1 Wednesday, 4 November 2009
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.03 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, the
10 Prosecutor versus Ante Gotovina et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Mr. Kehoe, will you be the first one to cross-examine
13 Mr. Albiston?
14 MR. KEHOE: Yes, Mr. President, we have no questions at this
16 JUDGE ORIE: No questions at this time.
17 Mr. Mikulicic.
18 MR. MIKULICIC: I will have a couple of questions, Your Honour.
19 JUDGE ORIE: You have a couple of questions.
20 Mr. Albiston, will now be cross-examined by Mr. Mikulicic.
21 Mr. Mikulicic is counsel for Mr. Cermak -- for Mr. Markac.
22 WITNESS: CHRISTOPHER ALBISTON [Resumed]
23 Cross-examination by Mr. Mikulicic:
24 Q. [Interpretation] Good morning, Mr. Albiston.
25 A. Good morning, sir.
1 Q. In your report - and I refer to paragraph 3.61 - you touched upon
2 a subject in which you explain that, generally speaking, it is accepted
3 that the prevention of crimes is a very important role of the police and
4 that there is certain doubt about the segments of the police work that
5 should have the priority in specific moments, whether it's the prevention
6 of crime or the investigation of crime.
7 So could you please elaborate a little bit between prevention of
8 crime and detection of crime, from the police point of view?
9 A. Yes, certainly, sir.
10 From the civilian policing point of view, in most jurisdictions,
11 the primary responsibility for the prevention of crime rests with the
12 uniformed branch of the police service. A number of police forces have
13 specialised officers who are described as crime prevention officers, but
14 that's a very technical function. It has to do with providing advice to
15 businesses, shopkeepers, private citizens on things such as door locks
16 and security in the home and the office and so on.
17 But, generally speaking, crime prevention is effected by
18 uniformed patrols in areas of crime or in some countries, cities, by the
19 use of CCTV cameras and other technical devices.
20 The investigation of crime is, in many police forces, a separate
21 issue and is dealt with by officers who have special training in criminal
22 law and procedure in forensic science and in techniques of investigating
23 crime to do with interviews with witnesses, interviews with suspects, and
24 that sort of thing.
25 Now, in most police forces, the senior officers have to try and
1 decide what proportion of their resources, of personnel and money, to put
2 into the different aspects of policing, because both are important.
3 Q. Thank you for your answer.
4 Now, continuing in the paragraph 3.62 of your report, you say
5 that in the aftermath of Operation Storm there was a period of violence
6 and fairly intense criminal activity, which was clearly distinct from
7 organised and directed combat.
8 So, in a situation like that, and considering the area that we
9 are discussing and which is the subject of the indictment, in such a
10 situation, as a consequence of a war conflict, the criminal activities
11 intensified. So this is not the usual picture of the operation of the
12 police system. And the police system, therefore, has to adjust to such a
13 situation in one way or another.
14 While studying the materials, what did you find out in view of
15 this issue?
16 A. I think that's exactly -- it is entirely right to say that, in
17 general, after conflict, there is an opportunity for crime and crime
18 frequently follows combat, and that in these particular circumstances the
19 material which I read suggested that certainly happened in the Krajina
20 area in the period after Operation Storm.
21 What I was attempting to distinguish between in the paragraph to
22 which you referred was a period when there was military activity by the
23 Croatian armed forces designed to achieve the objectives of the state in
24 relation to the Krajina, and when it was generally considered that that
25 operation had concluded, but there is evidence from the documents that
1 there was a significant amount of crime taking place in the area.
2 From my reading of the documents, what appears to me to have been
3 the response of the Croatian state to this problem could be looked at in
4 two ways. Firstly, you could look at the anticipation of such problems
5 by the state, and there were a number of documents to which I referred,
6 particularly the documents such as the documents by Mr. Moric on the
7 3rd of August and another document produced by Major-General Lausic
8 around about that date - I'm an afraid I'm not able to quote the court
9 numbers - which show the preparations of the state from the point of view
10 of dealing with the potential aftermath of the operation.
11 Looking, then, to what happened after Operation Storm, the
12 documents which I would cite as an indication of the response of the
13 state would include a long series of documents about the employment of,
14 what are called in translation, separate police units, which were a form
15 of reinforcements to the police, some of them apparently quite young and
16 inexperienced officers. I would cite the evidence of witnesses such as
17 the police coordinators, who were additional officers sent to help
18 re-establish civilian policing, and they comment on the difficulties of
19 police moving into the area. And, of course, there are other
20 commentaries in the documents before the Court which indicate that there
21 were a large number of crimes, but the number of officers available to
22 investigate those crimes did not significantly increase, which would put
23 additional pressures on them.
24 So these are the sorts of things which I think the court
25 documents show about the situation.
1 Q. I saw that you did your work in crisis areas in Northern Ireland
2 and in Kosovo, in a situation relatively similar to the one that existed
3 in the Sector South after the conclusion of the Operation Storm there was
4 an increase in violence and so on.
5 Could you draw any parallels from your own personal experience?
6 A. I think that there certainly are parallels to be drawn. There is
7 always a danger that we exaggerate the degree of similarity. But
8 parallels, there certainly are.
9 There was a conflict involving peoples with long-standing
10 animosities in the Balkan matters as well as in Northern Ireland.
11 History plays a great part in determining peoples' attitudes to each
12 other. And I think that this plays out in the conflicts and in the
13 attitudes to authority; the attitudes to policing; the belief amongst
14 some people that policing is not a non-partisan upholding of the law,
15 but, rather, the exercise of power by one group over another.
16 These are sometimes realities and sometimes exceptions, and they
17 produce difficulties. They can turn issues which should be about law and
18 order and common sense into political issues, and I think some of these
19 problems pertained in the areas of the Balkans where I worked, as they
20 certainly do in Northern Ireland.
21 Another parallel would be that criminals, and particularly
22 organised crime and violent gangsters, will see the breakdown of ordinary
23 law and order as a opportunity for them to impose their will to establish
24 a power-base and to engage in crime.
25 Q. We could see a similar situation in recent history also in the
1 events following the Hurricane Katrina in the area of New Orleans
2 during the civil unrest in Paris
3 one case it was a natural disaster, in the other one it was an incident,
4 there was an explosion of crime and violence.
5 Was the reaction of the police in these well organised
6 environments in comparison to the reaction of the police that could you
7 see, in the documents that you studied for the needs of this proceedings,
8 can be compared or can any parallels be drawn between these two?
9 MS. GUSTAFSON: Sorry, Your Honours, I don't think there is a
10 foundation laid for this question, in particular, the events following
11 Hurricane Katrina or the civil unrest in Paris in 2005 vis-a-vis this
12 witness's knowledge.
13 JUDGE ORIE: Mr. Mikulicic, apart from the issue raised by
14 Ms. Gustafson, of course, until now we have not received that much
15 evidence on what happened after Katrina. Of course, also --
16 MR. MIKULICIC: I think it's a common knowledge, Your Honour.
17 JUDGE ORIE: Yes, but I said apart from what Ms. Gustafson
18 raised. These kind of comparisons, what are we aiming at? To see that
19 after disasters, whether natural disasters, or after wars, that there is
20 a problem? I mean, that is common knowledge as well.
21 MR. MIKULICIC: Yes.
22 JUDGE ORIE: So could you please focus your questions on what
23 this witness with his experience could tell us and what he could add to
24 what we find already in his report on the basis of his experience and his
25 knowledge of other events.
1 So that -- get -- if we get focussed on -- on additional -- I
2 would say additional value, probative value.
3 MR. MIKULICIC: I see.
4 JUDGE ORIE: Please proceed.
5 MR. MIKULICIC: I will try to do so, Your Honour.
6 Q. [Interpretation] Mr. Albiston, my direct question is: What is
7 the role of police in situations when there is an increase of crime or
8 even an explosion of crime in certain areas regardless of the
9 consequences, whether it was a natural disaster or a war conflict or some
10 other kind of hostilities, what is the role of police in a situation of
11 this kind, and what can you tell us about this on the basis of your
12 personal experience and on the basis of the documents which you reviewed
13 for the purpose of writing your report?
14 A. Well, the short answer to the first part of your question is that
15 the function of the police is to restore and then to maintain civil law
16 and order.
17 In relation to the second part of your question, that's slightly
18 more complex. In my experience, in these situations, there is an role
19 for the military, and there is a role for the police. And those who have
20 the political direction have to make a decision as to when the military
21 should be in the lead, because the problems are such that only the
22 resources of the military can deal with them, and when the police should
23 be in the lead, because, in fact, the problem is now seen as mainly a
24 problem of civil law and order, rather than a problem which is beyond the
25 means of the civilian policing.
1 In some countries, of course, there are police branches or
2 branches with a police name, such as the gendarmerie nationale in France
3 which have policing skills and policing functions but actually come under
4 the Ministry of Defence, rather than the Ministry of the Interior,
5 because it is accepted that the sort of techniques which they used in
6 some of their duties are more akin to military techniques than to what a
7 British person would regard as normal civilian policing techniques. In
8 Northern Ireland, the decision was taken 30 years ago that the police
9 should lead and use the military in support where it was necessary.
10 In Kosovo at the time that I was police commissioner, we had one
11 area in which the military took the lead and the police assisted where
12 they could, and four areas where the police took the lead and called on
13 military assistance. And that was based on a judgement of the level of
14 security threat and the nature of the crime.
15 So it won't always be the same thing. In the situation which
16 this Chamber is considering, there was a military campaign followed by
17 crime. And at some stage it was the responsibility, I would suggest, of
18 the Croatian government, to decide when the military campaign was
19 concluded and when it was possible to establish normal civilian law and
20 order through the means of the civilian police, investigating judges, and
22 Q. My question, Mr. Albiston, while you were studying materials for
23 the purpose of writing your reports, did you come across any proof, any
24 document, that will allow to you conclude that when it came to the wish
25 to establish law and order in the newly liberated territories, the
1 Croatian government, by any of its measures or activities, that is to say
2 the Ministry of the Interior or the Ministry of Defence, did they in any
3 way obstruct this duty or this task? Did you come across any evidence
4 that would point to the contrary, the wish not to re-establish civil law
5 and order in the newly liberated territories?
6 Did you ever come across any evidence that would point to
7 anything of the kind?
8 A. Not at all. In fact, quite the contrary.
9 The documents which I concentrated on, as my research developed,
10 it became clear to me there were certain areas that I should concentrate
11 on. And those areas, in particular, the documents to which I referred in
12 examination-in-chief which show the efforts of Mr. Moric to establish
13 civil law and order, there is nothing in any of those documents to
14 suggest that the Croatian government was taking an obstructive or
15 negative views towards its responsibilities. What there is is an
16 indication of matters which I have seen in every jurisdiction in which
17 have I worked which is that sometimes things don't work properly,
18 sometimes people don't turn up to appointments. Sometimes you don't have
19 the right number of people in the right place, despite what you have
20 tried to achieve. I saw evidence of failings in that regard, but I
21 didn't see any evidence of organised failings or obstruction by
23 Q. Thank you for your answers, Mr. Albiston.
24 MR. MIKULICIC: I have no further questions, Your Honour.
25 JUDGE ORIE: Thank you, Mr. Mikulicic.
1 Mr. Albiston, if you would allow me one follow-up question in
2 relation to one of your answers.
3 You gave as one of the parallels that -- and you said that:
4 "... criminals, and particularly organised crime and violent
5 gangsters, will see the breakdown of ordinary law and order as an
6 opportunity for them to impose their will to establish power-base and to
7 engage in crime."
8 That was the parallel through the other experiences compared to
9 the situation in the Krajina.
10 Could you tell us what actually you had on your mind when you
11 said that organised crime and violent gangsters would see here an
12 opportunity? What gangsters, what crime did you have in mind? What
13 organised crime did you have in mind on the basis of the documents you
14 have studied?
15 THE WITNESS: Well the reference to the organised and violent
16 crime was more to the parallels to which counsel was talking about. And
17 my personal experience of that is taking place in Kosovo and in
18 Northern Ireland.
19 The parallel from the documents is not entirely clear. There are
20 indications in the documents of criminal activity and police officers and
21 others being threatened. But I wouldn't try to suggest to this Chamber
22 that I have identified particular individuals engaged in organised crime
23 in this area.
24 What I'm saying is that that is one of the opportunities which is
25 presented by this sort of situation, one of the challenges with which the
1 police might be expected to deal.
2 JUDGE ORIE: Yes. Then there must have been some
3 misunderstanding as far as the question is concerned, because the
4 question was introduced by Mr. Mikulicic, referring to your experience in
5 Northern Ireland and Kosovo, and he then said:
6 "In a situation relatively similar to the one that existed in the
7 Sector South after the conclusion of the Operation Storm, there was an
8 increase in violence and so on," whether you could draw any parallels.
9 But I do understand now that as far as organised crime is
10 concerned, and violent gangsters, that you are comparing more Kosovo and
11 Northern Ireland but have you no clue for Sector South.
12 THE WITNESS: Well, I'm saying that the same opportunities were
13 there, but the documents don't show me that that took place in the period
14 which we're discussing. The documents suggest violence but not of that
15 particular type.
16 JUDGE ORIE: Yes. Thank you for that answer.
17 Ms. Gustafson, are you ready to cross-examine the witness?
18 MS. GUSTAFSON: Yes, Your Honour. Thank you.
19 JUDGE ORIE: Mr. Albiston you will now be cross-examined by
20 Ms. Gustafson. Ms. Gustafson is counsel for the Prosecution.
21 Cross-examination by Ms. Gustafson:
22 Q. Good morning, Mr. Albiston.
23 A. Good morning, Ms. Gustafson.
24 Q. I would like to start by asking you some questions about the
25 methodology of your report, the sources you relied on, and the process
1 that you undertook in producing it.
2 And it's clear from your report and the supplemental note that
3 you provided that you were initially briefed by Mr. Kay on the
4 15th of December, 2007.
5 Prior to that briefing, had you ever -- did you know Mr. Kay, had
6 you met anyone in the Cermak Defence or --
7 A. No one, no.
8 Q. No. Do you know how the Cermak Defence came to contact you?
9 A. I don't know the first stages of the contact process. The later
10 stage of the contact process were that a former senior police officer who
11 knew me and of my experience rang me and said that the Cermak Defence
12 team were looking to take advice from a police expert and would I be
13 interested, than's what the -- I said yes, if you want me to meet
14 someone, then the meeting with Mr. Kay took place, as a result of that.
15 Q. And you said the meeting that you had initially lasted
16 approximately three hours and that Mr. Kay briefed you on the nature of
17 the allegations, the nature of the Defence case. What specifically did
18 Mr. Kay tell you about the Defence case, in relation to the civilian
20 A. Well, it's a very simple outline.
21 The -- the main allegations against Mr. Cermak were outlined, and
22 Mr. Kay told me that the Defence did not accept those allegations because
23 they said that Mr. Cermak's role was rather different from what the
24 Prosecution's allegation was. And the -- basically the line taken by
25 Mr. Kay in his briefing to me was that the Defence case was that
1 General Cermak's role was more to do with the restoration of normality in
2 the Knin area and not so much to do with the events that were taking
3 place around there. Certainly not the events that were outlined in the
5 Q. So did Mr. Kay tell you or did it otherwise become clear to you
6 at that meeting that the position of the Cermak Defence was that
7 General Cermak had no authority over the civilian police?
8 A. I'm not sure that that came out of that meeting. We only had a
9 short time. And most of the meeting was actually taken up by Mr. Kay
10 trying to explain to me the -- the facts of what had happened in
11 Operation Storm, as opposed to the details of the case.
12 I mean, you know, a basic historical outline, really.
13 Q. And were you, at that time, just asked to draft a report, or were
14 you asked to be -- have some kind of consulting expert role or both?
15 A. Well, I was told that, if I agreed to become an expert witness
16 for the Cermak Defence team, I would be expected to produce a written
17 report which would be tendered to the Court, and I would be expected to
18 produce that document in evidence to the Court, and to be challenged on
19 the contents, if the Prosecution didn't agree with it.
20 Q. And at paragraph 1.5 of your report, you describe the purpose of
21 the report, and you say:
22 "It would be to examine the evidence connecting General Cermak to
23 policing issues and to offer expert opinion, based on professional
24 experience, as to General Cermak's role and responsibilities as garrison
25 commander in Knin in relation to policing. He was further invited to
1 comment upon Croatian Ministry of Interior structures and any
2 difficulties which might have faced the police at this time."
3 Now, was that instruction given to you in written form or in oral
5 A. It was in oral form, to start with, although at one stage a note
6 was produced saying basically what the terms of my engagement were.
7 Q. And what I read out to you and what's in paragraph 1.5 of your
8 report, does that reproduce exactly what the terms --
9 A. Well, the language isn't exactly similar, but the substance is
11 Q. And in producing your report, were you, at any time, asked do
12 assume any specific facts or any -- any specific evidence?
13 A. No.
14 Q. And, yesterday, I think you said you estimated the number of
15 documents you were provided to be between 2.000 and 4.000.
16 A. That's correct, yes.
17 Q. And there are, not having counted them exactly, but approximately
18 200 documents cited specifically referenced in your report. And I
19 understand that it was the Cermak Defence who selected the documents to
20 be provided to you. Do you have any idea how those documents were
21 selected by the Defence team?
22 A. Some of them were selected by the Defence team because they were
23 documents which they thought that I needed to see; and some of them were
24 documents which I asked to see.
25 Q. And which documents did you ask to see?
1 A. Well, this is a long process which has been going on over
2 18 months. I'm not sure I can be entirely specific.
3 I asked to see material which would demonstrate the workings of
4 the criminal justice system in the area at the time, because I thought
5 that the workings of the criminal justice system were relevant to my
6 comments on civilian policing.
7 I asked to see transcripts of the evidence of certain witnesses.
8 I won't say who they were now, but I think they're well-known to this
10 By and large, everything that the Defence team saw that they
11 thought might be relevant to me, I'm sure, was what was passed to me.
12 Q. But you have no knowledge of the specific factual or evidentiary
13 criteria that they applied in making that selection?
14 A. No, I don't. No.
15 Q. And aside from asking about -- asking for documents about the
16 workings of the criminal justice system and asking to see the transcripts
17 of the evidence of certain witnesses, did you ask for any other documents
18 from the Defence, at any time?
19 A. I may -- I may have done, but I -- I can't recall. I'm trying to
20 think of examples now.
21 The ones that come to mind are the cases of the -- those
22 witnesses which I thought were particularly germane to the area that I
23 was covering.
24 Q. Would it be fair to say you had relatively frequent contact with
25 the Defence about the documents that you were to look at?
1 A. Well, certainly. It was made clear to me from the very start
2 that anything that I asked for, the Defence would seek to provide for me
3 so that I could consider it.
4 It would be wrong for me to say that I went to some great archive
5 and conducted my own research. I didn't. And if the suggestion is that
6 the material that I got was material which was provided by the Defence,
7 that would be entirely correct; it was Defence material.
8 Of course, it's material which is -- material in the Chamber.
9 There is only one example I can think of of a case where I asked
10 for material and I was told I couldn't have it, and that was quite
11 recently. I asked if I could see the expert report being prepared by
12 General Deverell in relation to the military aspects of the
13 Cermak Defence, and I was told it wouldn't be appropriate for me to see
14 that. But everything else that I have asked to see, I have been shown.
15 Q. And going back to something else you said yesterday, which was --
16 you said:
17 "I tried to read most of the material that was provided to me."
18 And that was at page 23.765.
19 My question is: Were there any documents provided to you by the
20 Cermak Defence that you did not read?
21 A. No. I read them all. Some of them had more of a lasting
22 impression, and some of them were documents from which I jotted down
23 notes as I believe that they were relevant to my area of expertise.
24 There were, of course, particularly in the early stages, a significant
25 number of documents which were useful for me to read in order to have a
1 flavour of the background of the case and to see what people, at the
2 time, thought was going on in the area. But, actually, when it came to
3 me writing an expert report based on my expertise in relation to the
4 matters which I could actually address with some credibility as an
5 expert, that narrowed the ground down significantly.
6 So there were lots and lots of documents that I read that won't
7 feature in my report and that I -- I wouldn't comment on to the Chamber,
8 because they're not matters that I feel that I can comment on expertly.
9 I mean, a lot of them are documents which would be questions of
10 evidence of fact for the Chamber and not matters upon which I, as an
11 outsider, could usefully comment.
12 Q. And just in relation to that, you were asked yesterday about the
13 methodology used when selecting documents for your report. And that's
14 when you gave your answer about trying to read all the material.
15 And I'd just like to try to get a more specific answer from you
16 about the criteria or methodology you applied in selecting the documents
17 that you would reference in your report.
18 A. Well, I don't know how helpful this will be, but I will try to
19 describe the process by which my reading of documents, over a year ago,
20 results in a report for this Chamber now.
21 I read the documents in the order in which they were presented to
22 me, and sometimes this was quite a straightforward matter, because
23 sometimes they were in paper form and in folders and there was a clear
24 theme as to what they were about. And I can give an example of that: I
25 had a folder of documents at a very early stage in the development of my
1 report which was the -- the title of which way something like
2 "General Cermak and the Press," or "General Cermak's Interviews," that --
3 that was the -- that was the substance of the thing.
4 So I would go through that folder and I would make notes of
5 anything that I thought was relevant. And what I thought was relevant
6 15 months ago, I may not have thought was relevant three months ago.
7 Because during the course of reading all these documents, I refined and
8 honed down what I thought I could usefully contribute, so that when I was
9 first reading the documents, the way I was envisaging giving evidence
10 would be to produce a -- a massive document which produced commentary on
11 virtually everything I had seen. But during the course of my research, I
12 decided that there were certain issues that I ought to concentrate on,
13 because they were issues where, in fact, I had expertise, and that's what
14 I had been recruited to deal with.
15 And then later on, as I -- as I said in my methodology, I decided
16 well, actually, probably the best way to deal with this is to take the
17 two issues which are civilian policing, which is my expertise, and the
18 indictment, and see where they were linked, in relation to
19 General Cermak. And that's why the report takes the form it takes now.
20 Q. Just to follow up on that, that process of -- of turning the
21 report from a massive document, as you said, commenting on everything, to
22 a document focussed on what you considered to be the issues in the
23 indictment relative --
24 A. It wasn't actually a report at the early stages. It was -- it
25 was a desk full of pieces of paper with different sections.
1 Q. And that -- the process of turning it from one to the other, is
2 that a process that you developed on your own or did you have any input
3 from the Cermak Defence on -- with respect to that process?
4 A. No. The only time there was an input from the Cermak Defence was
5 after I submitted a draft report, and I got a very short bit of feedback
6 which was, This is too long. So I revisited it. And, in fact, I had to
7 accept that there were areas of my report where I was able to combine
8 different elements in one place and avoid repetition. So actually the
9 final report is slightly shorter than it would have been.
10 Q. Was there any other input from the Cermak Defence on that draft
12 A. No.
13 Q. And just to go back to the document selection process that we had
14 been talking about.
15 Were there any documents that you reviewed that you considered to
16 be relevant to the issues in your report that you did not specifically
18 A. There were documents that might have what I considered to be some
19 relevance to my report, which were referenced at the draft stage, which
20 have dropped out, certainly. But, by and large, the documents -- well,
21 no, the documents which you see referenced in the report are the
22 documents which I think specifically give an indication to the Chamber of
23 the issues which I'm addressing.
24 Q. So if I understand your answer - and correct me if I'm wrong -
25 there may be some relevant documents that not referenced in the final
1 report, but those that you considered to be specifically relevant to the
2 issues are included in the report. Is that a fair understanding?
3 A. I'm satisfied with -- that the report, as it stands, references
4 the documents which go to the issues which I discuss. But, of course, I
5 fully anticipate that you may wish to put other documents to me, and I
6 will address those questions.
7 Q. At this stage, I'm just trying to understand your process.
8 A. I accept the point. Yes, I understand. Yes.
9 Q. And to go back to the witness transcripts - and if at any point
10 you need to go into private session to answer the question, please
11 indicate that to the Court.
12 I take that, from your earlier answer, that you specifically
13 requested the transcripts of the witnesses who you -- whose evidence you
14 refer to in your report. Is that right?
15 A. Yes, certainly. I -- I already had witness statements in
16 relation to those particular witnesses, but I asked for the transcripts
17 of their oral testimony so that I could compare and see whether there
18 were any changes in the position. And, of course, from my experience of
19 the other jurisdictions in which I have worked, and will be guided by the
20 Chamber if that is also true here, the oral evidence of witnesses which
21 is subject to challenge under cross-examination generally has greater
22 probative value than the witness statements which are made earlier. But
23 that my not be the case here. I don't know.
24 Q. But that was your assumption, that the oral --
25 A. That was my assumption. That the oral --
1 Q. -- that the transcripts had more weight than the statements that
2 you were provided?
3 A. Well, that was the way that I looked at it, yes.
4 Q. And were you provided -- I understand that you were provided with
5 Mr. Theunens' report --
6 A. Yes.
7 Q. -- and that you saw his --
8 A. Yes.
9 Q. -- evidence. Were there any other witness statements or witness
10 evidence that were provided to you through -- in relation to any other
11 witnesses in this case?
12 A. Oh, yes, there were a lot of witness statements which I saw in
13 the early days. I had a -- a disc provided to me which contained witness
14 statements from a number of witnesses which were some of the first things
15 that I read. Those witnesses -- I can't give the names, but can I group
16 them to say that they tended to be individual citizens who had been
17 president -- present in the Krajina area at the time of some of the
18 incidents that we're talking about; and internationals, for example,
19 people from the ECMM and UNCIVPOL and that sort of thing, a great lot of
20 witness statements that I read in the earlier stages, yes.
21 Q. And, again, I take it you don't know the basis upon which that
22 witness -- that witness selection was made by the Cermak Defence, in
23 terms of the specific criteria?
24 A. Well, I mean, the short answer to your question is, No, I don't.
25 And I know assumptions are not very helpful in judicial proceedings. But
1 my assumption, for what it's worth, was that I was being shown the lot.
2 And certainly a lot of the material I read would not be considered to be
3 directly relevant to General Cermak in his relation with civilian police,
4 but they might, of course, be germane to wider issues that are before the
6 Q. And what was the basis for your selection of the witnesses that
7 you cited in your report? And, again, if you need to go into private
8 session, please indicate that.
9 A. Well, I don't think I need to go into private session to answer
10 the question, that the witnesses that I cite give direct evidence about
11 procedures on which I have some knowledge and which I thought were
12 specifically relevant to the issues which I'm addressing in my report.
13 Q. And with respect to the witness evidence that you have cited in
14 your report, I assume that you have accepted that evidence to be accurate
15 and that's why you have referenced it; is that right?
16 A. Well, not necessarily. What I'm trying to do is to make a
17 judgement on the documents which are available to me.
18 I think it is not for me to make an assessment of the quality of
19 the evidence of some of the people to whom you and I are referring
20 slightly elliptically, and, in my submission, it's for the Chamber to
21 make a judgement about the quality of their evidence.
22 My job, as I saw it, was to draw the attention of the Chamber to
23 what I saw as the disparity between certain aspects of the Prosecution
24 case, as outlined in the indictment, and the testimony which was before
25 the Chamber.
1 Q. So if you didn't make any assessment as to the quality of the
2 evidence, you didn't, for example, look at discrepancies within
3 witnesses' evidence where one piece of evidence of a witness might
4 conflict with something else the witness said. That wasn't part of your
5 process of analysis in terms of what evidence of the witnesses you relied
6 on. Is that fair?
7 A. Well, I -- I would be careful -- I wouldn't use the word
8 "analysis" in relation to the process which I applied, simply because in
9 the English speaking police world, at the moment, analysts are
10 individuals who have specific qualifications, and I'm not one of them.
11 They are people who do a two-year course in particular techniques, so I
12 hesitate to use that.
13 But in the ordinary use of the language, I certainly did read
14 statements and compare the statements with the testimony given in court.
15 And whilst I tell this Chamber that I'm not attempting to tell the
16 Chamber what value to place on individual testimony, because the Chamber
17 has seen the witnesses and made its own judgement about them, I didn't
18 see those witnesses, I didn't watch them give evidence. But I do say,
19 and I think I suggest in my report that, that in those areas where I
20 place value on the testimony of the witnesses, it's because what they
21 have said is entirely consistent with my reading, not only of the
22 documents which show the legal and procedural provisions which were
23 extent in the Republic of Croatia
24 matters, but they're also consistent with my experience as a police
25 officer of the way in which police officers handle direction or attempted
1 direction or liaison and cooperation and issues like that, in relation to
2 other agencies and outside bodies.
3 Q. Now, also in your report, at paragraph 1.6, you reference a
4 number of meetings you had with the Cermak Defence which you stated were:
5 "...in order to collect additional material and discuss the
6 progress in the case."
7 Now -- and the footnotes indicate approximately 21 days that you
8 were in The Hague
9 A. Mm-hm.
10 Q. And in terms of discussing the progress in the case, I'd like to
11 know more specifically what you spoke about and, in particular, if you
12 discussed anything relating to any of the issues you cover in your
14 A. Well, really the reference to progress in the case was to whether
15 particular witnesses had given their evidence. If so, were the
16 transcripts available to me and that sort of thing.
17 I hadn't counted the number of days, but I certainly accept that
18 I spent something in the order of five to six working weeks in The Hague
19 prior to this hearing. Most of that was actually spent sitting at a desk
20 with my laptop and with piles of paper. One of the reasons for that is
21 that can you get far more work done in an office than you can do at home,
22 in a working day. There are no distractions in the office that there are
23 when you're at home.
24 Q. And did you have any discussions about the substance of any
25 witnesses or the substance of any documents or the substance of any
1 issues you cover in your report during those discussions?
2 A. No. No, I was left very much alone as far as that was concerned.
3 Q. And you were provided with Mr. Theunens' report and you came and
4 watched his evidence.
5 A. Yes.
6 Q. What was the purpose, as far as you are aware, of having you
7 familiarize yourself with Mr. Theunens's evidence and report?
8 A. I have -- maybe it is obvious, but have I never given expert
9 evidence in this Chamber before. And so I think the Defence team --
10 well, I know the Defence team thought that it was important that I should
11 see what is involved in giving expert evidence. And having watched the
12 cross-examination of Mr. Theunens, I think it was a useful exercise.
13 Q. Did you ever discuss his report or his evidence, in terms of
14 substance, with the Cermak Defence?
15 A. No.
16 Q. And have you ever communicated with General Cermak directly?
17 A. No, I'm -- I have never spoken to Mr. Cermak. I have seen him
18 through a glass screen, and in the last days, of course, I have seen him
19 across the court. But I have never spoken to him.
20 Q. And it's also clear from your report that you had a meeting with
21 the military expert, Mr. Deverell?
22 A. Oh, yes.
23 Q. How many meetings did you have with him? Is it just one or a
25 A. Well, it would probably not be right to describe having a meeting
1 with him. We worked in the same office together for a few days last
2 year, and I met him again the day before yesterday. We had dinner
4 Q. And did you and he ever discuss the substance of your report or
5 the substance of the issues you were addressing in your reports?
6 A. In the early days, we discussed what was a military matter and
7 what was a police matter, and we, after some discussion, we agreed that
8 the military police was a military matter and not a police matter. And
9 we discussed the difficulties of reading documents on screens and this
10 sort of thing. And just for the information of the Chamber, having said
11 that I wasn't allowed to see the General's report, I probably ought to
12 add that when we had dinner together, we didn't discuss the case either.
13 Q. And in terms of the military police, that was one part of your
14 draft report, a section of your draft report on the military police you
15 subsequently removed, and I'm wondering what caused you to take that
16 section of your report out.
17 A. Because, having considered, in an early stage, that the military
18 police would be a matter that would be handled by the military expert, I
19 had, nevertheless, read a lot of documents on the military police,
20 because I saw a lot of impact, significantly more tangential impact
21 between the military police issues and the civilian police issues. And
22 also, when I came to collect my ideas together in terms of the
23 indictment, there were areas of the indictment where the terms
24 "military police" and "civilian police" were used together. And I felt
25 an obligation to address the military police issues as part of addressing
1 the issue in that section of the indictment.
2 Then subsequently I thought, Well, actually, I don't have to do
3 that because I can address just the words which are relevant to my
4 expertise. So having been told my report was too long, that was an
5 obvious area to dispense with.
6 Q. And do you have any idea whether the conclusions you reached with
7 respect to the military police were either consistent or inconsistent
8 with Mr. Deverell's conclusions?
9 A. None whatsoever.
10 Q. Okay. Well, now I'd like to move to your report itself and the
11 first part of your report which deals with the extent of a garrison
12 commander's authority.
13 And my understanding from your report and -- and from your
14 testimony yesterday, that your -- you looked at whether there was any
15 source for General Cermak's authority over the civilian police in the
16 relevant military documents, such as the service regulations. And you
17 also looked at Ministry of Interior documents. And your conclusion is
18 neither of those two sets of documents provide for any authority of the
19 garrison commander or General Cermak over the civilian police.
20 Is that fair?
21 A. Yes, that's right. I tried to approach the issue from the two
22 sides, and that was the conclusion I reached, yes.
23 Q. And you don't address any other potential sources of
24 General Cermak's authority over the civilian police. Is that fair?
25 A. Well, I think that is fair, yes. Yes.
1 Q. So your view is that General Cermak's authority stemmed only from
2 his position as garrison commander; is that right?
3 A. Yes, indeed. The documents which I read showed that
4 General Cermak was appointed to his command by the president, that the
5 command was that of the garrison commander, and that's why I looked at
6 documents which might indicate what the authority of the garrison
7 commander was in military terms; and looking specifically, of course, for
8 any impact or any locus which there might be, in relation to civilian
10 Q. So to put those two together, would it be fair to say that the --
11 more or less the starting point for your report is that General Cermak's
12 authority stemmed only from his position as garrison commander and that
13 there is no authority of a garrison commander over the civilian police?
14 A. Well, that's certainly the conclusion which I reached after
15 examining documents and in relation to what I -- the material that I
16 looked at in the first section of my report, yes.
17 Q. And in that first section where you discuss the duties of
18 garrison commanders, according to the rules and regulations, those duties
19 do not include normalisation of life within the garrison, liaising with
20 the press, or liaising with -- liaising between international
21 organisations and the organs of the Croatian government.
22 Is that fair?
23 A. Well, I need to revisit the documents to look at the -- all those
25 I was looking specifically, for the purposes of this report, at
1 issues in relation to civilian policing. I don't say that garrison
2 commanders don't have a function in relation to normalisation.
3 Q. Well, if -- if you need to look at any particular document,
4 that's fine. But I -- do you --
5 A. What I'm saying in summary is I'm not challenging your suggestion
6 that General Cermak might have had authority in relation to normalisation
7 issues. I'm not challenging that. I'm just saying that isn't an area in
8 which I would have expertise and address in this report.
9 Q. Well, I just -- I'd just like to understand what your -- your
10 understanding -- what your meaning of your report is, and -- and the
11 basis upon which you drew certain conclusions and -- so let me put the
12 question this way.
13 Do you recall seeing any duty of a garrison commander that
14 related to normalisation of life, liaising with the press, or liaising
15 between international organisations and the organs of the
16 Croatian government in any of the relevant HV or Ministry of Defence
17 documents you reviewed - and please, if you need to refer to any
18 documents --
19 A. No, like I said, I don't recall that.
20 Q. Now, throughout your report, you have mentioned some of these
21 duties in passing, and I'd just like to mention a few of them to you.
22 You stated that General Cermak played a coordinating and
23 representative point of contact role in relation to post-conflict
24 normalisation. That's at paragraph 2.3.
25 At paragraph 3.81 you stated that General Cermak's role in
1 relation to these matters can best be seen as a public face, be it for
2 the press or for the international interlocutors. At paragraph 3.88, you
4 "It should, in my opinion, be interpreted in the light of
5 General Cermak's acknowledged role in relation to the international
6 community and UNCRO in particular."
7 At paragraph 3.94 you referred to the latter's, referring to
8 General Cermak's international liaison role.
9 In paragraph 3.6 the you stated:
10 "In my opinion, this is because the nature of General Cermak's
11 coordinating role was either between the internationals and the Croats or
12 related to domestic functions pertaining to normalisation."
13 And from my reading of your report, nowhere in your report do you
14 specifically explain how you reached these conclusions that
15 General Cermak had these types of roles.
16 Is that -- is that fair?
17 A. Yes, that is entirely fair. I have seen no document which
18 provides some sort of legal authority or provenance or direction which
19 gives General Cermak the sort of authority in the issues which you have
20 just referred to.
21 My assessment of his role in relation to that comes not from any
22 cited document which gives General Cermak authority in those specific
23 areas; it comes from my reading of the documents as to what he actually
24 did and the authority which appears to have been accorded to him by those
25 with whom he was dealing.
1 In other words, the actions of the people involved in playing out
2 this -- the scenes which are familiar to the Chamber appear to accord
3 that sort of authority and responsibility and role to General Cermak.
4 But, of course, you're quite right to say that I do not, in my
5 report, indicate any written authority for him to do that.
6 Q. Now, are you able to identify, now, which specific evidentiary
7 sources you relied on to reach your implicit conclusions in your report,
8 that General Cermak had these roles?
9 A. Well, I cannot quote court numbers, but I can guide the Chamber
10 towards the sort of documents.
11 In relation to the international point of contact, there are, in
12 my submission, numerous documents which indicate that, for example,
13 Brigadier Forand of Canada
14 General Cermak was the man to whom he should go to get things done. And
15 there is correspondence visible to the Chamber, which I didn't cite but
16 which I read, numerous examples. For example, General Cermak seeks the
17 assistance of Brigadier Forand to remove abandoned and broken down
18 vehicles from the road. He seeks the assistance of General Forand with
19 dealing with either waterworks or sewage or something of that sort.
20 Brigadier Forand is -- uses General Cermak as a point of contact
21 for dealing with his issues and, of course, the notorious one which has
22 been before the Chamber before and doubtless will resurface later on is
23 the theft of the UN vehicles, where before Brigadier Forand realises that
24 General Cermak can't actually achieve some of the things which he hopes
25 and goes to General Gotovina, Forand uses General Cermak as his avenue.
1 Take another example. We discussed yesterday communication from
2 the ICRC who are looking for information about some crime matters. Now,
3 I have told the Chamber that, in my professional opinion, General Cermak
4 wasn't the man who dealt with crime. But that's not to say that he
5 wasn't the man who could communicate information being it to the
6 international community.
7 So these are the sorts of incidents which make me take that view
8 in relation to international liaison.
9 So far as the press is concerned, quite early on in my research,
10 I had a folder of documents which are transcripts of General Cermak's
11 interviews with -- I hesitate to try and pronounce "Slobodna Dalmacija"
12 and various other newspapers. There are also videos, which I think are
13 exhibits within the Chamber, of General Cermak giving television
15 Now, as I said before, I can't tell this Chamber, Here's a
16 document which says the garrison commander is in charge of giving
17 television interviews. I don't think it exists. I would be prepared to
18 be corrected on that, but I haven't seen it if it does. But I have seen
19 the evidence of what General Cermak did, and that is the basis upon which
20 I make the remarks in my report about those functions.
21 Q. Thank you --
22 JUDGE ORIE: Ms. Gustafson, could I seek clarification of one of
23 the earlier answers.
24 I'll read a portion of your answer, Mr. Albiston.
25 You said:
1 "My assessment of his role in relation to that," and you were
2 referring to the other issues, "comes not from any cited document which
3 gives General Cermak authority in those specific areas; it comes from my
4 reading of the documents as to what he actually did and the authority
5 which appears to have been accorded to him by those with whom he was
7 And then you continued:
8 "In other words, the actions of the people involved in playing
9 out this -- the scenes which are familiar to the Chamber appear to accord
10 that sort of authority and responsibility and role to General Cermak."
11 Now, in the first part of what I read, you say, The way in which
12 he acted, and the way in which he was apparently perceived by others, who
13 would then also accorded him authority, when you said "In other words,"
14 it seems that the emphasis shifts from according authority by observers
15 though who perceived his activity rather than his own activity.
16 Is that what you meant to say?
17 THE WITNESS: I'm not sure, Mr. President, that I entirely
18 understand the distinction. I think what I -- what my -- I'm saying to
19 the Court is that --
20 JUDGE ORIE: Yes, but let me then try ...
21 You gave one of the examples, an interview. Now, if the
22 journalist addressed General Cermak and say, Could you give us an
23 interview, that could be perceived as how journalists looked at the
24 authority and the function of Mr. Cermak. If I say, There will be a
25 press conference this afternoon, then we have an active role played by
1 the actor, Mr. Cermak - it's just an example, not to say that that this
2 is the way how interviews were organised. But, you see, there are two
3 different aspects: The one is by your own actions to create the
4 impression of authority; and the other one is that observers, without any
5 clear action triggering this perception, perceive you as the man in
7 Now, in your answer, in the first part of your answer, you
8 specifically referred to what he actually did; whereas, when you then
9 summarised it or rephrase it "in other words," did you intend to leave
10 that part out, or is it still fully present?
11 So is there any shift from his activity triggering the impression
12 of authority to others, without any activity that would trigger that
13 impression, more or less according authority to him, I would say
14 spontaneously more or less?
15 THE WITNESS: Well, yes, I'm grateful for that. And I understand
16 what the distinction was that Mr. President was highlighting.
17 I'm afraid my answer to counsel wasn't quite as sophisticated as
18 that. And basically what I was saying was both. And I wasn't attempting
19 to describe a chronological process by which one side of that equation
20 took place before the other side. I suppose the obvious thing is, if a
21 general gives a press interview, and I'm a press man and I turn up the
22 next day, I think, Well, there's a general who talks to the press, I'll
23 go and talk to him.
24 So the process can be sort of mutually supporting.
25 JUDGE ORIE: Thank you for that answer.
1 Please proceed, Ms. Gustafson.
2 MS. GUSTAFSON:
3 Q. Now, it's clear now from your answers, Mr. Albiston, that you
4 more or less inferred that General Cermak had authority over certain
5 tasks, based on the evidence that he was actually carrying out those
6 tasks in fact.
7 Is that -- is that right?
8 A. Yeah, I would say it's quite fair to say that a certain number of
9 the tasks and the sort of things that you have spoken about were matters
10 in which - and I choose my words more carefully now after Mr. President's
11 intervention - but either which Mr. Cermak or General Cermak saw as his
12 responsibility and was willing to accept as his responsibility, or which
13 others chose to heap upon him as his responsibility because he was there.
14 Q. And you covered the first two roles that I mentioned, in terms of
15 evidentiary sources, which were international point of contact and
16 liaising with the press. What evidentiary sources did you rely on to
17 draw the implicit conclusion that General Cermak had a role to normalise
18 life within the garrison?
19 A. Well, I would need to refer to the document which I think is
20 round about D34, because I think there 's a paragraph, or two paragraphs,
21 in there which talk about the garrison commander's role in garrison life,
22 which I think could be used by the Chamber as -- as a source of authority
23 for General Cermak's role in relation to normalisation. But I don't say
24 that that is specific to this issue, and it wasn't one which I was
25 addressing specifically in my report. I would base the comments in my
1 report more on the documents which demonstrate that General Cermak played
2 a role in normalisation.
3 By "normalisation" what I'm referring to are things like
4 re-establishing water, electricity, the re-opening of what are rather
5 quaintly referred to as the "cake shops" and that sort of thing.
6 Q. In terms of evidentiary sources, are you able to point to any?
7 A. Well, I would need to ask the indulgence of the Chamber to
8 highlight or identify the particular documents. But if there's a dispute
9 as to whether there are documents before the Chamber which show
10 General Cermak playing a role in relation to, for example, issues of
11 accommodation, power, clearing up of animal carcasses, and dealing with
12 dead bodies, if those are -- if it's an issue whether General Cermak had
13 any role in that through the documents, then I would have to go and look
14 for the documents. But I didn't think that was an issue.
15 Q. Really, just to be clear, it's a conclusion that you draw in your
16 report and it's implicit; it's not something that you directly address.
17 A. Yeah, absolutely.
18 Q. So I'm really aimed at making transparent what is not transparent
19 on your report --
20 A. No --
21 Q. -- as opposed to exploring those issues in substance.
22 A. I accept that. And if counsel thinks it's a defect in the report
23 that those assumptions are not supported by documents, then I apologise.
24 But the reason, of course, is that I did not think that that was an issue
25 which was in dispute between the Prosecution and the Defence. And it
1 wasn't an area which I thought was particularly relevant to my comments
2 on General Cermak in relation to civilian policing. That's why there's
3 no citation of documents to support those statements.
4 Q. And nowhere in your report do you mention or discuss any
5 discrepancy between these types of tasks that you have ascribed to
6 General Cermak in your report and the tasks that you cite as those of
7 a -- formal tasks of a garrison commander. And I'm wondering if it ever
8 crossed your mind, as you were preparing your report, that there was such
9 a discrepancy?
10 A. No. No, it didn't.
11 I didn't see this as issue which was one for me to deal with
13 JUDGE ORIE: Ms. Gustafson, if -- I need some seven or eight
14 minutes for some procedural matters soon. We are close to 10.30.
15 MS. GUSTAFSON: This is as good a time as any. Thank you.
16 JUDGE ORIE: This is as good a time as ...
17 Then we will not bother or bother you with the matters we have on
18 our agenda, Mr. Albiston.
19 Could you please already follow the Usher so that we can deal
20 with some procedural matters. We'd like to see you back in approximately
21 half an hour.
22 THE WITNESS: Yes, sir.
23 [The witness stands down]
24 JUDGE ORIE: The first matter is about scheduling for next week.
25 The Chamber has looked in its agenda, and possibilities for
1 sitting whole days next week would be Monday morning and afternoon, with
2 the following observation: That, for the last hour of Monday, not all
3 three Judges would be available. So for the last portion, most likely
4 the last session of Monday, we'd have to consider to sit under
5 Rule 15 bis.
6 We have an opportunity to sit Tuesday, the whole of the day. But
7 if we would start at 9.00 in the morning, the first two hours, that is
8 the first session, it's only possible to sit under Rule 15 bis.
9 Then, I understand, on Wednesday, we could continue until and
10 including the first afternoon session.
11 Adding this up altogether would mean that if we would not use
12 Rule 15 bis, that, on Monday, we'd have five sessions without 15 bis; six
13 sessions with 15 bis; and we still have to see whether this could be full
14 sessions or not, because usually if we're sitting a whole day, the
15 schedule is adapted slightly.
16 For Thursday -- Tuesday, the 10th, it would mean, when using
17 15 bis, six sessions; without 15 bis, five sessions.
18 For Wednesday, it would mean four sessions as a maximum, in view
19 of the request made by the Prosecution.
20 To sit under Rule 15 bis requires that the remaining Judges,
21 which would not be the same during these two days, that the other Judges
22 would decide that it would be in the interests of justice to continue
23 hearing the case. I make the following observation: That for expert
24 witnesses, it might be a little bit less sensitive to read the testimony
25 or to look at the tapes of the testimony compared to witnesses of fact.
1 But the Judges would have to decide.
2 The parties are invited to see whether they can work out a
3 schedule such that, with or without relying on 15 bis, they think they
4 could present the evidence in-chief and in cross to the Chamber within
5 these time-frames. Because, if, finally, we'd need Thursday and Friday
6 anyhow, then the Chamber is not very much inclined to do the gymnastic
7 exercise and the whole of the rescheduling the first three days.
8 So, therefore, the Chamber is willing to consider it and will
9 seriously consider if that would be needed to sit - and when I'm talking
10 about the Chamber, of course, it is it always the two Judges remaining -
11 we'll seriously consider to hear the case under Rule 15 bis if there is a
12 firm commitment by the parties that, by then, we would conclude the
13 evidence of next week's witness on Wednesday, the 11th, after the first
14 afternoon session.
15 This is not a ruling, but this is an invitation.
16 If there's such a firm commitment, we'll then further consider --
17 we will then know whether you would need the 15 bis sessions or whether
18 you could even do without. If you would need them, the Judges will then
19 consider whether Rule 15 bis would be applied or not.
20 That, as far as scheduling is concerned. I have to deliver two
22 The first one is the Chamber's decision on protective measures
23 for Witness AG-10.
24 On the 25th of September, 2009, the Gotovina Defence requested
25 the protective measures of pseudonym and under-seal treatment for
1 Witness AG-10. The Gotovina Defence argued that Witness AG-10 was
2 concerned about testifying publicly and did not want his identity as a
3 witness divulged to the public.
4 On the 9th of October, 2009, the Prosecution responded to the
5 request, not objecting to it. Neither the Cermak Defence nor the
6 Markac Defence responded to the request.
7 Witness AG-10's statement was admitted, pursuant to Rule 92 bis
8 of the Tribunal's Rules of Procedure and Evidence, on the
9 16th of September, 2009.
10 As the Chamber has held in previous decisions on protective
11 measures, the party seeking protective measures for a witness must
12 demonstrate an objectively grounded risk to the security or welfare of
13 the witness or the witness's family, should it become known that the
14 witness has given evidence before the Tribunal.
15 The question of whether to grant protective measures involves a
16 delicate balance between the right of the accused to a public trial, on
17 the one hand; and the interests and need for protection and privacy for
18 victims and witnesses on the other.
19 In this respect, the Chamber is mindful that the granting of
20 protective measures does not negatively affect an accused's other fair
21 trial rights, such as the right to examine witnesses against him. Even
22 though the granting of protective measures is, and should be, the
23 exception to the rule of a public trial, the threshold for when it should
24 be granted cannot be set too high. The Chamber must, therefore, make a
25 risk assessment, and inherent in such an assessment, is applying a
1 certain level of caution and erring on the safe side.
2 Witness AG-10 expressed fear for the safety of his family and
3 himself, all of whom live in Bosnia and Herzegovina. The witness's
4 testimony provides information about Serbia's involvement in, amongst
5 others, the Krajina and about the distribution of weapons to local Serbs,
6 including within Croatia
7 witness feels threatened by persons who fled from Croatia after
8 Operation Storm and who are currently residing in Bosnia and Herzegovina
9 particularly in the area where his family lives.
10 The Chamber considers that the witness's testimony might
11 antagonise persons who reside in that area. The witness also provides
12 compromising and even incriminating evidence about several named
13 individuals in positions of influence. Witness AG-10, based on negative
14 reactions of concern persons in the past, is convinced that the
15 Republic of Bosnia and Herzegovina cannot provide him with the necessary
17 For the foregoing reasons, and bearing in mind the general
18 considerations mentioned earlier, and the fact that none of the parties
19 opposed the request, the Chamber finds that the Gotovina Defence
20 demonstrated an objectively grounded risk to the security of
21 Witness AG-10, should it become known that the witness has given evidence
22 before this Tribunal. The Chamber therefore grants the motion for
23 protective measures for Witness AG-10 and instructs the Registrar to keep
24 Witness AG-10's statement under seal.
25 And this concludes the Chamber's decision to grant protective
1 measures for Witness AG-10.
20 [Private session]
8 [Open session]
9 THE REGISTRAR: Your Honours, we're back in open session.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 We'll have a break, and we'll resume at ten minutes past 11.00.
12 --- Recess taken at 10.41 a.m.
13 [The witness takes the stand]
14 --- On resuming at 11.12 a.m.
15 JUDGE ORIE: Ms. Gustafson, you may proceed.
16 MS. GUSTAFSON: Thank you, Your Honours.
17 Q. Mr. Albiston, before the break, you had stated that you did not
18 consider that this discrepancy between the tasks and authorities
19 General Cermak had, and the normal tasks of a garrison commander, you
20 stated that you did not consider that it was an "... issue which was one
21 for me to deal with directly."
22 And it's right that nowhere in your report do you consider what
23 were the sources of General Cermak's authority to carry out these tasks
24 that aren't covered by the tasks of a garrison commander. Is that right?
25 A. Yes, I think that's a fair comment.
1 The documents which I studied which describe the functions of the
2 garrison commander are perhaps best commented on by a military expert.
3 But my reading of them, in terms of the ordinary language used, led me to
4 believe that they were drafted with a situation in mind which was a
5 peacetime garrison, and that some of the conditions which were extent at
6 the time when General Cermak was the garrison commander were not entirely
7 what was anticipated by the people who drafted those regulations. But I
8 think -- I hesitate to go there because I don't think that is an area of
9 my expertise.
10 Q. And do you mention, in passing in your report, that a garrison
11 commander under the rules is designated by the Main Staff. But you
12 mention as well that General Cermak was appointed by President Tudjman.
13 A. Yes.
14 Q. But it appears from your report that you didn't consider this to
15 be of any relevance or at -- or that it was outside the scope of your
16 expertise, this -- the fact that General Cermak was appointed directly by
17 the president, as opposed to the Main Staff.
18 A. Well, I -- from memory, I think I mentioned his appointment by
19 the president in the report, but you're certainly right to say that I
20 don't analyse or draw attention or comment on that particular aspect, no.
21 Q. Now, if, in the course of President Tudjman assigning
22 General Cermak to be garrison commander, if he had personally assigned to
23 General Cermak tasks and responsibilities beyond that of a normal
24 garrison commander, that information would be relevant - would it not? -
25 to determining the scope of General Cermak's authority and the nature of
1 his assignment.
2 Is that fair?
3 A. Well, certainly in relation to military aspects, yes.
4 In relation to civilian police aspects, I think there are reasons
5 which come out in my report as to why I did not examine any additional
6 authorities, because the authorities, in relation to civilian policing
7 and the criminal justice system, seem, to me, to be quite clear from the
8 documents which I studied. But if -- if you are suggesting to me that
9 there were authorities implicit in some arrangement between the president
10 and General Cermak of which I am unaware, then I accept that may be the
12 Q. Just to follow up on that answer, you seem to suggest that
13 President Tudjman couldn't have granted General Cermak, personally, some
14 authority over the civilian police. And I'd like to know if my
15 understanding of your answer is correct, and if so, what's the basis for
16 your conclusion that President Tudjman couldn't have done this, either in
17 law or in fact.
18 A. No, I don't -- I don't say anything. I don't try to circumscribe
19 the powers of the president of the Republic of Croatia
20 1995 and impose limitations on the president. I don't know.
21 Q. Just to be clear, you're not a position to do that --
22 A. I'm not.
23 Q. -- based on your expertise. Thank you.
24 Now, the Chamber has received evidence that President Tudjman did
25 assign General Cermak tasks that go beyond that of a garrison commander.
1 And my question for you is whether you saw any evidence of that
3 A. No, I didn't see any evidence before the Chamber or otherwise,
4 which provides documentary authority for General Cermak to undertake
5 those additional tasks, which he did undertake.
6 JUDGE ORIE: Ms. Gustafson, if we are talking about seeing any
7 evidence, that may create some confusion. We have documentary evidence -
8 and I understood from your answer, Mr. Albiston, that you didn't see
9 evidence before the Chamber or otherwise which provides documentary
10 authority, therefore, you apparently "seeing evidence" is understood by
11 you as seeing documents which would support.
12 THE WITNESS: Yes. I --
13 JUDGE ORIE: Whereas, seeing evidence could also mean reading
14 transcripts of oral testimony. And I urge both you and Ms. Gustafson to
15 be as precise as possible so that we do not have any -- any problems in
16 how -- what it exactly means to see evidence.
17 THE WITNESS: Yes. I -- I accept the distinction, Mr. President,
18 and perhaps the best short answer would have been, No. But I was trying
19 to assist the Chamber by confirming for Ms. Gustafson that I am not aware
20 of any statutory or procedural or authoritative document enshrined in the
21 laws and procedures of the Republic of Croatia
22 Ms. Gustafson was alluding to.
23 JUDGE ORIE: And did you -- are you aware of any evidence which
24 is not, by nature, statutory or documentary --
25 THE WITNESS: No, no.
1 JUDGE ORIE -- which would support the proposition by
2 Ms. Gustafson that --
3 THE WITNESS: Well, no, not --
4 JUDGE ORIE: -- special authority could have been given by the
5 president to Mr. Cermak.
6 THE WITNESS: No. Again, the short answer is, No, I'm not. If
7 Ms. Gustafson wishes to draw my attention to any matters, it may that be
8 that I would recognise them. But as I sit here, no, I don't.
9 JUDGE ORIE: Please proceed, Ms. Gustafson.
10 MS. GUSTAFSON: Thank you, Your Honour.
11 Q. And, again, just to pick up on your last answer where you stated
12 that you were not aware of any statutory or procedural or authoritative
13 document of the type that I was alluding to - and I actually didn't
14 allude to any particular kind of document - and it brings me to the
15 question, Do you have any reason to doubt that President Tudjman could
16 have assigned General Cermak authorities, significant authorities, in an
17 informal way, rather than a statutory or legal, procedural way?
18 A. No.
19 Q. And I'm not going to go into this in detail because it's clear
20 from your answers this isn't an area that you have addressed or -- and
21 this material that I'm alluding to isn't something that you have
22 specifically reviewed.
23 But I would like to point to one example, which is a transcript
24 of a meeting between General Cermak and President Tudjman in 1999 at
25 which they discussed General Cermak's assignment in Knin and they
1 include, in the scope of this assignment, cooperation with the
2 international community, infrastructure, return, life, hospitals, keeping
3 order, preventing disorder, and mine clearance.
4 MS. GUSTAFSON: And for the record, I'm referring to P1144.
5 Q. I take it from your earlier answers you didn't see that
6 particular document?
7 A. Well, it's certainly not one that's cited in my report. But if
8 could I see the document, it -- it might be one that I saw at an early
9 stage of my review of document, yes. I'm certainly not telling the
10 Chamber that I've never seen this.
11 MS. GUSTAFSON: Perhaps it would make sense, then, just to pull
12 up P1144.
13 Q. Do you recall seeing any transcripts of meetings that
14 President Tudjman held? There are a number of them in this case, and I'm
15 wondering if that was a body of material that you recall seeing.
16 A. Yes, I have seen a document, and possibly more than one document,
17 of the type which you are describing. Whether this particular one is one
18 that I have seen or not, I don't know. I'm -- if I see the text, it may
19 or may not refresh my memory. But I'm certainly aware that such
20 documents exist, yes.
21 Q. Well, the cover page is there now.
22 MS. GUSTAFSON: And if we could move to page 4 in the English and
23 page 6 in the B/C/S, please.
24 Q. And you can see the discussion takes place near the -- in the top
25 third of the page.
1 Do you recall seeing that before?
2 A. Well, I have to say that whilst I cannot say, Yes, I definitely
3 saw this document, reading the text of the first half of the page, it
4 does look familiar to me. The ideas that -- the general context does
5 look familiar to me, yes.
6 Q. Now, if -- if General Cermak's tasks assigned directly from
7 President Tudjman included keeping order and preventing disorder, that
8 would be relevant information to determining the scope of
9 General Cermak's authority and the scope of his authority over the
10 civilian police. Wouldn't it?
11 A. Well, certainly if the provisions of the prevailing law enable
12 the president to make those determinations, it would be relevant, yes.
13 Q. And, again, you're not really in a position to say whether
14 President Tudjman couldn't have affected that in an informal way?
15 A. I can't -- well, sorry, I was anticipating a wrong question. I
16 don't know.
17 JUDGE ORIE: Another question.
18 THE WITNESS: Yes, I beg your pardon. I was anticipating that
19 the question would end in a slightly different way, and that's why I
20 started answering, and I shouldn't do that.
21 I don't know about the informal relationships between the
22 president and General Cermak at this time.
23 MS. GUSTAFSON:
24 Q. And you - I just want to be clear on this - you can't opine on
25 President Tudjman's formal or informal authority over the structures of
2 A. On the formal side, I haven't seen any document which suggests
3 that he could accord to General Cermak the sort of authority which you're
4 suggesting. I'm not saying he couldn't; I'm saying I haven't seen any
5 documents to prove that he could.
6 On the informal side, I think that's probably a political
7 judgement. I'm not qualified to say. And I -- you know, I don't know
8 from the documents whether he could or he couldn't.
9 Q. Would you agree from the documents that President Tudjman did
10 have a fair amount of authority over the government and the government
11 ministers, including the interior minister?
12 A. Yes.
13 Q. And just to conclude this -- this part of my questions, you don't
14 consider anywhere in your report whether General Cermak may have held
15 some authority over the civilian police by virtue of his assignment of
16 tasks directly by President Tudjman. Is that right?
17 A. I don't address that proposition, no.
18 MS. GUSTAFSON: Now, if we could bring up D589.
19 Q. And this is the document, the one document you cite in the first
20 part of your report on the garrison commander's authority that is not one
21 of the relevant laws or regulations. And that's at paragraph 3.13 of
22 your report.
23 And in your report, you state that this document supports the
24 conclusion that General Cermak was not in a position of command or
25 control in relation to the civilian police.
1 And yesterday you stated, in relation to this document, at page
3 "... to me the significance of that is that if General Cermak, as
4 garrison commander, featured in any way in the Ministry of the Interior
5 or civilian policing hierarchy, surely there would be no need to ask for
6 civilian police officers to be present in meetings which he chaired."
7 Now, this document, as you know, is dated the
8 28th of August, 1995, and I presume you are aware that, at this point in
9 time, the civilian police were attending regular, virtually daily
10 meetings with General Cermak in his office, his regular meetings. Right?
11 A. Yes, I am aware that they did attend meetings, yes.
12 MR. KAY: Can we have the text -- I think I'm on the wrong page
14 MS. GUSTAFSON: Yes, I think it should be --
15 MR. KAY: Page 2.
16 MS. GUSTAFSON: -- page 2 in the English.
17 Q. And the meetings that this document refers to are just the
18 meetings that General Cermak are holding with members of international
19 organisations. It's not referring to meetings generally. That's right,
20 isn't it?
21 A. That's the -- that's what I take from the words on the document,
23 Q. And on its face, this document doesn't say anything about whether
24 General Cermak can command the civilian police, right?
25 A. Well, it doesn't -- it doesn't state categorically whether he can
1 or he can't. What I suggested in evidence was that the inference to be
2 drawn from this is that he wasn't in a particular chain of command;
3 namely, the Ministry of Interior chain of command, which the civilian
4 police were in.
5 Q. That's the conclusion that I'd like to understand a bit better,
6 because I don't understand what exactly is it that shows that he's not in
7 a particular chain of command. You don't mean that the civilian police
8 would have to be present at every meeting General Cermak holds, for him
9 to be in a position of command over them, do you?
10 A. No. No, I'm not saying that. What I'm say is, If you're asking
11 at a higher level to get people into somebody else's meetings, if that
12 somebody else happened to be in the same chain of command as you, why --
13 why would you ask?
14 Q. So, because Mr. Tomurad, the author of this report, wasn't able
15 to directly interfere and have assign civilian police officers to attend
16 meetings with General Cermak --
17 A. I think that that's the inference you're trying to draw --
18 Q. -- that's -- that's the basis?
19 A. [Overlapping speakers]... yes.
20 Q. Now, just in terms of the substance of this document --
21 MS. GUSTAFSON: I think if we move to the next page, or the
22 bottom of the page.
23 Q. Where it says that:
24 "The purpose for this request is to ensure that the police are
25 informed about all agreements and" --
1 MS. GUSTAFSON: If we could move to the next page.
2 Q. "... conclusions reached which will enable them to organise, plan
3 tasks and duties from their purview accordingly."
4 Now, one interpretation of this document is that General Cermak
5 is able to enter into agreements directly with members of international
6 organisations that the members of the MUP will then have to implement on
7 the ground. Is that a reasonable interpretation of this document?
8 A. Yes, it is. I think you could -- you could probably go further
9 than that and say that a concern which Mr. Tomurad appears to be
10 expressing is that information regarding the concerns of members of
11 different organisations who might be loosely termed the "international
12 community" were coming into the police second-hand, and it might be
13 better for the purposes of police organising their patrols patterns, for
14 example, if they heard some of the international's concerns directly.
15 That's -- I mean, that's one inference that I think you can draw from
16 this document.
17 Q. Well, I actually wasn't asking about concerns of internationals.
18 I was referring to the words of the document which states:
19 "... agreements and conclusions reached ..."
20 And I infer from that that General Cermak is entering into
21 agreements and -- that will affect directly the work of the MUP in their
22 absence, and this is why Mr. Tomurad is making that request.
23 A. Well, yes, you could interpret it that Mr. Tomurad wants the
24 police to make their own decisions or, as it says, "... plan tasks and
25 duties from their purview accordingly," yes.
1 Q. Thank you.
2 MS. GUSTAFSON: If we could go now to P38, please.
3 Q. The document that is about to come up is a weekly report by
4 Mr. Al-Alfi. And -- for the 2nd to 8th of September.
5 MS. GUSTAFSON: And if we could go to page 3 of the English and
6 page 2 in the B/C/S, please.
7 And about --
8 Is this page 3 of the English?
9 THE WITNESS: It says 4 of 6 on what I'm looking at.
10 MS. GUSTAFSON: There we go. Thank you.
11 Q. And you can see about a little past halfway down the page he is
12 describing a meeting with General Cermak and it says:
13 "During the meeting, we raised with General Cermak the question
14 of continuing looting and burning of houses in the area. We further
15 raised specific cases of recent murders which were brought to his
16 attention and asked for the results of the investigation by the Croatian
17 authorities. General Cermak did not deny the continuation of such
18 activities, and said that strict orders have been issued to arrest those
19 who commit such crimes."
20 MS. GUSTAFSON: If we go to the last sentence of that paragraph.
21 Q. "General Cermak agreed to give his instructions for more joint
22 patrolling between UNCIVPOL and the Croatian police, particularly in the
23 remote villages."
24 Now, this document is consistent with the previous document in
25 suggesting that General Cermak has the authority to commit the civilian
1 police to take certain operational actions at his meetings he holds with
2 internationals. Is that right?
3 A. Well, forgive me, I have to disagree with that interpretation of
4 document. My reading of this document is that it indicates that
5 General Cermak gave the impression that he had that authority. And I
6 think it's fully understandable in the circumstances.
7 If, as I say in my report, as a result of my examination of
8 documents, General Cermak did not have the sort of authority which he
9 appears to be crediting himself with in this document, and that's my
10 position, it is, nevertheless, not at all surprising that he should say
11 something slightly different or be understood to be saying something
12 slightly different in these circumstances. If he is performing an
13 international liaison role and matters are being drawn to his attention,
14 the natural result of which ought to be increased or more effective
15 patrolling or check-points by the civilian police, then, irrespective of
16 whether General Cermak had any genuine established authority over the
17 civilian police, I would expect him to say, Yes I will get something done
18 about this. I wouldn't expect him to say, Well, I'll ask the police what
19 they think and whether they can do it, or anything like that. I mean,
20 that's not the way people behave in these circumstances in my experience.
21 Q. So you think these statements by General Cermak are deliberate
22 misrepresentations of his authority?
23 A. I don't think deliberate misrepresentation is a fair way. I
24 think that's an unnecessarily pejorative emphasis, but I think it's
25 certainly not the case on the basis on the documents that I have seen
1 that General Cermak was referring to any genuine authority he had to do
2 this. But it's quite normal. I would expect him to go back from a
3 meeting like this and to say to representatives of the civilian police,
4 Look, there is what's happening. This is what these people are saying.
5 What can you do about it? And the police, then, under the authorities
6 which I describe in my report, would take the necessary action.
7 And indeed there are documents which we talked about yesterday
8 which emanate through the Ministry of the Interior chain of command and
9 the Ministry of Defence chain of command insofar as it refers to the
10 military police and the efforts of men under the command of
11 Major-General Mate Lausic, which show these responses.
12 And there are meetings which take place at all levels between the
13 civilian police and the military police to deal with precisely these
14 issues. And the military police chain of commands and the civilian
15 police chain of commands discuss performance at check-point, discuss
16 whether people are turning up for patrols --
17 Q. Sorry, Mr. Albiston. Sorry. Just to get back to your initial
18 answer to my question.
19 A. Yeah.
20 Q. I said:
21 "Do you think these statements by General Cermak are deliberate
22 misrepresentations of his authority?"
23 And your answer was:
24 "I don't think deliberate misrepresentation is a fair way."
25 I think you said to put it --
1 A. Yeah.
2 Q. Now -- and then you went on to discuss possible -- I believe,
3 possible motivations for making that statement.
4 A. Yes.
5 Q. And I'd just like you to put the motivations aside for a moment
6 an answer directly the question whether you think these statements by
7 General Cermak, such as, that he will give his instructions for more
8 joint patrolling between civilian police and UNCIVPOL, are deliberate
9 misrepresentations of his authority.
10 A. I would say that they are an overinflated representation of his
11 actual position. But, in terms of the results that might be achieved,
12 namely, that if he passed the information to the relevant channels,
13 something might be done about it, it is it not a misrepresentation in
14 that sense.
15 Q. Well --
16 JUDGE ORIE: Ms. Gustafson, I am addressing you and the witness
17 as well.
18 I have heard now de jure de facto authority. I have heard the
19 term "genuine authority." In the last answer, "overinflated
20 representation of his actual position."
21 Could we, under all circumstances, try to clearly distinguish
22 between what kind of authority we are talking about. Because I get the
23 feeling that you are more focussed on de facto authority exercised,
24 whether or not supported by any legal instrument, instruction, et cetera;
25 whereas, I get the feeling that Mr. Albiston is often, in his answer,
1 very much focussing on what he calls genuine authority, which I
2 understand de jure authority.
3 Let's try to get these matters as clear as possible. Because it
4 is a repeating source of -- of -- well, not confusion, perhaps, but at
5 least not 100 per cent understanding. I think for 50 or 60 per cent
6 you're talking about the same matter, but then for the remaining 40
7 per cent you're talking about different matters. Could you please try to
8 keep this - and I'm also addressing, you, Mr. Albiston - could you try to
9 make this as clear as possible in every question and in every answer.
10 Please proceed.
11 MS. GUSTAFSON: Thank you, Your Honour. And I will try to do so.
12 But if I fail to make that explicit, I'm always referring to authority in
13 fact in this context.
14 JUDGE ORIE: It takes two to tango, I do understand that,
15 Ms. Gustafson.
16 MS. GUSTAFSON:
17 Q. And, again, I would just like to go back to my question and your
18 answer, and you stated when I asked you again whether these were
19 deliberate misrepresentations:
20 "I would say that they are an overinflated representation of his
21 actual position."
22 And, again, I understand your view to be that, in fact,
23 General Cermak could not issue instructions for more joint patrolling
24 between civilian police and UNCIVPOL?
25 A. Yes. I -- in view of what the President says, I will try to be
1 as exact as possible in my use of language. But I think there are grey
2 areas when we're talking about misrepresentation.
3 I argued yesterday, and in my report, particularly from a de jure
4 perspective, about General Cermak's authority or absence of it, in
5 relation to the civilian police, and I also touched on the de facto
7 In relation to this particular phrase, what I would say is this.
8 It -- it does not impact, in my view, on the conclusions which I reached
9 about General Cermak's de jure authority, or absence of it, in relation
10 to the civilian police, what this he did, where they patrolled, where
11 they set up check-points, how they based, and so on.
12 It may indicate that because of his central position and his
13 liaison position and the charisma or authority which goes with the rank
14 of Colonel General, and the fact that he was a source of information in
15 relation to certain matters for the civilian police, be a natural
16 follow-on that what he said would influence the conduct of the police in
17 the discharge of their duties by -- in giving them information which
18 would enable them to determine their patrols patterns or the location of
19 their check-points or the concentration of their resources or that sort
20 of thing.
21 I hope that helps on that matter.
22 Q. Well, a little, but, actually not really, because what
23 General Cermak is saying in this document is that he will give his
24 instructions for more joint patrolling. And what you're talking about is
25 giving information. And yet you say it's not a deliberate
1 misrepresentation, and I simply can't square these.
2 A. Well, I think it's -- perhaps we're playing with words. I think
3 it is an inflation of his authority. Deliberate misrepresentation
4 implies that General Cermak was in some way trying to deceive other
5 people about what he would do, about what the outcome of the meeting
6 might be.
7 Now, it seems to me that if the outcome of the meeting is that
8 police patrolling patterns will change or that police check-point
9 locations will change because General Cermak gives the civilian police
10 information which enables them to do their job more effectively, that
11 might be the same outcome as if General Cermak, being in the chain of
12 command of the police, went back to the police station and said, Right,
13 this is what you're going to do.
14 The outcome might be the same, and I wouldn't blame
15 General Cermak for using language which attracts kudos to his position as
16 garrison commander and international point of contact. But, deliberate
17 misrepresentation, I think that's a -- yeah, as it judgement. But in my
18 judgement, that's, perhaps, a bit unfair.
19 JUDGE ORIE: Perhaps we should not spend too much time on whether
20 it's a deliberate misrepresentation or not.
21 Mr. Albiston, you have given a picture of two situations. The
22 one was General Cermak, in the follow-up of this meeting, giving
23 information; and the other option was that General Cermak, as you said,
24 being in the chain of command would give orders or instructions. You
25 used the word, "Right, this is what you're going to do."
1 Now, would you agree with me that there is a third option, that
2 not being in the chain of command, nevertheless, giving instructions,
3 orders, whatever you call it?
4 THE WITNESS: That can happen. I see no evidence that that did
5 happen, although there are certainly documents which I'm sure counsel is
6 going to bring do my attention at some time, but ...
7 JUDGE ORIE: I think that you clearly explained why, in your
8 report, why all kind of documents which were phrased as orders should not
9 be understood as orders. So it comes as a bit of a surprise to me that
10 you say it can happen, but I haven't seen it. Because I think you dealt
11 with several of them.
12 THE WITNESS: Well, I was trying to answer what I understood to
13 be a hypothetical question by Mr. President; namely, could you have a
14 situation in which somebody doesn't have authority to give an order but
15 does so.
16 JUDGE ORIE: Yes.
17 THE WITNESS: And I was trying to relate that back to my reading
18 of the documents and what had happened in this particular case.
19 JUDGE ORIE: Yes, in such a situation. Because what we are
20 talking about is the effect. You explained to us that sometimes
21 providing information - and you give a lot of circumstances which could
22 then have a certain effect. You said it is possible that in the conduct
23 of those, in performing their tasks, would be influenced by that.
24 Now, I do take it that in the other situation, if you are in a
25 chain of command, that the effect would be more or less self-explanatory,
1 because if are you in command, if you give orders, that is supposed to
2 have an impact, an effect on the conduct of your subordinates.
3 Now, would the situation in which an instruction or an order
4 would have been given, even if there may not be a de jure basis for that,
5 would that have or could that have a similar effect as the situation in
6 which you inform the police about certain matters, which you said could,
7 under the very specific circumstances - and you mentioned quite a couple
8 of conditions - could have an effect.
9 Would it be any different if you would have the same rank, if the
10 same situation, the same -- well, all the other conditions. If you would
11 issue instructions or orders, could that have the same effect as
12 providing information to the police?
13 THE WITNESS: Well, I think it's fair to say that you could have
14 similar outcomes through two different activities. And to take a
15 hypothetical example, you could inform the police that a murder had taken
16 place in a house, and could you inform police that there was significant
17 disorder every Friday night at a particular place. Or, not having any
18 authority to do so, you could order police to go and investigate a murder
19 at a house, or you could order police to go and patrol in an area where
20 there was significant disorder on Friday night.
21 The outcome of the two activities might actually be the same, but
22 the process by which the decision was taken would be different.
23 JUDGE ORIE: Yes. Now, then, the next question would be, you
24 more or less suggested that where, in this report, Mr. Cermak is reported
25 to have said, I will give instructions. You said, Well, he would have
1 given information and you explained what effect that would have.
2 Do you have any -- any information or any reason to choose for
3 whether he actually did give instructions, or whether he did give
4 information, or perhaps nothing at all, but ...
5 THE WITNESS: In relation to the document which is on the screen
6 now and about which Ms. Gustafson has been asking me, the answer is, No,
7 I don't.
8 There are other occasions in which General Cermak, according to
9 the documents before the Chamber, makes what might be consider to be or,
10 in my submission, would be considered to be fairly bold pronouncements
11 about what he will and will not do. And I think we looked at a document
12 yesterday which described an incident in which UN observers were stopped
13 at a check-point in circumstances which led General Cermak to announce
14 that this was all wrong and that the police officers involved would be
16 JUDGE ORIE: Yes, let's --
17 THE WITNESS: And the implication is that, you know, he had
18 authority to do these things. Well, I'm saying that sometimes
19 General Cermak seems to be saying things about which he doesn't have the
20 authority to speak in quite the terms which he is reported as having
22 JUDGE ORIE: Yes. But in relation to this document --
23 THE WITNESS: In relation to this document, yeah --
24 JUDGE ORIE: [Overlapping speakers]... if we are talking about
25 whether he would have given information or instructions or orders or
1 whatever, that has a speculative element in it because you do not have
2 any specific information about the situation --
3 THE WITNESS: Well, I don't -- there may be another document
4 which counsel will produce which will show a follow-up to this, and I may
5 have seen it. But, sitting as I do now, I can't anticipate that.
6 JUDGE ORIE: I'm, at this moment, trying to find out what
7 exactly -- what exactly is assumption and what is knowledge and concrete
9 Please proceed, Ms. Gustafson.
10 MS. GUSTAFSON: Thank you, Your Honour.
11 Q. Mr. Albiston, I'd like to move on now to the next section of your
12 report, which is about the police structures and the MUP. And most of
13 this is about the formal MUP structure and your conclusion that the
14 garrison commander has no role in that structure. And it may be clear to
15 you now by now, but if it's not, just to make it clear, the Prosecution
16 doesn't take issue with any of those conclusions about General Cermak's
17 role in the formal structure. And my questions, as I've indicated, will
18 focus more on the factual situation.
19 Now in paragraph 3.34 of this section, you refer to the extent to
20 which General Cermak is mentioned in MUP documents. And one of the
21 things you said was that notes made by Kotar-Knin Police Administration
22 Deputy Commander Zvonko Gambiroza acknowledge the problems being
23 experienced by General Cermak as a result of the continuous insisting by
24 Brigadier Forand in relation to the missing UNCRO vehicles.
25 A. Yes.
1 Q. And do you recall, now, whether that is the only reference to
2 General Cermak in Mr. Gambiroza's diary or whether there are others?
3 A. No, I don't recall now.
4 Q. So if I suggested to that you there were 15 references to
5 General Cermak in this diary that covers the period between 12 August and
6 21 September, you don't have any reason to doubt that?
7 A. Certainly not, no.
8 Q. Now, you have indicated that, in a later paragraph of your report
9 which is 3.41, and it's clear from the evidence that the Knin civilian
10 police leadership attended meetings with General Cermak on a daily or
11 virtually daily basis.
12 And my question for you is whether you would agree that that was
13 the primary means of communication and the primary point of contact
14 between General Cermak and the Knin police, based on what you reviewed?
15 A. Significant, certainly. I wouldn't change primary. That wasn't
16 the conclusion I came to.
17 Q. And in light of the fact that there are no minutes or transcripts
18 from those meetings, at least none that we have, would you agree that the
19 bulk of General Cermak's communication or at least a large part of it
20 with the civilian police is not documented?
21 A. Yes, I would accept that.
22 Q. And, now, yesterday you were asked what you would have expected
23 to have seen within the MUP documentation, if General Cermak were in
24 command or control of the civilian police, in light of your experience in
25 numerous policing systems, and you said:
1 "Well, I would expect General Cermak's name to appear on a
2 significant array of documents of different types. For example, I would
3 expect to see his name on instructions, policy documents, orders going
4 out to the civilian police. I would expect to see his name on orders
5 transferring or appointing senior police officers. I would expect to see
6 his name on reports going up the Ministry of the Interior chain of
8 A. Yes.
9 Q. Now, my question is, in terms of your experience in different
10 policing systems and the expectations that you may have as a result, do
11 you have any first-hand experience or knowledge with a situation such as
12 the one that the Prosecution alleges in this case, namely, that a
13 high-ranking military officer is granted authority directly by the head
14 of state and supreme commander, and, as a result, exercises authority, in
15 fact, over the civilian police in a particular area?
16 A. No, I don't.
17 Q. And, again, on these meetings, daily meetings between
18 General Cermak and the civilian police, among others, you state at
19 paragraph 3.41:
20 "Another key example of General Cermak's relationship of
21 cooperation with the civilian police can be seen in the context of the
22 meetings held at the garrison in Knin. Representatives of the Kotar-Knin
23 police administration," and you corrected that phrase, "attended regular,
24 sometimes daily, meetings chaired by General Cermak."
25 And you state:
1 "In my experience, in policing circles, chairing a multi-agency
2 meeting does not imply the authority to direct the work of all the
3 agencies which are represented at the meeting."
4 Now, it appears that you seem to conclude that the fact of
5 chairing a meeting is key in terms of cooperation, and I'd like do
6 understand that a bit better. You would agree that a person can chair a
7 meeting in circumstances where they have authority over the participants,
8 and they can chair a meeting in circumstances where they don't have
9 authority but can merely cooperate with the participants, right?
10 A. Yes. The chair of a meeting might have direct authority, or the
11 chair of a meeting might have status but not authority.
12 Q. So what caused you to draw the conclusion in this paragraph that
13 General Cermak's chairing of these meetings was a key example of his
14 relationship of cooperation with the civilian police?
15 A. Because it was an opportunity for him to have direct conversation
16 about day-to-day issues. And my experience of working in fairly
17 difficult security environments in which the police and the military work
18 closely with each other is that daily meetings between representatives of
19 the agencies is very important.
20 JUDGE ORIE: Mr. Albiston, if you -- I take you back to one of
21 your previous answers, if you would not mind.
22 "Yes, the chair of a meeting might have direct authority."
23 Which I understood to be de jure or formal authority.
24 "... or the chair of a meeting might have status but not
1 I understand the last authority, no formal authority but status,
2 would not exclude de facto authority would, it?
3 THE WITNESS: No, it wouldn't. It would give weight to what was
4 said. It would give ...
5 JUDGE ORIE: Yes, or even people might be inclined to do what you
6 suggest, request, order, instruct, ask them to do.
7 THE WITNESS: Well, I think the -- my experience at these
8 meetings is that where a person has status and a bit of charisma and
9 leadership qualities, then they can excerpt influence on people over whom
10 they don't actually have direct authority. And they can perhaps guide
11 the meeting towards a conclusion which suits them.
12 JUDGE ORIE: Yes. What -- the reason I took you back to this
13 answer is I earlier invited you to always make clear, when you were
14 talking about authority, what kind of authority you had in mind.
15 THE WITNESS: Yes.
16 JUDGE ORIE: And now you introduced a new status concept, which
17 is not in every respect - I'm not saying entirely the same but not in
18 every respect to be distinguished from de facto authority - and I again
19 ask you to be very clear in the use of those terms.
20 THE WITNESS: Yes. And what I meant by status, status in
21 relation to someone who is chairing a meeting, if I from the army, and I
22 go to a meeting with a policeman, even though I am a soldier and do not
23 form part of the police rank structure, if the person who is chairing the
24 meeting from the policing side is a sergeant, I might accord that person
25 less authority and status in an informal way than if that person were a
1 chief superintendent. That's all I was saying.
2 JUDGE ORIE: Yes. What you say is that it depends on the
3 circumstances that even if there is no formal authority that the
4 influence that a person chairing such a meeting tells what should be done
5 and then preferably by the others and not by himself, that that could
6 come close to a situation of de facto authority, whatever the words used,
7 asking, requesting.
8 THE WITNESS: Well, certainly a good chair can influence the
9 outcome of a meeting.
10 JUDGE ORIE: Yes.
11 THE WITNESS: And it need not depend on de jure authority, to
12 achieve the objectives in chairing a meeting.
13 JUDGE ORIE: Yes. I notice that when de facto authority comes
14 up, that you often use the language of having an influence on the
15 behaviour of others. I'm not going to make it any linguistic debate at
16 this moment. But if you see a clear distinction between the two, you're
17 invited to tell me what exactly is the difference, where you say it may
18 have an influence on -- on what others are doing --
19 THE WITNESS: Yes.
20 JUDGE ORIE: -- or inclined to do and to what accident that it
21 different from a de facto authority, so that it's clear for me how you
22 use your language.
23 Ms. Higgins.
24 MS. HIGGINS: Your Honours, just following on from Your Honours
25 observations, in terms of a distinction, clearly the distinction between
1 de jure and de facto, but also the clear distinction between, at least in
2 law, influence and de facto, which I know Your Honour will be aware. But
3 I'm concerned, given the flexibility of the language.
4 JUDGE ORIE: Yes, I'm aware of that. But often when the word
5 de facto is used, I hear that in response that the witness responds by
6 saying that something has an influence. I am trying to understand means
7 exactly what he means by those words, not in terms of the legal concept,
8 but what he means if you using those words and how he apparently
9 understands the word de facto authority.
10 I fully agree with you that also in the field of criminal law, of
11 course, that there is a distinction to be made, but I'm seeking, first of
12 all, at this moment, to understand what the meaning is of the words used
13 by the witness. That's what is my aim at this point.
14 MS. HIGGINS: Thank you.
15 THE WITNESS: Yes. Mr. President, clearly, I'm approaching this
16 from the point of view of a police commander and not from the point of
17 view of a lawyer, which I am not and never have been.
18 I hope that, in examination-in-chief yesterday and in the report
19 which I've submitted to the Chamber, I've explained my views on command
20 and control, which I see as different concepts from the words I'm using
21 in relation to influence and cooperation and things like that. And I'll
22 try to make sure that I make that distinction, particularly in relation
23 to Ms. Gustafson's questions.
24 JUDGE ORIE: Just for my understanding, when you are saying this
25 may influence the behaviour of others, what you are apparently then
1 saying is that the role, the words used by someone chairing a meeting may
2 have an effect on what other people are doing. That's -- may have an
3 effect, I say -- do not say -- have an effect?
4 THE WITNESS: Well, let me create an example. In my roles in
5 Northern Ireland and in Kosovo, I had regular meetings with senior
6 military personnel, and I would make quite clear to them where I thought
7 there was a need for patrolling, where I thought there was a need for
8 joint patrolling, or for military patrolling on its on and so on.
9 But I couldn't say to a major-general or even to a captain, Go
10 and patrol this area. What I would say is, Look, together this is our
11 task, this is what we have got to achieve, this is the way I see us
12 approaching it, how can you help? And, usually, the military would
14 And in the same way, the military would come to me and they would
15 say, Look, from our analysis of the situation, this is where we need to
16 be, and because the rules in force at the moment require police to
17 accompany military patrols, can you supply a policeman to do this,
18 please? And the answer would be, Well, if I have got a policeman, I will
19 supply them, but I'm not talking this as an order from you, whether
20 you're a lieutenant-general or a lieutenant.
21 JUDGE ORIE: Thank you.
22 Please proceed, Ms. Gustafson.
23 MS. GUSTAFSON: Thank you, Your Honour.
24 Q. Now, just to get back to this issue of the daily meetings.
25 Would you agree that what actually happened at those meetings
1 would be more relevant to determining the nature of General Cermak's
2 relationship with the civilian police and the extent of any de facto
3 authority he had over them than your experience with multi-agency
4 meetings in other contexts would be?
5 A. I don't dispute for one moment that direct evidence as to what
6 took place in the meetings would have greater probative value than my
7 experience in similar meetings elsewhere.
8 Q. I'm asking because you don't discuss anywhere in your report, as
9 far as I can see, what actually happened at these meetings. And I'm
10 wondering what your methodological reason is for that.
11 A. Well, forgive me for appearing to contradict or to contradict
12 what seems to be implicit in the question, but I think in my references
13 to the evidence of certain witnesses - and I can be more precise about
14 that if necessary - there -- this is an discussion of the reaction of
15 search witnesses to their relationship with General Cermak.
16 Q. Could you point specifically in your report to where you
17 reference what happened at these daily meetings? And if you need to go
18 into private session -- [Overlapping speakers] ...
19 A. Well I think, if I'm going to discuss this issue more precisely,
20 it probably would be necessary to go into closed session.
21 JUDGE ORIE: We move into private session.
22 [Private session]
11 Pages 23923-23933 redacted. Private session.
8 [Open session]
9 THE REGISTRAR: Your Honours, we're back in open session.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Madam Usher, could you escort Mr. Albiston out of the courtroom.
12 [The witness stands down]
13 JUDGE ORIE: Mr. Kehoe.
14 MR. KEHOE: Yes, Your Honour, I have been reminded that I am
15 addressing your oral decision that you gave just prior to the other
16 break, and Mr. Misetic reminds me that you had ordered that that
17 discussion should have been in private session as well. And that -- if I
18 can refer the Chamber back to the two exhibits that Your Honour addressed
19 at the close of the first session.
20 JUDGE ORIE: Yes.
21 MR. KEHOE: I can give you those numbers. That's --
22 JUDGE ORIE: No, I'm aware of what you're talking about.
23 [Defence counsel confer]
24 [Trial Chamber and Registrar confer]
25 [Trial Chamber and Legal Officer confer]
1 JUDGE ORIE: We turn into private session.
2 [Private session]
6 [Open session]
7 THE REGISTRAR: Your Honours, we're back in open session.
8 JUDGE ORIE: Thank you, Mr. Registrar.
9 We'll have a break, and we will resume at five minutes to -- five
10 minutes past 1.00.
11 --- Recess taken at 12.42 p.m.
12 --- Upon commencing at 1.08 p.m.
13 JUDGE ORIE: Ms. Gustafson, you may proceed.
14 MS. GUSTAFSON: Thank you, Your Honours.
15 Q. Mr. Albiston, I'd like to ask you a question about a statement
16 you make in your report at paragraph 3.35, which is:
17 "A review of witness testimony reveals that Witness 86 did not
18 accept that General Cermak had any authority over the civilian police."
19 Are you referring there to formal legal authority or both legal
20 and factual authority?
21 MR. KUZMANOVIC: Excuse me, counsel.
22 It's just -- under an abundance of caution, Your Honour, this
23 need to be in private session, and I don't know if we are or not, or
25 MS. GUSTAFSON: This is part of the public report, and questions
1 were asked on this yesterday. So I didn't think it needed to be. But
2 I'm in the Court's hands.
3 JUDGE ORIE: I think a reference to the witness by his pseudonym,
4 if we do not go into any details and are just -- questions are put on the
5 abstract level, then there seems to be no problem.
6 You may proceed.
7 MS. GUSTAFSON:
8 Q. Do you still have my question?
9 A. Yes I think, keeping it at the abstract, the answer is that the
10 assessment I make this relation to that witness's evidence, I did not
11 distinguish between those two concepts, and, in reading his testimony, it
12 didn't seem to me that he was distinguishing between them either.
13 Q. Right before the break, you referred to contradictory references
14 in his evidence, and you stated sometimes Witness 86 ascribed a certain
15 authority to General Cermak, and in the next sentence there is an
16 expression which appears to resile from that.
17 And it appears then that you have made an assessment of this
18 evidence, in spite of contradictory references, and I'd like you to
19 explain that, particularly in light of your earlier remark that you were
20 not -- did not consider yourself to have the role of assessing the
21 accuracy of witness evidence.
22 A. Well, I wouldn't have the role of assessing the accuracy of
23 witness evidence to matters of fact, unless there were a means whereby I
24 could compare their evidence with the documents before me.
25 In relation to these issues, I think there are those
2 If I can just go back to the first part of the question, yes, the
3 answer which I gave was an answer directed to your question, which the
4 question, as I recall, involved quoting to go me a fairly long chunk of
5 testimony, I think, from the witness statement of the witness concerned,
6 and I accepted that the quotation which you had given contained a number
7 of elements, some of which, I think, in terms of ordinary language would
8 be considered to contradict the sentences immediately preceding or
9 following them, and I accept that.
10 My conclusion as to what the evidence of these witnesses means
11 is, as I tried to intimate earlier to the Chamber based on taking their
12 evidence and testimony in -- in the round and comparing it with other
13 witnesses' evidence and testimony and with the documents which describe
14 the de jure conditions in which they were operating at the time.
15 Q. Thank you. Now, if we could move to paragraph 3.39 of your
17 Where you say:
18 "In terms of General Cermak's coordinating function, it is
19 evident that he was in receipt of some information from the civilian
20 police, in relation to crimes committed."
21 And you cite a number of documents. And I'd like to turn to one
22 of those documents.
23 MS. GUSTAFSON: Which is P2650. And that's referenced at
24 footnote 71. It how has an exhibit number.
25 Q. Now yesterday you were asked about this document and you said at
1 page 23.790:
2 "Yes. Well, I think we can see by looking at a combination of
3 the English translation and the original document that this, as you say
4 from Chief Cetina, and it's information being supplied again to the
5 Knin garrison for the information of the garrison commander
6 General Cermak. And it amounts to a very brief rehearsal of information,
7 in relation to the killing of three people, and informs the General that
8 the correct investigative and judicial procedure has been initiated."
9 Now, your answers suggests to me, and I would like to confirm
10 this, that you don't have any information about the circumstances that
11 caused Mr. Cetina to sent this report to General Cermak?
12 A. That's correct.
13 Q. So what -- in light of the fact that you have cited this report
14 as evidence of General Cermak's coordinating function, what exactly do
15 you consider him to be coordinating here?
16 A. This -- this document is one of a number of documents which show
17 General Cermak being given information about crime matters, and,
18 therefore, I felt that it was a document upon which I would be expected
19 to produce some observations.
20 It's a very thin document, and it's right that I should bring it
21 to the attention of the Court, because it connects General Cermak with
22 crime, which is what I was asked to look at. But I don't have any
23 background information which explains the full context of this.
24 Q. And you also cite this document in paragraph 3.71, where you is
25 that state that:
1 "General Cermak was passing and receiving information concerning
2 crimes as part of his liaison role."
3 When you refer to "liaison role" there, are you referring to his
4 role to liaise with international organisations?
5 A. Not necessarily, no. I'm referring to his function of liaison
6 been different agencies that were present in Knin at the time.
7 Q. And what specifically does this document indicate, in terms of
8 his liaison role? What is he -- who is he liaising between here?
9 A. Well, he is receiving a report on a crime from Mr. Cetina. On
10 other occasions, I have been able to demonstrate why he was receiving a
11 report on a crime, or at least to offer an interpretation to this
12 Chamber. In relation to this one, I can't. But I thought, in the
13 interests of completion, the document should be -- not be ignored or
15 Q. But there's no indication, and you have no knowledge of him
16 liaising between two bodies, in relation to this --
17 A. Not in relation to this specific matter, no, I don't.
18 MS. GUSTAFSON: And if we could go to P2645.
19 Q. Which is another document you cite in footnote 72 of
20 paragraph 3.39 in relation to General Cermak's coordinating function.
21 And, again, you were shown this yesterday, and you stated at page
23 "... this document is it not entirely clear to me, or should I
24 say the purpose of the document is not entirely clear to me."
25 And a little further down you said:
1 "I think what is quite clear is that because of the recipients
2 and the way that the paper is addressed, there's no expectation of any
3 action on the part of General Cermak in response to this document."
4 And, again, I take it that you don't have any knowledge as to why
5 this report was written or why it was being sent to General Cermak. Is
6 that right?
7 A. I am unable to link that to any other thing which seeks that
8 information, no. I don't say it doesn't exist, I'm simply not in a
9 position to identify or cite it.
10 Q. And, again, you have cited that document in paragraph 3.71 as
11 evidence that General Cermak was passing and receiving information
12 concerning crimes as part of his liaison role. You don't have any
13 information about -- as to whether or not he was liaising between two
14 bodies, in relation to this particular document, do you?
15 A. No. I think, perhaps, it should be the other way around that, in
16 relation to these documents, I'm not stating a proposition and then
17 stating the documents to support the proposition; I'm looking at the
18 documents and trying to offer the Chamber an interpretation of their part
19 in this scene, this scenario.
20 Q. I'm sorry, when you say in paragraph 3.71, at the end, you say:
21 "I based this conclusion on witness testimony concerning meetings
22 at which General Cermak was present and on documents which indicate that
23 General Cermak was passing and receiving information concerning crimes as
24 part of his liaison role."
25 And then this is an footnote, and I understood that footnote to
1 refer to documents that were supporting the proposition.
2 Is that not correct?
3 A. Yes, it is. But then the footnote refers to a lot of other
4 documents as well; whereas, the grouping that you were asking me about
5 are these documents which I'm seeking to assist the Court with.
6 Q. So some of the documents support the proposition and some don't.
7 Is that ...
8 A. Yes.
9 Q. Okay. Now, in relation to this particular report from
10 Mr. Gambiroza, the one dated the 21st of October, 1995. General Cermak,
11 in one of his interviews with the Prosecution, recounted a conversation
12 that he had with Mr. Gambiroza about the same incident that is the
13 subject of this report. And in that interview, he said about this report
14 or this incident, he said --
15 MS. GUSTAFSON: And this is, for the benefit of the Court and the
16 parties, P2526, at page 82 of the English.
17 Q. "Just before winter, in October, I was with my people from
18 logistics. We went" --
19 JUDGE ORIE: Ms. Gustafson, if I may inquire in what direction
20 you are heading. Because, of course, the Chamber is familiar with the
21 evidence in relation to, I would say, this event, the name Pasic appears,
22 all that, the witness apparently could not give any further information
23 as to why he used this document as a -- as an indication that it would
24 have been sent to him as -- in order to liaise with the internationals.
25 I'm -- I was wondering to what extent, where the witness
1 apparently has no knowledge, which means that - well, perhaps not for --
2 for specific reasons, he has just put this document in the footnote -
3 what the use of is going into the background of this report with this
4 witness. If it is for the Chamber, the Chamber is aware of the
5 background of this document and the event.
6 MS. GUSTAFSON: Well, Your Honour, the -- the witness has relied
7 on this report in terms of his conclusions as to General Cermak's
8 coordinating versus commanding role.
9 JUDGE ORIE: Yes.
10 MS. GUSTAFSON: And in light of the fact that he is an expert
11 drawing conclusions, I am attempting to test those. If the Chamber isn't
12 it -- and I was attempting to ask him to draw conclusions as to the
13 nature of that role on the basis of this information. If the Chamber
14 doesn't want those conclusion from this witness, I'm happy to move on.
15 That was the end goal.
16 JUDGE ORIE: I -- we can perhaps do that in a different way.
17 Mr. Albiston, if there would be a background in relation to
18 matter, which places Mr. Cermak in a role which has, I think, correct me
19 when I'm wrong, but has got nothing to do with liaising with the
20 internationals, but, rather, with his concern for the well-being of
21 people in a village and perhaps his personal relationship with persons
22 involved in this event, would there be any reason for you still to claim
23 that this document would be indicative for his liaising role with the
24 international organisations?
25 THE WITNESS: Well, that would be new information for me, sir,
1 and obviously I would have to reconsider my position in the light of new
3 JUDGE ORIE: Yes.
4 [Trial Chamber confers]
5 JUDGE ORIE: Yes. Before we -- the Chamber is not assisted by
6 inviting the witness to go look at the full background of this and then
7 to see whether he comes to other conclusions or not.
8 MS. GUSTAFSON: Your Honour, I -- I'll accept the guidance. It
9 puts me in a difficult position, but ...
10 JUDGE ORIE: Let's -- one could not reasonably expect anything
11 from informing the witness about the background other than that they shed
12 quite a different light on why Mr. Cermak may have been informed about
13 these events. That's --
14 MS. GUSTAFSON: Your Honour, just to be clear, the end goal was
15 to ask the witness to draw conclusions as to a coordinating versus a
16 commanding role. If the Chamber doesn't want those conclusions from this
17 expert witness, that's fine. But ...
18 JUDGE ORIE: Coordinating, I thought it was still in -- in
19 relation to the liaising function.
20 MS. GUSTAFSON: I was referring to two paragraphs of the report
21 where this was mentioned, paragraph 3.39, where this document is cited in
22 terms of -- in support of General Cermak's coordinating function.
23 [Trial Chamber confers]
24 JUDGE ORIE: Ms. Higgins.
25 MS. HIGGINS: Your Honour has already given guidance in this
1 regard. I understand where Ms. Gustafson wishes to go. But what we will
2 end up doing is putting to this witness something which he know nothing
3 about, asking for his conclusions about what Mr. Cermak has described
4 about an incident in his interview with the OTP statement. And I wonder
5 whether this takes the matter very much further, Your Honour.
6 JUDGE ORIE: Ms. Gustafson.
7 MS. GUSTAFSON: I think I'm entitled to ask the witness to draw
8 conclusions on the evidence, I mean, that's what he is here for.
9 JUDGE ORIE: Let's -- I consulted with my colleagues. The
10 background of this event is so specific that the Chamber does not expect
11 it to be -- or would be highly surprised if, by any way of reasoning,
12 this event could be considered as indicative for a certain role, the
13 roles you mentioned, coordination, or -- coordination function or the ...
14 MS. GUSTAFSON: Command.
15 JUDGE ORIE: Or the command function.
16 The Chamber does not prevent you from addressing this specific
17 aspect but is of the opinion that it should be the -- perhaps the last
18 thing to do if have you time available.
19 MS. GUSTAFSON: I take the Court's guidance in that regard, and I
20 move to the next point.
21 JUDGE ORIE: Please proceed.
22 MS. GUSTAFSON:
23 Q. Mr. Albiston, I would like to move, now, to paragraph 3.42 of
24 your report. Where you state:
25 "It should also be remembered that high level coordination in
1 relation to problems in the Knin and surrounding areas was being effected
2 totally outside of the Knin garrison meetings."
3 And you go on to discuss some of the documentation regarding that
4 high-level coordination and you conclude:
5 "In all of this there was no role for the garrison commander."
6 Now, I'm just -- I'd like to ask you about this conclusion, in
7 light of the evidence that the Chamber has received, that General Cermak
8 was affecting a coordinating role at the daily meetings that he held at
9 the Knin garrison with the civilian police and the military police, among
10 others. And I'm wondering, in light of that, what the significance of
11 whether or not he's involved in communications between Mr. Lausic or
12 Mr. Moric or other high-level communications, in light of that, daily
13 coordination function?
14 A. Yes. The conclusion which I'm drawing from this particular set
15 of documents is that, when it comes to the operational business on the
16 ground, the business of dealing with the problems that existed in the
17 Krajina, the Knin area at this time, it was the civilian police answering
18 through a chain of command to Mr. Moric, and the military police
19 detachments who were answering through a chain of command to
20 Major-General Lausic, who were actually dealing with the day-to-day, the
21 nuts and bolts, the operational response, to these problems. These are
22 the meetings at which there are discussions about patrolling patterns,
23 joint patrolling, check-points, joint check-points, what's happening
24 what's, going to happen next. There's no role in any of this, according
25 to the documents which I cite, which are fairly comprehensive, for
1 General Cermak -- indeed, there's one document which describes a meeting
2 where representatives of the military police and the civilian police, who
3 have the responsibility de jure - and I would say in light of the
4 questions that have been put, also de facto - for dealing with these
5 problems at which Major-General Lausic says at one stage - the meeting is
6 in Plitvice, I think it is called.
7 Major-General Lausic says, Look, everybody that needs to be here
8 is here to deal with these problems. But General Cermak is not there.
9 General Cermak's deputy or representative is not there. There is no
10 apologies for absence by General Cermak in relation to this meeting. And
11 the -- the document -- the document is D595, and it's a note of a
12 meeting. And these are, in my assessment, are essential documents for
13 understanding how the Croatian state apparatus responded to crime and
14 disorder in this area at this time. These are the people who are dealing
15 with the problems, and General Cermak isn't one of them.
16 Q. Now, just to go back something you said earlier in that answer.
17 You talk about Mr. Moric and Mr. Lausic dealing with the day-to-day, the
18 nuts and bolts, the operational response. "These are the meetings at
19 which there were discussions about patrolling patterns, check-points,
20 et cetera." And you say:
21 "There's no role for this, according to the documents, which I
22 cite for General Cermak."
23 It seems to that - and correct me if I'm wrong - that there's an
24 underlying assumption here which is that these problems, these kinds of
25 discussions about matters such as check-points and patrols, are not
1 taking place at the daily meetings that General Cermak it holding. And
2 if my understanding of your assumption is correct, I'd like to --
3 A. [Overlapping speakers]... I'm not excluding the possibility that
4 there is discussion about those matters at those meetings. What I'm
5 saying is that the -- my interpretation of the totality of the documents
6 is that the decisions and the responsibility for performance, these are
7 matters which are being dealt with in these meetings, involving the
8 civilian police and the VP.
9 Q. Thank you. That answers my question.
10 Now, I would like to turn to the next part of your report, which
11 deals with orders issued by General Cermak to the civilian police,
12 beginning at paragraph 3.43.
13 And you state that:
14 "At the outset, some documents which best fit the description of
15 orders issued by General Cermak to the civilian police were also directed
16 to the military police."
17 And in that paragraph, you also state that "these orders should
18 be seen in the context of General Cermak's international point of contact
20 And I'm not really sure what you mean by that statement, "seen in
21 the context of General Cermak's international point of contact role."
22 Is it your position that General Cermak had the authority, in
23 fact, to issue orders to the civilian police in relation to this
24 appointment of contact role; and, if not, what are you saying here in
25 your report?
1 A. Definitely not. What I'm saying is that General Cermak found
2 himself in a position, having received complaints from Brigadier Forand,
3 for example, or, having received other information, turned to the
4 civilian police and the military police to achieve resolution of these
5 problems. And I think I was trying to address two different parts of
6 indictment, and that's why there are two sections of my report which
7 address similar issues.
8 And so I think that this part of my report should be read in
9 conjunction with a later part of my report, which is round about 3.71,
10 where I discuss whether pieces of paper with the word "order" at the top
11 can really be understood to be orders in the full sense of the word.
12 Q. Now, in this section, you haven't directly discussed other
13 written orders issued by General Cermak to the civilian police, including
14 P509, which you looked at yesterday, which was the order to allow
15 civilians unhindered entry into Knin.
16 D504, which is General Cermak's 11 October order to transfer MUP
17 officers to another building.
18 And D501, which is General Cermak's 10th August decision to have
19 the MUP hand over a former hotel and adjust it to specific requirements,
20 and instructing the headquarters administration of the
21 Ministry of Defence and the MUP to jointly find adequate space for the
22 accommodation of MUP personnel.
23 And, now, none of these three orders relate to international
24 organisations or General Cermak's international role. Is that right?
25 A. They are discussed in other parts of the report. I was firstly
1 addressing, in this section, the four documents to which I refer. But I
2 think it's right to say that the three documents, to which you've
3 referred, do receive attention at other parts of the report.
4 Q. And in terms of their tone, in -- as orders, they don't differ in
5 any material respects from the orders General Cermak issued in relation
6 to the missing UN equipment. Is that right?
7 MS. HIGGINS: Your Honour, before the witness answers the
8 question, perhaps the question could be framed a little bit more
9 specifically. In that question is wrapped up three different orders.
10 And it's perhaps unfair to the witness, without pulling up the documents
11 and looking at them, to ask such a generic question.
12 JUDGE ORIE: Yes. At the same time, I did understand
13 Ms. Gustafson to focus just on the tone to the extent that it says
14 "orders" rather than anything else.
15 Is that correct, Ms. Gustafson?
16 MS. GUSTAFSON: Well, it was actually the -- the tone -- I
17 mean -- of course, they all say orders. It was more addressed at the
18 commanding tone of these documents. But I take Ms. Higgins's guidance
19 is --
20 JUDGE ORIE: Yes. If the witness would like to view again the
21 orders or the documents you were referring to, then he will have -- he
22 should be given an opportunity to do so.
23 Would you like to have a look at them, Mr. Albiston?
24 THE WITNESS: Well, I think, Mr. President, if I'm being invited
25 to go through the orders line by line and compare the use of language,
1 then it would be necessary for me to look at the three orders.
2 If this is an general proposition that these are orders and that
3 they purport to give instructions, irrespective of whether I take a view
4 about their legitimacy de jure, then, the answer is, Yes, we they are all
5 documents which say order at the top and which purport to give
7 I don't know whether that shortens the --
8 JUDGE ORIE: Well, we'll leave it to Ms. Gustafson. If she wants
9 to explore it further, then you may be provided with the orders until we
10 return tomorrow.
11 THE WITNESS: Thank you.
12 JUDGE ORIE: If not, then Ms. Gustafson will put her next
13 question to you.
14 But, Ms. Gustafson, two minutes are left.
15 MS. GUSTAFSON: I was about to return to those written orders, so
16 it may make sense to break now because by the time the document comes up
17 we'll be --
18 JUDGE ORIE: Yes, and you would like to deal with them in further
20 Yes, I do not know whether you have them available to you now,
21 Mr. Albiston. If not, we will provide copies to you. Let me just scroll
23 THE WITNESS: I have copies of these documents in my laptop at my
24 hotel, so I can consider them this evening, if that would help the Court
1 JUDGE ORIE: Yes, we are talking about P509, D504, and D501, if
2 I'm not mistaken, Ms. Gustafson.
3 Now perhaps you would prefer to write that down.
4 So P509, D504, and D501. If would you be kind enough to have a
5 look at them, but also not to speak about them with anyone, so as you
6 should not speak about your testimony, whether already given or still to
7 be given with anyone. Then we'd like to see you back tomorrow --
8 THE WITNESS: Yes, sir. I have access to electronic copies of
9 these without the need to contact any other person.
10 JUDGE ORIE: Yes, that's understood.
11 And we'd like to see you back tomorrow at 9.00, because we
12 adjourn for the day, and we resume tomorrow, Thursday, 5th of November,
13 9.00, Courtroom III
14 --- Whereupon the hearing adjourned at 1.46 p.m.
15 to be reconvened on Thursday, the 5th day of
16 November, 2009, at 9.00 a.m.