]
8 WITNESS: REYNAUD THEUNENS [Resumed]
9 JUDGE ORIE: Good afternoon, Mr. Theunens.
10 The Chamber asked the Prosecution to give a full report on
11 communications team members have had with you. This has revealed that,
12 where on earlier questions about any communication or feedback on the
13 later versions of the report, that is, not the March version but later
14 versions, that your answers have not given full insight in the
15 communications there have been, especially not that you had a meeting
16 with Mr. Tieger, as you testified yesterday, a meeting that was held
17 before the final version of your report was delivered to the team.
18 Yesterday quite some questions were put to you. Perhaps there
19 may follow more questions on the matter. Yesterday I think I said that I
20 hoped that I had missed something. You suggested that you had referred
21 to feedback or at least communications in later stage. Everyone has
22 reviewed the transcripts, and such a reference was not found by anyone.
23 Therefore, where I yesterday said that I expect an expert to give us
24 information, full information on matters which must have been clear to
25 you that they were of interest for us to know the whole feedback issue,
1 you, being a professional, you must have understood what it meant and
2 have not been transparent.
3 I earlier, once, said to you that a certain answer was evasive.
4 You then admitted that. I would like to remind you, but with this
5 introduction, that you are still bound to the solemn declaration that you
6 gave; that is, that you will tell the truth, nothing but the truth, but
7 especially the whole truth. It may be that some of the questions that
8 were put to you earlier in the assumption that there had been no further
9 communications between you and the team after March, that Defence counsel
10 may want to extend their cross-examination, which looks as if it was
11 concluded already.
12 Mr. Kay, are you ready to continue your cross-examination?
13 Yes, Mr. Theunens, I was informed by the Victims and Witness
14 Section that you would like to say something about the matter. If you
15 would please keep it brief, then you have an opportunity to do so.
16 THE WITNESS: Thank you, Your Honours.
17 I also checked the transcript, and I would like to refer to page
18 12160, line 8, where Mr. Kehoe indeed asks me about previous feedback or
19 contacts with the Office of the Prosecutor. I started to answer at page
20 12160, line 12, and I tried to give a very detailed answer, which
21 addressed both, or not only both but which addressed the contacts that
22 existed at the time of the submission of the table of contents. Then I
23 spoke about the March draft. Then I spoke about the subsequent drafts
24 that were submitted. And then my intention was to talk about the
25 feedback I received on the final draft.
1 However, at page 12161, line 6, Mr. Kehoe said: "Excuse me,
2 Mr. Theunens, I have limited time. Then I say: "Yes, but ..." And then
3 on page 12161, line 8, Mr. Kehoe says: "So I'm going to cut you off
4 here, sir.
5 A second element I wish to bring to your attention is that on the
6 request of Messrs. Waespi and Du-Toit, I prepared a -- what is called a
7 supplemental information sheet. I have a copy of it here with me. This
8 is the version of the 11th of November. And in that document on
9 paragraph 23, I put the following: "Between February and December 2007,
10 I regularly sent unfinalized drafts of the report to Alan Tieger, in
11 order to keep him updated of my progress. I did not receive feedback
12 from the team. I sent the final draft of the report in December 2007."
13 And if you wish, I can explain which exact time I sent which part
14 of the report.
15 Anyway, going back to paragraph 23. "Alan Tieger and
16 Prashanti Mahindaratne informed me of some typographic and other
17 stylistic errors in this final draft."
18 I am still convinced that this is one of the documents I signed
19 and I'm understand the assumption that that document, I have a copy with
20 me here, was also disclosed to the Defence. I realize that the document
21 Mr. Misetic showed yesterday evening did not include this paragraph 23.
22 And there are also other parts missing in relation to the methodology I
24 However, I realize that my signature appears to be on the
25 document that Mr. Misetic showed yesterday evening in court. I realize
1 that I should be aware of what I sign. Now, the only explanation I can
2 find is that this document was given to me for signature by a member of
3 the Office of the Prosecutor, and I assumed that, well, it was just
4 another formulation of what I had put in the supplementary information
5 sheet and therefore I signed it without controlling it.
6 Just to close off, I wish to emphasise that I have always tried
7 to be as a transparent as possible. I was available to meet the Gotovina
8 Defence ten days before my testimony in the Seselj trial. I sent the
9 drafts of my report on the same evening of the 19th of November to the
10 court officer. I have tried to answer the questions from the
11 Prosecution, the Trial Chamber and the Defence to the best of my
12 abilities, and I sincerely regret that what I call or what I consider a
13 misunderstanding has had such ramifications.
14 There was no reason whatsoever for me to hide the contacts with
15 Mr. Tieger or Ms. Mahindaratne in December, in particular because I had
16 included in the information note, which under my assumption was also
17 disclosed to the Defence.
18 Thank you very much, Mr. President.
19 JUDGE ORIE: Mr. Kay, are you ready.
20 MR. KAY: Thank you, Your Honour.
21 Cross-examination by Mr. Kay: [Continued]
22 Q. Mr. Theunens, good afternoon.
23 A. Good afternoon, Mr. Kay.
24 Q. The matter we're concerned with particularly is your first
25 statement on this matter, on the 19th of November.
1 "Now, I also want to emphasise that except for the initial
2 tasking I received from Mr. Tieger and the sending of the draft, I had no
3 contact with the team. I didn't receive any phone calls. I didn't
4 receive any -- or e-mails. I heard -- when I insisted -- when I sent the
5 draft in March 2007, I'm not sure anymore how I was informed that
6 actually, well, forget about the deadline. You can continue. I saw my
7 March 2007 report as an unfinalized draft whereby, okay, we had to ...
8 fulfil certain deadlines, and I would be given the opportunity to
9 continue work ..."
10 That's from page 12157 of the transcript.
11 A. Indeed, Your Honours. And this answer refers to the -- to the
12 March draft. I did not refer in that answer to the final draft in
13 December, and if you want I can also read you out what I sent to whom at
14 what time and during which time-period the meeting with Mr. Tieger and
15 then it was also contact with Ms. Mahindaratne took place. I have the
16 information with me.
17 JUDGE ORIE: If you could give us the date of the meeting that
18 would --
19 MR. KAY: That is what I was going ask, Your Honour.
20 Q. Before you give us the dates shall I, just so that we've got the
21 fixed points in time, put the dates of your drafts to you? Would that
22 help, Mr. Tieger [sic], because I have them here?
23 JUDGE ORIE: If you would call Mr. Theunens Mr. Theunens instead
24 of Mr. Tieger, that's -- especially under the present circumstances --
25 THE WITNESS: Yes, thank you.
1 MR. KAY: I'm sorry.
2 JUDGE ORIE: -- that would be preferred.
3 MR. KAY: Yeah.
4 Q. Sorry, Mr. Theunens. Part 1, the first draft, 21st of
5 February 2007; part 2, first draft, 12th March, 2007; second draft, part
6 1, 27th of April, 2007; second draft, the same date; third draft, part 1,
7 23rd of November, 2007; part 2, third draft, 4th of December, 2007; final
8 report, 18th of December, 2007.
9 Those are taken from the drafts. Do you agree?
10 A. Indeed. And in addition, I can mention that the meeting with
11 Mr. Tieger must have taken place between the 6th of December and the 13th
12 of December, 2007 -- excuse me, between 4th and December and the 13th of
13 December, I apologise.
14 Q. After draft three and before final report.
15 A. That is correct.
16 Q. Thank you. The other meeting between Ms. Mahindaratne and
17 Mr. Margetts, I believe?
18 A. I do not remember a meeting with Mr. Margetts. I remember
19 that -- there may have been several meetings with Mr. Tieger on one day,
20 between 6th and 13th, maybe two, or three, I don't recall exactly, and at
21 one of these meetings Ms. Mahindaratne was present. I believe it was at
22 the first of these -- of the two or the three meetings, which happened
23 between the 6th and the 13th.
24 Q. You refer to stylistic matters. Could you explain what stylistic
25 matters means.
1 A. I mean by that what I already addressed yesterday, i.e., that
2 this was basically the first time that somebody else than me read the
3 report, and it was important for me to get feedback in the area of was
4 the structure logical, the organisation of the different sections did it
5 make sense, headings and so on in general, and there was some feedback in
6 the area of stylistic whether, for example, if I had chosen a particular
7 heading, to explain why I had taken or used that heading when, in the
8 view of the reader, the part that followed was not entirely coherent or,
9 or in line with what the heading would suggest.
10 There were also corrections or suggestions in a sense of
11 language, i.e., typos, some words but it was very limited. And as I
12 mentioned yesterday, section 3 of part 2, namely the section dealing with
13 General Cermak as the Knin garrison commander, was subject of these
15 Q. Yesterday I asked you questions about the shift in the first
16 three drafts from Mr. Cermak being civilian authority to
17 civilian/military authority. The change in that status must then have
18 come between the 4th of December and the 18th of December, 2007. Isn't
19 that right?
20 A. It is possible. It is possible that indeed during these
21 discussions with Mr. Tieger and/or Ms. Mahindaratne the question was
22 asked, Well, what do you mean by the title you have there. But again the
23 titles are only an introduction or a kind of label that covers the text
24 that follows. And I realize -- I believe, maybe I'm wrong, that the fact
25 that I chose -- that I used the text "military authority" has created
1 confusion. Military authority is not an official title. At least I have
2 not found a definition in Croatian doctrine as to what military authority
3 means. But the fact that I wrote civilian/military authority instead of
4 only civilian authority, which did I in the earlier versions, is because
5 from the documents I reviewed, I can see -- I saw that General Cermak was
6 giving instructions to civilians, civilian police, civilian companies and
7 so on, and at the same time he was also issuing military orders to the
8 military police in Knin. There was military communication or
9 correspondence with the Split Military District, even if it was very
10 limited, based on the documents that I reviewed and that again, if I
11 remember well, is the reason why I added the military after the civilian
12 in the -- when I defined or when I had the heading civilian/military
14 Q. The footnotes and content that you had by the date of that third
15 draft on the 4th of December were exactly the same and unchanged from the
16 those footnotes and content that you had in the final report on the 18th
17 of December. So in a period of two weeks, with the information exactly
18 the same as before, and with meetings with Mr. Tieger and
19 Ms. Mahindaratne, your report changed in a significant context, don't you
21 A. I don't agree, Your Honours. Because as I mentioned the titles
22 or the headings, are only the -- how would I call it? Yeah, the title
23 for what follows, the importance of the report lies in its contents. If
24 the contents doesn't change, well, the title is just a clarification
25 of -- of what has already been explained in the contents.
1 It doesn't make sense, at least in my methodology, to change a
2 title to try to, I don't know, invent something or add something if it is
3 not supported by what is in the contents of the report. And as you
4 mentioned yourself, the contents of that section, i.e., the footnotes and
5 reference, have not changed. So the title for me -- I mean, the change
6 in title, as there may have been changes in other titles, is only related
7 to the fact that I wanted to have a title and maybe it was proposed to me
8 to have a title that is more specific or more focussed on what follows.
9 And I apologise for not exactly recalling which exact proposals or
10 suggestions Mr. Tieger or Ms. Mahindaratne made in relation to titles or
11 typos or so on. The problem I have is that I also have worked on other
12 cases and testified in other cases, and there's only so much can I
13 remember. And I know that is a shortcoming but it is something that I
14 have to face and accept.
15 Q. The interesting thing is that there is a heading that has been
16 changed in the final report at page 245. You have a heading:
17 Civilian/military authority. You've told us that the discussions with
18 the counsel for the OTP concerned headings, matters within your report.
19 Is this a heading that was suggested to you by them?
20 A. To my recollection, it is not a specific heading or a heading
21 that was specifically suggested to me. As I mentioned yesterday, and
22 again today, there were -- there was discussion about or discussion --
23 there was an exchange of views about section 3, i.e., the Knin garrison
24 commander section. There -- I was probably asked, Well, what do you mean
25 by these sections or maybe you can -- is there a way to restructure it or
1 to make it clearer to the reader, not only for section 3 but also for
2 other sections. And again I do not specifically recall what was
3 addressed with me for the different sections of the report.
4 I think the key issue is, as you already highlighted, is that the
5 contents of the section did not change.
6 Q. Forgive me, the contents did change. As I put to you yesterday,
7 Mr. Cermak moved from the first three drafts dealing with that section
8 from civilian authority to, in the two weeks between the 4th of
9 December and 18th of December, to civilian/military authority.
10 JUDGE ORIE: Let's -- that matter at least whether there is a
11 change or not, seems to be clear to the extent that the witness tells us
12 that this better reflects the content of the report, whether true or not
13 is -- of course the Chamber will consider that, as you say, it is not not
14 without significance that civilian/military is something different from
16 MR. KAY: Thank you, Your Honour.
17 Q. You mentioned discussions about part 3. What were those
18 discussions? Did they include beefing up the section concerning
19 General Cermak to emphasise the military authority? Because,
20 Mr. Theunens, something happened in those two weeks.
21 A. Your Honours, these discussions did not include what Mr. Kay
22 callings "beefing up" the section. What they included was to change or
23 to see whether the structure, as it was, could be changed; for example,
24 in order to maybe rearrange certain sections, i.e., to have a more
25 streamlined structure. And again I don't recall --
1 Q. Continue. I'm just talking to Ms. Higgins.
2 A. I'm sorry.
3 JUDGE ORIE: Yes, but you did it through the microphone, Mr. Kay.
4 MR. KAY: I'm sorry. And She's just right here as well.
5 JUDGE ORIE: Yes, but that makes other people stop talking.
6 MR. KAY: Sorry.
7 JUDGE ORIE: Please proceed.
8 THE WITNESS: For example, to try and group the duties in a
9 manner that would make it easier for the reader to understand. But
10 again, and I mention what you said, the footnotes, i.e., the references
11 on which the report is based did not change. And I would consider that,
12 at least in my methodology, is really the most important issue. Why?
13 Because the titles are only a reflection of the contents whereby the
14 contents is based on the footnotes.
15 I could write that somebody was the highest religious authority,
16 but if I have no footnotes in the report that go in that direction such a
17 title would not make any sense, and that is the way or the manner in
18 which I see the change of -- of that title from civilian authority into
20 MR. KAY:
21 Q. On the 2nd of December, at page 12978, you gave us a definition
22 of what you mean by streamlining: "As I mentioned, I see these changes
23 not as fundamental changes or changes in conclusions or changes in
24 position. I see these changes, as I call it, a streamlining of the
25 contents of the report."
1 So changing the nature of the opinion you had, as to authority
2 from civilian to military, is that something you call "streamlining"?
3 A. Your Honours, that is not what I have been saying. What I have
4 been saying is that I have not changed my opinion or my conclusion.
5 Actually, the conclusions I draw from the documents. The change lies in
6 the fact that I amended the title in order to be a better -- at least in
7 my view, a better reflection of the contents, and in relation to the
8 discussions with Mr. Tieger and Ms. Mahindaratne, to make sure that a
9 reader, who has not looked into the detail of the report to the extent as
10 I did, understands the message I try to communicate through the report.
11 Q. Now just moving to meetings. You have told us about several
12 meetings on one day with Mr. Tieger between the 4th and the 18th of
14 So how many meetings on -- on one day?
15 A. I mentioned earlier that there were two or three meetings, and I
16 think the first one or -- if I remember well, Ms. Mahindaratne was only
17 present at the first meeting. And --
18 Q. Continue.
19 A. Yes. Again, if I remember well, the first meeting was a very
20 general meeting about the report, where Ms. Mahindaratne suggested that
21 actually the report was too detailed and covered issues that I shouldn't
22 be covering. Like, for example, the situation between 1992 and 1994.
23 I then said that I believed that these sections were essential
24 and that I was in a position to address the topics that are covered in
25 these sections.
1 I'm not sure whether we discussed any longer but, again, I
2 believe that I could leave the room then. I was then called back -- I
3 don't know whether it was before noon
4 only a meeting in Mr. Tieger's office with Mr. Tieger himself where he
5 browsed or he went through certain parts of the report and to ask me,
6 Well, what you do you mean here, or here, well, that's a typo, and it was
7 not in a structured or organised manner because, I mean, there were still
8 typos in it when the final version was filed. And during that meeting
9 with Mr. Tieger himself, or only, we also looked at -- I mean,
10 specifically for your question, section 3 and the structure of that
12 There -- if I remember well, there was a third meeting that
13 day -- or a second meeting with Mr. Tieger alone but a third meeting,
14 overall, for the report, where maybe I showed him -- I believe I showed
15 him the amended structure I had developed, and we had a discussion about
16 that, or a -- and if I remember well, that was approved and then I
17 proceeded with finalization of the report and preparation for having it
18 ERNed and MIFed, but then that was done by a member of the team and then
19 subsequently the report was filed.
20 Q. And what do you mean by the structure. What do you mean by that?
21 Let us be specific.
22 A. Yeah. I mean by that that -- it would be easier if I had the
23 previous draft before me, but I didn't have time to look at that. I read
24 the transcript this morning. But if I remember well, it could be that I
25 addressed certain duties of General Cermak at different locations within
1 the section, whereas it appeared that after a second lecture it would
2 seem more logical to group these duties in -- in a different manner. And
3 I called it yesterday and today streamlining. It is maybe not the best
4 word in English, but that is, at least from the view of the person who
5 wrote the report, I see this.
6 Q. I'm giving you an opportunity now to say what other meetings you
7 had with members of the -- of the Prosecution, either investigators,
8 either analysts, members of their team, whosoever in the organisation
9 connected with this case and discussed your report with. I'm giving you
10 an opportunity now to state each and every meeting.
11 A. Just to be specific, between December 2007 -- excuse me,
12 December 2006 and December 2007?
13 Q. No. I'm giving you an opportunity. Don't pin my question,
14 please, because I would like to what your involvement has been with this
15 case, because, as you know, we have challenged your report and we have
16 looked at the drafts.
17 And so, Mr. Theunens, I am asking you now and statements have
18 been made in court to declare what that contact has been so that the
19 Judges know.
20 A. I will take the supplemental information sheet I prepared to
21 cover the meetings between December 2006 and December 2007, and for the
22 meetings after -- or the contacts after December 2007, I will give those
23 from my memory.
24 December 2006, meeting with Douglas Marks Moore, whom -- I mean,
25 we knew each other very well from the Vukovar case, followed immediately
1 by a meeting immediately with Alan Tieger about my experiences in
2 UNPROFOR/UNPF. Very briefly, there was a proposal whether I could draft
3 a report for the Gotovina et al case.
4 Then in -- I believe it's end of December or in January I
5 received the 10-point tasking. This was followed by a meeting probably
6 with Mr. Tieger but also with my team leader separately, my team leader
7 and myself separately, which was followed by a meeting --
8 Q. Can you give the date of that meeting with Mr. Tieger and your
9 team leader?
10 A. Sorry, the -- there was no meeting with the two of them. There
11 was a separate meeting. There was meeting with Mr. Tieger --
12 Q. Can you give the date?
13 A. End of December -- no, that must have been January. In the
14 course of January 2007.
15 Q. Right. And team leader.
16 A. Team leader --
17 Q. I want you to be -- I'm giving you a chance, Mr. Theunens, to be
18 as specific about every single detail on this as possible.
19 A. Well, I'm seizing the opportunity now.
20 Q. Good.
21 A. If I remember well, that was a week or something after the
22 meeting with Mr. Tieger because there was -- there were discussions to
23 which I was not privy about whether or not I should become involved in
24 the Gotovina case at all, involvement at all or no involvement
1 Shortly after -- and, again, it could have been January or
2 February, I received a 17-point tasking. My conclusion was that the
3 17-point tasking, which was sent to me by Mr. Tieger, resulted from
4 conversations Mr. Tieger had had with Mr. Coo, but I'm not sure of that.
5 Shortly after I had a meeting with Mr. Tieger -- I'm not sure whether
6 Mr. Moore was present, where I -- and maybe Ms. Mahindaratne was present
7 but I'm not sure either but certainly with Mr. Tieger, where I proposed
8 that I would compile a report having the same layout or using the same
9 kind of methodology or template as I had done for the four other cases I
10 had prepared reports for. That was approved.
11 We then -- I mean, there was a deadline set of March 2007. I was
12 also -- or Mr. Tieger told me that my only contacts with the team would
13 go through him or through the two military analysts, Mr. Morris and
14 Mr. Shakhmetov. I soon after spoke to Mr. Morris and Mr. Shakhmetov to
15 talk about, Well, how are we going to organise this project. I was
16 informed that there was spreadsheets they had prepared so the
17 spreadsheets were sent to me.
18 After that, I had call it irregular contacts with them, for
19 example, when I asked them whether a translation was available or
20 whether, as I mentioned on the first day, when I heard that they were
21 planning missions to state archives in Croatia whether they could look
22 for particular documents, mainly regulations.
23 Then we have the March deadline. I sent the first draft -- or,
24 yeah, the first draft. March 2007, I apologise.
25 I continued to work on the report but with interruptions because
1 I'm also tasked to compile a report for the Stanisic/Simatovic case which
2 was filed in July 2007.
3 Anyway, I worked also on other cases. Then, obviously, I met
4 Mr. Tieger -- I mean not officially but when you go for a cup of coffee
5 or you are on the second floor in the corridor you can -- yeah, you talk
6 to each other as a matter of courtesy, but I didn't receive any
7 instructions as to, Well, file -- your report has to be finished on date
8 X, Y, or Z.
9 It may be that another member of the team asked me for a draft
10 but just for his or her personal information.
11 Then the next meeting -- I mean, formal meeting I remember were
12 the ones between the 4th and the 18th of December whereby I mean that
13 they happened on one day. First one with Ms. Mahindaratne and
14 Mr. Tieger; and the second and probably a third on that day, very briefly
15 with Mr. Tieger.
16 Then the report is filed. After that, there were members of the
17 team who spoke to me but on a social basis. One of the investigators
18 Mr. Van Rooyen, we have done several missions -- we did several missions
19 for the Vukovar case in Belgrade
20 coffee together but there was no influence whatsoever by Mr. Van Rooyen
21 on my report as it has been filed or on my conclusions.
22 Then in April, I'm not sure whether I was called by telephone and
23 received information by telephone from Mr. Tieger in relation to the
24 compilation of an addendum or whether I was called to his office, and
25 this may have been end of March or early April 2008. But what I do
1 remember is that on one day, I came back from a meeting for another case,
2 and I saw -- I found a hard copy of a spreadsheet on my desk, which I
3 believe was sent by Mr. Tieger. I don't know whether they were 50 or 60
4 entries but there was a heading indicating that -- or a cover page
5 indicating that Mr. Tieger requested me to review these documents as they
6 had been obtained as a later stage and, if necessary, include them in an
8 In any event after the filing of the report in December 2007, I
9 kept on looking for additional translations through the -- what is called
10 the translation request application in the Office of the Prosecutor, and
11 to see whether were other relevant documents which could be important for
12 the report that had been filed. So then I -- I started with the
13 compilation of the addendum, still working for also other cases.
14 I'm not sure anymore when I finished the addendum but I know it
15 took -- I was surprised it took so much time. When I -- two or three
16 weeks before the addendum was filed. And I don't know what the reason is
17 for that but I was a bit surprised because I found that I had worked very
18 hard to get the addendum finished as soon as possible.
19 Q. I could just stop you there at the filing of the addendum as our
20 interest is earlier in the stream of events.
21 You mentioned December 2006. What contact did you have
22 concerning this case before December 2006?
23 A. I had contacts with Mr. Shakhmetov and Mr. Morris but just in
24 the framework of working in the same team, the Military Analysis Team,
25 and obviously I had social contacts with other members of the Prosecution
1 team because I know them from other cases. For example Mr. --
2 Q. I understand that. Yes?
3 A. I'm really trying to think whether --
4 Q. You see, it's the indictment that I'm coming back to, that you
5 read the indictment once.
6 A. Yes. I mean, the indictment I downloaded from the internet.
7 Q. Yeah.
8 A. That was actually -- I mean, the recollection I have is that I
9 did it after the first meeting or the first contact with Mr. Moore about
10 well, whether I was -- would be interested to work on the Gotovina
11 case --
12 Q. Before the indictment was filed, did you look at it, the drafts
13 of the indictment?
14 A. No -- no, Your Honours. I want to emphasise I was not
15 professionally involved with the Gotovina team prior to the December 2006
16 meeting. And on one hand, I was surprised because I thought, like, I
17 work here for a number of years, I'm one of the few people who was in the
18 area during the time-period of the events, and I was surprised that
19 nobody asked me about that. But otherwise I didn't, yeah, worry about
21 JUDGE ORIE: You give a rather lengthy answer where Mr. Kay just
22 wants to know whether you ever reviewed any --
23 MR. KAY: Drafts of the indictment.
24 JUDGE ORIE: -- any drafts of the indictment and the answer is
1 THE WITNESS: I did not. Your Honours, I apologise for being so
2 detailed but I really want to avoid the experience of the 19th of
4 JUDGE ORIE: If the questions are clear and if the answers are
5 just as clear, that -- it's a very factual question whether you have
6 reviewed them yes or no.
7 THE WITNESS: Okay.
8 MR. KAY: Your Honour, on those matters concerning the draft,
9 that's all I asked and I agreed earlier with Mr. Misetic it would be
10 appropriate for him to deal with his section of cross-examination at this
11 stage so that it is all dealt with together.
12 JUDGE ORIE: Yes.
13 Mr. Theunens, as I indicated before, there might be some
14 additional questions. Mr. Misetic may address concern matters he
15 refrained from doing in his earlier cross-examination.
16 Mr. Misetic.
17 MR. MISETIC: Thank you, Mr. President.
18 Cross-examination by Mr. Misetic: [Continued]
19 Q. Good afternoon, Mr. Theunens.
20 A. Good afternoon, Mr. Misetic.
21 Q. Mr. Theunens, first, you have now mentioned that you met with
22 Ms. Mahindaratne in December of 2007. Mr. Waespi indicated earlier that
23 he was told it may have been March 2007, and then at page 23, line 10,
24 you mentioned the possibility that sometime around February of 2007 you
25 may have had a meeting with Ms. Mahindaratne.
1 Is it possible that in fact you've had multiple meetings with
2 Ms. Mahindaratne about your report?
3 A. The December meeting with Ms. Mahindaratne is the meeting where I
4 received feedback from her in relation to the report. I apologise,
5 December 2007.
6 The earlier meeting or meetings, February or March 2007, I have
7 no specific recollection for the date, but I did not receive feedback
8 from Ms. Mahindaratne in relation to the report during one -- during a
9 meeting I had with her being present. She may have been present during a
10 certain time-period during one of the meetings with Mr. Moore and/or
11 Mr. Tieger. And Mr. Tieger, I mean.
12 I'm not sure whether she was -- because that is something that I
13 didn't mention because the meeting we had on the 17th of January, 17th
14 January 2008, but I'm just trying to think whether she was present there.
15 I'm not sure whether she was there; I don't think so.
16 I'm sorry to be so detailed but just to answer the question.
17 Prior to December 2007, I do not remember a meeting with Ms. Mahindaratne
18 whereby she or during which she gave me feedback on my report.
19 Q. Okay. Can you please identify for us everyone within the Office
20 of the Prosecutor with whom you had a conversation about the military
21 police generally and specifically about subordination of the military
23 A. Prior to the filing of the report, i.e., prior to December 2007,
24 I remember talking to Mr. Tieger, Mr. Moore, Ms. Mahindaratne, as well as
25 asking Mr. Shakhmetov and/or Mr. Morris about the relevant regulations
1 covering military police in general.
2 Discussions specifically on subordination were with the three
3 first people I mentioned.
4 It may be that -- that a team member -- it could that be
5 Mr. Margetts at one moment in time asked me to send him my latest draft,
6 i.e., before the filing of the report, but he did not give me any
7 feedback in relation to the report in general, and, of course, he didn't
8 give me any feedback on the issue of the military police.
9 JUDGE ORIE: Mr. Theunens, just to avoid whatever
10 misunderstanding, you said prior to the filing of the report, i.e., prior
11 to December 2007, could that -- because you remember talking to
12 Mr. Tieger, Mr. Moore, Ms. Mahindaratne. Could that have been prior to
13 the filing of the report but still in December?
14 THE WITNESS: Actually, Your Honours, it covers the time-period
15 from December 2006 to December 2007. What I mean is that during the
16 meetings I mentioned earlier, the topic of subordination of military
17 police was indeed mentioned, maybe not at every meeting, but I recall
18 certainly with Mr. Moore that we discussed that.
19 The meeting that happened -- I mean -- or the meetings between
20 the 4th of December and the 18th of December, 2007, i.e., the meetings
21 whereby I received feedback on the final draft, there -- I have no
22 recollection of any discussion on the subordination of the military
23 police during meetings during the -- the time-period between 4th
24 December and 18th of December, 2007.
25 MR. MISETIC:
1 Q. Can you tell us what was discussed? You mentioned now: "The
2 topic of subordination of military police was indeed mentioned, maybe not
3 at every meeting, but I recall certainly with Mr. Moore that we discussed
5 Tell us a little bit about that discussion. What was discussed?
6 A. As I mentioned, Mr. Moore -- I assisted Mr. Moore in the
7 Vukovar 3 case and there we had a situation which could be considered
8 similar in a sense. We had a use of the military police by the Guards
9 Motorised Brigade of the JNA in Vukovar and, of course, the events that
10 occurred at Ovcara. And there was also the issue of professional and the
11 operational line in relation to the subordination of security organs in
12 the JNA. And I remember a conversation with Mr. Moore where I tried to
13 explain Articles 8 and 9, referring to what he knew or what was the
14 situation during the Vukovar trial.
15 Q. Do you recall a discussion about why that issue might be relevant
16 in this case, whether with Mr. Moore or anyone else?
17 A. Well, I don't have the -- the -- the taskings here with the ten
18 points and 17 points in front of me but I believe that they include a
19 discussion of the subordination of the military police.
20 Q. Yes. But did you have a conversation -- and now I'm not limiting
21 myself only to prior to December of 2007. I mean from the time you --
22 from December 2006 to the present, have you ever had a conversation with
23 anyone in the Office of the Prosecutor about the relevance of that issue
24 of the subordination of the military police in this case.
25 A. I want to make a distinction, for obvious reasons, between the
1 time-period before the filing of the report and the time-period after the
2 filing of the report, and the time-period before the filing of the report
3 I see three important stages. First, table of contents, December 2006;
4 second, first draft, March 2007; third, submission of the final draft and
5 feedback to the final draft in December 2008.
6 We have addressed the time-period before the filing of the report
7 in my previous answers. After the filing of the report, indeed, I was
8 contacted at different occasions by members of the team to explain what,
9 for example, what I had written in the report or to clarify to them what
10 Articles 8 and 9 of the 1994 rules on military police mentioned.
11 Q. And who specifically did you have conversations with about
12 Articles 8 and 9 of the rules of the military police?
13 A. If I remember well, at least with Ms. Mahindaratne, probably also
14 Mr. Shakhmetov and Mr. Morris in relation to -- I'm not sure when -- I'm
15 trying to think -- the document which is known as D35, it is not included
16 in my report because I couldn't -- I didn't manage to find it. And I'm
17 not sure whether my views were asked about that document without me
18 knowing that it was D35 prior -- I mean, after the filing of the report
19 but prior to it being tendered as D35, or whether I was only asked to
20 express my views on D35 after it had been filed as D35.
21 Q. Now, after you filed the report, were you in fact assisting, for
22 example, Ms. Mahindaratne, in understanding issues related to the
23 subordination of the military police?
24 A. Yes. I answered to questions she had. So that could be
25 described as assistance, providing assistance.
1 Q. When -- first of all, how many occasions did you have
2 conversations with Ms. Mahindaratne about the military police, after the
3 filing of your report?
4 A. I don't recall exactly. Two, three, times. I remember that once
5 she announced that a military police witness would -- or a witness
6 belonging to the military police would testify and she asked me a number
7 of questions by e-mail about -- about documents or -- she -- she was
8 planning to use. And again to explain what D35 meant. Yeah, and I
9 answered to that -- to those e-mails or that e-mail as I would do to any
10 other e-mail I receive from members of the OTP. I mean, that's my task
11 as a military intelligence analyst or an intelligence analyst,
12 "military," within the Office of the Prosecutor.
13 Q. In addition to Ms. Mahindaratne, how many other members of the
14 trial team did you provide assistance to, in terms of understanding
15 issues? For example, do you recall if you had any conversations with
16 Mr. Gustafson about discipline, or e-mail communications?
17 A. Do you wish to -- should I only address Ms. Gustafson or also
18 address other members of the team?
19 Q. All members of the team including Ms. Gustafson.
20 A. Yeah. As I mentioned, I sometimes -- when it was possible to me
21 I tried to follow trial proceedings, and I remember that there was
22 discussion of the Krajina Express, this armoured train the Krajina Serbs
23 had, in court or during the proceedings so I had no other urgent task for
24 the other cases I work on at that time and I looked for pictures of the
25 Krajina Express on the Internet, and I sent it to -- I don't know whether
1 who exactly the lawyer was who was leading the witness but I most likely
2 sent an e-mail to the case manager with those pictures.
3 I also remember, for example, a discussion on the Krajina
4 Liberation Army in court and I knew the -- the concept of Krajina
5 Liberation Army from my work in the UNTAES mission, and I thought that in
6 the context of the role, at least as I see my role in this organisation,
7 is try to contribute in establishing facts where I believe that I have
8 knowledge which could assist in establishing facts, I believe that it was
9 useful for me then to send this information I had to the members of the
10 Office of the Prosecutor or, more particularly, the case manager who was
11 in court at that time.
12 In relation to Ms. Gustafson, I sent her an e-mail -- I think it
13 was during the cross-examination of -- of Ms. Botteri, but because,
14 again, I had time to check the various court proceedings, I also try to
15 keep an eye on what was happening in the Perisic case because I have
16 to -- or I have been requested to compile a report for that case. I
17 checked the other cases, also the Seselj trial where I'm a military
18 analyst, and I saw that Ms. Botteri was testifying. I found it very
19 important or interesting because I have seen a lot of documents signed by
20 her, or addressed to her. And I think I'm not -- I don't recall exactly
21 what the e-mail was about but I think it had to do with -- that documents
22 she was using were also included in my report. But again, I'm not
23 entirely sure that that was the matter. I mean, the documents she had
24 used or that the Defence had used in cross-examination, that these
25 documents were also included in my report. But I had no contact
1 whatsoever with Ms. Gustafson prior to the testimony of Ms. Botteri.
2 Q. Do you recall any other member of the trial team that you
3 provided assistance to?
4 A. Yeah, and these are all snippets but that's -- I apologise, these
5 are -- I mean, how it went. I remember seeing a video, an evacuation
6 video of the -- where the SVK was organizing an evacuation exercise in a
7 particular area and then I checked on the map where this area -- where
8 this municipality or town was located, and I sent an e-mail to --
9 certainly to the case manager but also -- maybe also to Mr. Hedaraly
10 about the location -- I mean the grid reference and then the distance to
11 the confrontation line of that particular municipality.
12 And again, I thought that this assistance is in line with the
13 tasks you have as an intelligence analyst, "military," within the Office
14 of the Prosecutor.
15 And, I mean, just to emphasise this was all after the filing of
16 the report.
17 [Defence counsel confer]
18 MR. MISETIC:
19 Q. Mr. Theunens, do you recall watching the testimony of any
20 witnesses who used to be members of the Croatian military police? Just
21 do you recall.
22 A. Yes. But I don't remember the name of the person, and I didn't
23 follow it in its entirety because I had other tasks to do, for other
25 Q. Do the names of witness Dzolic or witness Simic ring a bell?
1 A. Not -- not specifically. It may be possible but have no -- I
2 cannot link the name to a particular position or rank or unit in the
3 military police.
4 Q. Finally on this issue of the military police, do you recall
5 telling Ms. Mahindaratne that it was your assessment that the military
6 police was operationally subordinated to General Gotovina?
7 A. Yes, and that follows from the discussions we had on Articles 8
8 and 9 from P880 which were held --
9 JUDGE ORIE: Yes. The question, Mr. Theunens, was whether you
10 recall telling her and that, of course, does not follow from the
11 substance of what your message may have been. You told her. That would
12 be an answer to the question. And I take it that if you tell her
13 something that you would tell her what you think is the right thing to
14 tell her. But the question was simply whether you told her this, that it
15 was your assessment that the military police was operationally
16 subordinated to General Gotovina.
17 THE WITNESS: Yes, I did.
18 MR. MISETIC:
19 Q. Do you recall telling her that you -- it was your conclusion that
20 the military police was not operationally subordinated to General Lausic?
21 A. No, not specifically. I mean, I remember that I explained --
22 okay, how it -- subordination in according with the regulations works,
23 and therefore, as I put in my report, my conclusion was that -- or is
24 that the military police -- I mean, is subordinated to the operational
25 commander, according to the operational chain.
1 I did explain to her as well as, most likely, also Mr. Moore what
2 I understood under the professional chain, i.e., to explain the relation
3 between the military police and units and General Lausic.
4 Q. On this issue of your conversation with Mr. Moore about the
5 subordination of the military police, looking at the time-frame, that
6 conversation took place before the Prosecutor filed his -- the pre-trial
7 brief in this case. Correct?
8 A. I don't know when the pre-trial brief was filed. I remember
9 talking about such issues with Mr. Moore in the December to March 2007 --
10 excuse me, December 2006 to March 2007 time-period.
11 Q. Thank you. Let me ask you -- shifting gears for one moment.
12 You mentioned this document that you're -- supplemental
13 information sheet and you said that paragraph 23 was altered, and you
14 didn't pay attention when you signed it that a sentence had been deleted.
16 A. I should be more precise. I have a copy here of information
17 sheet which dates the 11th of November. And I also found a copy of the
18 sheet you showed last evening and basically from the supplemental
19 information sheet as I saw it, paragraph 20 is missing, part of 21 is
20 missing, 22 is missing, 23 is missing, and part of 26 are missing.
21 And I -- I'm very surprised by that. I don't know what happened.
22 And I would be very grateful if somebody could explain me because, for
23 me, paragraph 23 of the information sheet as I have it, explains
24 everything and would also explain what happened on the 19th.
25 Q. Well, who deleted those paragraphs?
1 A. I don't know. I mean, if I were authorised to speak to the
2 Office of the Prosecutor, I would obviously have asked them but ...
3 Q. Who did you receive -- let me ask you a different question.
4 Did you draft the original?
5 A. I did. And on the 11th of November -- I had a cover sheet of an
6 e-mail, but on the 11th of November at 11.30 a.m., I received the final
7 version from Mr. Du-Toit. The distinction between what I had put and the
8 final version is that Mr. Du-Toit had included annex numbers, which I
9 didn't know. I mean I knew that a number of things would be attached to
10 the supplementary information sheet but I didn't know whether it would be
11 Annex A, B, or C.
12 There was also an ERN that was missing. As I mentioned, I
13 drafted a draft article for a conference in Oslo in September, and the
14 article is not finished but it was considered useful to attach the
15 article or the draft to the supplemental information sheet and that
16 implied that the draft article first had to be ERNed by a member of the
17 team, and that was the kind of information I -- that was added in the
18 final version I received and I have a recollection that I signed it, and
19 then I assumed that that would be disclosed to the Defence.
20 MR. MISETIC: Mr. President, I have no further questions other
21 than I would appreciate if we could perhaps get a copy of the original
22 version that Mr. Theunens has.
23 And I also have a matter to address with the Chamber outside the
24 presence of the witness, whether now or when we come back from the break.
25 JUDGE ORIE: Yes.
1 Mr. Theunens, would you willing to share the --
2 THE WITNESS: Of course, Your Honours.
3 JUDGE ORIE: -- two versions of that document.
4 Madam Usher, could you please receive them. They will be copied
5 then, Mr. Theunens, and you will -- your copies will be returned to you.
6 How much time would you need, Mr. Misetic?
7 MR. MISETIC: No more than two minutes, Mr. President.
8 JUDGE ORIE: No more than two minutes. Then I will do it before
9 the break because that might cause us to think about matters and then we
10 have the whole break to do that.
11 Mr. Theunens, could you please follow Madam Usher and leave the
12 courtroom. We'd like to see you back after the break.
13 [The witness withdrew]
14 MR. MISETIC: Thank you, Mr. President.
15 The issue I wish to address is again in light of the witness's
16 answers concerning assistance that he provided to the trial team. I'm
17 aware of precedent in the Vukovar case where the Trial Chamber excluded
18 Mr. Coo, who the witness has referenced several times here, who is the
19 head of the unit to which Mr. Theunens belongs. The testimony of Witness
20 Coo was excluded because of his involvement with the trial team.
21 To me, it is now at least an issue that needs to be explored
22 because has he now testified to certain matters, I think we can see that
23 there may be some inconsistent recollections or additional information
24 that perhaps the Office of the Prosecutor could provide as to
25 Mr. Theunens' role from the submission of the report to the present and
1 how much involvement he may have had in providing any kind of opinions to
2 members of the trial team on issues that are in dispute in this trial
3 because the Defence may wish to raise those issues in light of the
4 precedent from the Vukovar trial.
5 Thank you, Mr. President.
6 JUDGE ORIE: Mr. Waespi.
7 MR. WAESPI: Thank you, Mr. President. First of all, I think the
8 Phil Coo issue was in the Slobodan Milosevic case not in the Vukovar
10 But the issue at that time was that Mr. Coo was involved in the
11 preparation of the Slobodan Milosevic. I think he interviewed the
12 witnesses. That all didn't happen in relation to Mr. Theunens. He was
13 completely separate, he didn't interview any witnesses, he didn't make
14 any suggestions as, you know, what question should be put to these
15 people. It is a different issue once a report has been filed. Obviously
16 Mr. Theunens is part of OTP. He is employed, he is paid by the UN to
17 provide opinions and there is absolutely nothing wrong with him doing
18 that after the report has been filed.
19 MR. MISETIC: Mr. President.
20 JUDGE ORIE: We're still at the stage of gathering factual
21 information, whether there is anything wrong or not I think Mr. Misetic
22 had not yet reached that point. He said that he referred to a precedent
23 in which, apparently, there may have been something wrong and that this
24 has had consequences in that case, so that we can at least start looking
25 at it. And thank you very much for informing us that it was the
1 Milosevic case rather than -- if would you have more details as the date
2 of the decision and whether it is a public decision so we can already
3 start reading it.
4 MR. MISETIC: Yes, Mr. President. I will check with Mr. Waespi.
5 My understanding -- I recall that it was Judge Parker who gave the
6 decision but I could be wrong on that as well.
7 You're absolutely right, Mr. President. I just want to be able
8 to gather the facts, and it may very well be that Mr. Waespi's correct,
9 but I think we should have a opportunity to inspect it for ourselves.
10 JUDGE ORIE: Yes. I might put some questions to the witness I
11 had already on my mind which might be relevant for this issue just after
12 the break.
13 We'll have a break until quarter past 4.00.
14 --- Recess taken at 3.50 p.m.
15 [The witness entered court]
16 --- On resuming at 4.23 p.m.
17 JUDGE ORIE: Mr. Theunens, I would have a few follow-up
18 questions, in relation to your testimony during the first afternoon
20 You told us that you watched some of the proceedings. You said,
21 I had time. Were you specifically tasked to follow the proceedings,
22 either by saying, Follow them as much as you can, or was it just personal
23 interest, or did ever any of your colleagues or superiors ask you to
24 watch, to the extent possible, or to watch specific portions, was there
25 ever any request?
1 THE WITNESS: Your Honours, in my recollection, it was on my
2 personal initiative when I would -- in the morning I would check my
3 agenda, check the court schedule, and then flip from one courtroom to the
4 other because, for example, I work on other trials, and if there was a
5 witness, sometimes somebody I knew from former UN or ECMM, or, for
6 example, I tried to follow Kosta Novakovic because I knew -- not
7 personally, of course, but I knew his name and his position from the time
8 I was serving UNPROFOR. So that was the level of -- that was how I came
9 about to follow proceedings.
10 JUDGE ORIE: When you had communication in which you explained to
11 members of the Prosecution team certain matters, sometimes, I do
12 understand, in a meeting you were asked questions. Did you also
13 sometimes take the initiative and why did you do that, if you did,
14 something struck you when looking at the screen, what -- what moved you
15 to -- to get in touch then with members of the team, if you did so.
16 THE WITNESS: Your Honours, you are asking me about a meeting and
17 then the screen, does the screen refer to trial proceedings or to --
18 JUDGE ORIE: Yes. No, the screen you're watching, you're
19 following the proceedings. Something came into your mind as it might
20 interest one of the team members, and did you then, on your own
21 initiative, send them an e-mail, call them? Did that happen?
22 THE WITNESS: I would send them e-mails, Your Honour, on my own
23 initiative. I cannot exclude that I have received an e-mail from
24 somebody to explain something that they considered relevant. When I say
25 somebody, a member of the -- of the legal team. But the problem I have,
1 I work simultaneously on several cases and in, like, for example, in the
2 four other cases where I was directly involved in the investigation and
3 even interviewed witnesses, I was much closer involved. Even in the --
4 in -- now with the Seselj trial, which is still ongoing, I receive
5 continuous questions, and at this moment I cannot make a clear
6 distinction whether I received only e-mails for Seselj or also for
8 My recollection at this moment is that if I received e-mails in
9 relation to the trial proceedings for the Gotovina trial, that the number
10 is extremely limited.
11 JUDGE ORIE: That is, less than five, less then ten, less than
12 30, what?
13 THE WITNESS: Less than five, Your Honours.
14 JUDGE ORIE: Less than five.
15 THE WITNESS: And when you would compare the number of e-mails,
16 Gotovina trial e-mail, in/out, receiving less than five, sending over
17 total maybe 20, 30, it's difficult to say for me. And they dealt with
18 issues where I believed, just to answer the last part of your question,
19 that the knowledge and the experience I have of the conflict could assist
20 in establishing the facts.
21 I come from a civil law system, Your Honours, not from a common
22 law system and I realize that have I problems with the common law system.
23 JUDGE ORIE: I don't know yet how to interpret this last
24 observation, Mr. Theunens, but I'll give it some time to ...
25 You mean by finding your position in the common law system if you
1 work in the Office of the Prosecution. Is that what you meant?
2 THE WITNESS: Exactly, Your Honours. The Article -- actually the
3 conference I gave in Oslo
4 also based on the experience of Phil Coo in a previous trial was that,
5 actually, experts should be called or would best be called by the
6 Trial Chamber whereby, and again, I'm not a lawyer but I was just looking
7 at it from the analytical point of view, the parties would submit all
8 evidence that they want the expert to review to the Trial Chamber and
9 then the expert would --
10 JUDGE ORIE: Yes, I see that you are in favour of a different
11 system which is not unfamiliar to me but let's -- I now understand your
12 earlier observation.
13 These were my questions.
14 Mr. Kay, are you ready to --
15 MR. KAY: There was just follow-up while we're on this to try and
16 deal with all matters which is --
17 Cross-examination by Mr. Kay: [Continued]
18 Q. His Honour mentioned meetings. One matter that I'd like to know
19 is have you had meetings with the investigators for the OTP? Now the
20 names that come to my mind are Mr. Foster, Mr. Casey, and Mr. Morris,
21 whom you've mentioned several times, who are men who have interviewed
22 witnesses for the OTP. I would ask you to declare what -- what those
23 contacts have been, the type of contacts, and the type of discussions.
24 A. I never had a -- what I would call a formal meeting with
25 Mr. Foster or Mr. Casey. I remember seeing Mr. Casey once in Zagreb
1 I was there on another interview mission, but we just crossed each other
2 in the hotel, and as I said, courtesy.
3 Mr. Foster once came -- or maybe twice came to sit at a table
4 where I was having coffee here in the office with Mr. Morris.
5 In relation to Mr. Morris who is actually a member of the
6 Military Analysis Team, i.e., intelligence analyst, military, we had
7 meetings, team meetings, I mean Military Analysis Team meetings,
8 exchanges of views about analysis, or social gatherings. He has been my
9 colleague for at least seven and a half years. He, for example --
10 received me when I arrived at the ICTY in June 2001 but I had never a
11 Gotovina-related meeting with Mr. Moric [sic] with the exception of the
12 conversations we had about the spreadsheets that were addressed earlier.
13 Mr. Van Rooyen is another investigator assigned to the Gotovina
14 team, and he and I, we have a social relationship based on our close
15 cooperation in -- in the investigation for the Vukovar case.
16 Q. The team meetings you referred to, what are those team meetings?
17 A. Those were meetings of the Military Analysis Team. They were
18 held at irregular intervals, sometimes every month -- I'm now talking
19 about the situation in 2001, 2004. Later there were less meetings and
20 these were mainly meetings where the team leader, the latest -- the last
21 team leader was Mr. Coo, would gather the analysts to discuss general
22 issues, communication of information he had obtained as to the internal
23 organisation of the OTP, specific military analytical issues, and so on,
24 but nothing specific to the Gotovina case.
25 Q. So just to deal with this issue so it's clear, in relation to
1 Mr. Morris, has there been any discussions between you and he about the
2 evidence of a witness named Lausic? And that's the Lausic who is the
3 General Lausic, chief of administration, chief of the military police
4 administration. Have you and he had discussions, informally or formally,
5 in any way about the nature of his statement or information from him?
6 A. No. I -- I think I asked Mr. Morris once informally, and that
7 may well have been prior to the filing of the report, whether Mr. Lausic
8 was interviewed and whether -- or whether he would testify. And he
9 answered the question that he was interviewed but that he didn't know
10 that he -- whether he would testify or not, and that's the level at which
11 we discussed Mr. Lausic, or General Lausic.
12 Q. Thank you.
13 MR. KAY: That's all I ask on the matters, because Your Honour,
14 mentioned meetings.
15 Thank you.
16 Q. Let us return to the matters we were dealing with yesterday. I
17 had one more document, Mr. Theunens, to deal with in that sequence before
18 we close, as His Honour to deal with matters just before the end, but it
19 would be important for me to deal with it.
20 MR. KAY: 65 ter 475.
21 Q. It's a document dated the 6th of October, 1995. It's from the
22 Split Military District Command. It deals with an inspection of
23 Split Military District units and when that inspection will take place in
24 October 1995, concerning the level of organisation, capability.
25 MR. KAY: If we go to page 2.
1 Q. Training, all general issues concerning the state of the
2 Military District units.
3 MR. KAY: If we go to page 3.
4 Q. The order there, as to what is to happen in relation to this
5 inspection, if we just go to the last page.
6 And you'll recollect the documents we looked -- we looked at
7 about five important documents relating to the Split Military District at
8 the end of my questions yesterday.
9 And down here, we see the various people within the
10 Split Military District, including the garrisons included in this, and
11 you will notice no Knin ZM.
12 Again, would you agree with me that this is a highly significant
13 omission, in relation to the issue concerning the Split Military District
14 and the relationship of the Knin garrison with the Military District
16 A. Your Honours, I believe that on the first page it is indicated
17 that this concerns an inspection by members of the HV Main Staff --
18 Q. That's right.
19 A. -- who will inspect units and commands of the Split Military
20 District, and indeed the Knin garrison is -- is not mentioned among the
21 addressee list. I haven't seen everything in the document, but it would
22 be logical that the addressee list includes the units that will be
23 subjected to the inspection.
24 Now why the HV Main Staff decides not to inspect the Knin
25 garrison is something I have no information on.
1 Q. Thank you. That, then, deals with that matter.
2 MR. KAY: May this document be made an exhibit, Your Honour.
3 MR. WAESPI: No objections.
4 JUDGE ORIE: Mr. Registrar.
5 THE REGISTRAR: Exhibit number D1006, Your Honours.
6 JUDGE ORIE: D1006 is admitted into evidence.
7 MR. KAY:
8 Q. We'll go to a new topic now and it was one that you mentioned
9 earlier in your testimony and I said we'd be coming to it because you
10 said you didn't know the nature of Mr. Cermak's background, and so we
11 will just be looking quickly at some documents concerning his appointment
12 and background.
13 MR. KAY: And if we, first of all, go to 65 ter 5803 -- 5830, my
14 apologies, Madam Registrar [sic].
15 Q. This is a document that has two documents with it and it is
16 slightly out the sequence in terms of time-frame, but the issue of the
17 dates and the subject matter will be clear.
18 First of all, this is a document dated the 5th of April, 1993
19 signed by the president of Croatia
20 on posting active officer to reserve officer of the Republic of Croatia
21 armed forces. General Cermak was being appointed to the administrative
22 service. Do you see that?
23 A. Yes, I see this document.
24 Q. Yeah.
25 A. Okay, just to clarify --
1 Q. Sure.
2 A. -- when I said I was not familiar with the background of
3 General Cermak, it was with the -- his activities immediately prior to
4 him being appointed commander of the Knin garrison on the 5th of August,
6 Q. Thank you. We'll have a look at these things first which can set
7 the background.
8 Page 2 of this document has another document attached to it
9 concerning the 10th of October, 1992, and it's the decision of the
10 president, appointing General Cermak as assistant minister of defence for
11 the state immediately.
12 MR. KAY: Your Honour, may these documents be made an exhibit.
13 MR. WAESPI: No objections.
14 JUDGE ORIE: Mr. Registrar.
15 THE REGISTRAR: Your Honours, that becomes Exhibit number D1007.
16 JUDGE ORIE: D1007 is admitted into evidence.
17 MR. KAY: Thank you.
18 Next document, 2D07-0113.
19 Q. And this takes the story up further, Mr. Theunens. And it's the
20 appointment of Mr. Cermak as minister of industry, ship building, and
21 energy by the president, on the 3rd of April, 1993. And we'll get it on
22 the screen soon.
23 There you are. You can see that as part of the background.
24 MR. KAY: Your Honour, may this document be made an exhibit.
25 MR. WAESPI: No objections.
1 JUDGE ORIE: Mr. Registrar.
2 THE REGISTRAR: D1008, Your Honours.
3 JUDGE ORIE: D1008 is admitted into evidence.
4 MR. KAY: Next document is 2D07-0115.
5 Q. This is a document dated the 20th of May, 1993. It's a decision
6 of that date, relieving Mr. Cermak of his duty as minister of industry,
7 ship building, and energy, in the previous appointment that we had seen.
8 And again, issued by the president of the state.
9 MR. KAY: Your Honour, if this document may be made an exhibit.
10 MR. WAESPI: No objections.
11 JUDGE ORIE: Mr. Registrar.
12 THE REGISTRAR: D1009, Your Honours.
13 JUDGE ORIE: D1009 is admitted into evidence.
14 MR. KAY: Thank you.
15 2D07-0117 is the next document.
16 Q. It is dated the 20th of May, 1993, so is following the next --
17 the previous document. And it's a decision of the president to appoint
18 him as minister of the economy.
19 Were you aware of these appointments, Mr. Theunens?
20 A. I was not aware of the formal appointments but have I a
21 recollection that Mr. Cermak was a member of the government during -- at
22 least in 1993. But I didn't have any documents nor the specific
23 documents indicating when he was appointed and to which particular
25 MR. KAY: May this document be made an exhibit, Your Honour.
1 MR. WAESPI: No objections.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: D1010, Your Honours.
4 JUDGE ORIE: D1010 is admitted into evidence.
5 MR. KAY: The next document is 2D07-0119, and it's the last in
6 this sequence and it follows on from the previous appointment. It's
7 dated the 12th of October, 1993, a decision by the president of Croatia
8 relieving Mr. Cermak of his duty as minister of economy based on his
9 personal request.
10 Q. Again, did you realize that Mr. Cermak finished his duties as a
11 minister from that date in 1993?
12 A. I became aware of that, but that was after the filing of the
13 report and also after the filing of the addendum.
14 Q. Thank you.
15 MR. KAY: May this document be made an exhibit, Your Honour.
16 MR. WAESPI: No objections.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: D1011, Your Honours.
19 JUDGE ORIE: D1011 is admitted into evidence.
20 MR. KAY:
21 Q. Again, D31 is a document that has already been produced into
22 evidence into the proceedings, Mr. Theunens, and it's the appointment of
23 Mr. Cermak as the commander of the Knin garrison and Major Gojevic as the
24 Deputy Commander of the Knin garrison.
25 Did you appreciate that between the period of 1993 until this
1 appointment that Mr. Cermak had held no other public duties or office?
2 A. Based on my recollection, I -- yeah, that is correct, and I
3 believe Mr. Cermak was mainly active in private business, as a
5 Q. That's right. And you have correctly referred to him in your
6 report as Colonel in reserve, which we have seen from the earlier
7 appointments, which is what a Colonel General in reserve which we have
8 seen from the earlier appointments.
9 In taking up the task of being a garrison commander without any
10 previous experience in the role, or knowledge of the role, would you
11 agree, would make it difficult to establish an effective garrison in Knin
12 from the 6th of August?
13 A. Not necessarily, Your Honours. I mean there are several factors
14 that play a role.
15 The previous commander or acting commander, Gojevic, is appointed
16 as deputy to General Cermak so he could assist with certain matters. As
17 I mentioned, I'm not familiar with the kind of activities or training
18 General Cermak received immediately to -- prior to taking up the position
19 of the Knin garrison. On the other hand, I agree with you that the
20 situation in Knin was quite complex, and that is also visible from the
21 documents I have reviewed, and that it was also a garrison which had not
22 been located in that area prior to the 6th of August.
23 Q. Thank you. Such documents as there are and that exist within the
24 OTP database and that have been given to me, we have been through those
25 documents yesterday, you recollect, to show what Major Gojevic did and
1 what his tasks were.
2 Do you recollect that yesterday?
3 A. Yes, I do.
4 Q. In relation to this position, you mentioned training. Is that
5 something as a military officer you would deem necessary for a position
6 of this nature?
7 A. The position of garrison commander would require specific
8 training, i.e., I would think a familiarization with the zone of
9 responsibility, or, i.e., the zone covered by the garrison,
10 familiarization with the units, more specifically the commanders of these
11 units that are located in the garrison, and that would take most of time,
12 and on the other hand, also familiarization with the regulations that
13 apply to a garrison commander, as well as all the other aspects that are
14 part of the duty of a garrison commander in a specific area.
15 Q. That deals with training. Also, would you agree, there are
16 resources that are needed to accomplish the tasks of a garrison
17 commander, and I have in mind those matters referred to by the garrison
18 commander of Split
19 A. Indeed. And I think it is important in that context to make a
20 distinction between what I would call the proper resources whereby for
21 each unit there is what is called an establishment strength and the
22 establishment strength of the Knin garrison was very small. I believe it
23 was nine, but I'm -- we can check the documents; whereas, for the Split
24 garrison, it was bigger. Obviously depends on the area covered by the
1 On the other hand, resources also includes units which the
2 garrison commander could use in order to implement his mission.
3 Q. Were you aware of General Forand's view - we have no need to look
4 at the document; it's Exhibit D150 for the Court's benefit - of
5 General Cermak's authority being limited in certain areas, in relation to
6 his role? Were you aware of General Forand's view, in relation to that,
7 as expressed on the 26th of August, 1995?
8 A. No, I am not. And I don't think I have used D150 in my report.
9 Q. No, you haven't.
10 A. No.
11 Q. And it's been in evidence before the Court, and it's a matter
12 that I'm directing Their Honours's attention to but asking if you were
13 aware of that, and you have given me your answer. Thank you very much.
14 Let us now look at the tasks and job that Mr. Cermak was doing in
15 Knin. I believe you've already referred us to P1144, Exhibit P1144,
16 where, at page 4 in the English transcript of a meeting between the
17 president and Mr. Cermak, there is a discussion about Mr. Cermak being in
18 Knin. You already referred to that earlier in your evidence, and you
19 referred to this transcript. Is that right?
20 A. That is correct, Your Honours.
21 Q. This is the one where the president says, Keeping order.
22 Mr. Cermak says, Keeping order, preventing disorder, mine clearance. I
23 took a team with me and we cleared 7.000 buildings and that whole area,
24 et cetera.
25 You referred to that transcript. Were you also aware of a
1 discussion by President Tudjman?
2 MR. KAY: If we could have D296, transcript for the 7th of
3 August, 1995, and turn to page 20 of the English; page 41 of the Croatian
4 language version.
5 Q. There is a discussion of many pages about other matters but
6 during that discussion the issue of what is happening in Knin at that
7 time of the 7th of August, is discussed, and you can see there. These
8 Canadians in Knin, they're all right now, Mr. Zuzul says. Mr. Sanadar
9 makes a reply. Mr. Zuzul says, No, there was. There was the Canadians.
10 The Americans received an official request to assist the Canadians in
11 pulling out of Knin. And the president says, and another thing, tell
12 them I appointed as commander of the Knin garrison, Colonel General
13 Cermak, a former minister, a serious man, to solve those matters.
14 Were you aware of this transcript?
15 A. I have no specific recollection. I am sure I haven't used it and
16 I don't think I saw it before.
17 Q. You have not used in your report; you're quite right.
18 A. No. So there's a small correction to the transcript. I am sure
19 I have not used it. Sorry.
20 Q. Thank you. We seem to have lost my transcript down here at the
21 moment, but -- we've got a power failure.
22 The importance of this issue goes to matters that you have raised
23 in your report and in your evidence frequently concerning Mr. Cermak and
24 the orders to the military police and the Knin police as to being the
25 foundation of your proposition concerning the senior military as well as
1 civilian authority in the area.
2 A. That is correct. But I would also like to mention that the
3 orders Mr. Cermak or General Cermak gives to civilian and the military
4 police are an important component. But there's also the other orders and
5 instructions he issues during the time-period he is the commander of the
6 Knin garrison.
7 Q. Shall we look at those orders now while we are here, and ...
8 Because there is a point to be made about these orders, and you
9 have mentioned them several times as being important, in relation to your
11 MR. KAY: Can we go to P512 first.
12 Q. This is the first order to the military police and Knin police,
13 and it is dated the 8th of August, 1995, and the significance is,
14 Mr. Theunens, that it concerns UNCRO. Do you appreciate that?
15 A. Yes. But from the point of view of -- of my task to identify the
16 role of General Cermak as the commander of the Knin garrison, it is also
17 important to take into account that he can -- he -- by this document or
18 this document indicates that he has the authority to issue an order to
19 the military police without specifying which specific unit we are talking
20 about, and the Knin police station, which, in my view, is the civilian
21 police in Knin.
22 We know from documents by General Lausic that there is already a
23 Knin -- excuse me, a military police presence in Knin prior to the 8th of
24 August, but I have not been able to establish over which component or
25 which part of this military police presence in Knin General Cermak has
1 the authority to issue orders.
2 Q. Shall we look at a number of those propositions there in your
4 First of all, the fact that he issues this order doesn't
5 necessarily mean to say that he has the authority to issue it. Do you
7 A. If we only consider this document, I agree with you. And will
8 see you in my report I have included several of such orders, and there is
9 at least -- there is at least one example whereby the civilian police in
10 Knin refers to the fact that they have received an order from
11 General Cermak and takes measures in order to implement that order, and I
12 believe that is P510.
13 Q. We will look at that, don't worry.
14 First -- secondly, the fact that the order is drafted in this way
15 could indicate no knowledge of the correct system of issuing orders to
16 the military police. Would you agree with that?
17 A. I -- I -- I see no -- no reason to come to such an opinion on --
18 on this document.
19 Q. When you compare it with the other military police orders that we
20 have seen, we have seen many, how they are set out and structured, they
21 exist in an entirely different structure. Isn't that right?
22 A. That is -- is not my impression, Your Honours.
23 Q. Okay.
24 A. Some of the orders issued by General Cermak may well look less
25 formal or less structured than some of the other orders we have seen, be
1 it military police or Split Military District, but as you know from D32,
2 the 1992 service regulations, there are specific requirements to an
3 order - it has to be clear, it has to be short, and it has to indicate
4 who is to implement the order - and I can see these elements in the
5 document that we see in front of us.
6 Q. Next, do you know if the military police received this order?
7 A. No, Your Honours, I do not know.
8 Q. Do you know if the Knin police station received this order?
9 A. No, I do not know, because I didn't have those documents. But --
11 Q. Say anything you -- feel free to say anything you want about it.
12 A. It would actually be useful, then, to check, for example, UNCRO
13 documentation to see whether the order issued by General Cermak had any
14 effect. But I have not systematically -- I have not analysed UNCRO
15 documentation that would address the matter, i.e., the inspection of
16 UNCRO helicopters before each flight.
17 As I mentioned P510 --
18 Q. We can come to that in time. That's your one order, I know. All
19 right. It's your one order. It is. You know.
20 Can you say whether, if they did receive this, the military
21 police, or the civil police viewed it as an order and followed it?
22 A. You mean for this specific document?
23 Q. Yes. We're going through every single order, and ...
24 A. Well, as I cannot confirm that the military police or the
25 civilian police received it, I can obviously not draw any conclusions as
1 to whether they act the upon the order or not.
2 Q. If they did receive it, do you know whether they viewed it as an
3 order or as information?
4 A. Again, D32 is -- is very specific when it comes to the definition
5 of an order and what the superior who issues the order is required to do,
6 i.e., not only issuing it but also verify its implementation; and on the
7 other hand, the subordinate who receives the order is also obliged to do
8 certain things in relation to an order. The obligation to implement
9 decisions is one of the two principles of command and control defined in
10 Croatian armed forces doctrine.
11 Q. These are not subordinates, are they?
12 A. They are not subordinates in the sense of being permanently
13 subordinated, and I'm limiting myself now to this document to draw that
14 conclusion. However, the fact that a Colonel General with his rank and
15 his experience uses the formulation, I order, when he wants the military
16 police and the civilian police to do something, should mean something for
17 those who receive the document, i.e., who receive the order.
18 I have seen no reason, when reviewing the documents, to believe
19 that General Cermak was unaware of which formulation he had to use, in
20 order to have various structures in Knin do things he wanted them to do.
21 Q. And the next point is, it could be wrong to have described it as
22 an order.
23 A. Again, the service regulations, D32, if I remember well, specify
24 the terminology that is to be used in an order, and --
25 JUDGE ORIE: Mr. Theunens, may I ask you, the question clearly
1 invites you to admit or not to admit that it could be a mistake.
2 Now, reference to regulations, what is there, doesn't answer the
3 question, because you can make a mistake anyhow whatever the regulations
5 THE WITNESS: Mm-hm. I apologise, Your Honours.
6 I have no reason to believe that it's a mistake.
7 JUDGE ORIE: Please proceed, Mr. Kay.
8 MR. KAY:
9 Q. And you have no reason to believe it's not a mistake.
10 A. Well, when I --
11 MR. KAY: Thank you. Exhibit P53, please.
12 THE WITNESS: Should I answer your last question or --
13 JUDGE ORIE: No, there's no need to do that.
14 THE WITNESS: Oh.
15 MR. KAY:
16 Q. Would you agree with me that of the nine orders, 90 per cent of
17 them concern UNCRO?
18 A. You speak about nine orders. Do you refer to orders referred to
19 in my report or ...
20 Q. Of the orders to the Knin military police and the MUP, there are
21 nine orders, of which 90 per cent concern UNCRO.
22 A. That may be possible. I haven't calculated these kind of
23 statistics. But as pointed out at earlier occasions, it is not of
24 quantity but also of quality, i.e., nature of the orders. And, for
25 example, orders included in my report -- to the military police by
1 General Cermak also refer to freedom of movement for civilians in Knin.
2 This was also sent to the civilian police, which, in my view, is a very
3 important order --
4 Q. We will be looking -- we're looking at every single one,
5 Mr. Theunens, one by one, to see what you based your conclusion upon.
6 So P53, this is the freedom of movement order, so-called, that
7 goes to Knin military police, the MUP, and it concerns UNCRO. Do you
9 A. Yes, it does.
10 Q. Thank you. Same questions: Do you know if the military police
11 received this?
12 A. I cannot say whether they received this specific order but I have
13 included --
14 Q. It's a simple question because -- do you know whether they
15 received it. It's just to Knin military police. It doesn't say which
16 company, it doesn't say 72nd, it doesn't say the 7th Company, it doesn't
17 say the Independent Company or the Joint Company. It's just as is. And
18 you're used to analysing documents, aren't you? That's what you've told
19 us you do?
20 A. Indeed.
21 Q. Do you know if they received it?
22 A. Well, one of the ways to determine whether they received it is to
23 see whether any activity was undertaken by the military police following
24 this order. And when I look at correspondence by General Forand,
25 Sector South commander, to General Cermak, that is, for example, on
1 English page 255, part 2 of the report, I can see -- we can see that
2 freedom of movement by UNCRO -- for UNCRO, is a problem. General Forand
3 believes that it's -- General Cermak is responsible for the -- what he
4 calls unilateral restriction of movement. And we can see from 65 ter
5 3531, for example, mentioned on page 256, that General Cermak replies to
6 General Forand's complaint.
7 I agree with you that what I just said does not explicitly
8 indicate whether the military police, yes or no, received the specific
9 document you showed, but at least we can see that the situation that is
10 existing corresponds with what is ordered by General Cermak to the
11 military police in this specific document.
12 Q. This is not the only issue concerning freedom of movement.
13 Shouldn't you have pointed out to us that, from the 4th of August, the
14 military police and MUP have been ordered to set up check-points? Isn't
15 that right?
16 A. Is your question that this is not the only issue concerning
17 freedom of movement for UNCRO or --
18 Q. Yes. There are check-points set up throughout the region.
19 A. Yeah.
20 Q. We have seen -- I would -- I would hazard a guess, 20 or 30
21 orders from the MUP and VP dealing with check-points in the area.
22 A. That is probably the case. But to my recollection, these
23 check-points do not always apply to UNCRO. And the fact, what I just
24 pointed out, 65 ter 2735, that General Cermak replies to a complaint by
25 General Forand in relation to UNCRO freedom of movement shows that the
1 issue of freedom of movement of UNCRO -- at least --
2 Q. That's the 30th of August, isn't it? Let's get the date because
3 all this is avoided later on.
4 A. I have the --
5 Q. If you're going to make the point --
6 A. I have the 11th of August for this document.
7 Q. Right.
8 A. But what I tried to say was that the fact that General Cermak
9 reacts to a complaint by General Forand indicates that at least --
10 JUDGE ORIE: Let's try to get matters -- I see on your page 255,
11 I see a 11 of August document, UNCIVPOL chief of Sector South sends a
12 letter to Cermak and the notification by Forand is on the 30th of August.
13 Cermak replied on the same date.
14 If we're talking about different dates for the same document, I
15 might get confused in what document we're talking about. So I'd rather
16 have this clarified.
17 MR. KAY: Thank you, Your Honour. I was unsure which is why I
18 wanted the date because there are different dates.
19 Q. Let's take the 11th of August as the date that you have cited.
20 We've got your position on this but what it comes down to, you
21 don't know whether the military police or the MUP, in fact, acted on this
22 order or whether they didn't receive it or they disregarded it, do you?
23 A. I will try to summarize my previous answer.
24 Q. No, can you answer the question? It's the question I would like
1 A. This specific document does not allow to draw such a conclusion.
2 However, when taken in context, and that is actually what analysis is
3 about, we can see that General Cermak reacts to letters from, for
4 example -- from UNCRO, General Forand, when the latter complains about
5 lack of freedom of movement for UNCRO.
6 And, for example, 65 ter 536 is a letter from General Cermak to
7 General Forand on the 11th of August, indicating that the freedom of
8 movement for UN members is re-established on the 11th of August, 1995
9 12.00, in order to supply themselves with food, drinks, and fuel. This
10 is on English page 255, which means that General Cermak is in a position
11 to influence the freedom of movement of UNCRO in a particular part of
12 Sector South, and that he also engages in -- in -- in exchanges of -- of
13 communications with the UNCRO commander when the latter has complaints
14 about the situation.
15 Q. Let us go to the next document, D788. It's the third one on the
16 8th of August. It's -- concerns an order, again involving UNCRO, control
17 all entrances to the UNCRO barracks, including the main gate,
18 particularly checks are required when refugees leave the barracks. Do
19 not allow them to leave without adequate authorisation.
20 Again, you don't know if the military police received this order,
21 do you?
22 A. No. But, I mean, I can also add that if a commander issues an
23 order, he will verify whether it's implemented or not. One aspect of the
24 verification of the implementation is to see whether the addressee has
25 received it or not.
1 Q. I suppose have you to know what you're doing to know that
2 regulation, do you?
3 A. When you use "you," you refer to General Cermak or --
4 Q. Yes.
5 A. Yes, but a Colonel General, which is I believe is the most senior
6 officer's rank in the HV, and somebody with General Cermak's experience
7 and background, I would expect him to believe -- to know what he is doing
8 when he is issuing order.
9 Q. What experience?
10 A. Well --
11 Q. We've just looked at his appointments.
12 A. Yes. But I would expect that -- that he didn't receive the rank
13 of Colonel General as a kind of -- of -- of honorific title. I believe
14 he was a member of the JNA -- was an officer in the JNA prior to the
15 Croatian independence, but I'm not sure of that so I may well be wrong
16 there, but the most important is that he has a senior rank and he uses
17 that rank when is he the commander of the Knin garrison.
18 Q. Do you know of other -- for instance, Mr. Sarinic, who was the
19 advisor to President Tudjman. Do you know that he was a general as well,
20 without having been in the armed forces?
21 A. I have no knowledge of that.
22 Q. Yeah. Did you know in fact that there were many people in public
23 life at that time who were given ranks, who had not been through the
24 ranks, to achieve Colonel General in the -- by experience of the armed
25 forces. Did you know that?
1 A. I'm just checking whether I have ...
2 Well, there are examples that people jumped ranks. Now, whether
3 that necessarily means that these people are not able to carry out the
4 duties that one would expect somebody with the rank they have received to
5 carry out, is another question.
6 I can only look at the documents that I reviewed in the framework
7 of the preparation of the report and I see that Mr. Cermak always uses
8 his rank of Colonel General when he is signing orders or other documents
9 as the commander of the Knin garrison, and, as I said, there must be
10 reasons for him to have that rank and to use the rank, including
11 awareness of the obligations related to that rank.
12 Q. And how long, in your army, that your from, Belgium, would it
13 take to you get to the equivalent rank of Colonel General? You were a
14 senior captain for how long, after how many years?
15 A. The rank of senior captain does not exist in the Belgian
16 military. I --
17 Q. You were a captain?
18 A. No I was a commandant. I don't recall exactly how many years it
19 is took, but it -- approximately 12 or 13 years after finishing or
20 graduating from Military Academy
21 General, it would be a career of approximately 30 years.
22 Q. Thank you. Shall we look to see, because you said the best way
23 of looking at these things is to see what the effect was, there's an
24 exhibit, Exhibit D147, which has been in evidence, showing the gateway to
25 the camp on the 9th of August of 1995.
1 MR. KAY: If Exhibit D147 could be played, please.
2 Q. And if you could look at the film, Mr. Theunens, and what your
3 task will be -- I won't say it's an order, a request, will be to see if
4 there's an a military policeman, one, two, three, four, five, whatever,
5 at the gate to the -- main gate to the UNCRO barracks.
6 MR. KAY: If we could play the film, please.
7 [Videotape played]
8 "THE INTERPRETER: [Voiceover]
9 "Reporter: Mrs. Mladenka Skaric is the first of the 840 Knin
10 civilians who took refuge five days ago in the UNCRO barracks to return
11 home today. When we wished her all the best in her freedom and the
12 freedom of Croatian Knin, she told us about Milan Martic's last moments
13 in Knin.
14 "Mladenka Skaric: When I went down to the cellar I find
15 President Martic down there, who was naked from waist up and barefoot, in
16 his pants. And when I saw him I said, Mr. President, all the newspapers
17 in the world should write about a president sharing the fate of his
18 people in a cellar. At 7.15, he left us.
19 "Reporter: And while you are watching as cards for returning
20 home are filled for a large number of Knin residents who will remain in
21 Knin, let us say that this is the result of an arrangement made today
22 between Dr. Goran Dodig, General Ivan Cermak and Petar Pasic,
23 government's commissioner for Knin.
24 "Goran Dodig: I have seen General Cermak for the first time
25 today. The way in which he is trying to resolve this, his goodwill and
1 concrete steps with which he really wants to resolve the destiny of these
2 people in the best possible way, fascinated me.
3 "And this is a guarantee, along with the principled stands of the
4 Croatian government, Croatian leadership, and President Tudjman, that
5 everybody has a right to a free choice and that those who will remain
6 here will have all citizenship rights.
7 "And I think that this on the spot conduct like General Cermak's,
8 I think this is the best guarantee that the situation will be resolved
9 very soon to mutual satisfaction.
10 "Ivan Cermak: They will be granted as of tomorrow full
11 protection and all civil rights in Knin, a soup kitchen will be
12 introduced for them. We have to urgently, with the help of civilian
13 authorities, which, there you are, have also from today started
14 functioning in Knin. We as a military structure in all this are helping
15 so it goes as fast as possible.
16 "Reporter: For the very end, a statement from Glisa Kablar of
17 Knin and, as he himself says, a citizen of Croatia of Serb nationality.
18 "Glisa Kablar: I intend to stay here because this is my homeland
19 and this is, from the liberation, my state as well. Therefore, I don't
20 plan going anywhere else but living here and staying here. And with
21 these people, regardless how they came to argue and clash, regardless of
22 all that, I'm staying here. To live and to work."
23 MR. KAY: Thank you. If that could be stopped now, that's the
24 full clip of the exhibit.
25 Q. We were looking at there a meeting between General Cermak and the
1 displaced person inside the camp, essentially. We see there a view of
2 the gates and we saw the lady going through. And would you agree, we
3 didn't see any Croatian military police controlling the main gate to the
4 UNCRO barracks?
5 A. Based on the images that were shown, that is probably correct.
6 Q. And we particularly didn't see that lady being checked when she
7 left the barracks?
8 A. No. And we can only speculate as maybe that was an accurate
9 reflection of the situation or maybe there was an arrangement made,
10 special arrangements were made in order to film this Croatian news
11 feature. But I agree with you that the video as such, indeed, indicates
12 that the lady could move freely without being checked.
13 Q. Do you often speculate like that, that there had a been a special
14 arrangement? Is that part of your methodology?
15 A. It is not part of my methodology to speculate, but it's part of
16 my methodology to verify the reliability of the source and the
17 credibility of the information, and without wanting to make general
18 statements, because that would be contrary to the methodology, it is not
19 unusual for parties in an armed conflict to use the media for other
20 purposes than purely the accurate reflection -- I apologise, accurate
21 transmission or accurate information of the events. That used to be
22 called propaganda; now it is called in a more fashionable way,
23 information operations.
24 JUDGE ORIE: Mr. Kay, you said, Do you often speculate that may
25 be an accurate reflection. What the witness said, and we have to fairly
1 try to understand what he means, that whether this accurately reflected
2 the situation or whether there was an arrangement, that would be pure
3 speculation. It is not a speculation that there was an arrangement. So,
4 therefore, I think your question was unfair to the witness.
5 Please proceed.
6 MR. KAY: I apologise, Your Honour, and it was a point I was just
7 taking against him, and I was -- I would have been better off moving on,
8 rather than dealing with it.
9 Exhibit D303, please.
10 Q. This is dated the 9th of August, 1995. It again concerns UNCRO.
11 And it is an order to the Knin military police and Knin police station to
12 deal with setting up a team with the task of finding UNCRO vehicles,
13 which we know from the story of the case, had been stolen.
14 Again, would you agree, you don't know if the commander of the
15 Knin military police viewed this as an order or whether it was
16 information to him about a crime that had been committed. Is that right?
17 A. Your Honours, I would give the same answer as I have given
18 before; that is, that the word "order" has, according to the regulations,
19 particular implementations. How the military police reacted to this, we
20 don't know. We know from another document that an order given by
21 General Cermak is indeed acted upon by the military police and the
22 civilian police.
23 Q. First of all, did you listen to the testimony of the witness
24 Dzolic who was the commander of the Knin military police at that time?
25 A. I don't think I did. I have no clear recollection.
1 Q. You didn't review what he said about this matter?
2 A. No, I did not.
9 [Private session]
2 [Open session]
3 THE REGISTRAR: Your Honours, we're back in open session.
4 JUDGE ORIE: Thank you, Mr. Registrar.
5 MR. KAY: Thank you.
6 Q. Again, were you aware of the fact that General Cermak needed
7 assistance, in relation to the order that we're looking at, putting it
8 into effect, and having it distributed around the Split Military
10 A. It is correct that the order to find these vehicles is also
11 distributed within the Split Military District, and I believe that
12 happened at a very late stage, that there is an order from
13 General Gotovina to General Krsticevic, commander of the 4th Guards
14 Brigade, in order to return UNPF vehicles who have been repainted
15 allegedly by members of the 4th Guards Brigade. I'm just not sure
16 whether we're talking about the same vehicles here.
17 Q. We're going to be looking at this as a distinct matter as it's
18 already been introduced into evidence and it tells the history of
19 Mr. Cermak trying to deal with the matter, and it's been put forward by
20 the Defence as demonstrating a lack of authority, so contrary to your
22 A. I would just like to add that if these are indeed the same
23 vehicles as those General Gotovina talks about in his order to
24 General Krsticevic, it makes sense for General Cermak to forward the
25 order to General Gotovina because General Cermak has no authority as a
1 garrison commander in the city of Split
2 the 4th Guards Brigade. It is correct that elements of the 4th Guards
3 Brigade are in Knin at the time of the events, but I just want to
4 highlight that the matter is more complicated than it seems by just
5 looking at one isolated document.
6 JUDGE ORIE: Mr. Kay, I am looking at the clock.
7 MR. KAY: Yes. Your Honour, that would be a convenient moment.
8 JUDGE ORIE: Yes. Then we will have a break, and we resume at
10 --- Recess taken at 5.40 p.m.
11 --- On resuming at 6.02 p.m.
12 JUDGE ORIE: Before we continue, Mr. Kay, there are a lot of
13 documents in the air. I've seen that you have followed the guidance to
14 put four documents as bar table documents. Part of the guidance was that
15 the way in which they are described and the way in which our specific
16 attention is drawn to certain aspects is disclosed to the other party.
17 And, Mr. Waespi, have you read the short descriptions and comments and do
18 you have any objections against introducing them in this way?
19 MR. WAESPI: I'm sorry, I might have missed that. I will go over
21 JUDGE ORIE: I'm talking about that document -- if you would
22 inform us, you don't have to respond right away. Take your time to look
23 at it and see whether there is any objection so that we could proceed at
24 a later stage and then assign numbers to them and decide upon admission.
25 Please proceed, Mr. Kay.
1 MR. KAY: Thank you, Your Honour.
2 Exhibit D503, please.
3 Q. This again concerns UNCRO, Mr. Theunens. It's dated the 12th of
4 August, 1995. It is other UNCRO equipment and vehicles that
5 General Forand had asked General Cermak to help get returned, as they had
6 been stolen. Order is issued, and again it goes to Knin military police,
7 Knin police station.
8 I don't want it repeat the same questions that we've repeated
9 before, but the significance again that this is yet another of those
10 orders that you're relying upon which is not part of the general nature
11 of business in Knin relating to the military police or the civil police
12 doing their tasks and duties. This is UNCRO specific. And doesn't that
13 make it highly distinctive into why General Cermak issued these orders to
14 try and help UNCRO?
15 A. It is correct that we're talking about UNCRO vehicles. But when
16 we look at the introduction of the order, we see that the order discusses
17 the unauthorised taking by members of the HV of these UNCRO vehicles or
18 engineering equipment, and this brings us in the area of the maintaining
19 of order and discipline and the duties of the garrison commander in that
21 Q. As we know, though, under Regulation 2 that we looked at
22 yesterday, in fact, General Cermak cannot issue orders to HV units, only
23 precisely prescribed regulations. Isn't that right?
24 A. In Article 54 of the 1992 service regulations, which is known
25 here as D32, it is stated when the duties and the role of the garrison
1 commander are discussed, that he can use the military police in order to
2 maintain or restore order and discipline. He can also use the --
3 Q. Can you read -- sorry -- I --
4 JUDGE ORIE: Could I stop you for a second.
5 MR. KAY:
6 Q. Article 54 should be read out exactly, please, Mr. Theunens.
7 JUDGE ORIE: Before we continue, Mr. Kay, I observe that, not for
8 the first time, that the questions and answers develop by virtue of
9 malcommunication. I give you an example of what happened before the
11 Before the break, Mr. Theunens referred to experience, and I
12 would say rightly, Mr. Kay, you said what experience? This developed a
13 long answer and question about how long it takes you in the Belgian army
14 to get somewhere, whereas the issue clearly was what do we know about the
15 experience of Mr. Cermak in the army. Instead of that, it goes in all
16 directions and we are moving away from what the real issue was, at least
17 that's how I understood it, that you wanted to challenge the answer that
18 there was any such experience, which might have assisted Mr. Cermak in
19 understanding what he was doing, as the witness told us.
20 Now, it took us approximately one, one and a half or two pages to
21 get to where we were. Meanwhile, I learned a lot about what positions
22 there are in the Belgian army, what positions there are not, how much how
23 much time it does take or does not take to reach, whereas the issue
24 clearly was limited to the witness relying on experience, where you
25 wanted to challenge that; and therefore, it was on my lips at that time,
1 what do we know exactly about the time Mr. Cermak spent in military
2 positions because we now have looked at the background but mainly about
3 ministerial functions.
4 Now here more or less the same happens. The question clearly
5 focuses, Mr. Theunens, on whether this is not another example of
6 Mr. Cermak being involved in matters in which UNCRO primarily is
7 involved, and either you don't understand the question, or for whatever
8 reason, you start telling us that the kind of activity develops is not
9 foreign to a task in relation to, for example, order.
10 Now, I understood the question to be whether this is not a very
11 special area in which, right or wrong, orders or no orders, but it is
12 always UNCRO that appears in these orders. That, as far as I understood,
13 Mr. Kay, was your question.
14 What we're doing now, we're moving away from what the real
15 question was, and we are now somewhere in Regulation 2, Article so and
16 so, which, at least as far as I understood the question, was not the
17 issue you wanted to raise.
18 And, Mr. Theunens, I would like to invite you to -- I hardly dare
19 to say, but to analyse the question and try to understand what Mr. Kay
20 wants to know before you answer it.
21 And, Mr. Kay, I would invite you to not being led the witness to
22 areas where, as far as I understand, you're not primarily interested in.
23 MR. KAY: No, I wasn't interesting in going there, but the
24 witness wanted an argument.
25 JUDGE ORIE: No, no, but we went there. That's why I took a bit
1 more time to explain what happened before the break once which took us
2 two pages and what I felt, at this moment, felt was happening again
3 because that takes an awful lot of time. And it's a clear example of
4 malcommunication, I would say, in you, in understanding the question, and
5 for Mr. Kay in giving a follow-up on matters he apparently is not that
6 much interested in, at the moment, to hear your testimony about.
7 Please proceed.
8 MR. KAY: Thank you, Your Honour.
9 Q. Well, there it is, and the Court knows what the issue is.
10 Let us just go now to P509 which is a non-UNCRO order. And
11 remember I was telling you about the number of UNCRO orders as against
12 other matters. This concerns an order issued by General Cermak, the 15th
13 of August, concerning civilians and entering the town.
14 Do you know if, in fact, the police, civil police, were in fact
15 using their own view of the law as to whether they admitted people to the
16 area or not?
17 A. I am familiar with a document, D494, where the civilian police,
18 Split-Dalmatia police administration, submits a copy of the pass for
19 entering the Knin garrison that had been introduced by General Cermak --
20 actually, the document is dated also the 15th of August.
21 Q. Yes.
22 A. And requests the Ministry of Interior for guidance. So now, what
23 the guidance or the decision or the reaction of the Ministry of Interior
24 is to this request, I don't know.
25 Q. Thank you. Again, if we go to D501, which is another matter but
1 it's called a decision, and it concerns the Hotel Spas. I think it is a
2 document that is in your report.
3 A. Yes, on English page 250, in the second part.
4 Q. That's right. And this is a decision rather than an order. Can
5 you explain to me the difference?
6 A. I cannot. I have not seen in the doctrine any specific
7 definition for what is here described as a decision.
8 Q. Thank you. Can we go to D504. This is it dated 11th of October,
9 1995. It is an order. It goes to the Knin police as well as the
10 commission of the government of the Republic of Croatia
11 municipality, and it concerns MUP officers being temporarily transferred
12 to the old grammar school in Knin. Not an UNCRO order but just an order
14 Are there any other orders that are to be found besides this
15 collection that we have been through from the 8th of August and the 11th
16 of October on this matter?
17 A. When you say "this matter," could you please specify it.
18 Q. Orders that you cite as being orders to the military police or
19 civil police that are relied upon by you for your proposition concerning
20 Mr. Cermak being superior and running the military police or the civil
21 police. I've got them in my hand here. Is there anything else?
22 A. I would have to look in my report. I think you provided a good
23 summary. There are some references in other documents, for example,
24 P1147, where General Cermak informs the addressee of his letter that he
25 has ordered the military police to conduct an investigation, for example,
1 but, otherwise, this corresponds with the majority of the documents that
2 can be found in my report.
3 Q. This is it, from everything that we have looked at. Is that
4 right? I'm not concerned to what he says in letters or anything like
5 that but actual orders that provide the foundation for your proposition.
6 A. I'm not sure whether we saw P510?
7 MR. KAY: Could Exhibit P510 come up on the screen, please, under
8 seal. Sorry, that's -- P510 is under seal.
9 JUDGE ORIE: And therefore not to be shown to the public.
10 MR. KAY: Yes, and I think --
11 JUDGE ORIE: If you will -- it depends on what questions you'll
12 put to the question whether we have to go into private session. If you
13 just ask him whether he has seen the document then, of course, there is
14 no need. But I think I would not be surprised if your first question
15 would be whether this was an order issued by Mr. Cermak, P510.
16 MR. KAY: Yes. The witness mentioned it as being one that he'd
17 missed. Now I know why it's being dealt with separately in my file,
18 which is my inadvertence. We have P510, we can just have a look at it.
19 Q. It's not, in fact, an order as such but referring to the document
20 that we have already seen concerning P509. It is linked to it and the
21 Court has heard evidence about this. It's not a separate order. It's
23 A. Indeed. But it is an example of an order by General Cermak to
24 the civilian police being reacted upon by the civilian police.
25 Q. And is there any such other document as this?
1 A. Not in the material I was able to review.
2 Q. Thank you.
3 MR. KAY: That matter can now be taken off the screen as we have
4 finished it. The Court will recollect the evidence concerning this
5 particular matter.
6 And the next matter we will be looking at will be, in fact, the
7 issue of the passes.
8 Q. And is it correct, rather than me having to produce a whole
9 series of documents, that there are in fact a number of orders issued by
10 the Ministry of Defence and the military [sic] of police administration
11 from the 3rd of August onwards, concerning check-points and the
12 establishment of those check-points by the military police and the civil
13 police, as part of their duties?
14 A. Yes. But I'm not sure whether the two matters are connected, and
15 if they are connected, in which manner.
16 Q. And can we look now at a document concerning 2D07-0390, which
17 comes from the political administration information staff in Zagreb
18 dated the 7th of August, and sent to the Ministry of Interior, concerning
19 a large number of international journalists and giving their consent, in
20 relation to these journalists being able to move in the area.
21 Is this a document you were aware of?
22 A. I have not seen this document before.
23 Q. Right. Would you agree that it was not exclusively Mr. Cermak
24 who dealt with the issue concerning freedom of movement but that other
25 agencies did as well?
1 A. Yes. And it covers different aspects of freedom of movement;
2 UNCRO, international media, local population, and so on.
3 Q. Can we look at 2D --
4 MR. KAY: May that document be made an exhibit, please,
5 Your Honour.
6 MR. WAESPI: No objections.
7 JUDGE ORIE: Mr. Registrar.
8 THE REGISTRAR: Exhibit number D1012, Your Honours.
9 JUDGE ORIE: D1012 is admitted into evidence.
10 MR. KAY: May we look at 2D07-0228.
11 Q. This is a document dated the 5th of August, 1995. It's from the
12 Split-Dalmatia police, issued by Mr. Cipci. If you'll remember, it's
13 Mr. Cipci who writes on those letters concerning the validity of the
14 passes that Mr. Cermak had signed and which were being queried by the
15 MUP. Do you remember that, Mr. Theunens?
16 A. Yes. I believe that was D494.
17 Q. Yes. Here, Mr. Cipci is giving a passage in relation to a
18 journalist coming to a check-point in the direction of Knin and that
19 Major Tolj had enabled him to have unobstructed arrival to Knin.
20 A document you're familiar with?
21 A. No. But it -- I mean, it looks like a usual document that one
22 tries to control the -- the freedom of movement of -- of journalists in
23 an area where military operations are conducted, for various reasons.
24 MR. KAY: If we go to another document, 2D07-0232.
25 Q. It's again from Mr. Cipci, dated the 8th of August, and asks for
1 an opinion, because there is a great pressure to visit the liberated
2 areas of Vrlika, Knin, Drnis by refugees, citizens, various associations,
3 political parties, other institutions.
4 So he was sending this letter to the operative headquarters of
5 the MUP for their opinion as to who to give passes to. Did you
6 appreciate that it was not only passes stamped by Mr. Cermak that were
7 being issued to give freedom of movement to people in the area?
8 A. Indeed.
9 MR. KAY: May this document be admitted into evidence,
10 Your Honour, as well as the previous document.
11 MR. WAESPI: No objections to both.
12 JUDGE ORIE: Mr. Registrar.
13 THE REGISTRAR: Your Honours, document ID 2D07-0228 becomes
14 Exhibit number D1013. Document ID number 2D07-0232 becomes Exhibit
15 number D1014.
16 JUDGE ORIE: D1013 and D1014 are admitted into evidence.
17 MR. KAY: Your Honour, I have a whole series of documents
18 following this same theme, and to save Court time and having dealt with
19 it in a brief form, we will be putting them in bar table form, subject to
20 the Court's approval.
21 JUDGE ORIE: Yes. And then under the similar guidance --
22 MR. KAY: Yes.
23 JUDGE ORIE: -- as before, so, for example, we now have a
24 journalist, what I would expect in the comment is the same but now about
25 -- what is it -- various associations, political parties, et cetera,
1 where the earlier was about journalists. If it could be introduced in
2 this way, then our attention is drawn to relevant aspects and also
3 relevant differences.
4 MR. KAY: Yes.
5 Q. These passes were not only being issued to journalists but also
6 to employees of banks. Were you aware of that? Exhibit D488 is also a
7 document concerning people from the Split Bank Limited. Were you aware
8 of that, Mr. Theunens?
9 A. I'm not aware of the specific example but, again, it makes sense
10 that the authority who has the power to do so controls the access of
11 people who are not directly involved in military operations to the zone
12 of operations. And I mean by control, not just verifying but also
13 preventing those who should not be entitled to enter, to prevent them
14 from entering.
15 Q. In relation to this matter, did you appreciate that there was a
16 problem, and we could see part of it within the video-clip that we saw
17 about an hour ago, concerning the identification cards, that those
18 citizens had under the previous Yugoslavia government who did not have
19 Republic of Croatia
20 the 5th of August?
21 A. I am aware that people living in the -- in the so-called RSK did
22 not have Croatian documents, but I have difficulties to connect it to the
23 video images we saw.
24 Q. There was an old lady who had an ID card put on the table and we
25 saw a picture of a propusnice, a document that you have referred to in
1 your report, which is the document to enable people to have freedom of
2 passage which was signed by Mr. Cermak. Do you recollect that?
3 A. Yes, I believe you.
4 Q. Yes. Did you know that General Forand had a meeting on the 8th
5 of August with General Gotovina concerning freedom of movement and that
6 he was told that maps would be provided showing areas in which it was
7 safe to travel?
8 A. It is possible. I mean, if you refresh my memory with a
9 document, then I can provide more information.
10 Q. It's P359, and it is at page 3 of that document, and it's an
11 UNCRO sitrep report signed by General Forand.
12 Did you know that the map that was attached to Mr. Cermak's
13 letter, Exhibit P405, when he wrote to General Forand about the freedom
14 of movement in the area at that time, was that map? Were you aware of
15 that fact when you were writing your report?
16 A. Again, I'm not sure whether I used any of these documents --
17 Q. No.
18 A. -- 405 or P359 in my report.
19 Q. No, you don't. And I don't know whether that is because you
20 don't know of them or whether you chose not to.
21 A. If you show me the documents then that could refresh my memory in
22 order to see whether I have seen them before --
23 MR. KAY: If we could have Exhibit P405 on the screen, please.
24 Q. That's the document there. And do you see the enclosure of the
1 A. Indeed. And I believe that I have included that document in my
2 report, I mean, the advice to only use the main roads. I'm just trying
3 to locate it.
4 Q. The issue is the map. Did you appreciate that the map was
5 something that General Forand had been told he would be supplied, showing
6 him the areas that are safe to travel, when he had met General Gotovina
7 on the 8th of August, before he met General Cermak? Did you appreciate
8 that fact?
9 A. I haven't seen the map attached to P405.
10 Q. It's the fact rather than the map. It's the issue of why
11 General Cermak has a letter with the map.
12 A. And the question is whether the map is the same map that --
13 Q. Had you appreciated this when you wrote your report, that the --
14 about this matter concerning freedom of movement? It's a matter -- the
15 freedom of movement, General Cermak's role in the matter is something
16 that you stress in your report on many occasions.
17 A. Indeed. Could you please repeat the question because it is not
18 clear to me what the question is.
19 Q. Had you appreciated that the map enclosed with General Cermak's
20 letter, Exhibit P405, had earlier been referred to by General Gotovina to
21 General Forand, at a meeting of the two men, before General Forand met
22 General Cermak?
23 A. It would be helpful to me to see P395 because --
24 Q. 359.
25 A. Excuse me.
1 JUDGE ORIE: I'll read the relevant portion of it for you.
2 The relevant portion is: "General Gotovina spent some time
3 talking about freedom of movement. He did not ask commander Sector South
4 opinion. He stated that he must limit our freedom of movement out
5 concerned for our safety. He said that maps would be provided, showing
6 the area that is safe to travel."
7 I read it, Mr. Kay, also because you're talking about the map
8 whereas in this sitrep the plural is used, maps.
9 That was what Mr. Kay was referring to, if I'm not mistaken,
10 Mr. Kay.
11 MR. KAY: Exactly right, Your Honour.
12 THE WITNESS: I have not seen the map or maps, but I know from a
13 statement from General Cermak that he states that he and General Gotovina
14 are in constant coordination. So if the same maps are being used by both
15 Generals, it could be an indication of the degree of coordination between
16 the two of them.
17 MR. KAY:
18 Q. That document is dated the 21st of August and not on this issue.
19 Isn't that right, where your quote comes from?
20 A. I don't have it in front of me, but I'm not sure whether the
21 document that according to you is dated 21st of August explains or
22 establishes when the coordination has started.
23 JUDGE ORIE: We're -- we're suffering now from the same problem.
24 MR. KAY: Yes.
25 JUDGE ORIE: The question simply was whether you had appreciated
1 that the map enclosed with General Cermak's letter had earlier been
2 referred to by General Gotovina to General Forand at a meeting of the two
3 men before General Forand met General Cermak.
4 That was the question.
5 Now that questions consists of two elements. First, were you
6 aware that, in a meeting, that it was reported that in a meeting between
7 General Gotovina and General Forand that General Gotovina said, We'll
8 provide you with maps, safe areas.
9 Were you aware of that?
10 THE WITNESS: I was not aware of that, Your Honours.
11 JUDGE ORIE: Then may I take it that you also could not tell us
12 anything about whether the maps General Gotovina is talking about would
13 be the same or that the map attached to the letter would be among the
14 same maps as General Gotovina was talking about?
15 THE WITNESS: That is correct, Your Honours. And that was the
16 start of -- of also my previous answer.
17 JUDGE ORIE: Yes. But it developed in a way which seems to be a
18 bit symptomatic for what, now and then, happens in this courtroom.
19 Please proceed.
20 MR. KAY: Thank you.
21 Q. Were you aware that those propusnices were also issued by
22 Mr. Pasic?
23 A. No, I am not aware of that.
24 Q. Should we look at Exhibit D489?
25 There is a document dated the 9th of August, certificate of
1 confirmation, confirming that Mr. Pasic, head of office for refugees of
2 the municipality of Knin
3 garrison from 51 to 250, and he commits to deliver verified signatures of
4 people to whom passes were given by the 10th of August, 1995.
5 Were you aware of a large number of passes being issued by
6 Mr. Pasic?
7 A. I have not seen this document before, so I'm not aware of that
8 but it -- based -- I mean, what I see in this document that is actually
9 that Pasic does it under the -- or with the authorisation of
10 General Cermak.
11 Q. Yes. The documents are signed by him but who receives them, who
12 gets them is by Mr. Pasic. The Court has seen Exhibits D491 to 493
14 MR. KAY: The next document I would like to look at is
15 Exhibit D300.
16 Q. Exhibit D300 is dated the 9th of August and is signed by
17 General Cermak as information concerning various rights of people. And
18 it is put this way: "We hereby inform all the population of Knin that
19 has fled that the following is guaranteed to them ..."
20 This is a document cited by you in your report at page 15 in the
21 executive summary. You characterize it this way: "Cermak, on the 9th of
22 August, 1995, advises all people who left Knin in 1991 to 1992 conflict
23 of their rights."
24 Would you agree that that is in fact incorrect, that
25 General Cermak gave this information to all the population of Knin --
1 A. That is correct on the face of the document, but my
2 interpretation of the document in context of all the other documents is
3 that it referred to the people who had -- or who fled Knin between 1991
4 and 1992.
5 Q. Did you appreciate in that video-clip we saw earlier this
6 afternoon that Mr. Cermak was, in fact, referring to those rights to
7 those people in front of him who were the Committee of Displaced Persons
8 that he met that afternoon, on the 9th of August, at the UNCRO camp where
9 that film was taken?
10 A. It's possible. I mean, I didn't have the video or I didn't
11 review the video at the time of the drafting of my report. But from the
12 images I saw, it appears that indeed that's what the images show.
13 Q. Would you agree that this is a matter to which you could have
14 come to an incorrect conclusion upon from your analysis?
15 A. Of course if you would show me additional information or other
16 documents that would be more specific, then I would review them and
17 obviously, if necessary, amend or change the conclusion. But I --
18 Q. We've heard evidence about this, by the way, in the trial.
19 A. Yes. But I compared, on one hand, this information; and, on the
20 other hand, the situation of the people who were staying at the UNCRO
21 barracks in Knin. And comparing these two different aspects led me to
22 conclude that the information, which is D300, applies to people who fled
23 Knin between -- I mean, due to the 1991/1992 conflict.
24 Q. Why would those people at point 7 need movement permits if they
25 already had Croatian identity cards?
1 A. I'm not sure what is meant by the movement permits, but indeed,
2 it is a genuine point.
3 Q. Thank you. Why would they need the listing of all deceased and
4 their burial in cemeteries according to place of residence?
5 A. Well, in my view, it is information that is needed in order to
6 establish who is entitled to return.
7 Q. I'm going to leave this matter with the Trial Chamber, of course,
8 and not go further into it in the interests of time.
9 MR. KAY: Could we turn to D495, please. Exhibit D495 comes in
10 reverse order, if you like. The attachment comes first and then the
11 letter second. So can we go to page 2 of D495.
12 Q. Which is a letter dated 15th of August concerning the passes,
13 signed by Mr. Cipci, and asking about the validity of these passes for
14 civilian persons in question.
15 Is this a document you've seen before?
16 A. Yes. And I was under the understanding that it was D494, so I
17 may have made an error. Or maybe D494 is a similar document.
18 MR. KAY: Can we go to the first page now of Exhibit D495.
19 Q. We see the handwritten down at the bottom, and the history of
20 this document is known through other evidence to the Trial Chamber, that
21 it's written here: "According to the MUP staff announcement,
22 Colonel General Cermak's permit is valid only for military personnel and
23 civilians working in the Croatian army."
24 And then: "I will inform the staff of the MUP that all passes be
25 revoked until further notice, along with the checking of all people who
1 are travelling on roads and rails."
2 Were you aware of this handwritten information on this document?
3 A. No, I was not aware of that information.
4 Q. Do you appreciate that in the significance -- the significance of
5 the document, in relation to the information and propositions in your
6 report concerning the authority of General Cermak and the significance of
7 the passes?
8 A. Well, there appears to be a contradiction between, on one hand,
9 the information issued by General Cermak on the 9th, and, on the other
10 hand, these passes. But I would still expect that somebody with the
11 experience and background of General Cermak and holding the position he
12 holds, that he was well aware of what he was doing when he issued the
13 information on the 9th of August.
14 As to how this was to be implemented, obviously there would be a
15 requirement for coordination and cooperation with the civilian police.
16 Q. Do you appreciate that in the circumstances in Knin from the 5th
17 of August, 1995, and onwards, for the rest of August, that there was a
18 great deal of confusion between all the agencies of the government as to
19 who had what responsibility and that the agencies were not synchronized
20 in the way that you would expect, as you have just answered, concerning
22 A. It is correct that at least in the beginning, and we see that --
23 we have also seen that while discussing the military documents, that
24 there are certain difficulties, especially in the manner or in the
25 approach towards the crimes that are developing or that are being
1 committed, i.e., the burning and the looting. However, you have shown a
2 number of documents, including this document, that indicate that already
3 at an early stage, for example, the Ministry of Interior or the local
4 police through the Ministry of Interior, is looking for ways in order to
5 come to a more coherent approach, and I would -- again, I have no
6 document to prove that, but I would assume that General Cermak, being the
7 commander of the Knin garrison, would be involved in that process.
8 Q. Looking further at the tasks now of General Cermak.
9 MR. KAY: And if we go to Exhibit P463, to page 5.
10 Q. This is another presidential transcript of the 22nd of August,
11 1995. It is a meeting between Dr. Jure Radic, President Tudjman, and
12 records a discussion between the two men. At one passage, there is
13 discussion concerning General Cermak.
14 First of all, have you seen this transcript?
15 A. I have not seen this transcript.
16 Q. Let us look at this conversation with Dr. Radic in the middle of
17 the page, where he refers to: "The civil is in but according to my
18 estimate the main problem here is the army/police relationship, because
19 there is nothing the police can do to the army. If someone shows up as
20 the army, then problems will come right after that. We have to have the
21 civil authorities in the villages. Cermak is not holding power in Knin,
22 he's not the one who can say who's going to enter which house, who is
23 doing what. That is just an example I'm telling you."
24 "President: Wait a second, hadn't I sent Cermak to Knin, it
25 would have been horrible there."
1 And Dr. Radic agrees, saying maybe he didn't use the right
2 example precisely because we are all using it ... military authority
3 cannot run civil matters in the terrain, military authority cannot decide
4 on who goes to which house.
5 "It cannot," says the president, "but it can maintain order in
6 these transitional periods."
7 You have relied upon the presidential transcript in the
8 preparation of your report that we have previously referred to concerning
9 order and the description by Mr. Cermak of his job in his discussion in
10 1999 with the president. In relation to your report, is there any reason
11 why you did not seek further presidential transcripts to find out what
12 was being said about General Cermak's job by the president?
13 A. I have not systematically reviewed all the presidential
14 transcripts. I reviewed those that appeared during my searches. Now, in
15 the context of the powers of General Cermak in Knin, I have not seen a
16 document by General Cermak in which he complains that he is not in a
17 position to exercise or does not have the powers to exercise the
18 authority that has been given to him by President Tudjman.
19 So I do appreciate what is -- what is written here, and it's an
20 opinion by Mr. Radic about what appears to be the difficulties Mr. Cermak
21 is facing in Knin, but as I said, I have not seen such a document
22 authored by Mr. Cermak.
23 JUDGE ORIE: Mr. Kay.
24 MR. KAY: I can finish this subject with one last question.
25 JUDGE ORIE: One question then --
1 MR. KAY: Yes.
2 JUDGE ORIE: -- because otherwise we'll end up after 7.00.
3 Please proceed.
4 MR. KAY: Yes.
5 Q. For your methodology and your work, don't you think it important
6 for you to analyse such contemporaneous statements by people at the time?
7 A. I agree with you that this is an important document which, if I
8 had seen it, I would certainly have included it in my analysis. But
9 again, when compared with the other material I reviewed, it does not lead
10 me to review the conclusions I drew in relation --
11 JUDGE ORIE: But that is apparently not what Mr. Kay is asking
12 you. Mr. Kay is not asking you whether if you would have known this, you
13 would have drawn different conclusions. He is mainly focussing on the
14 importance of this document to be considered when writing a report. And
15 this brings me, Mr. Kay --
16 MR. KAY: That's -- Your Honour, there is another page of this
17 document but it will go --
18 JUDGE ORIE: Yes. Well, let's -- if --
19 MR. KAY: -- further and I can stop here. Thank you.
20 JUDGE ORIE: And it brings me back again, Mr. Theunens, to what I
21 said earlier to you, is try to -- you're an analyst. Try to analyse what
22 is exactly asked, try to understand what is asked of you. And also when
23 you said -- when you said you didn't know whether these were the same
24 maps, you told me that this was the start also of your previous answer.
25 It was not. Your previous answer started by saying, I have not seen the
1 maps; whereas, the question was whether you were aware of in a meeting
2 between General Gotovina and General Forand, that a map was announced.
3 That was asked. And then Mr. Kay suggested that that might have been the
4 same map.
5 Now, just by saying, I haven't seen the maps, I know a lot of
6 things without sometimes having seen -- for example, I knew that
7 reference was made to that map, even without ever having seen that map.
8 So, therefore, it seems that you, more or less, responded also to my
9 light critical note that you should focus on the question. After you
10 have said, I have not seen the maps, which is certainly not an answer to
11 the question that was put to you, you immediately drifted to coordination
12 matters which were not asked.
13 So, therefore, perhaps you would be so kind to consider this and
14 especially keep this in mind when you continue your testimony tomorrow.
15 You will continue it after I have instructed you not to speak with anyone
16 about your testimony, whether already given or still to be given.
17 We adjourn, and we resume tomorrow, Thursday, the 4th of
18 December, at quarter past 2.00 in this same courtroom, I.
19 --- Whereupon the hearing adjourned at 7.06 p.m.
20 to be reconvened on Thursday, the 4th day of
21 December, 2008, at 2.15 p.m.