1 Tuesday, 10 November 2009
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 11.07 a.m.
6 JUDGE ORIE: Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in and around the courtroom. This is case number IT-06-90-T,
9 the Prosecutor versus Ante Gotovina, et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Mr. Hedaraly, are you ready to continue your cross-examination?
12 MR. HEDARALY: I am, Mr. President. Thank you.
13 JUDGE ORIE: Please proceed.
14 MR. HEDARALY: Thank you.
15 WITNESS: JACK DEVERELL [Resumed]
16 Cross-examination by Mr. Hedaraly: [Continued]
17 Q. Good morning, General.
18 A. Good morning, Mr. Hedaraly.
19 Q. If I can at the outset invite you once again to try to pause
20 between my question and your answer in order to assist me in not speaking
21 too quickly.
22 We left off yesterday discussing page 40 of your report and
23 specifically the order assigning Mr. Jonjic, the order issued by
24 General Cermak. Do you remember that discussion?
25 A. Yes, I do.
1 Q. Now, I wanted to move to the next paragraph in your report, which
2 is a paragraph starting at line 28, where you discuss other similar
3 issues. First you refer to D761, which is an order from General Cermak
4 to temporarily assign seven members of the 142nd Home Guards Regiment to
5 the Knin garrison on 11 August.
6 MR. HEDARALY: And maybe we could have that on the screen.
7 Q. And in the meantime let me -- in your report at lines 33 and 34,
8 you state that: "There appeared to be no response to the order."
9 General, if this was an order from General Cermak assigning
10 people to the Knin garrison, why would there be a response?
11 A. I was looking for some evidence that those soldiers had actually
12 turned up and done what they were supposed to do, and I saw none of it.
13 I might have expected to see some further correspondence as you will see
14 later in the next exhibit, which you might be showing me, concerning
15 their sort of welfare, their pay, their -- their overall administration.
16 I didn't see any of that, and, therefore, I question whether that order
17 was ever -- whether that order actually took place, whether those
18 soldiers turned up. Because I have to say what you know I'm going to
19 say, he had no authority to order those men to be attached to his -- his
21 Q. And you also know we disagree on -- on that. But going back to
22 your answer, you said that you were looking for some evidence that those
23 soldiers had actually turned up and done what they were supposed to do.
24 Now, with the exception of the two documents that you refer to
25 later on, did you see any other evidence that this -- these soldiers did
1 not turn up?
2 A. I saw no evidence they did not turn up.
3 Q. Let's go to the next document, which is D762, which is ten days
4 later, 21st of August. And this is a request from General Cermak to
5 General Gotovina for 65 conscripts, and then we have the response
6 reference in your letter from General Gotovina.
7 Now at this time in the order that will come up shortly, which is
8 D762, this time General Cermak asks for 65 conscripts and does not
9 identify any specific ones. Correct?
10 A. Correct.
11 Q. So in this sense, this request is different from the previous
12 order in that it doesn't say, "I order A, B, and C, specifically," but
13 rather says, "I asked for 65 men. Please send them to me."
14 A. That is true.
15 Q. Then we have the response from General Gotovina which is D764,
16 where in fact General Gotovina formally subordinates 147 members, the
17 entire 3rd company or the third battalion - I get those confused with the
18 3rd of the 3rd of the 142nd Regiment. Correct?
19 A. Correct.
20 Q. And just to go back to the conversation we had yesterday, these
21 147 soldiers would then be fully subordinated to General Cermak, not only
22 for matters of order and discipline, correct?
23 A. There -- can I just address -- it looks as if that is true. No,
24 not quite true. I'm sorry, I missed the line.
25 Paragraph 2 says: "The commander of the 142nd Home Guard
1 Regiment will keep on the payroll the soldiers from the 3rd Company of
2 the 3rd Battalion.
3 So the commander, General Gotovina, has authorised the commanding
4 officer of that regiment to maintain administrative control, in terms of
5 the payroll. So there is not a complete subordination. It is what I
6 would term limited subordination.
7 Q. But this subordination would extent to any other
8 non-administrative task. This is the only limitation, this
9 administrative one.
10 A. Yes.
11 Q. So, in that sense, it goes beyond just order and discipline;
13 A. Yes. He has a right to task them.
14 Q. And there is nothing that you have seen either in the request
15 from General Cermak or the order from General Gotovina which suggests
16 that the previous order regarding those seven individuals was not
17 implemented ten days earlier.
18 A. No, that's true. There was no evidence either way.
19 Q. I want to move now to the UNCRO vehicles orders, and I know we
20 have seen those yesterday, so the Chamber is very familiar with them. So
21 I will try to deal with the matter as efficiently as possible.
22 And you discuss in your report, General Cermak's authority to
23 issue orders generally, and you refer to a number of these order, D788,
24 D303, D503. And I think we discussed yesterday, or if we did not, I -- I
25 suspect you will agree with me that at least those documents look like
1 orders. Correct?
2 A. Yes, they have "order" written on them.
3 Q. And they also say that they should come into effect immediately.
4 A. Correct.
5 Q. And as we discussed yesterday, if we accept your position that
6 General Cermak did not have that authority, he was acting as if he did or
7 at least he thought he had the authority; correct?
8 A. From the way he wrote it, yes.
9 Q. And just to summarise briefly the orders relating to the UNCRO
10 vehicles, and I'm just doing this in the interests of time, and if I --
11 if I don't summarise accurately, please let me know.
12 So General Cermak issued orders, D303 and D503, that he didn't
13 have the authority to issue. Then he subsequently made a request to
14 General Gotovina, D304, and that following that request, General Gotovina
15 issued an order, D305; and that showed you that General Cermak was
16 beginning to understand the chain of command and the principles of
17 subordination. That's on page 42 and 43 of your report.
18 Have I summarized accurately your position?
19 A. I think so, yes.
20 Q. Let's start with D303 which is an order from the 9 August to the
21 military police and the civilian police to set up teams to find these
22 specific UN vehicles.
23 Right, that's correct?
24 A. That is correct. I have seen that one. It's in my report.
25 Q. And then the next one is D503, which, this time, is an order from
1 the 12th of August to the military police and the civilian police to set
2 up teams to find a total of 12 vehicles, if in counted them properly, or
3 in that area.
4 You can wait for it to come up, but if you remember --
5 A. Yes, I do remember.
6 Q. So the recipient of this order are the military police and the
7 civilian police; correct?
8 A. That's correct.
9 Q. And the order that is given to them, accepting our difference of
10 opinion on Mr. Cermak's authority, the order given to them is to set up
11 teams to find the vehicles; correct?
12 A. That's correct.
13 Q. Now, on the same day as this order, General Cermak sends a
14 request to General Gotovina --
15 MR. HEDARALY: If we can have D304. If we can just scroll down
16 so the witness can see the complete first page.
17 Q. And if -- can I move to the next page, General?
18 A. Yes, you can. Thank you.
19 MR. HEDARALY: If we go to the second page.
20 Q. Can you confirm for me that what General Cermak is requesting is
21 not for General Gotovina to send an order to the military police but,
22 rather, asking General Gotovina to inform the HV unit commanders of the
23 Split Military District of the need to urgently return the vehicles?
24 A. Yes, I can.
25 Q. And just to be clear, General Gotovina is the commander of the
1 Split Military District. He is General Cermak's immediate superior as
2 the garrison commander, correct?
3 A. According to the regulations, that is correct.
4 Q. It is therefore normal that he would send a request rather than
5 an order?
6 A. General Cermak would request assistance from General Gotovina,
7 that is the correct way of doing it.
8 Q. Now the resulting order from General Gotovina the next day, D305,
9 and in this order General Gotovina orders the commanders of all the units
10 of the Split Military District to return the vehicles; correct?
11 A. That's correct.
12 Q. And if we go to the seconds page in the English, we can see the
13 list of all the units under General Gotovina's command; correct?
14 A. That's correct.
15 JUDGE ORIE: Mr. Kehoe.
16 MR. KEHOE: Mr. President, just one clarification. I'm sure this
17 is just an oversight by my learned friend. But the request, I believe,
18 that is in 304, D304, is sent to the Chief of Staff of the Split Military
19 District and not to General Gotovina. So just for clarity in the record,
20 I think that that's accurate, is it not, counsel?
21 MR. HEDARALY: I'll look at, but I will take your [Overlapping
22 speakers] ...
23 MR. KEHOE: Thank you. Thank you very much.
24 MR. HEDARALY:
25 Q. And, General, just to go back to this order on the screen.
1 General Gotovina had the authority to issue this order; correct? To his
2 own units.
3 A. He did.
4 Q. Now, General, you will agree with me that the orders issued by
5 General Cermak were quite of a different nature than the one issued here
6 by General Gotovina. General Cermak ordered the military police and the
7 civilian police - and I know I you dispute his authority to do so - but
8 he ordered the military police and the civilian police to form teams and
9 find the vehicles, whereas General Gotovina issued orders to his unit
10 commanders to return those vehicles.
11 Now, those are two very different types of orders. Correct?
12 A. Yes, they are.
13 Q. So in your report, when you are conflating the two and suggesting
14 that General Cermak realised he could not issue an order and that he then
15 asked General Gotovina to issue it for him once he began to, as you say,
16 understand the chain of command and the principles of subordination,
17 based on these documents we've just seen that's not entirely correct, is
19 A. Mr. Hedaraly, we're -- we -- we go round this circle of our
20 different views. The first point I would want to make is that the simple
21 writing of an order does not demonstrate you have the authority to write
23 Secondly, General Gotovina was absolutely correct in producing an
24 order, because he had the command, he exercises the command of all those
25 units that we're looking at now and therefore has the responsibility to
1 ensure that military discipline, good order and military discipline is --
2 is properly -- properly carried out.
3 What General Cermak was doing, I have suggested, is that he was
4 learning that if he wanted assistance from General Gotovina, then -- or
5 if he wanted assistance to his headquarters, whether that be manpower or
6 whatever else, then the proper thing to do was to request that, that is,
7 in the way that a subordinate commander does.
8 The orders he wrote to -- the so-called orders he wrote to the
9 police for which he had no authority, as I have said and we will continue
10 to disagree about that, I'm sure, where in fact in response to demands
11 from the United Nations, from UNCRO, from commander Sector South, and you
12 will know there was a series of meetings in which commander Sector South
13 expressed his concern about this.
14 At this stage, General Cermak had been in place - I'm just
15 looking at my notes - three days, two days, the 8th of August. You will
16 recall that I've said on many occasions he was a man who was given no
17 preparation time, who came from a completely different background, a
18 commercial background and a political background, who, I think, and my
19 judgement is, that you see here him attempting to meet the demands that
20 were being imposed upon him by the United Nations. He did it in the best
21 way possible.
22 Could you argue, though I doubt if he knew that he had a
23 coordinating and cooperating requirement in the garrison orders, because
24 I doubt if he'd actually read them by that time. He might have done, but
25 I question whether he would have done. But that is another issue. You
1 could see this as part of his coordination and cooperation
2 responsibility, that actually this -- that order - and it should not a
3 have been written as an order, I would absolutely agree; it would be much
4 better if he hadn't done it - may have been the subject of coordination
5 that had already been done between the police and -- and his
6 headquarters. I have no evidence of that. That is a deduction that you
7 could make, based upon the -- the instructions that are there that a
8 garrison commander will carry out these coordination and cooperation
9 functions. That is a rather long answer to your question, but I'm afraid
10 that I -- I fear that you're trying to simplify and chop things up into
11 packages and take it outside the overall context.
12 I go back to my original point: That he no authority to wrote
13 those orders. We will disagree about that, and it will be for the
14 Chamber to decide who they -- who they believe.
15 Q. Sir, my question was limited to those three or four orders,
16 because you have presented them in your report as suggesting something,
17 as suggesting that, after the first order, which is -- after one of the
18 orders, which is the 11th of August, General Cermak learned the
19 principles of subordination and then asked General Gotovina to issue the
20 order for him. And that -- this specific question was not about the
21 whole authority of General Cermak or the military police. It was based
22 on your report, your conclusions, based on those documents, those
23 specific documents, and what I'm telling you, what I'm suggesting to you
24 is that those three documents that have you cited in that paragraph of
25 your report do not actually support your conclusion in that paragraph of
1 your report.
2 A. He did not ask, actually, General Gotovina to write the order for
3 him. He was not in a position to dictate what order General Gotovina
4 gave. He requested, first of all, for manpower. It was up to
5 General Gotovina to decide whether to give him any manpower and for them
6 to -- for -- then for him to allocate that manpower and give the order to
7 those soldiers that were properly subordinated to General Gotovina, that
8 they should be resubordinated for a specific task and for a specific
9 time, although that was not clear, to General Cermak.
10 The second was requesting that General Gotovina should use the --
11 his chain of command in a disciplinary sense to remind his commanders
12 that it was wrong to steal vehicles, and if they had them they should
13 hand them back.
14 So on neither occasion did -- I would suggest did General Cermak
15 ask General Gotovina to write an order for him. He merely presented
16 General Gotovina with two decisions to make. One was, was he going
17 provide the manpower? Secondly, was he going to write this letter to the
18 chain of command? And it is a chain of command responsibility. If I
19 may, just make one other comment. We have tended to paint discipline in
20 a geographical sense. Primarily, the application of military discipline
21 is to do with subordination. It doesn't matter where those soldiers
22 might be geographically. They remain under the command of their superior
24 We have tended to allow ourselves, I believe, to -- to paint
25 discipline as a geographical issue within the garrison area. But I make
1 that as a general point.
2 Q. Thank you, General. I know there is a lot of issues that we
3 cover, but if you could try to focus on my questions. I do understand,
4 and I have not interrupted you all day yesterday or today when the
5 answers were quite long. But if you would please try to focus on the
7 A. I apologise for digressing.
8 Q. Let's then turn to the issue of the military police, which you
9 discuss --
10 JUDGE ORIE: Before we do so, Mr. Kehoe, you earlier said you
11 were kind enough to assist Mr. Hedaraly into whom the D304 was addressed,
12 and you said it was addressed to the Chief of Staff. It is actually
13 addressed to the Military District Command.
14 MR. KEHOE: Attention.
15 JUDGE ORIE: Attention Chief of Staff.
16 MR. KEHOE: That's correct.
17 JUDGE ORIE: But you added something, that it was not addressed
18 to General Gotovina. To some extent, that may be right. That is that he
19 was not the person mentioned there. At the same time you can't say that
20 General Gotovina was not covered, by a rather general expression,
21 Military District Command.
22 MR. KEHOE: Mr. President, obviously the next day
23 General Gotovina issued the order which is D305. So his Chief of Staff
24 made him aware of it. But just in the spirit of moving these documents
25 through, clearly, the intent in this request in D304 was that it come to
1 the attention or being sent to then General Ademi.
2 So it was just in the spirit of clarity on this issue. And if
3 you -- on this particular order which is D3305.
4 JUDGE ORIE: I'm not seeking to start this whole discussion
5 again. But the most precise correction would have been that it was not
6 addressed General Gotovina, instead it was addressed to the Military
7 District Command, attention Chief of Staff.
8 MR. KEHOE: And I stand corrected if I was inaccurate in that
10 JUDGE ORIE: Please proceed.
11 MR. HEDARALY: Thank you, Mr. President.
12 Q. In page 20 of your report, there is an organigram that is
13 reproduced there. There is also a colour version that perhaps may assist
14 everyone if we pull it up.
15 MR. HEDARALY: It's 65 ter 2D00786.
16 Q. General, did you prepare this organigram yourself?
17 A. No, I didn't.
18 Q. Did you review the sources on the right, or did you just accept
19 this as an accurate depiction of the command relationship between what
20 you call the operational formation and units and the military police?
21 A. I saw nothing when I was reading the sources on the right, which
22 led me to question the accuracy of that -- that diagram.
23 Q. And if we go at the bottom of the page, completely at the bottom,
24 there is a -- on top of the name there is a -- the number there is a
25 reference to Zeljko Basic, subordination, 9, 2008.
1 Can you tell the Court what that is or who Zeljko Basic is, or do
2 you have any information for us?
3 A. I believe Zeljko Basic is somebody who works in the
4 Cermak Defence team. I would stand to be corrected, if I've got the name
6 Q. I'm sure you would be if that was the case.
7 A. Silence was a good sign there.
8 MR. HEDARALY: And if you can go back a little towards the top.
9 Q. In the box "command relationship," here you have also the words
10 "effective control" discussed. I think we briefly touched on that
11 yesterday. I understand you when you use effective control in this
12 sense, or, rather, you adopted this diagram. You did not refer to the
13 legal or technical aspects of effective control under the jurisprudence
14 of this Tribunal.
15 A. That is true.
16 Q. And based on that organigram, you stated at the bottom of page
17 20, line 6:
18 "The only relationship shown between the military police and
19 garrison headquarters is through the HQ of the Military District, which
20 itself, has a cooperation and coordination relationship with the
21 appropriate military police unit."
22 So if we can just scroll down a little bit, there is no, you
23 state, from this organigram, no direct link between garrison command and
24 any relationship with the military police, except through the
25 Military District. Correct?
1 A. Yes, I think so.
2 Q. Well --
3 A. Sorry, could I just --
4 Q. Please look at it.
5 A. Could I just scroll down once again just to remind myself of the
7 Q. Of course.
8 A. Scroll down, please.
9 Yeah. Yes, thank you. Thank you, I'm happy to say that I could
10 see no formal linkage between garrison commanders and the military
12 Q. If we can go to D -- sorry, D34, which I know you are familiar
13 with because you have cited it in your report.
14 JUDGE ORIE: Mr. Hedaraly, am I right or wrong that in the black
15 and white copy the reference to Zeljko Basic is -- at least does not
16 appear in the report?
17 MR. HEDARALY: You are absolutely correct, Mr. President.
18 JUDGE ORIE: So, therefore, although we are supposed to look at a
19 colour version of a document, it gives more than just the colour version.
20 It gives subordination, Zeljko Basic subordination, 9, 2008 which does
21 not appear in the report.
22 MR. HEDARALY: I stand corrected, Mr. President. You're
23 absolutely correct.
24 JUDGE ORIE: Please proceed.
25 MR. HEDARALY: Thank you.
1 JUDGE ORIE: Perhaps we could ask the witness what, apart from
2 that, he thinks that Mr. Zeljko Basic is someone who works in the
3 Cermak Defence team, whether he -- what does "subordination 9, 2008" mean
4 as far as you are aware of?
5 THE WITNESS: Absolutely -- no idea, Your Honour. I have not
6 idea what that means. To be honest, I hadn't even actually noticed it on
7 the coloured copy. I looked down at that bottom right-hand corner.
8 JUDGE ORIE: Yes. Now who put the -- the picture in black and
9 white into the report?
10 THE WITNESS: I put it in.
11 JUDGE ORIE: Yes.
12 THE WITNESS: But I -- I didn't check that it was a complete
13 coverage. So --
14 JUDGE ORIE: You said you were a computer illiterate from what
15 I --
16 THE WITNESS: Yes, I'm afraid so.
17 JUDGE ORIE: Nevertheless, you were able to put this document in
18 the --
19 THE WITNESS: With a certain amount of guidance from the help
21 JUDGE ORIE: The help box, but it takes quite a bit to take out
22 the reference to the Zeljko Basic who guided you in that, or ...
23 THE WITNESS: Nobody. I mean, there was no guidance to take out
24 the Zeljko Basic. I didn't even know it was in there, and I have no idea
25 why, whether I -- when I, actually, sort of focussed on it, whether I
1 left it off, I have no idea.
2 But I was not aware, as I said, to Mr. Hedaraly, I was not aware
3 that that name was even on the bottom. I had not looked at that
4 particular part. I was not conscious of it.
5 JUDGE ORIE: No, I see that. But I'm trying to understand the
6 mechanism through which the colour version finally ended up as a black
7 and white version in the -- in your report.
8 THE WITNESS: Because I think I -- I've squared off, as it were,
9 to copy it on to my document, in order to put it in, and I guess I missed
10 off that bottom piece. But as is -- as has been identified, there would
11 have been little point in me trying to do that because it would have been
12 exposed here.
13 JUDGE ORIE: Yes.
14 Please proceed, Mr. Hedaraly.
15 MR. HEDARALY: Thank you, Mr. President.
16 Q. Let's follow up on Mr. President's question, but let's start with
17 this document. We have it on the screen.
18 And you are obviously familiar with this, correct, you've cited
20 A. Yes, I am.
21 Q. And you have cited particularly the second page of this document
22 to support your interpretation of the authority or, in your view, the
23 limits on the authority of the garrison commander; correct?
24 A. I have.
25 Q. Now, if we go to the next page, the third page of the document in
1 English; I believe the second one in the B/C/S.
2 Did you also review these instructions in this document, or did
3 you just focus on the first two pages, the organisational order?
4 A. No, I looked at those -- I looked at those instructions in a
5 certain amount of detail.
6 Q. Okay.
7 MR. HEDARALY: If we can go to the next page, please, instruction
8 number 4, which is titled: Employing military police units.
9 Q. And it says:
10 "The garrison commander is required to arrange a procedure with
11 the closest unit of the military police of calling military police units
12 and having them intervene in the case of unrest, accidents, et cetera,
13 when a military police unit is indispensable to establish order and
14 discipline in the area of the garrison. Also, arrange for the temporary
15 employment of military police patrols to supervise work, discipline, and
16 conduct of military personnel in public places."
17 General, will you agree with me that this instruction relates to
18 a direct relationship between the garrison command and the military
19 police without going through the Military District, as we had it in the
21 A. Yes.
22 Q. And can you tell the Chamber why in all your discussion about the
23 relationship between garrison command and the military police you did not
24 once refer to these instructions.
25 A. Because this talks about a procedure. These -- these regulations
1 are written with peacetime in mind, not in a situation of -- of internal
2 conflict, of a very complex nature. And from -- from my point of view,
3 this is perfectly normal because this actually -- this reflects the
4 requirement imposed upon the garrison commander to cooperate and
5 coordinate, which we've seen and actually comes in paragraph 5 as well.
6 Now, arranging a procedure is a process. It's an administrative
7 process, to enable the military police to be used in their daily tasks,
8 their regular daily tasks, which are all about good order and military
9 discipline. And I didn't put it in because I felt that I had made the
10 point that I wanted to make there, and indeed it comes out later where I
11 talk about the contentions between the garrison headquarters and the
12 military police in several parts of the report.
13 But I think that is very important, that one understands that
14 these are procedures. It's temporary employment. This does not give or
15 -- and I don't believe it implies any authority of the ZM commander to be
16 able to order the military police to conduct any form of operation. It
17 is completely focussing on an administrative procedure, in line with his
18 -- those orders and other instructions about coordination and cooperation
19 with other agencies.
20 Q. I understand your answer. My question did not say that this gave
21 the garrison commander authority to order. I simply said this illustrate
22 a direct relationship when in your report you said there were no such
23 direct relationships.
24 A. I say in that there's no direct relationship, and I -- I question
25 whether -- whether the word "direct relationship" I'm -- you will
1 understand that I'm concerned that phrases like "direct relationship"
2 could be taken to mean something else. I'm very keen that we understand
3 precisely what we're talking about, as I know you are, Mr. Hedaraly.
4 Q. And in that vein, all I am trying to point out is that I
5 understand your reservations about direct relationship. But all I'm
6 pointing out is that there is nothing in this instruction, in that
7 number 4, about going through the Military District.
8 A. Absolutely right.
9 MR. HEDARALY: Can we go back to the organigram, please, which
10 was 65 ter 2D00786.
11 And while it comes up, Mr. President, since it has been discussed
12 in court and specific references to differences with the report, I think
13 it makes sense to tender it.
14 MR. CAYLEY: Your Honour, if I could just make one point which
15 have I noticed in the terminology that is being used, and I think the
16 witness has expressed his reservations.
17 This is a diagram which you can see says subordination --
18 MR. HEDARALY: Your Honour --
19 MR. CAYLEY: Mr. Hedaraly, just let me finish -- [Overlapping
20 speakers] ...
21 JUDGE ORIE: Mr. Hedaraly.
22 Mr. Cayley, you may proceed.
23 MR. CAYLEY: Thank you, Your Honour.
24 MR. HEDARALY: -- if this proper in front of the witness, I'm
25 just cautioning.
1 MR. CAYLEY: I think it's perfectly proper because I think the
2 witness can see what it says. But the point I'm make is this: This a
3 diagram about subordination. It says it very clearly. Mr. Hedaraly is
4 using these words "direct relationship" to try and sort of get around
5 this word subordination, and I think he should just be clear with the
6 witness, because the witness has already made the point that is he
7 concerned about using that phraseology. That's the point I'm making.
8 Thank you.
9 JUDGE ORIE: And would that be an objection to having admitted?
10 MR. CAYLEY: I don't object to it being admitted, Your Honour.
11 But what I just request is that the terminology that's being used with
12 the witness is clear, so that there is no confusion in the transcript
13 what the witness is actually talking about. Because we know that
14 subordination, I think you will understand, has a very specific meaning
15 and relationship has a rather ambiguous kind of meaning. That's the
16 point that I'm making. Thank you.
17 JUDGE ORIE: I can't dictate Mr. Hedaraly to phrase his questions
18 in the way I or you would like to do that. At the same time, I think the
19 witness has been very clear where he has expressed his concerns in the
20 use of certain terminology and he explained what he means.
21 Therefore, I would say the -- the warning signs are there, and if
22 would you like to further elaborate on this in re-examination, of course,
23 you're free to do so.
24 MR. CAYLEY: Thank you, Mr. President.
25 JUDGE ORIE: Since there are no objections.
1 Mr. Registrar.
2 THE REGISTRAR: Your Honours, that will become Exhibit P2658.
3 JUDGE ORIE: P2658 is admitted into evidence.
4 Please proceed, Mr. Hedaraly.
5 MR. HEDARALY: And just for my learned friend's reference, in
6 page 20 of the witness's expert report, he says:
7 "The only relationship shown between the military police and
8 garrison headquarters is through the headquarters of the Military
10 JUDGE ORIE: Mr. Hedaraly.
11 MR. HEDARALY: [Overlapping speakers] ...
12 JUDGE ORIE: Yes, we are not, at this moment arguing the matter.
13 We are using the time of the witness to hear his answers to questions.
14 Please proceed.
15 MR. HEDARALY: Thank you.
16 Q. General, you testified yesterday that you have assisted -- you
17 were present when Mr. Feldi testified; correct?
18 A. I was present for part of the testimony.
19 Q. And that you had reviewed Mr. Feldi's report?
20 A. I have reviewed Mr. Feldi's report.
21 Q. Did you provide any assistance to the Cermak Defence team for the
22 examination and re-examination of Mr. Feldi?
23 A. No.
24 MR. HEDARALY: If I can ask Mr. Registrar to keep this exhibit on
25 the screen, and if we can pull up next to it, D1673, which is the expert
1 report of Mr. Feldi. And if we can just pick the English for now so we
2 have the same language. And if we go to page 19 of that -- if we could
3 have the two side by side.
4 Q. Now, General, were you present in court when -- when Mr. Feldi
5 said that he drew most of the diagrams himself sometime back and then
6 received them later on in an electronic format?
7 A. I don't recall hearing that.
8 Q. Okay. So the diagram on the right side of the screen that we see
9 is -- was prepared by Mr. Feldi and was included in his expert report?
10 A. Hmm.
11 Q. And you agree with me that there are some striking similarities
12 between the diagram in your report and the diagram in Mr. Feldi's report;
14 A. Yes.
15 Q. And you can further see that there a relationship of cooperation
16 and coordination in Mr. Feldi's report between the garrison command and
17 the military police which is absent in your report.
18 A. That's correct.
19 Q. So if Mr. Feldi is correct, then that would also show that it was
20 not the only relationship - as you used in your report, that word -
21 between the garrison command and the military police, was through the
22 Military District; correct?
23 A. That's correct.
24 Q. I want to talk more about this relationship, but I want to thank
25 the Registrar for his assistance.
1 And we have seen and discussed a few orders from General Cermak,
2 the military police, both with respect to freedom of movement and the
3 UNCRO -- UNCRO vehicles.
4 Let me show you P973. And you will recall there are exchanges of
5 letters on 10th and 11th of August between General Forand and
6 General Cermak regarding freedom of movement?
7 A. Yes.
8 Q. This here, what I'm going to show you is now, is the log-book of
9 the duty officer of the 4th Company, Sibenik, 72nd Military Police
11 MR. HEDARALY: If we go to the entry for the 11th of August,
12 which is page 11.
13 Q. You see the 11 August -- we'll wait for it in the B/C/S --
14 A. Yes, I have it on my left-hand screen.
15 MR. HEDARALY: If I can ask the Registrar to find the right page
16 in the B/C/S. I thought I had written it down, but apparently not. The
17 entry of the 11th of August.
18 Thank you, Mr. Registrar.
19 Q. If we go to the next page in the English, there is an entry at
20 1150 stating:
21 "The 72nd Military Police Battalion duty officer informed
22 regarding a command of General Cermak that members of UNCRO have complete
23 freedom of movement."
24 So the duty officer recorded General Cermak's order as a command
25 in his log-book. Correct?
1 A. Yes.
2 Q. Did you see this document before?
3 A. No, I didn't. But I -- I had heard that such documents existed.
4 Q. But you had never seen --
5 A. I hadn't personally looked at that, no. I had not seen that
7 Q. It was not part the bundle provided to you regarding the military
9 A. I'm sorry, I will clarify that. I knew such documents as in
10 police log-books existed. But I had not seen that particular document.
11 Q. Does that mean that that was not provided in the bundle of
12 documents relating to the military that Mr. Cayley provided to you in
13 March --
14 A. No, I may be that I never actually saw it. I never, myself,
15 looked at because it was Sibenik and I may have decided that it was not
16 applicable. Correctly or incorrectly.
17 Q. So it was either not provided to you, or it may have been
18 provided to you but you didn't review it?
19 A. One of the two.
20 Q. Let me show you P1147, which is a letter from General Cermak to
21 Mr. Philippe Augarde, which was the head of the ECMM mission at the time.
22 And you can see in the second paragraph: "I sincerely regret the
23 cited impermissible behaviour by a person in the uniform of a Croatian
24 soldiers [sic]. I have issued an order to the MP to investigate the case
25 and make every attempt to discover the perpetrator."
1 Had you seen that document before?
2 A. I think I have.
3 Q. And you've also seen other documents where General Cermak tells
4 internationals that he has ordered an investigation --
5 A. Yes.
6 Q. -- or has ordered, in fact, the military police to do things?
7 A. Yes. I have.
8 Q. And these documents are not referenced in your report; correct?
9 A. No.
10 Q. So you -- General Cermak was issuing orders. He expected them to
11 be followed. In some cases, the recipient of them recorded them as an
12 order. And he is also telling people -- it says "issuing orders."
13 General, does that not indicate to you that, if we accept your
14 view that General Cermak did not have the formal authority to issue these
15 orders, it appeared as if he did have that authority?
16 A. It -- of course, it appears. I would be foolish to try and paint
17 a picture that General Cermak did not impress some people with his
18 apparent authority. I mean, he was a General. He was sent there as we
19 discussed yesterday; he was sent there by the President. We all know
20 that General Cermak was a successful businessman. He would have had --
21 he has a personality. He is a successful man, therefore he will have
22 influenced people.
23 I go back to my original comment that here is a man who was put
24 into this post which he didn't understand. He thought his -- his -- his
25 real task was the urban regeneration of Knin. He was there to help the
1 Canadians but that developed into a much more profound and significant
2 task of a point of contact. And I believe that General Cermak did what
3 many people would do and took on to himself responsibilities which
4 actually he didn't have. And did he that for the best possible motives,
5 because he wished to be helpful. And there is evidence, as we know from
6 General Leslie who says that General Cermak was a very helpful and
7 cooperative person, as General Brigadier Forand says.
8 So my argument is really that these have got to be taken in that
9 context and not looked at in a very narrow legalistic way. I know that
10 is the way the court -- I'm making a presumption, Your Honour, if I may.
11 I know that is the way the Court may wish to do it or the Prosecution may
12 wish to do it. But I hope you understand my concern is that we look at
13 this wholistically as far as we possibly can.
14 So we understand what was behind this apparent issuing -- this
15 actual issuing of orders and the apparent belief that he the authority to
16 do so.
17 Q. I'm also happy to report that we're doing much better with the
18 interpreters today, General.
19 A. Thank you, I'm learning.
20 Q. I want do stay on this topic of the military police but talk
21 about some of the answers that gave yesterday, both to Mr. Cayley and to
22 Mr. Kehoe. And a the outset I just want to confirm what you stated
23 yesterday, that you were not sure that you were provided the testimony of
24 General Lausic but that, in any event you did not rely on it in any
25 significant manner in coming to your conclusion. Correct?
1 A. Yes. I think I added that I looked at lot of the documents.
2 Q. Yes --
3 A. I may not have done, but I did. As a matter of clarity, I looked
4 at a lot of his documents.
5 Q. And that's clear from your report --
6 A. Thank you.
7 Q. -- obviously. And the same true for Mr. Dzolic, correct, you
8 may not have reviewed his testimony but --
9 A. Yeah.
10 Q. And also Mr. Simic would be the same?
11 A. Yes.
12 Q. And that's why they are not referenced in the footnotes because
13 those were not the documents that you relied on mainly?
14 A. That's correct.
15 Q. So would it be fair to say that, in respect of the military
16 police, your report is primarily based on the regulations and the
17 documents you reviewed, rather than what these witnesses from the
18 military police testified to?
19 A. My report is based on looking at the regulations, and based on a
20 certain amount of evidence which I gathered from looking at the documents
21 I did look at, from which I drew those conclusions. That is -- that is
23 Q. And we discussed yesterday that the significant ones, the key
24 ones are referenced in your report, and the testimonies of those
25 witnesses are not -- I'm just trying to understand that, therefore, you
1 primarily relied on those sources of information, the documents that you
2 had and you referred to, rather than the testimonies of those witnesses.
3 A. Yes, I did.
4 Q. You referred to your report, the rules of the military police,
5 which is P880, a document that this Chamber is very familiar with.
6 Now, did you know that General Lausic testified that there was
7 dual chain of command contemplated in that article, one going to the
8 military police administration, under Article 8 of the rules, and one
9 going to the commanders of the Military District or the highest
10 HV commander in the area by function under Article 9.
11 Were you aware of that testimony?
12 A. I wasn't aware of the testimony, but I'm aware of the two rules,
13 the Article 8 and Article 9.
14 Q. Well, based on your review would you agree with General Lausic
15 that there was such a dual chain of command in -- at least in P880 in
16 those regulations, one under Article 8 going to the military police
17 administration, and one under Article 9 going to the HV?
18 A. Before I comment on that, I would just like to see Article 8 and
19 Article 9, if I may.
20 Q. Of course. I think it is my mistake, I didn't ask for it to be
21 pulled up. I apologise; I thought it was there.
22 MR. HEDARALY: P880, please.
23 JUDGE ORIE: Mr. Kehoe.
24 MR. KEHOE: Excuse me, Mr. President, I don't want to interrupt.
25 If could I have a page cite where Mate Lausic used the phrase "dual chain
1 of command," I would appreciate it.
2 JUDGE ORIE: Mr. Hedaraly.
3 MR. HEDARALY: Mr. President, I can look for it at the break.
4 JUDGE ORIE: [Overlapping speakers] ...
5 MR. HEDARALY: I don't think it's -- I think maybe the words -- I
6 think the evidence was --
7 JUDGE ORIE: Well, these words, of course, are not without
8 importance, especially if you ask someone whether he would be right --
9 MR. HEDARALY: I accept that, Your Honour. And for the purpose
10 of my question, it's not -- I can rephrase it.
11 JUDGE ORIE: Then please rephrase it.
12 MR. HEDARALY:
13 Q. General, would you agree that Articles 8 and 9 contemplate two
14 separate chains of commands?
15 A. Yes, I would. But one is defined by regular -- one is
16 constrained to regular military tasks.
17 Q. Yes, yes, no, I accept that. But there are two separate chains;
19 A. There are two separate linkages. I think we need to be careful
20 before we throw around this word "chain of command" before we quite
21 understand where we are going.
22 It solves the problem. Perhaps I may just put a little
23 background on this from a military perspective. It solves the problem of
24 the alternative chain of command which is clearly shown on that, on the
25 organigram, where the military police are commanded by military police
1 administration which goes into directly the MOD rather than through the
2 Chief of Staff. And this enables, Article 9 enables the coordination and
3 cooperation that General Feldi showed on his -- on his organigram to
4 exist so that military police units engaged in their regular or daily
5 military police tasks could be properly integrated into the operational
6 part of the armed forces.
7 Q. Thank you. Let's go to D267. This is a document you briefly
8 addressed with Mr. Cayley yesterday.
9 You were asked questions about and shown some portion of this
10 document. I want to draw your attention to some others that were not
11 referred to in court.
12 Now, you were shown page 4, paragraph 10. And the transcript
13 reference which I think could be helpful for everyone to pull up is
14 24175, lines 1 to 4.
15 And, General, you will not have the benefit of that on the
16 screen, so I will read it to you.
17 Mr. Cayley showed you the middle portion of paragraph 10 and
18 said, to refer to the:
19 "I appoint Major Ivan Juric ..." and then skipped straight to the
20 last sentence to elicit your comments and asked you:
21 "The commanders of the 72nd VP battalion and the 73rd VP
22 battalion shall be subordinate to Major Ivan Juric?"
23 A. Yes.
24 Q. An answer to that question, at 24175, 7 to 11, was that
25 Major Juric had been placed in command of those battalions.
1 Now, General, I just wanted to give you an opportunity to look at
2 the paragraph more carefully rather than those -- especially the parts
3 that were skipped because I noticed that Mr. Cayley skipped over the part
4 where it says Mr. Juric was appointed to assist in commanding and
5 organising the activities of the 72nd and 73rd --
6 MR. HEDARALY: I'm sorry if ...
7 MR. CAYLEY: It has just been pointed out that you've just
8 skipped three words, "group of officers." "I appoint Major Juric and a
9 group of officers ..."
10 That's all.
11 JUDGE ORIE: Let's try to avoid words like "skipping." Left out
12 is more neutral. Let's try and keep everything neutral, and let's try to
13 be as precise as possible in quoting.
14 Mr. Hedaraly, would you please --
15 MR. HEDARALY: My question ...
16 Q. My question, General, is commanding, and assisting in commanding
17 are two different things; correct?
18 A. Yes, they are.
19 Q. And were you aware that General Lausic testified - and I have a
20 transcript reference for my colleagues, it's 15239 - testified that he
21 delegated to Major Juric a portion of his responsibilities under
22 Article 8. Were you aware of that?
23 A. I wasn't aware of that.
24 Q. And used the expression as his "ears and eyes on the ground,"
25 whereas you used the directed telescope analogy.
1 Now were you also aware that this Chamber has received evidence
2 from a military police member of the 72nd VP Battalion who rejected the
3 proposition that Mr. Juric was the commander of the 72nd Battalion in
4 August 1995 and stated that Mr. Juric was merely a coordinator?
5 Were you aware of that, because I didn't see it in your report?
6 A. Who gave that?
7 Q. It was Mr. Simic?
8 A. I haven't seen that, no.
9 Q. And that's at transcript reference 10348.
10 Now if we now go -- if we're still on D267, I want to show you
11 item 3, which I don't believe you discussed yesterday, which is on the
12 first page. I'm sorry, the second page in the English.
13 And we see here the last portion of item 3, and you can read the
14 whole item, of course. I just want to focus on the last sentence.
15 "Within the daily operational chain of command, commanders of
16 VP battalions" - which would include the 72nd and 73rd - "shall be
17 subordinated to commanders of the HV Military Districts."
18 Do you see that?
19 A. I do. And who has written that order?
20 Q. It is written by Mr. Lausic, I believe. But I will look at the
21 last page.
22 It is by Mr. Lausic. We can go to page 5, last page in English,
23 if you want to look for yourself.
24 A. Yeah, thank you.
25 Q. And I can further tell that you General Lausic testified that for
1 the purpose of this order, operational chain of command referred to the
2 same functions as the regular military tasks according to Article 9 of
3 the rules. That's at 15257.
4 A. And that is what he means by the daily operational chain of
6 Q. So would you agree with me that D267 also seems to contemplate
7 two separate chains of command? They are subordinated for -- within the
8 daily operational chain of command to the HV and also in part through
9 Mr. Juric for other tasks?
10 A. Yes. In that he is giving --
11 JUDGE ORIE: Mr. Kehoe.
12 THE WITNESS: I'm sorry, Your Honour.
13 MR. KEHOE: Mr. President, if I may just go back. And I just had
14 the opportunity to look at the premise put out by my learned colleague
15 concerning Mr. Simic said. And in page 31, line 23, Mr. Hedaraly said:
16 "Were you also aware that this Chamber received evidence from a
17 military police member of the 72nd MP Battalion who rejected the
18 proposition that Mr. Juric was the commander of the 72nd Battalion in
19 August of 1995 and stated that Mr. Juric was merely a coordinator? Were
20 you aware of that because I didn't see it in your report?"
21 JUDGE ORIE: Yes, now are you challenging that that is what
22 Mr. Simic said?
23 MR. KEHOE: Well, I think that the Chamber should turn to --
24 JUDGE ORIE: Yes, if you would assist us.
25 MR. KEHOE: If I may, page 10348 the testimony of Mr. Simic, the
1 question and the answer at line 21 --
2 JUDGE ORIE: One second. If you would just give me a second to
3 find it. You said 10.000 ...
4 MR. KEHOE: 10348.
5 JUDE ORIE: Just one second, please.
6 MR. HEDARALY: It starts at page 13, the whole exchange.
7 JUDGE ORIE: 10348.
8 I am there. And lines, you said ...
9 MR. HEDARALY: 13 to 23, would be the full ...
10 JUDGE ORIE: The answer, at least, gives some more details and
11 also gives some areas where apparently Mr. Simic is not fully aware of
12 certain aspects of it. And I think it would have been appropriate to
13 summarise it, not just by quoting one or two words but by giving a proper
14 reflection of what the gist of the evidence of Mr. Simic, in this
15 respect, was.
16 Now, very practical question. Mr. Kehoe, do you want to deal
17 with the matter in re-examination, or would you expect Mr. Hedaraly to --
18 to revisit this issue but now on the basis of a bit more detailed or at
19 least a more nuanced reflection of the testimony of Mr. Simic?
20 MR. KEHOE: Mr. President, I don't believe that the General has
21 any frame of reference because I'm not sure he actually saw that. So I'm
22 -- I don't know if -- I'll leave it to the Chamber's discretion if that
23 additional information assists the General in any regard.
24 I just am concerned by this summarisation of something that when
25 I go back -- we go back and look at it simply is not present in the
1 record. That's my concern. But as a practical matter, and, again,
2 Mr. President, I leave it to your discretion on how to you address it
3 with General Deverell.
4 MR. HEDARALY: Just to alleviate any concern that my learned
5 colleague has, I -- I apologise for having summarised perhaps not
6 completely accurately.
7 JUDGE ORIE: I leave it to the parties. Of course, the word
8 "commander" and word "coordinator," but there not in general terms, but
9 coordinator of certain operations or actions that Mr. Simic is not aware
10 of or familiar with appear in -- and so some words appear. At the same
11 time, it is not a nuanced summary of what the witness said.
12 I leave it in your hands, Mr. Hedaraly, if you want to revisit
13 the matter; and if not, I take it that Mr. Kehoe would be fully capable
14 of dealing with the matter in re-cross.
15 MR. KEHOE: May I just add one thing, Mr. President.
16 My concern of course on the fullness --
17 JUDGE ORIE: Yes, I do understand. I give an opportunity to
18 Mr. Hedaraly to re-visit the matter in a more nuanced way. If he doesn't
19 you have an opportunity to do that. We leave it at that for this moment.
20 Please proceed.
21 MR. HEDARALY: Thank you, Mr. President.
22 Q. Really, the only -- the main point I was trying to make, General,
23 is that you did not consider the evidence of Mr. Simic in reaching your
24 conclusions; correct?
25 A. That's correct.
1 May I refer back to that -- that order, because I was going to
2 make a comment.
3 Q. I'm still going to discuss other portions of it.
4 A. Thank you.
5 Q. Do you want to make that comment now, or ...
6 A. Well, if I may.
7 Q. Is it related the last question, or is it a general --
8 A. It's a general comment which perhaps may be helpful at this
9 moment before we go on to other questions.
10 Q. Go ahead.
11 A. If I could just scroll down, or if the page could be scrolled
12 down, please. I'm sorry, scrolled up.
13 There is a part in this where he refers to assisting with command
14 and then several lines later he says the units are subordinated.
15 There is an element in all this, Your Honour, and again this is
16 context, if I may. As a senior officer I would regard that as a very,
17 very badly written order. Because it is ambiguous. What he says there
18 is a nonsense. You cannot assist but be made -- made the commander.
19 He may have been referring to the other people assisting. I can
20 understand why he would want Major Juric to assist, although quite how
21 that is done, I'm not sure. But there is a complete contradiction there.
22 And you see that contradiction then come down and the -- the part I'm
23 looking at now, paragraph 3 of the order, where he uses the phrase, line
24 one, two, three, four, five, six, "within the daily operational chain of
1 Now that phrase itself, I believe - and I think people have
2 accepted - actually talks of or refers to Article 9 which is nothing to
3 do with a chain of command. It is to do with the integration of the
4 military police into the operational -- into the operational organisation
5 for regular military tasks. And those are all the standard ones of route
6 marking, route clearing, minor disciplinary -- dealing with minor
7 disciplinary problems and general good order of the force which is laid
8 out in -- in the reference in more -- in one of the other references in
9 more detail.
10 My point is, that actually it's a very ambiguous order. And one
11 needs to be very careful before we draw certain conclusions, conclusions
12 as in, I am certain this is what it meant. That was my point, and I
13 hope, perhaps that might have assisted.
14 JUDGE ORIE: Please proceed, Mr. Hedaraly. Have you another four
15 minutes to go.
16 MR. HEDARALY: I -- I think we can have the break now. I think
17 it's a good time. We will come back to this order after the break
18 anyways. But now is as good a time as another.
19 JUDGE ORIE: We will have a break, and we will resume at half
20 past 1.00.
21 --- Luncheon recess taken at 12.27 p.m.
22 --- On resuming at 1.34 p.m.
23 JUDGE ORIE: Mr. Hedaraly, are you ready to proceed?
24 MR. HEDARALY: Yes, Mr. President. Thank you.
25 Q. General, we were discussing D2670 [sic] order on the screen, and
1 you've provided some commentary regarding how it was ambiguous, in your
2 view, when we left off. Do you recall that?
3 A. I was.
4 Q. If we can go now to page 4, paragraph 12 under the heading:
5 Commanding and reporting system.
6 And again the last three lines of that section which appear on
7 the following page were shown to you. I don't know if you wish to look
8 at them again now.
9 MR. HEDARALY: Why don't we go to the last page.
10 A. Yeah.
11 Q. To refresh your memory. Mr. Cayley discussed to comment on the
12 last three lines: "The commanders shall submit their requests."
13 Do you remember that discussion yesterday?
14 A. Yes, I do.
15 Q. I want to go back to the previous page, please, and look at the
16 first paragraph under that heading at the bottom of the page.
17 "Within the daily operational chain of command commanders of
18 military police battalions" - which includes the 72nd and the 73rd, as
19 well as the companies listed there - "shall be subordinated to the
20 commanders of the HV Military Districts." So that's the second time we
21 see that in this document now.
22 And if we turn over the page.
23 "And they shall report to them in writing and at briefings on a
24 daily basis."
25 Now, you were asked to comment on the last three lines. I wanted
1 to give you a chance to look at more than that portion of this document.
2 Do you agree that this document, however ambiguous it may be, seems to
3 suggest that reports would be sent both to the military police
4 administrations and to the HV commanders?
5 A. Can you just scroll up again to the other page, please?
6 Q. Of course.
7 MR. HEDARALY: If Mr. Registrar can assist.
8 A. It says specifically within the daily operational chain of
9 command and we've had that discussion, and I would suggest that means for
10 regular police tasks that those reports and returns go to the -- the
11 military headquarters.
12 Q. And other reports would go to the military police administration,
13 or perhaps the same ones?
14 A. Or perhaps the same ones. If it wasn't part of a regular
15 military task, then -- if it was something else which was to do with
16 their administration, pay, whatever, conditions of service, then it would
17 go up the military police administration.
18 Q. And only -- according to this document, within that chain, right?
19 A. Yes.
20 Q. Okay. Now, yesterday you will recall Mr. Cayley also showed you
21 two documents which were not copied to General Cermak. We can look at
22 them again, if you want. I noted that there were also not copied to any
23 HV commanders. I don't know if you remember. If you want to look at
24 them again.
25 A. I'm sorry, yes, I'd like to look at them again, please. Thank
2 Q. Yes. The first one was D789, which was an order. And if we can
3 go to the last page where the addressees are listed.
4 Can you see here that that order was not copied to any of the HV
5 commanders; correct?
6 A. Yes.
7 Q. Okay. And then the report was D791. And, similarly, if we go to
8 the bottom of that page, we see that it's delivered to the addressees.
9 And if we go up to the top of the page now, we'll see the addressees
10 being military police, various sections or departments of the military
11 police administration.
12 So this report which was not copied to General Cermak was also
13 not copied to any other HV commanders; correct?
14 A. That's true.
15 Q. Now you cannot exclude for the possibility that this information
16 was also sent to General Cermak, General Gotovina, or another HV officer.
17 In a different communication, for example?
18 JUDGE ORIE: Before you answer the question.
19 Mr. Cayley.
20 MR. CAYLEY: Yeah, Your Honour, there's got to be some kind of
21 basis for that question. I mean, it's a -- it's asking the witness to
22 essentially speculate as to whether or not these documents -- when he's
23 actually asked the witness to point out that they're not copied to any
24 HV commanders, and now asking the witness to speculate about whether they
25 could possibly have been sent to these individuals when they're not even
1 on the address list.
2 JUDGE ORIE: Mr. Hedaraly, if you would ask the witness whether
3 he could exclude for the possibility that this document was sent to me at
4 the time, then I take it that would be difficult for him to exclude a
5 possibility. Therefore, I would agree that we need a kind of a basis
6 which brings the copy to be sent to, for example, General Cermak, as you
7 said, within the ambit of the real world.
8 MR. HEDARALY: Perhaps my question was not clear, and I apologise
9 to my learned friends --
10 JUDGE ORIE: Then rephrase it, please.
11 MR. HEDARALY: I was referring to the information contained in
12 that document, rather than the document itself. That it -- could have
13 been sent in another fashion in another report.
14 JUDGE ORIE: [Overlapping speakers] ...
15 MR. HEDARALY: We discussed various possibilities of reporting
16 earlier, looking at D267.
17 JUDGE ORIE: Same would apply as far as the content is concerned.
18 MR. CAYLEY: That's only -- I mean, I think the point is even
19 stronger, Your Honour, that you're making. I mean, now, we're in the
20 realms of total speculation.
21 JUDGE ORIE: By the way, if there would have been no objection to
22 the question and, of course, there are two possibilities, either that the
23 witness says, I can't exclude that. In that case, the Chamber, of
24 course, would -- we're not a jury. We would understand that not being
25 able to exclude something is if not at zero probative value, perhaps at
1 0.001. The other possibility is that the witness would have told us
2 something about it, why he would know for sure that it wasn't, or that he
3 would know for sure that it was. And then, of course, we would have
4 listened to what he apparently knows about it. And, therefore,
5 Mr. Hedaraly, the question, whether the witness has any knowledge on
6 whether this document may or the content of the document may have been
7 brought to the attention of the witness would have been a question to be
8 preferred, because it would be perfectly clear from the first answer
9 whether the witness has any knowledge which would assist us or not.
10 Please proceed.
11 MR. HEDARALY: Thank you, Mr. President.
12 Q. Yesterday, when commenting on this document, you stated that:
13 "It talks about something they did without informing him."
14 That was based just on the fact that this document was not copied
15 to him; correct?
16 A. Yes.
17 Q. You don't in fact know whether or not he was informed of the
18 information here --
19 MR. CAYLEY: Your Honour, we're going back again to the same
21 JUDGE ORIE: No, it's not the same question.
22 Do you have any knowledge about this?
23 THE WITNESS: I have no knowledge about that.
24 JUDGE ORIE: Yes. That is clear. Then there's no need to ask
25 any further questions on that.
1 Please proceed.
2 MR. HEDARALY: No, there is not.
3 Thank you, Mr. President.
4 Q. Did you see any -- any documents from General Gotovina regarding
5 the reporting from the military police; for example, him complaining
6 about not receiving reports on time?
7 A. I don't recall seeing those documents, but I may have done.
8 MR. KEHOE: Excuse me, Mr. President. On that question, and I
9 don't know if we want to do this in the presence of the witness, because
10 I have a question.
11 JUDGE ORIE: I don't know what you are going raise Mr. Kehoe --
12 MR. KEHOE: Well, I'm raising ago issue concerning --
13 JUDGE ORIE: Yes, may I take it you have now considered whether
14 or not when you explain do us what you're going to raise whether it could
15 be appropriately done in the presence of the witness.
16 MR. KEHOE: That's correct, Mr. President, I think, you know,
17 caution being my guide, it may be best to raise my objection at this
18 point regarding that past question by the Prosecutor to the Chamber
20 JUDGE ORIE: Yes.
21 Then, under those circumstances, I have to ask you, Mr. Deverell,
22 to follow Madam Usher and to leave the courtroom for a second.
23 THE WITNESS: Thank you, Your Honour.
24 JUDGE ORIE: Because I'm not going to ask you whether you
25 understand any English.
1 [The witness stands down]
2 JUDGE ORIE: You may address the Chamber, Mr. Kehoe.
3 MR. KEHOE: Yes, Mr. President.
4 My concern about this question and there are other questions
5 that, likewise, fall into this category, but this seems to be quite
6 salient in page 42, line 18, discussing reporting to the military police
7 and General Gotovina complaining about not receiving reports on time.
8 And the issue of whether or not he saw any reporting in that
10 I would like to know, Mr. President, I submit this is a proper
11 request by the Defence and by the Chamber as to what the good-faith basis
12 is for asking a question like that. Because I would suspect there is no
13 document in possession of the OTP, and I certainly can be educated on
14 that, but we have not seen it. And I submit that the Defence hasn't seen
16 So if you're asking a question about reporting from
17 General Gotovina regarding the military police, there has to be some
18 good-faith basis for that question as opposed to just throwing it out and
19 seeing what the answer might be.
20 Now I highlight this question in particular, but there are other
21 questions that fall into that category as well.
22 Is there some aspect of this that is unknown to the Defence,
23 i.e., that there was reporting by the military police to General Gotovina
24 during this period of time? Now, with that query or series of questions
25 in that regard, I turn it over to the Trial Chamber to ask the
1 Prosecution what the good faith basis is for this line of inquiry.
2 JUDGE ORIE: Mr. Hedaraly.
3 MR. HEDARALY: I am more than happy to acquiesce to Mr. Kehoe's
4 request. My question was regarding any documents indicating the timing
5 of the receipts of the reports. And I was specifically on my mind had --
6 wasn't going to show it to the witness because he said he had no
7 knowledge, but I was referring to P2194 which, unless I have misread it,
8 is a warning from General Gotovina regarding the timing of the receipt of
9 reports because it may be addressed at the wrong place, and, therefore,
10 there is some delay, with the caveat that have I now summarized it, so
11 perhaps not 100 percent right.
12 JUDGE ORIE: Yes. Let me say the following.
13 We hear the testimony of an expert witness who mainly focuses on
14 documentary material and, to some extent, at least who is also aware of
15 some of the testimony this Chamber received.
16 Now, if a witness says something about a document and says, Well,
17 General Gotovina was not informed about it, of course, this is understood
18 by the Chamber as the witness looking at the documents, seeing that the
19 document reveals no information whatsoever that it would have been copied
20 to. That's how -- I don't know how a jury functions. I never was on a
21 jury, so I do not know whether my brain would function in any other way.
22 But that is the context in which this evidence is received.
23 And then if would you say, But you say he was not informed, but
24 do you actually know? Of course, that question makes only sense if there
25 is any reason, first of all, to believe that what the witness said was
1 anything more than what he deduces from the document; and, second, that
2 he would have any knowledge, own observation, et cetera, which would
3 justify to spend time on additional questions to be put to the witness,
4 in order to elicit all the information he may have on the case.
5 That is some general observation. Well, if you ask a witness
6 totally without a foundation whether he has any knowledge, where we would
7 not expect him to have any knowledge, that's a waste of the time, but, at
8 the same time, also not a reason to -- well, to be too much upset about,
9 apart from the waste of time, of course, that's certainly a reason for
10 being upset. But I tried to explain how the Chamber understands and
11 appreciates the evidence in the context of the witness which appears
12 before us. It might have been totally different if it would have been
13 someone who was there at the time, who's commenting on documents but may
14 have some additional knowledge about what happened in reality as well.
15 Here, it has not been established, apart from what the witness
16 told us about his experience in the former Yugoslavia, that he has any
17 specific knowledge going beyond what he saw in the documents and what he
18 has heard and read, in terms of the testimony given by other witnesses.
19 May this be guidance for you, Mr. Hedaraly, to keep focussed on
20 what we could realistically expect from this witness.
21 And for the Defence not -- well, to -- to save then a --
22 MR. HEDARALY: Thank you for the guidance, Mr. President.
23 I think the Chamber can understand this witness also draws some
24 very broad conclusions sometimes based on documents. So simply asking
25 him he had considered -- had seen any of that evidence. And that was
1 all. I wasn't going to go into any more detail. And he answered that he
2 didn't have knowledge of it, and I was glad to move on, not to waste the
3 Chamber's time. But have I kept that --
4 JUDGE ORIE: You have done that several times, Were you a wear of
5 this? Were you aware of that? And I didn't hear any objections about
6 that because it enables the Chamber to assess what this expert witness
7 has considered and what he has not considered in writing his report and
8 drawing his conclusions.
9 Then, Madam Usher, could you please escort the witness into the
10 courtroom again.
11 MR. KEHOE: If I may, Mr. President, if we are going to go into
12 this exhibit, P2194, it's outside the indictment period. This is
13 15 November and was not on Prosecutor's witness list either to be used.
14 Exhibit list, excuse me, to be used. But I trust that -- the nodding of
15 my learned friend across the well is that we're not going to go into
17 JUDGE ORIE: Mr. Hedaraly.
18 MR. HEDARALY: If I have understood the Chamber' guidance
19 correctly, I will not be going into that document, nor was I planning to.
20 JUDGE ORIE: I don't know whether you have understood it
21 correctly or not, but apparently you are determined not use it, and
22 that's what -- that was the matter to be considered and determined.
23 [Trial Chamber confers]
24 [The witness takes the stand]
25 JUDGE ORIE: Mr. Deverell, you earlier said you had nothing to
1 hide. The Chamber has nothing to hide either, but if you want to know
2 what we discussed in your absence, the transcript is available to you --
3 THE WITNESS: Thank you.
4 JUDGE ORIE: -- after.
5 Please proceed, Mr. Hedaraly.
6 MR. HEDARALY: Thank you, Mr. President.
7 Q. We finished dealing with D267, which were the 2 August order that
8 we saw that you had claimed was ambiguous, if you remember?
9 A. Yes, I do.
10 Q. Which now takes us to D47, which is the order from
11 General Lausic, cancelling D267. Were you aware of that -- were you
12 aware that relationship between D47 and D267, because I have not seen it
13 in your report.
14 A. Let me look, and I'll be able to tell you.
15 Yes, I think I am. I think I am. Could you scroll down, please.
16 Yes, I do. The phrase "the degree of combat readiness shall be
17 maintained," I remember, as a specific part of it.
18 Q. I'm sorry, maybe I was asking whether you remembered -- were you
19 aware of the relationship between this order and D267. I'm asking you
20 this question because I didn't see it in your report.
21 A. No. I think I am -- I am aware of the relationship. If I'm not,
22 I'm sure you will tell me.
23 Q. I was simply asking you a question about whether you knew or not.
24 You can see that "I hereby order" at the bottom of the page in
25 English and --
1 A. Yes.
2 Q. -- it says to invalidate item 1 of the order, strictly
3 confidential. And the number that you see there is the one for D267.
4 A. Yes.
5 Q. And other provisions of this document, you will recall, cancel
6 various portions of D267. And if you were not aware of that, well, you
7 are now. And so it took us -- so on 14th of August, this went back to
8 the general situation, having cancelled D267, the general situation under
9 Articles 8 and 9.
10 The last page of this document, paragraph 14, the last sentence:
11 "In daily operational command, subordinate the commanders of the
12 newly established platoons and company of the Knin military police to the
13 most senior HV commander in the zone of responsibility and send the daily
14 report to them."
15 Were you aware, sir, that General Lausic testified that the
16 Knin Company commander would come under the garrison command, as that
17 would be the highest HV command in the area. Were you aware of that
18 testimony by Mr. Lausic?
19 A. I was not aware of that testimony by Mr. Lausic. Is this -- is
20 it for daily tasks?
21 Q. Yes, it is.
22 A. It is for -- right. And did he say under the command, or ... as
23 I haven't seen the -- the document, perhaps before I comment I should be
24 able to see that document.
25 Q. I just wonder if you were aware of it or not, that there is some
1 -- I don't want to show you a statement of another witness.
2 JUDGE ORIE: Mr. Hedaraly, you asked whether the -- Mr. Deverell
3 was aware that General Lausic testified, and then you touched upon the
4 content of his testimony. If you would have asked him, are you aware
5 that he testified on this matter, then we could have left it as it was.
6 But since you now summarise what the testimony was, if you want an answer
7 to that question and the witness already answered it, but then said,
8 Well, I'd like to verify first, in order to be sure that my answer is
9 accurate or not.
10 So there are two options. Either you should say the Chamber
11 should ignore the answer, the question should not have been put by me in
12 this way; or you give an opportunity to Mr. Deverell to look at it, or to
13 summarise it in such a way that Mr. Cayley sits down again.
14 MR. CAYLEY: Could I make some observations and I'll talk in
15 neutral terms, Your Honour, because I think you'll probably know what I'm
16 referring to.
17 But we also know of course the difficulty in Mr. Hedaraly putting
18 that evidence in that manner is the witness was cross-examined. And
19 without going into the details of that cross-examination there was
20 actually specific cross-examination on this particular provision by
21 Mr. Kay. And what I would respectfully submit to the Court is that if
22 the evidence is going to put in this way, and we have been around this
23 buoy before, then the totality of the evidence should be put to the
24 witnesses and not just in isolation. I know you will probably say to me,
25 Well, do that in re-examination, Mr. Kay. But the problem with that is
1 the consequence of simply putting half of the evidence or a quarter of
2 the evidence is that it ends up with me today or tomorrow having to go
3 back to that transcript and having to do an extensive re-examination on
4 the evidence that the witness gave when Mr. Kay cross-examined him.
5 So my submission would be is that either Mr. Hedaraly puts all of
6 the evidence to this witness, or he simply asks, Are you aware of this;
7 no. And then moves on. Because asking this witness to agree with what
8 General Lausic said without actually putting what General Lausic said in
9 its entirety is unfair and it's misleading and I don't really think helps
10 the Court, Your Honour. Thank you.
11 JUDGE ORIE: May I make two observations in this respect. As I
12 said earlier, you can't ask a witness whether he agrees or not with the
13 testimony on the basis of just a very short summary. That -- I do,
14 however, not fully agree with you, Mr. Cayley. I think it's for a
15 cross-examining party can rely on what it considers to be reliable and
16 credible evidence and may choose for that purpose either evidence in
17 cross-examination or evidence given in chief. And, of course, then for
18 the other party, they still to complete that picture, especially if the
19 evidence is contradictory and not knowing whether -- what the evaluation
20 of the Chamber of that evidence will be. Under those circumstances, it's
21 not -- it's not prohibited to put not all of the evidence, of course, in
22 a situation where another interested party can put other parts of that
23 evidence to the witness.
24 At the same time, Mr. Hedaraly, if we do not find ourselves in
25 such a situation; for example, if the witness in cross-examination has
1 not said something different or just clarified, then, of course, it's a
2 waste of time not to put all of it right away to the witness, because
3 otherwise we would not -- we would not receive the evidence, which
4 assists us best in making the determinations we will finally have to
6 So the situation -- I do not fully agree with you in every
7 respect, Mr. Cayley, but I would say 70 per cent of it is good enough for
8 Mr. Hedaraly to carefully think it over, if he does not put all of the
9 evidence in relation to a certain matter to the witness; but he is not
10 under all circumstances obliged to put it all to him.
11 Please proceed.
12 MR. HEDARALY: Perhaps I can simplify matters.
13 Q. General, were you aware of General Lausic's testimony regarding
14 the relationship between the Knin Military Police Company and the
15 Knin garrison command?
16 A. No. Sorry, no.
17 Q. Thank you.
18 JUDGE ORIE: Mr. Hedaraly, may I take it from this way in which
19 you followed up the objections and the observations by the Chamber, that
20 you would invite the Chamber to ignore the earlier "yes" by -- as an
21 answer, and I will be very specific there --
22 MR. HEDARALY: That is correct, Your Honour. I took the first
23 option proposed to me by the Chamber earlier.
24 JUDGE ORIE: Yes. So the Chamber will not consider the evidence
25 by this witness where he agreed with your -- and let me -- if you could
1 assist me in finding the right page and number so that we are ...
2 MR. KAY: 49:6.
3 JUDGE ORIE: 49:6.
4 MR. HEDARALY: It's actually 49:4 and 5.
5 JUDGE ORIE: Well, I noticed earlier that there is an slight
6 discrepancy between the line numbering in some of the systems.
7 Yes, the -- everything else asked from this witness and the
8 further inquiries he made into what the content of the testimony is, the
9 Chamber will ignore that, and the Chamber will pay attention only to the
10 fact that this witness was not aware of the testimony of General Lausic,
11 regarding the relationship between the Knin Military Police Company and
12 the Knin garrison commands, where he said that he was not aware of it.
13 Please proceed.
14 MR. HEDARALY: Thank you, Mr. President.
15 Q. General, you were also asked yesterday a question by Mr. Kehoe at
16 transcript 24193 where he suggested to that you General Lausic took a
17 significant step in ensuring his personal control and that of the
18 military police over controlling military police criminal investigations
19 by requiring reporting to Major Juric.
20 Do you remember that question by Mr. Kehoe?
21 A. Yes, I do.
22 Q. Were you aware of the fact that Mr. Simic, who was a crime
23 investigation police officer, testified that he did not report to
24 Major Juric, that he came under the command of the HV and that crime
25 investigation were part of his daily activity?
1 JUDGE ORIE: Mr. Kehoe.
2 MR. KEHOE: Mr. President, I'd like a transcript reference, page,
4 MR. HEDARALY: P --
5 MR. KEHOE: I would also like an opportunity to check that.
6 MR. HEDARALY: P967, paragraph 16.
7 [Prosecution counsel confer]
8 MR. HEDARALY: Mr. President ...
9 JUDGE ORIE: Yes, Mr. Hedaraly.
10 Well, it -- under normal circumstances, I would -- I would take
11 the view that every party is expected to summarise any piece of evidence
12 he wants to put to the witness in a most accurate way, and that unless
13 there's any reason to believe that there might be mistakes there.
14 However, in view of the experience of today on several matters, I
15 think the best way to proceed is, first, to ask the witness whether he is
16 aware of evidence without yet summarizing it, just touch upon what it is
17 about, rather than what it is, and then immediately give the source to
18 the -- to the Defence so that they can immediately check whether any
19 summary they could expect if the witness answered that question by yes is
20 accurate or not.
21 MR. KEHOE: Mr. President, if I just can interject. At this
22 point what the Prosecutor alluded to in the -- with regard to that
23 testimony is not in evidence, and I direct the Chamber to -- and what I'm
24 say something is he just referred to paragraph 16 and P967. I address
25 the Chamber to the proofing note for the witness at P968, line --
1 paragraph 4, where he notes in paragraph 16:
2 "It is stated that the commanders of the units in the field
3 reported to the Military District command about the committed crimes. I
4 cannot confirm that claim because I have no knowledge about it."
5 So, what he put was -- in paragraph 16 of P967 when he was called
6 by the Prosecutor, the witness backed off of it in P968, paragraph 4 of
7 the supplemental witness statement, so ...
8 JUDGE ORIE: If there's any -- it's still for the Chamber to
9 decide. It is not automatically that everything a witness stays later
10 makes the earlier statement in every respect and under all circumstances
11 not to be used. It will depend on many circumstances, although we would,
12 as a starting point, accept if a witness -- if a witness corrects his
13 statement. We'll look at all kind of circumstances, such as under what
14 circumstances the statement was taken, under what circumstances the --
15 the supplementary statement is, or the corrections are made.
16 At the same time, as I said before, it may -- in most of the
17 cases be a waste of time just to put half of the testimony of a witness
18 to a new witness.
19 But again, the first question I would have asked of this witness
20 is whether he is aware of the testimony by Mr. Simic on a certain matter.
21 Because if the answer is no, then we can just avoid all these kind of
22 discussions which lead us to nowhere.
23 So, could you please rephrase your question, just asking this
24 witness, without summarizing the content, but just referring to the
25 subject matter of the testimony, whether he has seen it and whether he
1 has considered it when drafting his report and forming his opinions.
2 MR. KEHOE: Mr. President, just one comment on that regard. The
3 statement that counsel read in paragraph 16 of 967 is not in evidence.
4 It hasn't been 92 ter'd because -- pardon me using Rule 92 ter in the
5 verb. But has not been admitted in evidence pursuant to 92 ter because
6 that portion of the statement he did not acknowledge that he would say
7 this or attest to were he asked those same questions in court.
8 Accordingly, that portion of paragraph 16 alluded to by Mr. Hedaraly is
9 not in evidence.
10 JUDGE ORIE: We'll have to consider whether it is or it is not --
11 what I see in this document, some portions were specifically taken out.
12 For example, paragraph 17 is not in evidence. It has been blackened out.
13 And therefore before ever -- but, again, that, we're not discussing at
14 this moment exactly. I invited Mr. Hedaraly to rephrase his question in
15 such a way that if there is no need to have all this trouble to avoid it.
16 Mr. Hedaraly, could you please rephrase your question.
17 MR. HEDARALY: Yes, Mr. President. Thank you.
18 JUDGE ORIE: And, Mr. Kehoe, in addition, you will understand
19 that not on my mind I remember every single detail of what the
20 attestation was about, not being prepared on these kind of details in
22 MR. KEHOE: And I appreciate that, Mr. President.
23 JUDGE ORIE: Thank you.
24 Please proceed, Mr. Hedaraly.
25 MR. HEDARALY:
1 Q. General, were you aware of Mr. Simic's testimony with regard to
2 the reporting of crimes -- of crime investigations to Major Juric or not?
3 A. No, I was not.
4 JUDGE ORIE: Well, you're invited to, if we are in a similar
5 situation, put the first question, as I already asked you before. I
6 think my last observation was if you would please introduce the matter in
7 the way in which you did it now, not in the way you did it earlier,
8 because that really could, I'm not saying will, but could save quite a
9 bit of time.
10 Please proceed.
11 MR. HEDARALY: Thank you, Mr. President.
12 Q. I want to turn briefly to -- in your report when you discuss the
13 crimes that took place in Sector South and the fact that General Cermak
14 would have undoubtedly been aware of their occurrence and that there were
15 times when there were discrepancy between what the internationals
16 reported and the official version of the Croatian government and that in
17 those cases he was not trying to mislead the internationals but he was
18 simply accepting the version that was given to him. And you gave the
19 example of Grubori, for example.
20 Do you remember that?
21 A. Yes, I do.
22 Q. Were you aware of the portion of the interview General Cermak
23 gave to the Office of the Prosecutor regarding an argument that he may
24 have had with General Tolj regarding those crimes?
25 A. I'd like to see it before I say that, please.
1 Q. Okay. It's at P2525, and it's page 21.
2 JUDGE ORIE: Would you also give me the page reference in the
3 report where the ...
4 MR. HEDARALY: Yes. I think it's towards the end. I think it's
5 page 55 -- there's a -- that discussion is at several places. Page 55 is
6 one example.
7 And just for the full context, if we can go to the page before,
8 just so that we can see the full answer and the question. Go to bottom.
9 Q. You said line 31, there is a question:
10 "Who else were you not popular with in the military? You mention
11 Mr. Susak. Who else?"
12 If we can go to the next page, it starts at page -- at line 5.
13 MR. KEHOE: Mr. President, I don't mean to interrupt counsel, but
14 my client needs to be able to read -- or the accused need to be able to
15 read these things that are being read into the record, if he can.
16 MR. HEDARALY: The problem that I alluded yesterday, and I
17 checked overnight, is for some reason there is no full B/C/S translation.
18 There is a mixed B/C/S-English, and we're trying to resolve that. And I
19 do apologise to those following in B/C/S. I tried to have the video-clip
20 so that they could listen to the original, but there is some technical
21 issues, I was told, and it is not synced properly. So I didn't want to
22 use it, but the witness asked to look at it, so I really apologise for
23 that. I will read it slowly so that everyone can follow.
24 MR. KEHOE: [Microphone not activated] I'm guided by Your Honours
25 decision in this. I'm not quite sure how which should proceed.
1 [Trial Chamber confers]
2 JUDGE ORIE: The Chamber considers it very unfortunate that we do
3 not -- cannot give, at this moment, direct access to the accused but
4 fully accepts that if this is verified or, if on the basis of further
5 discussions with your client, that you would like to revisit the matter
6 or that you would claim that Mr. Hedaraly has not appropriately put to
7 the witness what was in evidence, that you have a full opportunity to do
9 MR. KEHOE: Mr. President, I certainly don't want to interrupt,
10 but so the Chamber understands, we engage with the clients as all
11 Defence counsel do, and it is simply a matter when something comes up
12 often times they want to give us a note or say something about a
13 particular comment to put it in context. And it's in that in vein and
14 not to interrupt counsel's line of inquiry that I'm raising this.
15 JUDGE ORIE: Yes, and even if during this hearing you would like
16 to further discuss or need a break for that purpose, it will be given to
17 you, because everything that is available to us to -- to counterbalance
18 this unfortunate situation will be -- will be given to you.
19 MR. KEHOE: Thank you, Mr. President.
20 JUDGE ORIE: Please proceed, Mr. Hedaraly.
21 MR. HEDARALY: Thank you, Mr. President.
22 Q. Let me read from the document for the record and for the
24 "I also had a telephone duel with General Tolj. General Tolj
25 was in charge of political work and the media as well, and he was also
1 the spokesperson of the Ministry of Defence during Storm. Oftentimes in
2 the media in Slobodna Dalmatia and other papers, I criticised the
3 situation. I said that things are happening and it's actually a shame,
4 that some things for Croatia
5 Slobodna Dalmatia I said that some members of the Croatian military are
6 to blame for what happened and that some of the blame must be put on the
7 military commanders because they have to check the military on the ground
8 and that not everything can be done that people were doing.
9 "And two days later there was an article in the newspaper where
10 General Tolj was quoted saying that on the ground the Croatian military
11 isn't doing anything, that these were some civilians who were dressed in
12 military uniforms, looting and burning. And there was a huge article, my
13 article was tiny, his was a huge article, and it said, The crimes in this
14 area are not being committed by the Croatian military according to
15 reports by the military police but that this was being carried out by
16 civilians who were dressed up, which was not true. And I called him on
17 the telephone. I told him, saying, You're sitting there in Zagreb
18 don't even know what the situation on the ground is. And the truth is
19 what I'm telling you, I'm telling you now. Such articles don't really
20 help anybody, they're just negative because hiding and lying won't help
21 anybody. And I said some nasty things to him, that ... he said, Well,
22 don't be upset with me, you know that ... there are people higher up.
23 So, then he sent me basically ... and that was the last I heard from
25 Had you seen that exchange before?
1 A. I don't recall that piece. I have seen several bits of the
2 transcript of General Cermak being interviewed. But I don't recall that
4 Q. Can I ask you how did you select which portions of the
5 transcripts to read? Because I know they're voluminous --
6 A. No, I just -- I mean, I selected because I was looking through,
7 and I was looking for things which interested me. Clearly, I didn't see
9 Q. So you were flipping through the transcripts just generally
10 looking for information?
11 A. I was looking for particular words, particular things which were
12 of interest. I mean, that's the way I doing my work.
13 Q. I'm just trying to understand.
14 A. Yes.
15 Q. And I can just tell you that you the date of the newspaper
16 article that is referenced is 7 September. The article is in evidence as
17 D59. And I don't know if have you seen the article itself or not.
18 A. I have seen several articles, but --
19 Q. Well, it doesn't -- I mean, for the purposes of my question -- if
20 you need to refer back to it, let me know.
21 A. I'm happy to focus on this particular piece of paper at the
23 Q. So on that occasion, and I appreciate that's in September, around
24 -- a few days after the 7th, General Cermak is arguing with General Tolj
25 regarding who's committing the crimes; correct?
1 A. Yes.
2 Q. So if, after this conversation, General Cermak told
3 internationals that crimes were committed by non-soldiers or civilians
4 dressed in military uniforms, would that change your conclusion regarding
5 the fact that he was simply accepting a version without knowing really
6 what was happening?
7 A. No. I don't think this -- I don't think this tells you that he
8 knew what was happening. I think this -- this has a very interesting --
9 you could -- you could look at many countries to find that this sort of
10 conversation was going on and the times of great national crisis and
11 stress of people between those who sit in the headquarters and those who
12 are on the grounds. And -- and you may have noticed -- well, you were
13 reading that I was smiling while I was reading this because I think, you
14 know, being a soldier we have all experienced this.
15 It -- it highlights the -- the problem that I alluded earlier.
16 And I would just like that make this comment to add context to it. The
17 problems of having a person who de facto becomes a spokesman and somebody
18 who has command responsibility. I don't think it, to me, changes the
19 issue that Cermak, who consistently is being given general information
20 about crimes by Brigadier General Forand, and you will remember that he
21 asks for evidence, and we may be discussing that at some stage in the
22 future, where General Cermak asks the letter where he talks about
23 insinuations. And General Forand and I make a comment in my report that
24 I was surprised that the United Nations or UNCRO, that their staff work
25 was, I would say, not particularly high standard at the time because they
1 had not provided General Cermak with specific evidence beforehand. And
2 that he was dealing in generalities.
3 It doesn't change my view that at Grubori he chose to give the
4 version which was that which he felt was the true one. And because he a
5 television camera there, I guess he wanted to make the best of what he
6 felt was actually, at the time, a success. The capture, killing of some
7 renegade Chetniks.
8 Now, the truth of the issue is another matter. And we may
9 discuss that later.
10 But what I'm trying to say is that this, to me, doesn't change --
11 the fact that he has had this row on 7th of September doesn't actually
12 mean that what he says afterwards is being influenced by General Tolj.
13 It might do. It would be a reasonable assumption. But I -- I guess that
14 there will be another, an alternative view which I might take that he
15 continues to act as the spokesman and he continues to give a view of
16 incidents which reflect his country's view in the absence of specific
17 information which subsequently he gets, as I recall, from United Nations.
18 Q. And just to go back on your answer because it was quite lengthy.
19 A. Hmm.
20 Q. When you talked about this common occurrence between someone on
21 the field and someone in an office in Zagreb, General Cermak would be the
22 one who would have the better information than General Tolj since he was
23 in Knin and General Tolj was in Zagreb
24 Is that a reasonable interpretation?
25 A. It is not actually a reasonable interpretation, and this is the
1 paradox. Because sometimes the person who is sitting at the heart of the
2 communication system will have better information than somebody who has
3 got a relatively narrow view of what he sees in -- in -- within his
4 precise area.
5 So one must be careful before we make that -- that distinction as
6 a matter of course. In my -- in my personal experience, normally the
7 person on the ground understands what's happened on ground more clearly
8 but may not be able to put the -- may not be able to put it into its
9 context in a way that somebody further back with more information can.
10 But we're in very difficult areas here, and it depends on personalities
11 and your command and control system.
12 Q. Let me talk briefly about a few topics, and I will address them
13 fairly rapidly and none of those are issues that we necessarily deal --
14 have to deal with in some detail. Perhaps we may decide to, but at this
15 moment --
16 And the first one is in your report, at page 15, when you are
17 discussing the structure of garrisons generally and what they usually are
18 limited to. One of the examples that you give at line 9 is that they
19 would be responsible for traffic control.
20 Do you see that?
21 A. Yes, I do.
22 Q. Now, would check-points fall under traffic control?
23 A. They could do. Although, I'm sorry, just can I clarify that?
24 Q. Sure.
25 A. It's -- the exact phrase is within line 9: "Within their
1 garrison such as regulations for the use of facilities." Regulations,
2 therefore, for traffic control for speed limits.
3 So it is more about -- that line is more about -- the regulations
4 is more about having a 30 mile an hour -- or 30 kilometre an hour speed
5 limit, and where it might be than the physical placing of check-points,
6 their regularity, when they are to be, what they are to do.
7 Q. But check-point would regulate traffic as well.
8 A. Well, the check-point might be the means of regulating traffic.
9 What I refer to here is the instructions, the regulations that that
10 check-point would be monitoring or imposing.
11 So one is -- one is, as it were, procedure, that the -- the
12 production of a procedure; and the other is the imposition of that
13 procedure, the ensuring that that procedure is followed.
14 Q. And at page 43 of your report, you talk generally about freedom
15 of movement. And you then cite a few documents, suggesting that
16 General Cermak's granting freedom of movement was unclear. You refer to
17 one early example from 8/9 August and the one from 7 October as well.
18 Those are the two examples that you use in your report.
19 A. Yes.
20 Q. General, this Chamber has also received evidence and reports of
21 internationals which showed that, upon either a phone call to
22 General Cermak or sometimes even a threat of a phone call to
23 General Cermak, they were allowed to go through a check-point when they
24 were initially stopped.
25 Did you review that evidence --
1 MR. CAYLEY: Your Honour, could we have some kind of citation for
2 this. Can you ground that in an exhibit or a transcript or --
3 MR. HEDARALY: Absolutely. I'll give a few examples from the
4 ECMM reports P511, P818, P1294 and the testimony is generally of, for
5 example, Eric Hendriks.
6 Q. Did you see any such documentation, General, and if you did, can
7 you tell us why you didn't reference it?
8 A. I -- I did. I know that freedom of movement increasingly became
9 a reality. But to go to my words, if I may, line 12. "His name and
10 authority did not always carry much weight."
11 Now, implicit in "did not always," I meant to show that sometimes
12 it did. What I was demonstrating there was that his authority, much as
13 it might have been, did not spread particularly far. There was still
14 evidence that people didn't know who General Cermak was, or would not
15 accede to a pass or the use of his name.
16 At all stages in this particular part, I'm talking about a
17 situation which was very unclear, and I'm trying to identify that the --
18 that the simple -- the simple assessment that General Cermak had
19 authority because he wrote the order, that even if some people obeyed
20 that order, it did not go very far. The --
21 JUDGE ORIE: Mr. Deverell, would you mind if I took you back to
22 the question.
23 THE WITNESS: Yes.
24 JUDGE ORIE: The question was whether you had considered evidence
25 to the effect that, when initially stopped at check-point, whether a
1 phone call or the suggestion that a phone call could be made changed the
2 attitude of the person who stopped and a phone call to General Cermak?
3 Did you -- are you aware of, and did you consider it?
4 THE WITNESS: Yes. Excuse me, Your Honour. I am aware of it
5 because it rings a bell. I was not specific -- I can't specifically
6 quote an example. And I -- I chose not to produce a footnote, an example
7 of that.
8 JUDGE ORIE: And that was part of what you said when I said
9 mainly, that sometimes it did.
10 THE WITNESS: Yes, absolutely.
11 JUDGE ORIE: Yes, please proceed, Mr. Hedaraly.
12 MR. KEHOE: Mr. President, may I just raise one issue. And this
13 has happened several times. I mean, we ask for a frame of reference for
14 a particular line of questioning, and our procedure has been throughout
15 this trial to disclose the exhibits that were going to be used in
16 cross-examination. And P511, P518, P1294 that just were cited in
17 response to the question raised by Mr. Cayley have not been disclosed as
18 documents that are going to be used by the Prosecution.
19 Now, again, maybe I should have raised this when this began, but
20 this is not the first time this has transpired. If we are going properly
21 prepare --
22 JUDGE ORIE: [Overlapping speakers] ... to start with. The
23 factual information Mr. Kehoe is providing is correct, Mr. Hedaraly?
24 MR. HEDARALY: I was not planning to use them, Mr. President.
25 Until I was asked to provide a reference, I did not show them to the
1 witness. I simply asked if he was aware of general information with
2 respect to that.
3 JUDGE ORIE: Yes. At the same time you are referring to very
4 specific events, and you are asking about the evidence which shows. And
5 therefore under those circumstances even if you would not intend to use
6 that, the statements or the specific evidence, of course, the first thing
7 you could expect is that the Defence would say, Where do we find that?
8 So, therefore, perhaps you would discuss further, perhaps among
9 the parties, how to deal with these matters. Because I notice that there
10 is a - and I'm looking in both directions - that the flow of evidence is
11 more interrupted than not interrupted, and we should try to find ways to
12 avoid this.
13 Please proceed.
14 MR. HEDARALY: Thank you, Mr. President.
15 Q. You discussed yesterday the order for active defence which was
16 D281, you will recall.
17 MR. HEDARALY: If we can have that on the screen.
18 THE WITNESS: Could I have the page reference, please.
19 MR. HEDARALY:
20 Q. It was in court yesterday you discussed --
21 A. I'm sorry.
22 Q. I think you referred to it in your report as well, but --
23 A. Yeah, I do.
24 Q. -- I'm focussing on yesterday.
25 And you were shown the organisational chart on the last page, you
1 will recall?
2 A. I do.
3 Q. And that organisational chart did not include the Knin garrison,
4 as the Knin garrison command is not an operational entity; correct?
5 A. That's my judgement, yes.
6 Q. And you also discussed yesterday, I think Mr. Cayley showed you
7 two elements in that report about the 4th and the 7th Guards Brigades, to
8 be resting in Knin?
9 A. Yes.
10 Q. And I've also noticed that we don't see on this organisational
11 chart the 4th and the 7th Guards Brigade. Do you have any knowledge as
12 to why they are not included?
13 A. I believe that is because, of course, they were not part. They
14 were in reserve, not part of the -- that part of the operation. I mean,
15 that is a judgement I make.
16 Q. And you've -- you also noted that this particular order was not
17 copied to the Knin garrison.
18 A. Yes.
19 Q. And that that surprised you as well.
20 A. Well, it didn't surprise me. It -- necessarily that it merely
21 identified -- and I was using this as -- as another part of the proof
22 that Knin garrison was not part of the operational element of Split
23 Military District.
24 Q. And if we look at P1219. And we see there at the second
25 paragraph of a report from General Cermak to the Main Staff:
1 "The Split Military District and the Knin garrison command are in
2 constant coordination."
3 Did you see that?
4 A. Yes, I recognise that.
5 Q. What -- what would it mean to be in constant coordination?
6 A. Well, you would expect to find reports and returns or
7 discussions. Of course, there may have been discussions on the telephone
8 which are not recorded here. There would have been some sign that that
9 coordination was taking place.
10 Q. Now, this was a report that was in response to the order that we
11 saw yesterday, the last document that was shown to you by Mr. Kuzmanovic.
12 I don't know if you remember it. If you want me to pull it up for you so
13 that ...
14 A. I think can I remember it. If I need to pull it up, if I may, I
15 will ask you.
16 Q. Of course.
17 A. But ...
18 Q. That was an order to the -- remember that the one of
19 mistranslations of Knin garrison, rather than Knin Military District?
20 A. Yes.
21 Q. That may jog your memory. And that was an order requesting
22 information from all Military Districts and the Knin garrison?
23 A. Yes.
24 Q. And this is the response to that -- to that order.
25 And it says -- I read the first sentence already about the
1 constant coordination. And then it continues:
2 "The intelligence assessment regarding this order was made by" --
3 MR. HEDARALY: If we can turn the page.
4 Q. "... by the chief of the intelligence Department of The Split
5 Military District Command. If we were do submit the same, I would
6 consider it a repetition of work."
7 Now, in your report, at page 30, you said:
8 "More likely, he" -- being General Cermak, "did not have the
9 physical means to do it."
10 Can you tell us what's the basis for that statement that more
11 likely he did not have the physical means, rather than what we see on
12 paper which is that they were in constant coordination and, therefore, it
13 was unnecessary?
14 A. The reason I said that he didn't have the physical means to do it
15 was, Your Honour, quite simply, that it enabled me to identify a time or
16 an example when the lack of numbers in his headquarters and the lack of
17 skill sets -- I'm sorry it's a jargon word. The lack of relevant skills
18 would have prevented him from, in my judgement, producing what the chief
19 of the Main Staff wanted.
20 That was -- that was a point that I was trying to draw out. I
21 believe, and I think I -- I said in my report that, of course, there are
22 two interesting aspects here. One is that I'm not entirely certain what
23 the Chief of the Main Staff was doing writing to a subordinate
24 headquarters, where he should have been actually writing to
25 General Gotovina, and it was for General Gotovina to task General Cermak
1 to conduct that particular piece of work. And I -- I suggest that there
2 is some human element in here, and it is General Cermak trying to find a
3 reason why he should not do that work because he was not inclined to do
4 it because he was to busy doing other things. And as we here from the
5 commander Sector South in several of his reports or at least one of his
6 reports, you know, General Cermak is a very busy man.
7 So that -- that would be my -- my view of that slightly looking
8 under the surface of it. I tried to -- to get some reasonable deductions
9 from that -- from that particular document.
10 Q. General, thank you very much for answering my questions.
11 MR. HEDARALY: Mr. President, I have no further questions.
12 JUDGE ORIE: Thank you, Mr. Hedaraly.
13 We were scheduled to have the break at 3.00. I wonder whether we
14 should take the break first.
15 Mr. Cayley.
16 MR. CAYLEY: Could I just have a moment to consult with Mr. Kay,
17 Your Honour, if we take the break now. I would like ...
18 JUDGE ORIE: Yes. Then we will have a break, and we will resume
19 at quarter past 3.00.
20 --- Recess taken at 2.50 p.m.
21 --- On resuming at 3.18 p.m.
22 JUDGE ORIE: Mr. Cayley.
23 MR. CAYLEY: Your Honour, we don't have any further questions for
24 the witness. Thank you.
25 JUDGE ORIE: Thank you, Mr. Cayley.
1 Mr. Kehoe.
2 MR. KEHOE: Mr. President, I have a few, just very briefly.
3 JUDGE ORIE: Yes. Please proceed.
4 Further Cross-examination by Mr. Kehoe:
5 Q. General, I would just like to clarify a few issues that came up
6 during the cross-examination by Mr. Hedaraly. And I would first like to
7 go back to address the active defence order D281.
8 MR. KEHOE: If we could put that on the screen.
9 Q. And if I could turn to paragraphs 5.4 and 5.5. Again, that's the
10 active defence order of 9 August 1995
12 If could you help -- thank you. Okay.
13 Now, General, when we were discussing these two units, and you
14 were asked about the non-presence of these brigades on the organigram.
15 You noted on page 68, line 12:
16 "I believe this is because, of course, they were not part. They
17 were in reserve not part of that operation. This is a judgement I can
19 Now, if wee look at 5.4, 5.4 notes that:
20 "Only a -- if we say -- HV 4 Guards Brigade shall be withdrawn
21 from the front line in order to take a break to be replenished and to get
22 ready for further combat activities."
23 Now, in your experience, General, that's R and R, rest and
24 relaxation for the troops; isn't it?
25 A. Yes. Could be considered to be that.
1 Q. And the Split Military District commander shall have in reserve
2 one HV 4 Guards Brigade Infantry Battalion. And that's the battalion
3 that was in the Knin barracks.
4 So with regard to the 4th Guards Brigade, we have one battalion
5 that's in reserve, and the rest of the battalion is on rest and
6 relaxation. Isn't that right?
7 A. Whether can you call it rest and relaxation, a break and to be
8 replenished, technically. I mean, I don't know what they would have been
9 doing. But I guess that they would have been relaxing by default almost
10 because they were not fully employed.
11 Q. And you were -- were you aware that the 4th Guards Brigade was
12 out of the Split
13 A. Yes, I was. I -- I know -- I know that one was, as it were,
14 organic to Split Military District and one was not. I couldn't remember
15 off the top of my head which one was.
16 Q. Well, let's turn our attention to 5.5 which is the comment on the
17 7th Guards Brigade. And it notes:
18 "HV 7 Guards Brigade shall be withdrawn from the front line in
19 order to rest and replenish and again to get ready for further combat
20 actions -- activities. Split Military District commanders shall have in
21 reserve one HV 4 Guards Brigade company." And I think that should read,
22 if I'm not mistaken --
23 A. It should read 7.
24 Q. In the original it is the 7th.
25 MR. KEHOE: Mr. President, I think in the original we can agree
1 it says the 7th. If we look at 5.5. I don't speak Croatian but the
2 Arabic numerals are the same, 7 and 7.
3 JUDGE ORIE: That seems fair to me.
4 MR. KEHOE:
5 Q. In any event, General, again, we have a company of the 7th Guards
6 Brigade -- excuse me.
7 [Defence counsel confer]
8 MR. KEHOE: Mr. President, I am also told by Mr. Misetic that
9 this should be a battalion and should not read company, as we see in the
10 document. And we will have that changed and share with our colleagues
11 across the well and upload it.
12 Q. In any event, General --
13 JUDGE ORIE: I think under those circumstances, if there are
14 already two mistakes in one paragraph, that the whole of the translation
15 should be revised, and since it appears as an unrevised translation,
16 proper attention should be paid to it.
17 Please proceed.
18 MR. KEHOE: Yes. In any event, General, we yet another element
19 the 7th Guards Brigade, a portion of them is in reserve and the rest are
20 on rest and relaxation. Yes.
21 A. Yes, I'm sorry, yes.
22 Q. And by the way, General, that's something you would expect after
23 combat activities, to send your troops out for rest and relaxation away
24 from the area to get them ready for further combat activities. Is it
1 A. That's correct.
2 Q. Now, if can I address -- again, I'm going to be jumping around to
3 some issues here. And I would like to go back and talk a little bit
4 about the request by General Cermak of D304, if we can go back and put
5 that on the screen.
6 As we see, this is the 12th of August. It is sent to the
7 Military District Command, and as the president pointed rightly to the
8 attention of the Chief of Staff. And as we turn to page 2 of the
9 English, staying on the B/C/S, we note that it's termed "we request your
11 And you noted as we turn to the order, the implementation order
12 of D305.
13 MR. KEHOE: If we can turn to D305.
14 Q. This is, as you testified, was the order that came out of the
15 Split Military District, and if we turn to page 2 of the English if we
16 can go up a bit. It's handwritten and it's signed for General Gotovina.
17 Now, in explaining this sequence, General, you noted - and this
18 is on page 10 of today's transcript, line 25, going on to page 11:
19 "Did he not ask actually General Gotovina" -- and I think you
20 were meaning to say, He did not ask General Gotovina to write the order
21 for him. "He was not in a position to dictate what -- what General
22 Gotovina gave. He requested, first of all, for manpower. It was a
24 Now, you say he made a request because he was not in a position
25 to dictate to General Gotovina under those circumstances what he should
1 do. Correct?
2 A. That's correct.
3 Q. Let us turn your attention to D818. And this is a document
4 signed by General Gotovina on the 13th of September, 1995, to
5 General Cermak, subject: Request.
6 And if I may read this just briefly, General, and I ask for your
7 assistance in just listening to what I'm going to articulate because I
8 believe that the translation is not completely accurate as well.
9 And we went through the discussion on this document and discussed
10 the correct translation at page 13502, line 16 to 25, to 13503, line 6.
11 And it notes in the way that I understand that it reads in
12 Croatian and the way it was put on the record that I just previously
13 discussed on this request, it says:
14 "General, sir, in the future, please" -- so this is: "General,
15 sir, in the future, please do not issue any authorisation for the
16 movement of members of international military and political organisations
17 and humanitarian organisations like the EC, UNMO, and others, in the
18 direction of Srb-Una railway station and the Bosanski Grahovo-Glamoc-
19 Kupres area, since these areas remain war zones until further notice."
20 Now, in this particular situation as the other was a request by
21 General Cermak to General Gotovina, this is a request by General Gotovina
22 to General Cermak. And it's not an order because under these
23 circumstances with this remit with internationals, General Gotovina was
24 not in a position to dictate to General Cermak what to with the
25 internationals. Isn't that right?
1 A. I think, Mr. Kehoe, we have a difference here between reality and
2 theory. I would say that there was nothing, and I think we've had this
3 conversation before, there was nothing in -- there was nothing that was
4 written down, which changed the subordination of garrison headquarters to
5 a Military District.
6 I think what we have here, however, is mere courtesy. There are
7 two senior Generals. Funny enough the -- the Croatian sort of guidance
8 on -- on human relationships makes a great point of being well-mannered
9 and what I see here, of course, is not an order given. It is request,
10 and it is partly because he wishes General Gotovina -- I'm sorry, he
11 wishes General Cermak to conform and partly because he wishes to give
12 General Cermak the respect that an officer of the same rank deserves. It
13 does actually highlight the difficulty of having an officer of the same
14 rank in a subordinative role.
15 So I think you can draw two conclusions from here. One is that,
16 to my mind, it didn't necessarily change the theoretical subordination,
17 but it actually demonstrates that there was a different relationship
18 between the two of them. A relationship of equal rank which both
19 General Gotovina and General Cermak had to manage. And there is a human
20 dynamic here, which I believe, again, if had I been able to give any
21 context during my replies during the past couple of days, I hope I have
22 been able to, and there is that context here.
23 Q. And you have, General, and we're very grateful for that. But the
24 reality, as we look through this, is that they were treating each other
25 as colleagues, not as commander/subordinate relationship. Isn't that
2 A. I think de facto, that is it correct.
3 MR. KEHOE: If I might just have one moment, Your Honour.
4 [Defence counsel confer]
5 MR. KEHOE:
6 Q. If I could just show you one last document on this issue of
7 dealing with each other as colleagues.
8 MR. KEHOE: If we could turn to D1006.
9 Q. [Microphone not activated] This document, General, I'm not
10 certain if you have seen this. But it notes that there's going to be an
11 inspection of the Main Staff, and it's going to inspect, if we can look
12 at the -- all ZP units which would be part of the Split Military District
13 which, of course, would theoretically include the Knin garrison.
14 If we could turn next page. And if we look at the addressees on
15 this, it has the entities, including - if we look at the bottom portion
16 of the addressee - the other garrisons that we have in there. But the
17 Knin garrison is missing from that.
18 Could you give us your expert analysis as to why under these
19 circumstances that we would have a separate -- or if there is no
20 inspection of the Knin garrison, or is it something like, again, as
21 colleagues, General Gotovina will take care of these particular
22 garrisons, and his colleague General Cermak would take care of the Knin
24 A. Could I scroll up a bit. Because if I have seen this, I can't
25 remember the detail. It rings a bell somewhere. But I'm afraid -- I
1 would just like to see the detail, what they are inspecting.
2 Q. If we could go back to page 1. I believe they are expecting
3 [sic] quite a few things.
4 A. Thank you. I can't give a definitive answer, quite clearly. I
5 could only offer one possible reason. I mean, there are several reasons.
6 It may have been missed off, a simple error like that, of course,
7 although I doubt it. It may be, of course, when you go back and look at
8 General Cermak's resources he had in his garrison and the numbers of
9 people and the responsibilities of that garrison, that there was no --
10 there was nothing inspect. That is -- that is a deduction which could be
11 drawn from there, but I -- I would admit that I'm -- I'm looking at that
12 and making some assumptions. It talks about the compatibility of
13 ZP command and units for command and control. I'm sorry, he didn't have
14 the command and control function. It talks about performance of task in
15 defence of the state border and in control of territory.
16 Now, I know the other garrisons will -- had the same -- the same
17 constraints put upon them in terms of their capacity to be responsible
18 for operations and the rest of it. Whether the garrisons had other
19 resources like a logistics depot of some sort which had to be inspected
20 because of refurbishment equipment, I have no idea. That is the only
21 logical reason I can deduce from that.
22 Q. And given the fact that we're in the area of what could be, it
23 could also be that General Gotovina is taking care of those garrisons
24 that has directly got his finger on while allowing his colleague,
25 General Cermak to deal with his particular garrison.
1 A. You could put that impression. You could take that impression
2 away. I mean, I would only answer that a inspection is a relatively
3 neutral thing. It's for the assistance of the Main Staff to identify
4 where there are problems, and I would have been surprised that the
5 Main Staff were -- were happy to have General Cermak dealt with
7 So I think it's -- it's difficult to draw a concrete -- concrete
8 conclusions from this. It may be as you say. It may be something
9 slightly different.
10 Q. And if -- if in fact the garrison was a de facto subordination,
11 not a de jure, a de facto subordination. If the Knin garrison was
12 de facto subordinated to General Gotovina, it should have been part of
13 this order.
14 A. Do you mean de jure?
15 Q. Excuse me, if it had been de facto in reality, because we have
16 been talking about the different jobs that General Cermak had done which
17 is not part of the pure garrison rules that you discussed during your
18 remit. But if in fact he had been a de facto garrison under
19 General Gotovina, it should have been part of this orders?
20 A. I may be misunderstanding exactly how you expressing that
22 Could I answer the question I think have you asked me, and then
23 can you come back and tell me whether I have answered it.
24 Q. Sure.
25 A. My position is that -- that Knin garrison was de jure
1 subordinated to Split Military District, because that's what the
2 regulations said, and I saw nothing which formally changed that.
3 I believe their that de facto relationship was as two equals of
4 -- two people of equal rank, and that indeed put an atmosphere into that
5 relationship. And indeed as I have said, had I been General Gotovina, I
6 would have been very happy that General Cermak was dealing with some of
7 the problems that we've spent -- we've spent time discussing.
8 I don't believe that the de jure subordination would have enabled
9 the Main Staff -- I'm sorry, I have to go back on that. I'm confusing
10 myself now.
11 What we see here, had there been -- assuming there was de jure
12 subordination, which is my assumption because I have seen nothing to
13 change it, I would wonder why there -- that Knin garrison was not
14 involved in it. I can only come to the conclusion that either there was
15 error in the drafting of the order, which may have been true, or there
16 was some other reason which may have been that actually the Main Staff
17 and General Gotovina knew that there was nothing worthwhile inspecting
18 there, and it would have been a waste of effort.
19 Have I answered the question you asked me?
20 Q. My follow-up question was, or there was a -- another order going
21 down the Knin garrison where an inspection was done parallel to these
22 other garrisons?
23 A. Of course, that is it an another alternative. And if it -- it
24 was, I'm not aware of it. I didn't see it.
25 Q. I understand. Let us shift gears if we can --
1 JUDGE ORIE: Mr. Kehoe, is there any basis for that? You earlier
2 were rather critical about Mr. Hedaraly to speculate that things might
3 have taken another course without any -- without any basis for that.
4 Is there any reason that there would be an inspection or another
5 order? Or was it just you never know?
6 MR. KEHOE: No, I think it is in the spirit of completeness, in
7 the idea that when a military headquarters says that we are going to
8 inspect all units of a command, that would include all units of the
10 Now, it could that be this was left out. It could be that
11 because of the unique relationship there was a separate inspection. It
12 could be --
13 JUDGE ORIE: Yes, may I cut this short.
14 MR. KEHOE: Sure.
15 JUDGE ORIE: You have no specific reason, and we heard from the
16 witness that may be the case.
17 MR. KEHOE: Well --
18 JUDGE ORIE: [Overlapping speakers] ...
19 MR. KEHOE: -- my follow up to that, Mr. President, and my
20 good-faith basis is, of course, and it's a question that -- that
21 General Deverell raised on 1219 concerning the inspection of units in the
22 area pursuant to the 21 August 1995
23 to the Split Military District and one was sent to the Knin garrison.
24 Now I appreciate the question raised by General Deverell on that
25 score, but it does indicate that there seems to be -- and that's at
1 P1219, for the record. And that does seem to be on the Main Staff level,
2 dealing with these two entities separately.
3 JUDGE ORIE: Yes. Thank you.
4 Please proceed.
5 MR. KEHOE:
6 Q. Now, if I may, General, I would like to go back to the military
7 police, if we can.
8 Again, I apologise for jumping around here, but I will try to get
9 through this as quickly as possible.
10 You were shown D267 by Mr. Cayley and by Mr. Hedaraly. And you
11 noted some confusion in the language concerning the remit and the
12 authority of Major Juric.
13 MR. KEHOE: If we could just bring that up very quickly.
14 Q. This is -- we can just stay on the front page because I know,
15 general, you know the contents of this document with which you expressed
16 some questions.
17 But this is dated the 2nd of August of 1995 from General Lausic.
18 And I'd like to show you another order that was signed by General Lausic
19 of the same day, D268, which this order, General, addresses Major Juric's
20 taskings directly, unlike the prior order, 267, where we have any number
21 of individuals that are being discussed.
22 MR. KEHOE: So if we could bring D268 on the screen. If we could
23 just scroll up.
24 Q. And as you can see, General, this is an order that is signed on
25 the same day as the prior order with which you had some questions. And
1 the subject is the order of the chief of the Split Military District --
2 excuse me, of the Main Staff of the military police, and it notes:
3 "Pursuant to an assessed and demonstrated need, with a view to
4 efficient and effective implementation of military police and other ...
5 military police units' zones of responsibility and an effective system of
6 commands, supervision, and provision of professional assistance to the
7 armed forces military police units, I hereby issue the following
8 order ..."
9 And he notes that a group is being named included Major Juric.
10 And I'm interested in the tasks that Major Juric is given by his
11 commander, Major-General Lausic. And if we could go to the -- you see at
12 the bottom, it says Major Ivan Juric's task.
13 A. Yeah.
14 Q. And if we can go to the next page. In the first paragraph:
15 "In the command system he is superior to the commanders of the
16 72nd Military Police Battalion and the 73rd Military Police Battalion
17 with regard to the 73rd Military Police Battalion extending assistance to
18 the 72nd Military Battalion of the Military Police."
19 So he is superior to the commanders there; correct?
20 A. Yes.
21 Q. The next: "He is responsible for the implementation of all
22 military police tasks in the 72nd Military Police Battalion zone of
24 Next paragraph he goes into some coordination that he is
25 responsible for with the MUP and others. I'm interested in the one right
1 after that, that is he authorised to undertake all measures to ensure
2 efficient and effective implementation of military police tasks and the
3 72nd Military Police Battalion and north OS zones of responsibility.
4 Now, General, based on these two orders together, to the accident
5 that there is any question about who is in charge after your reading of
6 D267, it is clear, is it not, based on the direct taskings given to
7 Major Juric that we just read, that he is the man in charge that Lausic
8 is sending down there on the 2nd of August to be his telescope or his man
9 on the ground, isn't it?
10 A. Yes.
11 Q. And he, based on your further dealings or further review of the
12 documents, it is he who is reporting back on a daily basis to Lausic
13 telling him what's going on.
14 A. Absolutely. That is correct.
15 Q. Now, with regard to the question of command and control about who
16 has command and control of the military police, I would like to show you
17 a series of documents that spread over approximately, oh, I'm going to
18 say several months, if we can, because we are going back until even to
19 the January of 1996.
20 The first is D292. This is a report by General Lausic of the
21 15th of August, 1995, to General Cervenko, subject: Report of the
22 engagement of the military police units in Operation Oluja.
23 MR. KEHOE: If we can turn to page 3 in the English, and I will
24 check to see what page it is in the B/C/S.
25 It is page 2 in the B/C/S.
1 Q. And, General, I am interested in the paragraph right above the
2 bold 2 that reads: The system of preparation.
3 Do you see that, sir?
4 A. Yes, I do.
5 Q. "The system of preparation, planning, control and command at the
6 level of the Split
7 administration and the daily operational ordered issued by the commander
8 of the HV Military District and the Main Staff made it possible for the
9 military police to perform all its tasks and for the military police to
10 be engaged in the offensive operations."
11 The initial line, General, says the control and command was at
12 the level of the military police administration.
13 That is the 15th. Let me move ahead.
14 MR. HEDARALY: I'm --
15 JUDGE ORIE: Mr. Hedaraly.
16 MR. HEDARALY: Sorry, the rest of that sentence. And the daily
17 operational --
18 MR. KEHOE: I read that already.
19 MR. HEDARALY: If I can just repeat it -- [Overlapping
20 speakers] ... Counsel only mentioned the first -- [Overlapping
21 speakers] ...
22 JUDGE ORIE: Gentlemen, it is only Tuesday.
23 MR. KEHOE: I've had a rough day, judge. It's tough in the back
25 JUDGE ORIE: Yes, you would rather in the spotlight, Mr. Kehoe.
1 I understand that.
2 Could you please read that paragraph which is on your screen in
3 its entirety so that both gentlemen are happy.
4 THE WITNESS: Your Honour, I have read it. Thank you.
5 JUDGE ORIE: Please proceed, Mr. Kehoe.
6 MR. KEHOE: Thank you, Mr. President. My apologies.
7 Q. Let me turn your attention to D -- excuse me, D567.
8 Again, this is another report, General, by Major-General Lausic
9 of the 16th of September, 1995, analysing the use of the military police
10 during Operation Storm. And if I can turn to page 2 in the English. And
11 it's also page 2 in the B/C/S. If we can go to the bottom of that page
12 beginning: "The combination."
13 A. I've got it. Thank you.
14 Q. You see that, sir?
15 A. Yes, I do.
16 Q. And I will read it in toto:
17 "A combination of the preparations planning, leading, and
18 commanding of the military police administration and the daily
19 operational commanding by the commanders of the HV Military Districts and
20 the HV Main Staff made it possible to carry out all of the tasks within
21 the competence of the military police and use of the military police
22 units in assault operations."
23 One last example on this score, and that is D978.
24 General, I am not sure if you reviewed this document yet, but
25 this is a report on the work of the military police administration for
1 1995. Looking back, obviously it is issued in January 1996 under the
2 command of Major-General Lausic, looking back at the activities in 1995.
3 And I would like to turn our attention to page 3. If I can, we
4 can --
5 MR. KEHOE: If we go another page up, please. And if we could go
6 to -- keep going, please. The pagination is a bit off. Just keep going
7 to -- page up, please. It would be the second -- it would be the third
8 English translation page. Two more.
9 MR. HEDARALY: If I may assist, there are two translations
10 linked. I believe Mr. Kehoe wants the second translation link, page 3 of
11 that document.
12 MR. KEHOE: Thank you. This is the page I want that's on the
13 English screen. Thank you very much, counsel. And that's page 7 in the
15 Q. General, this again reiterates in the bold right above 1.1.4, in
16 the bold, again: "The control and command system at the level of the
17 military police administration and daily operation [sic] command at the
18 level of the commanders ..." And we read through that.
19 Now, General, this is a constant theme by General Lausic, is it
20 not, from the very outset of the documents you reviewed until this in
21 January of 1996, that he, as the commanding officer of the military
22 police, retained command and control over the military police throughout
23 all this. Is it not?
24 A. It's a constant theme, yes. I -- you may be about to direct my
25 attention at the words "daily operational commands."
1 Q. Now, we move into the area of daily operational commands which
2 you noted for us are activities that are in support of the operation on
3 the ground. Is that right?
4 A. That's correct.
5 Q. So distinguish those two, what is General Lausic remaining in
6 command and control over?
7 A. General Lausic remains in command and control of the military
8 police under Article -- I think I'm right in quoting under Article 8, the
9 military police administration exercises command and control. This
10 reflects Article 9, if I remember correctly, and I'm sure somebody will
11 tell me if I have got there wrong, which is then supported by the detail
12 of the tasks of the military police, which tasks 3 and onwards, I deduced
13 were the regular tasks. And those are things like minor discipline, the
14 keeping of good order, things like traffic control, all those relatively
15 minor issues which are so important and an operational force is dependant
17 That I believe is what we are looking at in terms of daily
18 operational command, daily operations command. To me - and this may be
19 the answer to your question or not - to me, that emboldened paragraph,
20 when put against Articles 8 and 9, fits. I think it is consistent. It
21 may be that you would agree with me, Mr. Kehoe.
22 Q. [Microphone not activated] I do, General.
23 A. Thank you.
24 [Defence counsel confer]
25 Q. Now, what we have here, General - if we can just synopsise this
1 Article 8 and Article 9 as you just explained - is -- what we have is a
2 vertical subordination between the military police administration down to
3 the ground, and a horizontal coordination between the military police and
4 the, in this case, the Split Military District. Isn't that right?
5 A. Yes.
6 Q. But the subordination remains with the vertical line going up to
7 the military police administration, doesn't it?
8 A. I would say so. I mean, Article 8 says just that.
9 Q. Thank you, General.
10 I have no further questions?
11 A. Thank you.
12 JUDGE ORIE: Thank you, Mr. Kehoe.
13 MR. KUZMANOVIC: Your Honour, I have no questions. Thank you.
14 JUDGE ORIE: No questions.
15 [Trial Chamber confers]
16 JUDGE ORIE: Mr. Deverell, I may have a few questions, only a few
17 questions for you.
18 Questioned by the Court:
19 JUDGE ORIE: Your attention was drawn to P71, the Split Military
20 District diary, General Gotovina says, and I'm now reading the
21 transcript, "that the military police is to take security control, war
22 booty, and take photographs, and make video recordings at the end of the
23 operation. People will be called before military disciplinary courts."
24 Are you aware of any such photographs and video recordings being
1 A. No, Your Honour, I'm not.
2 JUDGE ORIE: And I am addressing the parties. Are any of the
3 parties aware of the existence of any photographs or videos produced as a
4 result of what we find in P71?
5 MR. KEHOE: No, Mr. President.
6 MR. HEDARALY: No, Mr. President.
7 JUDGE ORIE: Thank you.
8 You were asked about, I would say, the advantages, or you
9 testified about the advantages of an independent military police
10 investigating regime. And let me read what you said. You said:
11 "I mean, it's quite simply, really. It's important to have your
12 criminal investigation capability independent of the chain of command,
13 because it might, at some stage, be investigating the chain of command.
14 The chain of command might have, might feel, that they do not want a
15 proper investigation conducted, and therefore, there is a great advantage
16 in having those two separated." And I think this was raised in the
17 context of Mate Lausic taking very significant steps to ensure that the
18 military police and he personally stayed in control of those
20 Now, you have pointed out the advantage. Have you considered the
21 disadvantage in terms of losing an instrument to fulfil a duty to
22 investigate, if you have reasons to believe that crimes are committed or
23 are about to be committed? That's my first question, in relation to
25 A. I don't think that the instrument is lost, Your Honour, in that
1 the military police, as an organisation, are integrated into the chain of
2 command. And we have been discussing that recently, just a few moments
3 ago. And the investigative steps, as I understand it - and I repeat what
4 you will know already, that I'm not a military lawyer - the investigative
5 steps are relatively straightforward. If there is an incident which
6 might be a disciplinary offence or, indeed, even worse, a crime, then you
7 have your military police on hand, part of this procedure, part of this
8 coordination and collaboration between -- within the chain of command to
9 take the first step in investigating and then handing that on to the
10 military police criminal branch which exists as part of those companies,
11 those battalions.
12 So I'm not sure there is a particular disadvantage. I mean,
13 there might be. But it doesn't seem to me to be -- it seems to be
14 something that can be managed relatively simply.
15 JUDGE ORIE: Thank you for that answer.
16 Have you also considered that where you said the advantage was
17 that the chain of command might not be happy by certain investigations,
18 that Mr. Lausic might not be -- have been happy with certain
19 investigations either. I mean, whoever is in control of the police may
20 influence the direction in which investigations are conducted.
21 So I would therefore -- because you said it was a well -- careful
22 separation with the advantages. And I'm just asking you whether this
23 could be one of the side effects, that then Mr. Lausic's conduct or those
24 around him would not be investigated.
25 A. There's a Latin phrase which starts "quis custodes" or something
1 like that, which means who looks after the guards.
2 JUDGE ORIE: Yes.
3 A. I think that is a quite straightforward problem, as in any
4 system, who watches those who have the authority to investigate.
5 JUDGE ORIE: Yes, which would apply both to Mr. Lausic in
6 command, but also the normal chain of command.
7 A. Yes, Your Honour.
8 JUDGE ORIE: Yes. Thank you for that answer.
9 Yes, my following question is just to avoid that I misunderstand
10 your testimony.
11 You were asked about the focus of an operational commander. You
12 were asked:
13 "What kind of focus and what kind of energy does an operational
14 commander have to bring to bear to accomplish those tasks?"
15 And you said:
16 "Very substantial, physical and mental."
17 And you went back to the idea of prioritisation, and that:
18 "He will wish to ensure that all those things which can be looked
19 after by someone else are looked after by somebody else."
20 I did not -- the whole issue of prioritisation to mean that it
21 would, in any way, relieve himself from his duty to investigate and/or
22 punish if there were any reasons, not that he does it all by himself, but
23 he would still keep that responsibility, even if he was focussing on
24 operational matters.
25 A. Yes, Your Honour, I mean, my comments were really on the sort of
1 physical responsibilities in terms of, for example, looking after a
2 garrison. Checking whether the garrison was doing its job. In terms of
3 his responsibilities to military law, he has to ensure -- a commander has
4 to ensure that such things do not get missed because of -- if at all
5 possible. I mean, he must take steps to ensure that there is a proper --
6 there is a proper organisation who can ensure that those elements are
7 still properly looked at.
8 JUDGE ORIE: Yes. Then I think I did not misunderstand your
10 A. Thank you.
11 JUDGE ORIE: Well, at least I'm seeking your confirmation on what
12 I said that seems not to be contradicted by your answer.
13 A. Yeah, you're quite right.
14 JUDGE ORIE: Yes. Then one matter remains, and that is the part
15 of your report dealing with Grubori, which is not a part of your report
17 I noticed that -- and I'm also, Mr. Cayley, looking in your
18 direction. I notice that some of your findings on Grubori and the
19 responsibility of Mr. Cermak still appear in the report. For example,
20 page 55, you say about General Cermak's role in this affair, being that
21 of a spokesman:
22 "He had no responsibility for the events and lacked authority to
23 influence planning or implementation, even if he had known. He became
24 involved because he was the point of contact."
25 Well, we find your conclusions in this respect in your report --
1 therefore, I take it that in that paragraph, which is not part of the
2 report anymore, that you have explained on the basis of what you reached
3 these conclusions.
4 A. I don't recall my paragraph clearly. I do recall that it was a
5 prece [phoen] of the events which led up to it and a description of what
7 My comments there were really an attempted explanation -- again,
8 Your Honour, right or wrong, I was trying to put a context to
9 General Cermak's actions there.
10 The -- if I remember rightly, there was little -- and you may be
11 surprised at this. There was -- there was little in my workings, my
12 discussion, which actually directly impinged on that conclusion. But my
13 -- my memory is not clear of it because it's some time since I have seen
14 that piece. So I really am -- I would have to go back and look before I
15 could guarantee that my reply was accurate.
16 JUDGE ORIE: There may have been little, but you present your
17 conclusions in relation to the role of General Cermak.
18 A. I do.
19 JUDGE ORIE: And the paragraph being taken out, we do know on
20 what it is exactly based, whether that is little or much. Might even be
21 interested to know, in order to assess the probative value of your
23 Mr. Cayley, you will understand I have to discussed with my
24 colleagues -- we understood that, first of all, that we find some of the
25 conclusions in the report not knowing anymore what the basis for it is.
1 That's one. Second, that it was the -- it was not a draft
2 paragraph which was taken out, but it was a fully developed, at least as
3 fully developed as the witness said for a report, not a draft report. He
4 specifically and spontaneously told us that. He even corrected someone
5 who used the words "draft."
6 Under those circumstances and also taking into account that only
7 for practical reasons it was taken out, as we understood, the Chamber
8 wondered whether that paragraph that had been taken out could not be
9 produced, which, of course, could raise another matter, that is whether
10 further questions should be put to the witness about that paragraph.
11 I would like hear your views on the matter.
12 MR. CAYLEY: It can be done, Your Honour. I think the witness is
13 indicating that he doesn't have it. We've got that particular paragraph.
14 My suggestion would be to present it to the witness, have him read it and
15 confirm, Yes, this is the paragraph that I wrote. I mean, it's actually
16 more than a paragraph; This is the narrative that I wrote. And then I
17 leave it in the Court's hands after that.
18 JUDGE ORIE: Yes, I'm also looking at you Mr. Hedaraly.
19 Let's not forget that the Chamber has received quite a bit of
20 evidence on the Grubori incident, and the primary focus apparently from
21 this witness from what I understand is the role of General Cermak and not
22 a reconstruction of responsibilities for the -- but perhaps it is, I do
23 not know. The Chamber is not seeking to go through the whole Grubori
24 evidence again, but the Chamber would like to know, on what the expert
25 witness has based his opinion on these matters which still appear in the
2 Now, let's be very practical. Your suggestion is let's give it
3 to Mr. Deverell, that we should invite him to read it. Then the other
4 issue is that Mr. Hedaraly hasn't seen it. And I wouldn't send you both
5 into the same room, Mr. Hedaraly and Mr. Deverell. But an opportunity
6 should be there for the prosecution to review it, also for the other
7 Defence teams to see whether there is anything which triggers any need
8 for further questions.
9 Now, let's then be very practical. It's now a quarter past 4.00.
10 We were scheduled to have a break at ten minutes to 5.00 and then
11 continue at ten minutes past 5.00.
12 Mr. Cayley, how many pages is the Grubori part of ...
13 MR. CAYLEY: It's five pages, Your Honour.
14 JUDGE ORIE: Yes.
15 Does it introduce any sources which are not yet in evidence?
16 MR. CAYLEY: None.
17 JUDGE ORIE: Then, Mr. Hedaraly, just for a -- they call it a
18 quick-scan nowadays, I think. How much time do you think you would need?
19 And, Mr. Deverell, you may have less problems in going more
20 quickly through what you have written yourself.
21 THE WITNESS: Yes.
22 JUDGE ORIE: I'm not saying that if, for example, you would say
23 20 minutes would do for the quick-scan or half an hour, or I would
24 consult with my Grubori specialized colleagues -- what I would like to
25 know and find out is how much time we need to come at a point where we
1 would have a sufficient basis to determine how we will further proceed,
2 if at all?
3 MR. HEDARALY: I think I understand the Chamber to be saying not
4 to gain a full understanding now and decide. But I think to read the
5 five pages and discuss briefly with my colleagues, I think an hour would
6 be reasonable to at least then inform the Chamber as to whether we want
7 to have questions, whether we want to ask questions, whether we want to
8 introduce other documents, look for documents. We may not have any
9 questions for the witness. I think an hour to provide that initial
10 information and able to consult would be sufficient.
11 [Trial Chamber confers]
12 JUDGE ORIE: Mr. Kehoe, how much time would you need?
13 MR. KEHOE: Your Honour, I -- with regard to the Grubori matter,
14 I was just talking about questions that I have based on Your Honours'
15 questions. I have a few questions based on the questions, Mr. President,
16 that you asked.
17 JUDGE ORIE: Yes. But the --
18 MR. KEHOE: I just wanted to put that on the record that in the
19 mix of time, I just ask the Court's leave to ask some follow-up questions
20 to General Deverell.
21 JUDGE ORIE: Would you do that before you had seen the relevant
22 portion of the report on Grubori or, rather, look at that first and then
23 see whether you have any additional questions.
24 MR. KEHOE: I could look at the report and see if I have any
25 additional questions, or I could ask the questions that I have now.
1 Anything Your Honours would like to do, I'm ready to do.
2 [Trial Chamber confers]
3 JUDGE ORIE: The Chamber has not asked yet, Mr. Kuzmanovic, how
4 much time he would need to read the five minutes.
5 MR. KUZMANOVIC: I don't know need an hour, Judge, but I would
6 like to look at it. I have not seen it before.
7 JUDGE ORIE: I do understand.
8 We give you, Mr. Hedaraly, until 5.00 to form a provisional
9 opinion on how to proceed, and if that would be to put further questions
10 to the witness, to put those, unless good cause is shown that you
11 couldn't do it right away and that would you need further investigations.
12 That's the reason why I asked Mr. Cayley whether there is any new
13 evidentiary material on which the expert witness forms his opinion.
14 Since the Chamber is seeking this, we would like to receive a
15 copy as well, so I take it that we will find a way to copy these five
16 pages for every interested party and for the bench.
17 Then if we resume at 5.00, under normal circumstances we would
18 finish at not later than 6.30. Just for the parties to know, there are a
19 few matters which are still outstanding, some pending issues in which the
20 Chamber is seeking further information from the parties. If any time
21 remains after we've dealt with the Grubori, the Chamber would like to put
22 those matters -- to raise those matters with the parties. The Chamber
23 further would like to deal with the MFI list, most likely the second half
24 of tomorrow morning. For those purposes a list will be given to the
25 parties, provisional list of what MFIs are still outstanding, so that the
1 parties have at least some time and I will have some time as well to
2 prepare for a housekeeping session later tomorrow morning. I'm thinking
3 at this moment in terms of 11.00 or 11.30.
4 We'll first have this break, and having read the --
5 MR. CAYLEY: Mr. President, could I just interrupt and ask your
6 permission to give a copy to General Deverell, please.
7 JUDGE ORIE: Yes, of course, we -- I think I followed your
9 Mr. Kehoe, the questions you had in mind, the Chamber suggests
10 that you keep them until you have read the report and then put them all
11 at the same time.
12 MR. KEHOE: Yes, Mr. President.
13 JUDGE ORIE: Thank you.
14 Then we'll have a break until 5.00.
15 --- Recess taken at 4.23 p.m.
16 --- On resuming at 5.06 p.m.
17 JUDGE ORIE: We have read the relevant portion which was once
18 part of the report.
19 I'd first like to briefly inquire into whether -- we said we'd
20 like to see it, and we wanted to know what was the basis on which the
21 witness had based his opinion, an opinion which does appear on other
22 parts of the report. But the first question is whether anyone would like
23 to have this in evidence.
24 Mr. Hedaraly.
25 MR. HEDARALY: Your Honour, it would be obviously conditional on
1 a proper opportunity to cross-examine this witness. And based on what
2 you stated earlier that unless good cause is shown, that would have to be
3 done immediately. We are not in a position to begin cross-examination on
4 this portion at this stage. So if it is conditional on us beginning our
5 cross-examination now, then we would prefer that it not be admitted into
7 JUDGE ORIE: Yes.
8 Mr. Cayley, I know that you were not the one who -- who moved
9 this. It was the Chamber curious about the basis that triggered all
11 What would be your position at this moment?
12 MR. CAYLEY: I think we would reserve or position depending on
13 what the Prosecution are going to do now, in essence. And how they're
14 going to proceed.
15 JUDGE ORIE: Yes.
16 Mr. Kuzmanovic.
17 MR. KUZMANOVIC: Thank you, Your Honour. I had a chance to
18 review this. My position is under 94 bis, we should have had this report
19 obviously within -- we had 30 days within which to object or to find out
20 whether we're going cross-examine this witness, which we did. We advised
21 the Chamber that we would cross-examine the witness. This part was not
22 in the initial report. Obviously just got it now. I read it. I'd have
23 some substantial issues to deal with in cross-examination if the report
24 is admitted. My simple solution is I would -- my suggestion is not to
25 admit this and to remove the conclusion or exclude the conclusions on
1 Grubori in the report that General Sir Jack Deverell made, and that would
2 probably be an equitable way to deal with this issue, but otherwise, I
3 would have some significant cross-examination.
4 JUDGE ORIE: Mr. Kehoe.
5 MR. KEHOE: Mr. President, I have no position on this document.
6 JUDGE ORIE: Yes.
7 One of the things the Chamber considered is the following:
8 First of all, in this document, which once was part of the
9 report, we find a lot of references to matters that are in evidence. In
10 addition to that, and, for example, I'm referring to the middle of the
11 third page. We find, not for the first time, the view of the -- the
12 opinion of the expert on -- on the position of General Cermak. That's
13 not exclusively here. That, to some extent, repeats what we find
14 elsewhere in the report as well.
15 A new element is that the expert witness has visited Grubori
16 village. That is -- of course, that adds to what many of the other
17 witnesses could tell us. Some of them have visited the village or the
18 area; many have not.
19 As far as the conclusions are concerned, the Chamber
20 provisionally formed an opinion that, in many respects, the opinions are
21 not really within the field of expertise of this witness. Mr. Deverell,
22 if I would use the word amateur psychology here and there, you would
23 certainly forgive me for that.
24 THE WITNESS: I would, Your Honour. I would. I read it, and I
25 accept the point you make.
1 JUDGE ORIE: Yes. Sometimes you put on paper what you believe;
2 sometimes you come to conclusions that it seems most likely that there
3 was an armed man discovered in the hamlet and that the civilians were
4 killed either by accident, but more probably in the retribution for
5 giving him sanctuary. That is all -- well, the basis for that from the
6 facts, the evidentiary basis we've seen is not fully transparent, to say
7 the least.
8 THE WITNESS: Yeah.
9 [Trial Chamber confers]
10 JUDGE ORIE: The Chamber suggests that we would not receive,
11 among other matters, for at least one of the reasons that we would not
12 receive this document as part of the report in evidence, and that -- and
13 the Chamber would like to know whether the Cermak Defence is willing to
14 strike the now unfounded opinions of the witness about the Grubori in the
15 role of General Cermak.
16 MR. CAYLEY: I discussed the matter with Mr. Kay, and he agrees
17 with the Chamber that it doesn't actually take us anywhere, this. And in
18 fact that is one of the original reasons he advised that it shouldn't be
19 part of the main report for the reasons you've said, Your Honour.
20 So we are quite happy to strike the conclusion and for this not
21 to go into evidence. We agree with the Chamber.
22 JUDGE ORIE: Then I look at the other parties to see whether they
23 could live with such a solution.
24 MR. HEDARALY: We could live with it, Mr. President. And just
25 for my own reference, we're talking page 55 of the report, lines 17 to
1 26. I think those are the only parts dealing with the matter. If I'm
2 mistaken, either General Deverell or my learned friend, Mr. Cayley, can
3 indicate if there's any other portions where Grubori is discussed.
4 JUDGE ORIE: That's the one I spotted earlier.
5 Is that -- and, of course, I have not read the report
6 specifically in view of that, and I haven't checked any footnotes, but at
7 least there seems to be agreement that that is the part where clearly
8 Grubori --
9 MR. CAYLEY: There's no other part, Your Honour. It's -- the
10 wording, I think Mr. Hedaraly checked -- I, sorry, am checking to see
11 whether the wording is the same, the conclusion in the extract and in the
12 report, so that part can be stricken that he has indicated.
13 JUDGE ORIE: Yes. Then I'm looking at you, Mr. Kuzmanovic.
14 MR. KUZMANOVIC: Your Honour, I am grateful that the Chamber has
15 accepted my proposition.
16 JUDGE ORIE: Yes.
17 Mr. Kehoe, any questions in relation to which is now not even be
18 a part of the report anymore, that is -- [overlapping speakers] ...
19 MR. KEHOE: None on the Grubori issue, Mr. President, just on
20 your questions, Mr. President, prior to the break.
21 JUDGE ORIE: Yes. Although I think they were mainly about -- oh,
22 yes -- you mean entirely apart from the Grubori incident.
23 MR. KEHOE: Yes, Mr. President.
24 JUDGE ORIE: Then, I may have misunderstood you at an earlier
25 stage for which I then apologise.
1 You have an opportunity to put further questions.
2 Yes, Mr. Hedaraly.
3 MR. HEDARALY: I'm sorry, just when we say stricken, I'm just
4 wondering logistically if there will be, as we have done before, a new
5 version of the report with that paragraph redacted that will be uploaded,
6 or whether it's --
7 JUDGE ORIE: I take it that we'll find ways to make this
8 effective, Mr. Hedaraly.
9 MR. CAYLEY: Because if you recall, Your Honour, it is only
10 marked for identification because of the issue of the page numbering. So
11 we can actually upload a new version and show it to Mr. Hedaraly, and I
12 think we can --
13 JUDGE ORIE: I take it that before the judgement, we will have to
14 find a version [Overlapping speakers] ...
15 MR. CAYLEY: Yeah, you will. You will.
16 JUDGE ORIE: That would be appreciated, Mr. Cayley.
17 Then, Mr. Kehoe.
18 MR. KEHOE: Yes. Thank you, Mr. President.
19 Further Cross-examination by Mr. Kehoe:
20 Q. General, I hope this is the last time I'm questioning here, but I
21 do have a few follow-up questions based on your colloquy with the
22 President. And it had to do with the comment that you made as who
23 watches the people doing the investigations.
24 And -- and in the circumstances of the HV, there was in fact a
25 security and information service attached to the Split Military District
1 that was in fact there to monitor whether the military police were doing
2 their job.
3 Was that not the case?
4 A. I would take your word for it. I'm not entirely certain of the
5 exact role of -- of the SIS. But my comment -- my comment was really
6 specifically on -- based on the principle of the separation of the two.
7 Q. I understand.
8 JUDGE ORIE: Mr. Kehoe, my question was also not about the
9 factual, but about my understanding of advantages and disadvantages of a
10 certain system.
11 Please proceed.
12 MR. KEHOE:
13 Q. And just within the system, do you know that there was a SIS
14 element, Security and Information Service element, attached to the
15 72nd Military Police Battalion?
16 A. I think did I. Yes, I would have -- I recognised you -- that you
17 tell me.
18 Q. Okay. Let me change subjects if we may and just touch on the
19 questions that Judge Orie asked about the operational commander issues.
20 And I harken back to your testimony yesterday at page 24200 when you and
21 I were discussing what an operational commander is doing in the
22 circumstances where is he planning for and conducting military operation.
23 And you noted in line 12, on page 24200:
24 "My experience is that once you actually confront the reality,
25 then you're planning activity becoming more frenetic and more demanding.
1 So the commander is absolutely focussed and he doesn't have time to deal
2 with other matters and has to prioritise very profoundly at times on what
3 he is to concentrate on."
4 JUDGE ORIE: Mr. Kehoe, I consulted with my colleagues. The only
5 thing I did is to verify whether I understood the answer of the witness
6 correctly. Therefore, now going again in factual matters which were not
7 in any way raised by me is not what the Chamber expects to you do at this
9 MR. KEHOE: Mr. President --
10 JUDGE ORIE: Please proceed.
11 MR. KEHOE: -- on that score, I would like to explore the answer
12 that the witness gave to your question, Mr. President, on page 92 today,
13 from line 17 to 24.
14 JUDGE ORIE: It --
15 MR. KEHOE: And you were talking about the obligations of an
16 operational commander, starting, if we can, just on line 19:
17 "In terms of his responsibilities to military law, he has to
18 ensure, a commander has to ensure that such things do not get missed, if
19 at all possible. I mean, he must take steps to ensure there is a
20 proper -- there a proper organisation who can ensure that those elements
21 are still properly looked after."
22 So --
23 JUDGE ORIE: Well, Mr. Kehoe, I asked the witness whether I had
24 understood his answer well. He gave some explanations. So I -- apart
25 from verifying whether I had understood something not to be part of his
1 answer, he then briefly explains that I had understood it. I verified it
2 with him.
3 One or two questions, fine. But we're not going to go into the
4 whole area again. Again, the main issue was whether I had well
5 understood that what he said was not touching upon the responsibility of
6 a commander. That's what I asked. That's what the witness answered.
7 And that's what I raised, and that's -- if that triggers any question,
8 you may proceed.
9 But let's keep it short.
10 MR. KEHOE: Mr. President, if I may just consult with you,
11 Mr. President. Because I will just go to the area of inquiry and if
12 Your Honours want to have that question, then I will ask. If not --
13 JUDGE ORIE: As I said, you may proceed, but it's -- I take it
14 that it's clear to you that the Chamber considers the matter that was
15 raised of a limited nature.
16 MR. KEHOE: I understand.
17 JUDGE ORIE: Please --
18 MR. KEHOE:
19 Q. And what I would like to explore with you, General, is the
20 comment that you have, that the -- a proper organisation who can ensure
21 those elements are still properly looked after. Or looked at, excuse me.
22 And if we can -- and I want to ask you just elaborating on this,
23 if this is the type of situation that you are referring to, and this is a
24 transcript of the tape of the video on the 6th of August that you viewed.
25 And this is at transcript page [sic] D979. And that's -- excuse me, page
1 4 in the English. Exhibit D979, page 4 in the English. We can start
2 with that paragraph: "We are faced ..." towards the bottom.
3 MR. KEHOE: And page 5 in the B/C/S.
4 JUDGE ORIE: Yes, Mr. Kehoe, again, for your guidance, I did not
5 raise the issue whether General Gotovina fulfilled any duty. My question
6 was limited to whether I would have to understand the answer of the
7 witness as relieving a commander from his duty. I wasn't even talking
8 about General Gotovina. It was in general terms. We're talking about a
9 commanding -- operational commander. I did not raise the issue whether
10 or not an operational commander, in the person of General Gotovina, met
11 that obligation, yes or no. That was not a matter which was raised by
12 me, and I want you to keep this in mind.
13 MR. KEHOE: Mr. President, I don't want to get crosswise with the
14 Chamber. Obviously the only operational commander specifically in the
15 courtroom is General Gotovina. So I thought that's what we were
16 discussing. And the only thing that I was talking about was just this
17 setting up of a proper support organisation to take care of those
18 elements and then pointing the witness to the elements that
19 General Gotovina talks about in the 6th August 1995 meeting at the -- at
20 the castle.
21 JUDGE ORIE: And then to ask him what, Mr. Kehoe?
22 MR. KEHOE: To see if those are the types of organisations and
23 elements that would you expect an operational commander to have
24 established in order to ensure that any ill-conduct or any wrongful
25 conduct is looked at and curtailed.
1 [Trial Chamber confers]
2 JUDGE ORIE: The Chamber's ruling is, Mr. Kehoe, that I did not
3 raise any factual matter in this respect and that therefore the Chamber,
4 at this moment, expects you not to revisit the factual basis for an
5 answer to the question, whether or not General Gotovina met any
6 obligation in this respect.
7 MR. KEHOE: I understand, Mr. President. I will be guided by
8 your ruling.
9 Mr. President, I have no further questions.
10 Q. General, it's been a pleasure. Thank you very much.
11 A. Mr. Kehoe, thank you.
12 JUDGE ORIE: Thank you, Mr. Kehoe.
13 Mr. Hedaraly.
14 MR. HEDARALY: I'm sorry, Mr. President. I had one question from
15 Mr. Kehoe's previous re-direct examination. I did not want to -- don't
16 know what the proper procedural order was.
17 JUDGE ORIE: Yes, of course, the --
18 MR. HEDARALY: I was not --
19 JUDGE ORIE: I don't think that Mr. Kehoe cross-examined the
20 witness, so he did not conduct any re-direct examination. This, of
21 course, creates all of the problems all of the times, because part of
22 cross-examination could be to raise any matter the witness may have
23 knowledge about and which may -- may support the case of that
24 cross-examining party.
25 I will very carefully listen to your question whether it is
1 appropriate or not to put it, but you may formulate it.
2 MR. HEDARALY: Thank you, Mr. President.
3 If we could have D1006 on the screen.
4 Further Cross-examination by Mr. Hedaraly:
5 Q. And, General, you will see that's the order for inspection that
6 Mr. Kehoe showed to you. And I believe it was the last page. And there
7 was a suggestion put to you that one of the possible reasons why this
8 Knin garrison was not listed was because of the special relationship
9 between General Cermak and General Gotovina.
10 Do you remember those questions?
11 A. I do.
12 Q. Now, you will note that this order also is not sent to the
13 Vrgorac garrison, the Imotski garrison, and the Dubrovnik garrison.
14 And my question for you is in your review of all of the documents
15 that have, have you come across anything that suggested a special
16 relationship between the commander of those garrisons and General
18 MR. KEHOE: Excuse me, may I interrupt, Mr. President?
19 JUDGE ORIE: Yes, Mr. Kehoe.
20 MR. KEHOE: Is there some foundation that those garrisons are
21 part of the Split Military District?
22 MR. HEDARALY: D33 and P2656, D33 and P2656. P2656 being the
23 document we saw yesterday about cancelling the commands of certain
24 garrisons. And there was a list of garrisons.
25 JUDGE ORIE: We also can be very practical, Mr. Kehoe, that if
1 they are outside the scope, then that explains everything anyhow. So
2 therefore let's see whether the witness can answer the question, if
3 would --
4 MR. KEHOE: That's fine, Mr. President. We can go into it. I
5 can go through the documentation because there was some changes within
6 the Split
7 JUDGE ORIE: Yes. And I do not have the details on the top of my
8 head at this moment.
9 Mr. Hedaraly, you have asked the witness whether there was any
10 such special relationship of the commanders of those garrisons.
11 THE WITNESS: Mr. Hedaraly, I saw no evidence to lead me to
12 suppose there was a special relationship between the commanders of those
13 garrisons and the Split Military District.
14 MR. HEDARALY:
15 Q. Thank you very much, General.
16 JUDGE ORIE: Yes, then I'm looking through the courtroom. This
17 concludes your evidence, Mr. Deverell.
18 I'd like to thank you very much - usually say for coming to
19 The Hague
20 is even more than most witness do. I would like to thank you for having
21 answered all the questions put to you by the parties and by the Bench,
22 and I wish you a safe return home again.
23 THE WITNESS: Your Honour, thank you very much indeed.
24 JUDGE ORIE: Madam Usher, could you please escort Mr. Deverell
25 out of the courtroom.
1 [The witness withdrew]
2 JUDGE ORIE: Since we have some time left I would like to deal
3 with a few procedural matters and leave the MFI list for tomorrow. I do
4 understand that the parties have received an updated MFI list.
5 Mr. Misetic, I'm addressing you. There is still this motion to
6 enforce the Trial Chamber's previous Rule 54 bis order that's in relation
7 to Brussels
8 Now we know that you travelled to Brussels, and we -- you more or
9 less promised us that you would provide us with a list of still sort
10 documents. We do know that you refer to some of them as very important,
11 but as far as the Chamber is aware of, we never received that list.
12 MR. MISETIC: Yes, Mr. President.
13 There is one document in particular that we're looking for, and
14 so to that extent, I did -- I have followed up and intended to file that
15 with the Chamber. But I think the Chamber has been made aware of what
16 document that is.
17 JUDGE ORIE: I think you mentioned that on the 25th August if I
18 am correct.
19 MR. MISETIC: Yes, it's the RC Knin log-book.
20 JUDGE ORIE: Yes. And that's the only one you, at this moment,
21 would you want the Chamber to take further action on.
22 MR. MISETIC: Yes.
23 JUDGE ORIE: That's clear. Then the list is rather short. But
24 that is clear.
25 Then for the information of the parties, the Chamber will
1 consider on short notice whether we'll seek further explanation or not
2 from CLSS in relation to the translation of D970; that is, the fire or
3 the strikes translation, two documents where we had different
4 translations and where you had already submitted it to CLSS, Mr. Misetic.
5 You -- then one of the translations of the word, I think it was "udara,"
6 was then changed. You asked for an explanation and that explanation was
7 given at the time as being the best one or the good one.
8 The Chamber will consider whether we will seek any further
9 explanation from CLSS. We are still considering that.
10 MR. MISETIC: Yes, Mr. President. I think from our perspective
11 the critical issue is that the word be translated the same in the two
13 JUDGE ORIE: Yes, I think, as a matter of fact that in response
14 to you, that they had chosen for -- but I would have to check that then
15 on my ...
16 I'm afraid I don't have it here, although I recently saw it. I
17 think there was -- that a choice was made, but let me just check for one
19 I think I have it, but I have it on my computer rather than
20 anywhere else.
21 If I would summarise what appears on the transcript, is that the
22 Gotovina Defence asked CLSS for a check and that CLSS gave a new
23 translation of D970, translating "udara" as fire. That it is the
24 Gotovina Defence position that the proper translation should be strikes,
25 as it was used in P1272. And that you had asked for an explanation and
1 that the response by CLSS was that the essence of the translation is
3 I'm now just summarizing very briefly my information. And is
4 that ...
5 MR. MISETIC: That is my understanding as well, Mr. President,
6 but I confess I must check. And if I could get back to you tomorrow
7 morning on this.
8 JUDGE ORIE: Yes, we'll consider the matter further, but we might
9 wait until we have heard from you tomorrow morning before we would take
10 any action, if we would, in the direction of CLSS.
11 Yes. Then I move to my next item. Yes, the next item is
12 Cermak's motion for admission of witnesses from Milosevic and Martic
13 under Rule 92 bis, and there is a related matter, the motion for the
14 admission of evidence pursuant to 92 quater, and there is a disclosure
16 Mr. Kay, last time we were informed that --
17 MR. KAY: I can tell Your Honour that the final typographic
18 errors have been done so that is ready now as a document to go before the
19 Trial Chamber and deal with that part of the disclosure issue, if I can
20 put it that way, concerning the -- the evidence that goes to the Rule 68
21 issues that the Trial Chamber decided upon.
22 The outstanding disclosure of the Rule 68 issues has still to be
23 dealt with, and I flagged this up with the Trial Chamber a couple of
24 weeks ago --
25 JUDGE ORIE: Yes. The 5th of November, I think, was the last
1 time where Ms. Higgins explained to us what was dealt with and that the
2 disclosure issue was still not settled.
3 MR. KAY: Yes. In the sense that we know what we're talking
4 about and the Trial Chamber ruled upon it, but we have not had the
5 information yet that needs to be disclosed and then managed in a way that
6 is appropriate to the evidence, without overburdening the process.
7 There are four to six, I'm informed. Really it comes down to
8 this, Your Honour. I have looked at this material. And it's striking
9 we've had nothing from Civljane, Cetina, Kijevo, Drnis, all these places
10 we know about. And we know that there is stuff there that has not
11 surfaced in the disclosure process. And in these circumstances we have
12 had so far 250 documents in 13 batches or so. Numbers don't help. It's
13 the information that -- that we want. I know it's there because I was
14 involved in another case some years ago where these areas were known
15 about me when I came to this case, and that's only there had been a
16 disclosure of it.
17 That still has to be dealt with. I don't think that this is an
18 issue that prevents closure of the case, because what we're effectively
19 talking about is the paper acceptance of evidence by the Court, the
20 documentary form of evidence rather than viva voce or witness evidence.
21 We are essentially talking about evidence that finds its way to the
22 Trial Chamber in sufficient time for people to deal with it in their
23 final briefs.
24 JUDGE ORIE: Yes. Mr. Kay, I appreciate your observations. At
25 the same time, we are looking at it at this moment for housekeeping
1 purposes primarily.
2 MR. KAY: Yes.
3 JUDGE ORIE: And I do understand that it needs intensified
4 attention to settle this matter at this moment.
5 And it really is important that the -- that clarity is achieved
6 as quickly as possible from our --
7 Mr. Hedaraly.
8 MR. HEDARALY: Mr. President, we are trying very hard. I think
9 the Chamber can appreciate the volume of material that is needed to be
10 reviewed. As my learned friend had said, 13 batches have already been
11 produced. There are four to six outstanding, and we are going
12 municipality by municipality, so perhaps that the reasons that the ones
13 that Mr. Kay now says are missing are still not there. That being said,
14 we are doing our best and we are working very hard behind the scenes to
15 get all this material to the Cermak Defence pursuant to the Court's
17 On the related matter of the motion for admission, that is almost
18 ready to be submitted. And that is correct. As well, there are a few
19 qualifications that the Prosecution would like to make, and those have
20 been agreed and discussed with the Cermak Defence. So hopefully we will
21 be able to finalize this very shortly, and it shouldn't be something
22 that, I think, would take an unreasonably long amount of time.
23 JUDGE ORIE: Yes. So we have the disclosure issue, we have the
24 92 bis admission of witnesses from the Milosevic and the Martic case.
25 Now there is also, and seems to be related, the Cermak's motion for the
1 admission of evidence pursuant to Rule 92 quater. Is that related, and
2 is that settled already or ...
3 We -- I do remember that the Gotovina Defence did not object.
4 MR. KAY: That's in the schedule, Your Honour. That's something
5 that we've dealt it. I think we have managed all this material into the
6 single document which is the way we're going forward.
7 JUDGE ORIE: Fine. That's -- I just wanted to verify that it
8 being a --
9 MR. KAY: Yes.
10 JUDGE ORIE: -- a distinct motion to see whether this was covered
11 by what has been achieved until now as well.
12 MR. KAY: We're a little bit disjointed on it because we have
13 been heavily struck down by illness in the last two weeks, and the back
14 room people who have been looking at this have been unavailable.
15 JUDGE ORIE: Yes. Then I move to the submission of two
16 Rule 92 ter statement, the one witness IC-32; the other one, IC-24.
17 These witness will not be called from what I understand.
18 Could I seek confirmation that the -- that they will not be
19 called, and that therefore that the 92 ter -- the submission of the
20 92 ter statements is withdrawn.
21 MR. KAY: Yes. We have called our witnesses now.
22 General Sir Jack Deverell was the last one, Your Honour. The outstanding
23 matter is the 92 bis and other documentary-type evidence.
24 JUDGE ORIE: Yes. Then we knew already that witnesses IC-1 and
25 IC-2 would not be called, but may I then take it that also the submission
1 their 92 ter statements are also withdrawn at this moment?
2 MR. KAY: Yes. That is implicit, Your Honour, in our
4 JUDGE ORIE: But it should be on the record somewhere. That's
5 the reason why I raised the matter.
6 Then I have one other matter.
7 On 9 October of this year, for transparency reasons, the parties
8 were invited to the review the record and submit no later than the 6th of
9 November a list of bar table submissions in this case and attach any
10 informally communicated spreadsheets in order to appropriately put
11 certain matters on the record.
12 The Chamber has not received such a filing, and, therefore, I
13 would like to inquire with the parties whether this silence means that
14 they consider the record appropriately be transparent in this regard.
15 MR. HEDARALY: Mr. President, if -- on behalf of the Prosecution
16 I can go first while my learned friends consult.
17 JUDGE ORIE: Still working, yes.
18 MR. HEDARALY: On the Prosecution side, it turned out that what
19 we thought was going to be initially a very simple task turned out to be
20 little more complicated because it involved a lot of e-mail
21 communications back and forth with the Defence teams, not necessarily
22 just spreadsheets but also in the context of exhibits saying we'll bar
23 table this document, we'll bar table that one, and there was not always a
24 formal discussion or objection. So going through all the e-mails of
25 18 months or more of trial turned out to be a task that was more onerous
1 than we had thought initially.
2 So if we could ask the Court until next weeks to provide that, we
3 are working on it, and we will try to have it by then.
4 JUDGE ORIE: Yes. The Chamber was actually informed about -- by
5 Mr. Waespi, at least the Chamber staff was informed, that the joint
6 filing we asked for, that it would take some more time. But the Chamber
7 would like to know how much more. And I fully understand that the matter
8 turns out to be more complex than it looked at at first instance, but
9 we'd like to --
10 MR. HEDARALY: Out of a abundance of caution, if I say Friday of
11 next week, then I think that should be sufficient.
12 JUDGE ORIE: Yes. Then we expect not later than -- let me see.
13 Yes, we expect not later than Friday next week, the joint
14 submission by the parties.
15 Yes. The next issue is the following. The Chamber staff went
16 through the MFI
17 it too early - but it appears that there are 16 MFIs on that list.
18 Now we could schedule a hearing tomorrow which would perhaps good
19 for the Markac Defence so that they could start their case with a clean
20 slate on Monday morning. At the same time, it also takes your time,
21 Mr. Kuzmanovic, tomorrow. We would have to schedule a session for that
22 purpose only.
23 I would like to hear from you whether would you prefer to have a
24 bit contaminated the start of your case by first dealing with MFI lists,
25 which is not perhaps the thing you would --
1 MR. KUZMANOVIC: Your Honor, it really doesn't matter to us. I
2 think if the MFI
3 that relate to our defence on the MFI
4 start that on Monday and get it done with. And start -- and have the
5 rest of the week free. But we're more than willing and able to
6 participate tomorrow for a short session if Court wishes to do so and get
7 that done with.
8 JUDGE ORIE: Yes. Then I would like to hear from the other
9 parties whether they would prefer not to have a session tomorrow and deal
10 with the MFIs on Monday or whether they would prefer to have this from
11 the table before we start hearing the Markac case.
12 MR. KAY: Your Honour, for our part we've only got two documents,
13 one of which is General Sir Jack Deverell's report which is being dealt
14 with, so that's a matter. And the other one was just a document that has
15 a translation already uploaded and is already linked. So the rest
16 concerns my learned friends for Mr. Gotovina's Defence.
17 JUDGE ORIE: Yes.
18 Mr. Misetic or Mr. Kehoe.
19 MR. KEHOE: Mr. President.
20 JUDGE ORIE: Shall we meet tomorrow, or --
21 MR. KEHOE: Excuse me?
22 JUDGE ORIE: Are we going meet tomorrow?
23 MR. KEHOE: Judge, we can meet Monday morning; it's fine. If
24 Your Honour wants to meet tomorrow, I know that my client would prefer
25 not to be here for an MFI
1 speak for the other gentlemen, but I suspect they don't want to come
3 With that being said, Monday is fine, and we will be guided by
4 Your Honours' wishes.
5 JUDGE ORIE: Mr. Hedaraly.
6 MR. HEDARALY: Well, we certainly would not want to be the only
7 ones to cause a hearing tomorrow, so we will postpone till Monday as
9 JUDGE ORIE: Then I will consult with my colleagues.
10 [Trial Chamber confers]
11 JUDGE ORIE: The Chamber decided that there's no need to have a
12 special hearing tomorrow for MFI
13 allowed not to be present. But it's perhaps also for counsel not the
14 thing you're looking forward to, to come back to this Tribunal.
15 So, therefore, we'll deal with the MFIs on Monday.
16 Is there any other matter to be raised at this moment?
17 MR. KAY: Yes, Your Honour. Monday is a witness scheduled for
18 the Markac Defence as well as this administrative matters, which the
19 Cermak Defence have no great interest in. Mr. Cermak has had a pressing
20 request for a personal visit on that day. I've discussed the matter with
21 him this afternoon. And with the Court's leave we ask that he not be
22 present for the hearing on Monday. The evidence does not concern him and
23 it's not intended to concern him in relation to that witness, and his
24 interests will be covered by counsel, with the Court's approval.
25 [Trial Chamber confers]
1 JUDGE ORIE: The Chamber accepts that Mr. Cermak prefers not to
2 be present, which means that he does not exercises his right to be
3 present for this one morning hearing, his right to be present --
4 MR. KAY: Yeah.
5 JUDGE ORIE: -- at trial. And since he is always there, it meets
6 no problems whatsoever.
7 MR. KAY: Thank you, Your Honour. And he is extremely grateful
8 for that, as well as the reason for the visit.
9 JUDGE ORIE: Yes.
10 Any other matter to be raised? If not, I established that apart
11 from the housekeeping matters that this concludes the presentation of the
12 Cermak Defence case apart from decisions still to be taken on admission
13 of the report and some minor matters, but as far as witnesses are
14 concerned ...
15 MR. KAY: Effectively closed.
16 JUDGE ORIE: Yes, therefore, the presentation of the Cermak case
17 is closed.
18 We will adjourn, and we will resume on Monday, the 16th of
19 November, 9.00, Courtroom I.
20 --- Whereupon the hearing adjourned at 5.54 p.m.
21 to be reconvened on Monday, the 16th day of
22 November, 2009, at 9.00 a.m.