1 Wednesday, 16 December 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.10 a.m.
5 JUDGE ORIE: Good morning to everyone in the courtroom.
6 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 Gotovina, et al. Thank you.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Today a hearing was scheduled mainly with the purpose to find out
12 where we stand with the requested documents, documents requested by the
13 Prosecution. The Prosecution had then sought an order under Rule 54 and
14 where the Chamber has instructed Croatia to further explore and do
15 further research to see what could be find or not.
16 And at this moment we have a list of documents which were not
17 produced, and we have a list of documents that were produced. And most
18 important for the Chamber is find out where we are, where there is
19 disagreement, what kind of disagreement there is, so as to know how the
20 Chamber should proceed in relation to this order.
21 In order to avoid any misunderstanding, this is not a hearing in
22 which the Chamber seeks evidence on how it was at the time and what
23 command structures were there, et cetera. Evidence is led by the
24 parties. The Chamber will consider that.
25 The focus is on where we stand with the production of documents.
1 For that purpose, we have invited the Republic of Croatia
2 attend, and I would like to invite the representatives of the Republic of
4 Who will introduce the members of the delegation which appears
5 before the Chamber today?
6 Could the one who speaks start with introducing himself.
7 MR. MARKOTIC: [Interpretation] Thank you, Your Honour. My name
8 is Gordan Markotic, head of directorate for cooperation with the
9 International Criminal Courts of the Ministry of Justice of Croatia
10 With me today to my right is Mr. Ivan Crncec, head of department
11 within the Ministry of Justice.
12 Next, Mr. Drazen Keser, Colonel Minister of Defence.
13 Next to him is Mr. Zeljko Sklepic also a Colonel from the
14 Ministry of Defence.
15 In the second row, to my left, Ms. Zeljka Pokupec, Zagreb
16 Municipal Prosecutor.
17 Next to her, Mr. -- excuse me, Josip Cule, Deputy State
19 And next to him, Mr. Vitomir Bijelic, head of crime police of the
20 Ministry of Interior.
21 That is our delegation of today.
22 JUDGE ORIE: Thank you, Mr. Markotic, for introducing the
23 delegation members. Just for you to know, but you may be aware of it
24 already, that the Prosecution is sitting to your left, and, at the other
25 side of this courtroom we'll find the Defence teams. Back row, is, at
1 this moment, Gotovina Defence; middle row is the Cermak Defence; and
2 front row is the Markac Defence. And the seating is more or less a
3 consequence of the stage of the proceedings, in which we are at this
4 moment. That is, that the Markac Defence is presenting its Defence case.
5 I take it that you know counsel. Mr. Mikulicic, who is now
6 looking at me. Perhaps if you raise your hand, Mr. Mikulicic, to the
7 extend you're not known.
8 MR. MIKULICIC: Here I am, Your Honour.
9 JUDGE ORIE: Mr. Mikulicic, Mr. Kuzmanovic, seated here.
10 Mr. Kay in the middle row. At the back row, Mr. Kehoe and
11 Mr. Misetic.
12 The Prosecution is represented today, front row, Mr. Tieger,
13 Ms. Gustafson, and in the back I see Mr. Waespi present. So now we all
14 know each other. This is the Bench as you are now aware of.
15 I would like to put on the record that the latest report was
16 received, I think, yesterday. It is in B/C/S. It is a report of
17 approximately 140 pages. It has not been translated yet, so, therefore,
18 whatever is in there, the Chamber doesn't know.
19 MR. KEHOE: Mr. President.
20 JUDGE ORIE: Yes, Mr. Kehoe.
21 MR. KEHOE: With regard to the production yesterday of 140 pages,
22 I don't believe the parties have gotten that.
23 JUDGE ORIE: Let me just check. I think the Chamber received
24 that ...
25 [Trial Chamber and legal officer confer]
1 JUDGE ORIE: Mr. Kehoe, I think we received an original copy
2 yesterday, and I remember there was an issue about you receiving only in
3 December a report which was produced in November, and I took it that this
4 was the result of it not yet being translated.
5 Now, I do understand that members of your team can read the
6 original language. At the same time, the Prosecution asked for those
7 reports, and if it receives it, I can imagine that they want to know what
8 they received before distributing it, because they have asked for it.
9 Now, Mr. Tieger, at this moment, I see now three persons on their
10 feet. Could you give us further information.
11 MR. TIEGER: Your Honour, with respect to what I believe to be
12 the report that's referenced, I was handed a hard copy of that this
13 morning in court about five or ten minutes before the proceeding
14 commenced. I understand that arrived in our office sometime late
15 yesterday afternoon. And that's all I know about it at the moment.
16 JUDGE ORIE: Yes. Mr. Kehoe.
17 MR. KEHOE: Yes, Mr. President, I mean, obviously with this
18 hearing and to be of some meaningful response to anything that the
19 Republic of Croatia
20 speaks the language, and he can be of assistance if we could have a copy
21 now so that he could peruse even as we speak, which I'm sure that the
22 Prosecution is doing at this juncture. It may be beneficial as we move
23 through this session today.
24 [Trial Chamber and legal officer confer]
25 JUDGE ORIE: Yes. We received yesterday a copy: Report on the
1 documents concerning Operations Flash and Storm for the attention of
2 Trial Chamber I.
3 Mr. Tieger, is there any problem if the Defence would receive a
4 copy? Or, otherwise, I mean, if we would received it tomorrow, we would
5 have had the meeting today as well. As soon as anyone starts referring
6 to it, we will find a procedural solution for that. It seems that we
7 could never have a hearing because it is an ongoing stream of reports
8 which reaches us, and I'm not criticising receiving reports because the
9 Chamber ordered to do it -- the Republic of Croatia
10 -- well, to research what can be found, what could not be found and to
11 report to -- also what has been done in order to find it.
12 MR. KEHOE: The only reason I raise the issue, Mr. President, is,
13 of course, we have read the submission by the Republic of Croatia
14 came in, in November that we received last week. And as we go through it
15 factually, we -- there are significant issues that I'm sure at some
16 juncture if it becomes an issue you might turn to the parties and say, Is
17 this correct? And I would say, Mr. President, it is not correct.
18 So that is because we have had that opportunity. And all I'm
19 saying is as we move through this, if there is some reference to this
20 document, it just may be of assistance to give to Mr. Misetic for him to
21 review as we go through.
22 JUDGE ORIE: Mr. Tieger, would there be any problem in providing
23 a copy to Mr. Misetic?
24 MR. TIEGER: You mean procedurally or logistically, Your Honour?
25 I'm not aware of any reason --
1 JUDGE ORIE: Logistically, I take it -- I mean, copies are there.
2 It takes five minutes to photocopy it. Procedurally?
3 MR. TIEGER: No, I'm not aware of any, Your Honour.
4 JUDGE ORIE: So you wouldn't mind if a copy would be given to
5 Mr. Misetic.
6 MR. MIKULICIC: It will assist our Defence team as well,
7 Your Honour.
8 JUDGE ORIE: Yes, I will ask any more -- Mr. Kay, you start
9 reading B/C/S as well?
10 MR. KAY: Obviously if there could be some material in there, I
11 would like to see the document.
12 JUDGE ORIE: Yes, I will ask the Registry, and we will proceed on
13 a basis of a lack of knowledge of this document, apart from that you know
14 approximately how thick it is. That's all we know at this moment and
15 that it has been apparently delivered on the -- it has been sent, I see,
16 on the 14th of December, to the ICTY Liaison Office. And I can already
17 tell you four documents are provided: An order dated the 16th of June,
18 1998; an order dated the 25th of June, also 1998; a memo on delivery of
19 documents dated the 27th of August, 1998; a memo on the collecting of
20 documents dated the 23rd of November, 1998. And apparently there was a
21 report, the implementation plan. The report on the completion of
22 activities of the task force after the submitted report, dated the 9th of
23 November. Apparently there is an follow-up report. The tabular survey
24 of activities and a list of Official Notes regarding the interviews
25 conducted with ... and then follows a list of 32 names, and apparently
1 the Official Notes are in the Croatian language only at this moment.
2 That is what you could expect once it has been photocopied.
3 [Trial Chamber and registrar confer]
4 JUDGE ORIE: Filing of the document may take quite a while,
5 because the major parts are not translated yet. You'll receive an
6 electronic copy, if that is okay with you, so that can you look at it on
7 your screen.
8 Mr. Kay, if you have any difficulties with that, the Chamber will
9 assist you.
10 Then the Chamber has received voluminous material over the last
11 year. The Chamber should keep an eye on whether the Government of
13 Statute and under the orders given by the Chamber.
14 The Chamber does not consider it its task to go through all these
15 material which is provided primarily to report to the Prosecution what
16 documents have been found and what reasons are given for not finding
17 them, or what has been done, in order to try to find them. For
18 transparency purposes the Chamber considers it not appropriate that we
19 are going through every detail of all the material we have because that
20 might blur the view of the parties on what the Chamber has digested in
21 hearing this case.
22 Therefore the Chamber will primarily focus on the discussion
23 between the parties; that is, what has been provided, is there an
24 explanation for the non-existence of certain documents which were not
25 provided. And we might not go through the whole list, but the Chamber
1 would like to engage in an exercise to find out where we stand at this
2 moment in relation to the production of these documents and where,
3 apparently, difficulties are found. And I'd like to start with that at
4 this moment.
5 We will use the numbering of the initial request. We have a long
6 list of documents the Prosecution was seeking. There were 328 documents
7 the Prosecution were seeking. Quite a few of them in various copies. If
8 we are talking about single copies, that is, every document in only one
9 version, not several copies, I think we were talking about 158 documents
10 which we find in the Appendix C to the Prosecution's application for an
11 order, pursuant to Rule 54 bis. I'll refer to these numbers as the
12 numbers of the original list.
13 Of course, there are other filings of a later date, and
14 especially important, I would say is, Appendix A to the Prosecution's
15 response to Croatia
16 June. I would call that the Prosecution's latest list in which we see
17 that 63 documents remain to be found.
18 Mr. Tieger.
19 MR. TIEGER: Yes, Your Honour. One point of clarification at
20 this point, and that is we're talking about 150 -- when you mentioned the
21 158 and the remaining documents that are at -- they're identified in
22 various filings, we're talking about categories of documents the parties
23 have agreed; that is, I should say, parties that -- in discussions with
25 produced with numerous documents. That will be raised during the course
1 of the hearing as well.
2 So just to clarify that.
3 JUDGE ORIE: Yes.
4 Appendix B, also filed on the 19th of June, refers to a report by
6 for orientation for this Chamber.
7 Finally, we have Attachment 2 to Croatia's report of the 29th of
8 September, which is important, but I'll not go through all of the
9 filings. It's just for your information that we have considered that,
10 and we also have considered the Prosecution's submission of received
11 artillery documents which were filed on the 7th of December. That's a
12 little bit over a week ago, which has its own numbering. And, as I said
13 before, we have not looked at the latest filing which was received
15 What I would like to do is to go through some of these documents,
16 to find out where we are, whether certain documents are still sought, or
17 whether the explanation given by the Republic of Croatia
18 the Prosecution, and, of course, whatever else any of the parties would
19 like to raise in this respect, the parties are free to raise that. If
20 there are any further comments by the Republic of Croatia
21 But this is not an evidentiary hearing, so what happened at the time,
22 et cetera, we are talking about what explains why documents were produced
23 or were not produced and what keeps the parties and what keeps the
24 Republic of Croatia
25 -- the other -- the Defence teams, in accepting each other's explanations
1 for the present situation.
2 I would therefore like to start with a focus on - and I'm now
3 referring to the original list - 68, 69, 78, 79, 88, 89.
4 The request was about regular reports from TRS-1 to Operational
5 Group North.
6 One of the issues that arises in relation to these documents, and
7 you see that we have three couples, 68, 69 regular reports, 4th of
8 August, 1995. 78, 79; 5th of August. 88, 89; 6th of August. Six
9 documents were requested; that is, a.m. reports and p.m. reports for each
10 of these days. The Republic of Croatia
11 report was produced and that this is supported by -- for example, the
12 numbering of those documents. So the first question that arises may be
13 whether the Prosecution accepts the explanation that only one report,
14 regular report, TRS-1 to Operational Group North was produced on those
16 MR. TIEGER: Yes, Your Honour. Well, in the spirit of consensus
17 I see you focused on appropriate categories of documents, and the --
18 JUDGE ORIE: Well, I grouped them to some extent together,
19 because these are reports sought of a similar kind for the various dates,
20 and we'll do that often that we group together reports 4th, 5th, and 6th
21 of August because the explanations often are of a similar kind.
22 MR. TIEGER: And I mentioned consensus because that's precisely
23 what exists with respect to these reports. The Prosecution agrees with
24 the interpretation of the officials of the authorities of the Republic of
1 documents there was originally a response from the Republic of Croatia
2 that the -- those particular documents would not be found in the central
3 military archive because they had an HVO origin. We then advised the
4 Croatian authorities that there was information that the Croatian state
5 archive in Zagreb
6 produced which validated the interpretation indicated that reports were
7 produced once a day, rather than twice. And on that basis, we agree with
8 the position with respect to the documents the Court just identified, and
9 there is no dispute between the -- between the Republic of Croatia
10 the Prosecution on those categories of documents.
11 JUDGE ORIE: Yes. So, therefore, we can strike from the list
12 half of these numbers. There's no dispute about them anymore. One being
13 produced means the second for that day has become moot.
14 MR. TIEGER: Yes, Your Honour, that's correct, so the -- that's
15 correct. Where, as previously, the request was for documents produced
16 twice a day, with respect to these categories, we agree that they were
17 produced the once a day.
18 JUDGE ORIE: Yes. And we find them in the filing of the 7th of
19 December. The documents that the OTP received from Croatia under the
20 numbers -- and there we have a different numbering. 15, 18, and 21,
21 where we find documents with sequential numbers.
22 [Trial Chamber and legal officer confer]
23 JUDGE ORIE: This might be typical for today that everyone has to
24 check whether what has been said is accurate or not.
25 MR. TIEGER: Yes, Your Honour, that's correct.
1 JUDGE ORIE: Therefore 68, 69, 78, 79, 88, 89, three reports have
2 been received; the other three can be stricken from the list as still
3 being sought.
4 Now often the reporting is in one way or another related to
6 Could I ask your specific attention for the report of the 4th of
7 August with the number the UR
8 MR. TIEGER: Your Honour, you previously identified --
9 JUDGE ORIE: It's number 15.
10 MR. TIEGER: Thank you.
11 JUDGE ORIE: Number 15 on the report filed on the ...
12 Among these reports --
14 MR. MISETIC: Mr. President, is it number 15 in Annex C of 2008?
15 JUDGE ORIE: No, it is number 15 in the filing of documents the
16 OTP received from Croatia
17 It's dated the 4th of August, although there is an illegible stamp on it,
18 5th of August. That's at least what I see in my ...
19 Yes, Mr. Kehoe.
20 MR. KEHOE: Mr. President, I'm just trying to -- Mr. Misetic and
21 I are just trying to get on the same page with the Chamber.
22 The report that we have filed by Office of the Prosecutor on
23 4 December for 15, in my sheet and Mr. Misetic's sheet, says regular
24 report from TRS-1 to OG North.
25 Am I mistaken in looking at the wrong document?
1 JUDGE ORIE: No.
2 MR. KEHOE: I thought you just mentioned an attack order.
3 JUDGE ORIE: No. I said that this reporting sometimes is related
4 to orders given, and that is a matter I would briefly explore, not in
5 full detail, but --
6 Mr. Tieger.
7 MR. TIEGER: I -- I think I understand Mr. Kehoe's reference, and
8 I believe he is focussing momentarily on attack order because of
9 number 15. That's -- I believe he may have turned to number 15 in the
10 Appendix C -- okay. Because that would have reflected an attack order.
11 JUDGE ORIE: Yes. No, I'm talking about a document which was
12 signed and stamped by Stipo Gotovac.
13 Mr. Tieger in this document, and it's one of the three documents
14 we just referred to -- yes, Mr. Markotic.
15 MR. MARKOTIC: [Interpretation] Your Honour, thank you.
16 We cannot follow your discussion because we don't have an OTP
17 list. You are mentioning a OTP list dated the 7th of December, 2009
18 can only follow Annex C, so we don't what this is all about.
19 Thank you.
20 JUDGE ORIE: If you would -- we are still talking about the
21 document 68, 69 of the original list. And I have seen that in the
22 response Croatia
23 commenting on matters, and that's the documents we are talking about.
24 Is that clear?
25 So among the three groups of two, 68, 69, 78, 79, 88, 89, there
1 is no problem anymore whether what was produced is everything that was
2 asked for.
3 Now, Mr. Tieger, in the report for the -- dated the 4th of
4 August, reference is made to an order of the commander of the TG ZP,
5 dated the 3rd of August. Is that a document which was sought, and/or
6 produced? Because the Chamber understands that in line of analysing what
7 the Prosecution sought is always a combination of who gave orders to what
8 and what was reported back.
9 Now, in the other of these documents, we find no reference to -
10 and I'm now talking about again the regular reports, TRS-1 for the 4th,
11 the 5th, and the 6th of August - we find no reference to any previous
12 orders; it's just a report. Now here there is a specific reference to an
13 order apparently relevant for the report to be sent. The Chamber
14 wondered whether that's any of the orders that were sought and/or
16 MR. TIEGER: Well, again when you say "any of the orders,"
17 Your Honour, I don't want to expand us beyond Appendix C for the moment.
18 I don't believe that is one of the categories in Appendix C.
19 JUDGE ORIE: Okay.
20 MR. TIEGER: Which I understood to be the Court's question, so I
21 wanted to make it clear.
22 JUDGE ORIE: Yes. Because it's quite an exercise to always link
23 the one list to another. Okay. Then as far as the Chamber is concerned
24 we have done with the series, 68, 69, 78, 79, 88, 89. And then I would
25 like to move to the next series.
1 If any of the parties would like to make any further submissions
2 in relation to these documents, they're invited to do so now.
3 MR. MISETIC: Mr. President, on behalf of the Gotovina Defence,
4 we have just a general position with respect to all of the TRS-1 and
5 TRS-2 documents. I won't pull it up, but I would draw the court's
6 attention to D971, and it gives you where these groups actually operated
7 on the territory of Bosnia and Herzegovina. Under Rule 54 bis, (A)
8 subpart (ii), there is a requirement for the party moving under 54 bis to
9 indicate how the document is relevant to any matter in issue before the
10 Judge or Trial Chamber and necessary for a fair determination of that
11 matter. So there is a necessity element in the Rule. Just generally
12 speaking, Mr. President, I won't take the position that there's no
13 relevance to TRS-2 and TRS-1; however, we would question how material
14 these documents are to any issues that are in dispute in this case,
15 which, of course, this indictment concerns only events that took place on
16 the territory of the Republic of Croatia
17 JUDGE ORIE: Yes, that's on the record. That may come back in
18 relation to one of the other documents, because, apparently, here, there
19 seems to be no remaining problem.
20 Then -- thank you, Mr. Misetic, for this submission.
21 Then I would like to move to the next series, which is 70, 71,
22 80, 81, 90, 91, which are regular reports from TRS-2 to Operational Group
23 North for, respectively, the 4th, the 5th, and the 6th of August, 1995.
24 If we look at the positions by the Republic of Croatia
25 Prosecution in this respect, I would like to draw your attention to
1 Appendix B to the OTP response to the request of Republic of Croatia
2 dated the 2nd June of 2009, which was filed on the 19th of June.
3 We find here the position of Croatia, that, according to the
4 statement of Ante Kardum, he went each night to the meetings at the
5 Operational Group command, where all the commanders subordinated to that
6 Operational Group delivered reports and that he did so as well. That he
7 presented his reports on activities, balance and consumption of
8 ammunition from the agenda in which he had written information he
9 received from his subordinates. And Mr. Kardum claims that he has never
10 kept any diaries or wrote reports, except occasionally in extraordinary
11 circumstances when someone was killed, et cetera.
12 The Prosecution states that Kardum's statement is in
13 contradiction with Rajcic's statement, in which he said that he had
14 compiled written reports.
15 The Chamber would like to hear further submissions of the parties
16 on acceptance or non-acceptance of this explanation by the Republic of
18 [Trial Chamber and legal officer confer]
19 JUDGE ORIE: I was mixing up matters which I should not have
20 done. We'll come to the other, the Kardum/Rajcic contradiction. We come
21 to that later.
22 And I resume the position taken by the Republic of Croatia
23 forget about what I said before, in relation to 70 and 71.
24 The position was that the documents requested were supposed to
25 have been drafted as requested. That's how it started. Apparently here
1 also is a morning, afternoon discussion, whether there were two reports
2 or one report on the same day, but since none of the reports has been
3 produced we cannot rely on any sequential numbering of reports. The
4 statement of the reasons given by Croatia is that TRS-2, as an element of
5 the corps artillery, provided artillery support to the HVO units under
6 the command of Brigadier Zeljko Glasnovic from the HVO, from the IZM OG
7 North in the village of Vrba
8 should have submitted their reports to that command.
9 In the response to the Prosecution's motion, the Prosecution then
10 objected that Croatia
11 those document, referring to Rajcic, who stated that generally groups
12 were supposed to compile reports twice a day. In response to that, the
13 Republic of Croatia
14 Tomislav Alajica, was re-done, who does not give a pre-emptory reply is
15 in a statement whether he was compiling written daily reports. Reference
16 is made to a statement by Alajica in footnote 50, a statement of the 2nd
17 of February, 2009. We did not find any Alajica statements in the earlier
18 submissions. However, there is a statement in the December series, to
19 say so, the recently translated and filed reports, but that is a
20 statement not of the 2nd of February, 2009, but a statement of the 24th
21 of October of 2009.
22 The -- apparently Croatia
23 question may be, Why not, if he doesn't give a pre-emptory answer? What
24 to do under those circumstances. And I would like to hear the positions
25 of the Prosecution and the position of the Republic of Croatia
1 respect. And if there's any reason to rely on the 24th of October, 2009
2 statement, the Chamber would like to hear exactly what portions are
3 relevant for the answer to this dispute.
4 Perhaps I first give an opportunity to the Republic of Croatia
5 And I also draw your attention to -- no, that's a different
7 No, please proceed.
8 MR. MARKOTIC: [Interpretation] Thank you, Your Honour.
9 Colonel Keser will respond to this issue, and by your leave, I
10 would like to turn the floor to him.
11 JUDGE ORIE: Yes.
12 MR. KESER: [Interpretation] Your Honour, concerning the issue of
13 the reports of the TRS-2, which are the subject of this request, we can
14 state that during an interview with the commander of that group whose
15 name is Tomislav Alajica we ascertained --
16 JUDGE ORIE: Could I stop you for a second. If you're referring
17 to any interview, could you give us the date of that interview because we
18 have apparently several dates for interviews.
19 MR. KESER: [Interpretation] Your Honour, I am referring to the
20 interview of the 2nd of February, 2009.
21 JUDGE ORIE: Yes.
22 MR. KESER: [Interpretation] In that interview, Commander Alajica
23 reported that he did not draft written reports about the activities of
24 his artillery rocket group. He stated that he reported orally to
25 Brigadier Glasnovic in the village of Vrba
1 Thank you.
2 JUDGE ORIE: Is anything further said in what appears to be a
3 more recent interview with Mr. Alajica? Again, the Chamber has not
4 searched all the boxes to find its own evidential material for taking
5 positions. It's exactly the reason why we have this hearing, that we
6 would like to hear from the parties.
7 Mr. Tieger, the position of the Prosecution in relation to these
8 reports, do you accept oral reporting by telephone on these dates? Are
9 there reasons to challenge that explanation?
10 MR. TIEGER: Your Honour, with the -- with respect to the
11 February 2nd interview, the only reference to communications with
12 Glasnovic occurs in the fourth paragraph. Well there's -- first, there's
13 an initial reference to the fact -- to him. And then it indicates, After
14 taking up positions he contacted Glasnovic and got further instructions
15 and a list of possible targets. There was reference to the absence of a
16 pre-emptory response. The Prosecution's position is that this question
17 was not resolved by the single reference to Glasnovic in that interview
18 or at least any other reference that I can find. And neither in this
19 interview or the later interview was the matter directly taken up with a
20 Alajica. And for that matter, unlike the previous position which was
21 resolved through the existing reports, the sequential numbering, we
22 cannot agree that this issue has been resolved by this interview.
23 JUDGE ORIE: Has --
24 [Trial Chamber and legal officer confer]
25 JUDGE ORIE: I do then understand that the Prosecution takes that
1 the reference in the February interview was rather vague and, as it was
2 reported by the Republic of Croatia
3 Now, since Mr. Alajica has been further interviewed on the
4 24th of October, and, again, it's not the task of this Chamber to find
5 the sources without being guided by the parties on this matter.
6 Has an attempt been made in the 24th of October to further
7 clarify the issue of reporting where the Republic of Croatia
8 that Mr. Alajica had not provided a pre-emptory reply?
9 I see that the new statement, the new interview, dated the 24th
10 of October, 2009, has been filed by the Prosecution in its filing on the
11 9th of December.
12 Could the Republic of Croatia
13 interview which would shed further light on this matter?
14 [Trial Chamber and legal officer confer]
15 JUDGE ORIE: Yes, where I said "filed by the Prosecution," I
16 meant to say reported a month before by the Republic of Croatia
17 Is there any portion of this interview which sheds further light
18 on this matter? Who takes the floor?
19 MR. CRNCEC: [Interpretation] Your Honour, the interview concerned
20 does not contain such data. However, we would like to point out the
21 interview with Drazen Vukelja, dated the 13th of February, 2009
22 also a member of the TRS-2. He states that he cannot remember seeing
23 Commander Alajica writing any reports. However, he does recall that when
24 Alajica went to briefings at the command, that it was Vukelja who
25 personally told him which orders were received on that particular day,
1 whether there were any activities undertaken, and the amount of
2 ammunition spent. He also shared with him the time of operation, as well
3 as the targets. Alajica, in turn, wrote that down in his notebook, and
4 briefed accordingly.
5 JUDGE ORIE: Has the Prosecution considered this statement in
6 still challenging the claimed non-existence of written reports?
7 MR. TIEGER: Well, to my knowledge that wasn't the subject of
8 direct discussions with the Republic of Croatia
9 resolves the issue, first of all.
10 To the extent there's a suggestion that there's a causal
11 connection between the briefings and the -- any information provided by
12 Vukelja, I don't think that's warranted in the Official Note, but in any
13 event, they're of such a nature you would be hard-pressed to make that
14 direct contention one way or another since it is relatively subtle.
15 JUDGE ORIE: You would say it is marginal information for the
16 core of the dispute.
17 MR. TIEGER: Right, and I further say the fact that when oral
18 information is being transmitted, it is immediately written down, overall
19 supports the Prosecution's position throughout that these important
20 matters weren't simply communicated orally but, were memorialised in
21 various way, including reports.
22 JUDGE ORIE: You referred to an interview with Mr. Vukelja
23 February 2009. Now, there is another interview held with him on the 24th
24 of October 2009. Does that interview shed any further light, whether
25 positive or negative, on the issue?
1 [Trial Chamber and legal officer confer]
2 MR. CRNCEC: [Interpretation] No, Your Honour. In that interview,
3 there's no mention of that particular issue.
4 JUDGE ORIE: Thank you, Mr. Crncec.
5 The Official Notes of the interviews have been filed, as far as
6 the October interviews are concerned.
7 Could the parties, could you, Mr. Tieger, or could you assist us
8 in where to find the February interviews, both of Mr. Alajica, and of
9 Mr. -- let me -- Mr. Vukelja.
10 Where does the Chamber find them? Again, we have not gone
11 through every little piece of paper in those boxes for the reasons I
12 stated before, but if there is anything in which we'll find a clue for
13 resolving matters which apparently still are in dispute, we would like to
14 be informed about the specific sources.
15 MR. TIEGER: First of all, Your Honour, of course, we're more
16 than happy to file these if they haven't been. I would note that the --
17 our June 2009 submission was accompanied by the interviews which were
18 referred to in that submission.
19 So I can't say with certainty that this one is in that
20 submission. And in fact I'm advised that -- that it is not.
21 JUDGE ORIE: I have -- I have Official Notes, Appendix C to the
22 response which was filed on the 19th of June. The Official Notes of
23 interviews with Mr. Kardum, First, Ivanovic, Kotromanovic, Glavan,
24 Ragulj, Bagic, and Gotovac.
25 I have no others. Is that ...
1 MR. TIEGER: That's correct, Your Honour.
2 JUDGE ORIE: How to proceed in respect of this apparent point of
4 MR. TIEGER: Well, as I say, with respect to the interviews,
5 we're more than happy to make those available to the Court. The Court
6 has heard them discussed, so you will have an opportunity to peruse them
7 on your own.
8 I would note one further matter with respect to the -- to that
9 particular issue and the reliance or non-reliance on the Vukelja
10 interview, and I would turn the court's attention to the information
11 derived from interviews with Mr. Rajcic who asserted that reports from
12 TRS-2 were, indeed, received. So that is another factor that bears on
13 the Prosecution's position with respect to whether the Alajica or Vukelja
14 interviews resolve this issue.
15 JUDGE ORIE: Yes. I suggest that, after this hearing, on the
16 matters we have specifically discussed and which have not been resolved,
17 that we -- that the parties will file primarily, perhaps in five lines,
18 again, their position, and then with full reference to all the sources
19 but details of the sources. That is, interview with this person, that
20 date, to be found there, paragraph so-and-so, so that the Chamber will
21 finally be assisted in finally accepting the position of one or both
23 [Trial Chamber and legal officer confer]
24 JUDGE ORIE: The Chamber has not received the
25 February interviews, not from Mr. Alajica. Are they -- would they be
1 available? And I'm not saying that they have not yet been provided, but
2 the Chamber would like to know whether --
3 Yes, Mr. Markotic.
4 MR. MARKOTIC: [Interpretation] Thank you, Your Honour.
5 I just wanted to say that that Official Note that is being
6 discussed was forwarded together with our report of the 23rd of February,
7 2009. It was forwarded to both the Chamber and the OTP.
8 JUDGE ORIE: Yes, as I said before, the Chamber, for good
9 reasons, has focused primarily on the submissions of the parties but has
10 -- has exercised some self-restraint in going through all of the material
11 which, of course, many of these -- many of these Official Notes give
12 further information about the events at the time, and the Chamber
13 considers it's inappropriate to -- to go around and gather whatever
14 information there is and really wants to focus on whether what was
15 produced satisfies the Prosecution, as far as an explanation for the
17 Mr. Tieger, you certainly would have looked at the February --
18 you may be in a position to assist the Chamber in -- we'll -- of course,
19 we'll look, perhaps now, a bit better in the boxes as well, but it is a
20 bit disorganised material.
21 We'll find a way to have that material available to the Chamber.
22 Any further matter in relation to 70, 78, 80 -- 70, 71 - I
23 apologise - 80, 81, 90, 91?
24 In view of the time it takes, I would prefer to have an early
25 break, and that's not to interrupt the next series. The next series,
1 which will be 76, 77, 86, 87, 96, 97, and is about TS-5 reports to
2 Operational Group Zadar.
3 We'll have a break, and we will resume at five minutes to 11.00.
4 --- Recess taken at 10.22 a.m.
5 --- On resuming at 11.02 a.m.
6 JUDGE ORIE: I think that I announced that we would deal with 76,
7 77, 86, 87, and 96, 97; we'd deal with those.
8 I referred already to the submissions, although in the wrong
9 context. We were talking about regular reports, TS-5 for Operational
10 Group Zadar. Reference is made to two statements of Mr. Kardum: One,
11 12th of February, 2009; second, 16th of March, 2009. I take it that
12 these statements have been provided in the submissions, because the
13 Prosecution takes the view that the statements by Mr. Kardum are
14 contradicted by the statements by Mr. Rajcic that he had compiled written
15 reports. Croatia
16 reporting generally and not in specifics.
17 Could I invite the parties to make further submissions in
18 relation to this matter, which, apparently, is in dispute.
19 MR. TIEGER: Your Honour, the Court has already noted the -- the
20 two contrasting information -- sources of information and pieces of
22 JUDGE ORIE: Yes, although we would like to have the details.
23 For example, the -- we find that Mr. Rajcic contradicts which statement
24 exactly and where to be found. We found the reference to Kardum.
25 Could we find -- are we talking about the Rajcic statement which
1 is -- because we find one Official Note under number 2 of the
2 Official Notes, and I think we're talking about the -- let me just check.
3 The filing of the 19th of January contains a list of official statements.
4 Under number 5, is listed the note of interview with Mr. Kardum; under
5 number 12, the statement of Mr. Rajcic.
6 Is that what you refer to, Mr. Tieger?
7 MR. TIEGER: I'm --
8 JUDGE ORIE: And just to read the relevant portion of the
9 statement of Mr. Kardum seems to be:
10 "Furthermore, every evening" -- and this is about Mr. Kardum, but
11 that's the one which used in Official Notes "he," meaning Mr. Kardum:
12 "... attended meetings at the Operational Group command, where
13 all the subordinated commanders, including him, gave reports. He
14 reported about weapons deployment" --
15 That's the passage, apparently, which -- on which the government
16 of Croatia
17 "In relation to the system of communication and reporting, Rajcic
18 states that the commanders of the TS and TRS had to submit written
19 reports two times per day, which they mostly did. The reports usually
20 came late when the situation on the front had already changed, so there
21 was not much use of the reports. He remembers that Milan, Gotovac,
22 Alajica, and Mamic reported directly to the command post of the
23 Military District to Sajkovici, that Kardum forwarded the reports through
24 the chief of artillery of the Operations Group Zadar, Marijan First."
25 That's what the Chamber found as apparently the most relevant
1 sources that Croatia
3 MR. TIEGER: From the Prosecution's point of view, yes,
4 Your Honour, except a note, and perhaps our colleagues from the Republic
5 of Croatia
6 accident on a 12 February 2009
7 JUDGE ORIE: Yes. Because what I just read is a statement, 22nd
8 of April, 2008.
9 MR. TIEGER: Yes.
10 JUDGE ORIE: Whereas, is the 12th of February to be found in the
11 boxes? Have you received it?
12 MR. TIEGER: I'm sorry the ...
13 JUDGE ORIE: We are referring here to the 12th of February 2009
14 statement. That's what we find in the footnote 53 in the -- in
15 Appendix B which was filed on the 19th of June. Reference to a
16 February 2009 statement which -- where can the Chamber find that? Is
17 it -- was it produced?
18 MR. TIEGER: Well, I believe it was. It was not submitted with
19 the -- obviously it wasn't submitted with the January 2009 filing by the
20 Prosecution, nor in the June 2009, because, as I indicated before, that
21 contained the interviews which were specifically referenced in the
23 JUDGE ORIE: Yes.
24 Mr. Misetic.
25 MR. MISETIC: Yes, Mr. President. I rise because this dispute is
1 at least partially rests on Mr. Rajcic's Official Note. I do wish to
2 draw the Chamber's attention to the fact that Mr. Rajcic testified before
3 this Chamber and disavowed, I would say, the majority of that
4 Official Note including the portion relied upon by the Prosecution here,
5 and that than disavowal begins specifically at transport page 16346,
6 beginning at line 24. It's not clear the disavowal, but he was read the
7 specific portion that you read, and the transcript reflects him saying:
8 "I would never state something of the sort.
9 And then it goes on as to why.
10 But I did wish to note for the Chamber that the entire discussion
11 of that Official Note begins at -- is now Exhibit P2323. The --
12 Mr. Rajcic's testimony on it is at 16336, beginning at line 4, to 16358,
13 beginning at line 8. At transcript page 16350, Mr. Rajcic says the
14 Official Note puts words in his mouth that he didn't say. So the Chamber
15 is aware, the person that took the note, as I believe Mr. Keser who is
16 here in Court in case there are any questions about how the note was
18 Thank you.
19 JUDGE ORIE: Yes. Now just for my information, we are talking
20 about the Official Note dated the ...
21 MR. MISETIC: I believe it's the 11th of July, 2008, if I'm not
23 JUDGE ORIE: Yes. We're talking about the -- the same note of
24 which I quoted.
25 We here, therefore, have a double problem. Perhaps deal with the
1 simple one, the 12th of February, 2009, Kardum interview.
2 Mr. Tieger, where is that to be found for the Chamber? Should we
3 dive in the boxes or -- and what box?
4 MR. TIEGER: You have to give me a moment, Your Honour.
5 Meanwhile and -- [Overlapping speakers] ...
6 JUDGE ORIE: [Overlapping speakers] ...
7 MR. TIEGER: I think we can proceed with the submissions, and we
8 will find you an answer to that.
9 JUDGE ORIE: Yes.
10 MR. TIEGER: I began by just noting the nature of that apparently
11 conflicting information, and then I wanted to continue to note the
12 following. And that is that Mr. Kardum says that he reported verbally to
13 OG Zadar. That information has to go on up. One would therefore expect
14 to find a reference to that reporting in the OG Zadar war diary. We have
15 that diary. There are no such references that would give rise to the
16 inference that there were some other mechanism of getting the information
17 from the Artillery Rocket Group to the command, and the logical inference
18 would be that -- that the normal mechanism of doing so, written reports,
19 would be utilized. Sure enough, that's exactly what Mr. Rajcic says. So
20 that's another of the factors that the Prosecution considers in regarding
21 this issue as not resolved by the Kardum statement.
22 Furthermore, this all occurs in the context of an investigation
23 where, as previously noted, there are indications of efforts at, at least
24 a systematic collection of the materials and documentation related to
25 Operation Storm, the latest of which was identified on November 30th and
1 which has recently been submitted to the Court in the Prosecution's
2 recent filing of the correspondence.
3 Therefore, in -- in -- and that's, I think, one of the most
4 telling indications, and actually it signals in a number of ways a change
5 in emphasis and information for the investigation.
6 So in the context of an investigation where this is an
7 indication, and increasingly strong indications, that Operation Storm
8 documentation was systemically collected, unless the matter is more
9 definitively resolved than this, the search should continue for
10 information of this type and reports of this type, and that's more
11 fulsomely the Prosecution's position on this matter.
12 JUDGE ORIE: Thank you, Mr. Tieger.
13 Could I hear from the Republic of Croatia
14 observations include comments on witnesses telling here in court that
15 what we find in the Official Notes is not what they said, which, of
16 course, complicates the matters, to some extent. I'm not saying who is
17 complicating it but ...
18 Mr. Tieger.
19 MR. TIEGER: One more matter, Your Honour. We will look even
20 more carefully at the transcript, but our preliminary review of that
21 indicates that what Mr. Misetic referred to as the Rajcic disavowal was
22 with regard to the -- an earlier part of the -- of the note.
23 And with respect to the portion of the note the Court read out in
24 relation to the system of communication and reporting, Rajcic states that
25 the commanders of the TS and TRS had to submit written reports two times
1 per day, which they mostly did."
2 He affirmed.
3 So that needs to be looked at a bit more carefully, I think.
4 JUDGE ORIE: Please, transcript pages, because we are not going
5 to discuss this matter without having --
6 MR. TIEGER: 16346 through 47.
7 JUDGE ORIE: 16 ...
8 MR. MISETIC: Mr. President, that is not the correct transcript
9 page, so ...
10 JUDGE ORIE: Well, you may both provide the transcript pages you
11 like most, and then we will have a look at them.
12 But let me first -- we are talking about 1634767 [sic]. And,
13 Mr. Misetic, the competing transcript pages would be?
14 MR. MISETIC: I'm sorry, on that specific portion, but in terms
15 of broader context, I believe I have already read it out. The disavowal
16 of the statement was certainly not limited to the beginning portions. I
17 read out the -- it was 22 pages of transcript of disavowal.
18 So --
19 JUDGE ORIE: And those are pages?
20 MR. MISETIC: 16336, beginning at line 4; to 16358, ending at
21 line 8.
22 JUDGE ORIE: Which includes the pages, you give it a broader --
23 MR. MISETIC: Yes, Mr. President.
24 JUDGE ORIE: -- reference.
25 Now, reading 22 pages of transcript, I will not be able to do
2 MR. MISETIC: I did wish to draw the Court's attention to the
3 portion where Mr. Rajcic says --
4 JUDGE ORIE: Let me first try to get it on my screen. One
5 second, please.
6 Yes, Mr. Misetic.
7 MR. MISETIC: The specific reference I made earlier, although not
8 directly on this point, Mr. Rajcic testified at page 16350, beginning at
9 line 1. At a different portion, this is about a part where "words are
10 put in my mouth."
11 JUDGE ORIE: Yes. First of all, before we continue,
12 Mr. Markotic, I think in the -- we earlier expressed that if there would
13 be any need to go into private session, that you could request such. I
14 noticed that quite some of the material we're discussing at this moment
15 were provided on a confidential basis. You, nevertheless, have not asked
16 to go into private session.
17 We are now dealing with transcript pages which are transcripts of
18 testimony in private session. I just wanted to verify with you, whether
19 you still feel at ease as matters are going now. We're not going much of
20 detail, but at least I haven't heard any application for private session
21 up to this moment, and I just wanted to put that on the record.
22 I see there is no response by saying we should immediately turn
23 into private session. So, therefore, please be aware that you always can
24 apply for that.
25 Now let me just ...
1 Yes, the part I quoted earlier was read to Mr. Rajcic, and in
2 that respect, specifically on that part, he said: "That is correct."
3 So whatever the dispute may have been, whether it was the report
4 accurately reflects what he said or not, that at least he agrees with
5 this part. That is at least correct for the first part.
6 As far as the communications and reporting system is concerned,
7 Rajcic says that the commanders of the artillery groups and artillery
8 rocket groups were duty-bound to send written reports twice a day, which
9 they mostly did. This part, as he says, is correct.
10 Then the following portion: "These reports usually came in late
11 when the situation on the front had already changed, so that there was
12 not much use - and I emphasise there was not much use - of the reports.
13 He said, I would never state something of the sort, and then he explains:
14 Every piece of information which reaches the operations centre of the
15 main command or of the HQ, even if it is a belated one, it is,
16 nevertheless, useful."
17 So he says, I would not have said this because I entirely
18 disagree, and that is the judgement on whether it was of use or not. But
19 the first part, reporting system, and that it was mostly done, was not
20 contested by him.
21 I'd like to hear your submissions on both the substance but also
22 on, Mr. Rajcic -- although perhaps not in this specific respect,
23 distentiating [sic] himself from what is found in the Official Note,
24 which, of course, may have consequences as far as the accuracy of the
25 Official Notes are concerned, is concerned.
1 Who will take the floor?
2 Mr. Crncec, it will be you. Yes, please.
3 MR. CRNCEC: [Interpretation] Thank you, Your Honour.
4 Firstly, let me point out the specific nature of Official Notes
5 under the Law on Criminal Procedure of the Republic of Croatia
6 Official Notes on interviews conducted do not carry a probative
7 value under the provisions of the Croatian criminal legislation.
8 Secondly, we should try and establish a very important fact when
9 discussing these specific categories of documents. Namely, the Republic
10 of Croatia
11 these documents are concerned, there is disagreement between the OTP and
12 the Republic of Croatia
13 the submissions of the 19th of June, 2009, the OTP states that
14 approximately 63 documents are still missing. From the filing of the
15 19th of January, 2009, Appendix C of the filing, these categories of
16 documents contain footnotes 12, 13, 14, 15, 16, and 17. These footnotes
17 state that, according to the OTP, there is insufficient information to
18 indicate whether the document was, indeed, drafted or not. Our
19 understanding of the matter is that in the final key of Appendix C, these
20 categories of documents fall under the 35 categories, which were not
21 perhaps drafted, which is something that the OTP shares as an opinion, so
22 they would not fall under the 63 documents which, according to the OTP,
23 are still missing.
24 It is the view of the Republic of Croatia
25 not been made. This position is based on the Official Note that you,
1 Your Honour, cited earlier on, the 12th of February, 2009 Official Note,
2 of the interview with Mr. Kardum, commander of Artillery Group 5, who
3 should have been the author of such a document, if it existed. The note
4 was submitted along with the report of Croatia on the 23rd of February,
6 The position is also based on the 16th of March, 2009,
7 Official Note which was submitted along with Croatia's report of the
8 29th of April which is, again, an Official Note of an interview with
9 Mr. Kardum, who, again, in this note, repeated that he had not kept any
10 records or made any specific reports on the activities of his artillery
11 group, and this is a quotation from the Official Note.
12 JUDGE ORIE: First of all, the Chamber was aware that
13 Official Notes cannot be used as evidence in criminal proceedings.
14 But what, in your view, is the Chamber supposed to do with
15 Official Notes? It's clear that we cannot -- or at least that the
16 Croatian court could not convict anyone on such a note. It could not be
17 used as evidence.
18 But, I mean, we have been provided with a lot of Official Notes.
19 May I take it that there is no suggestion that we should just ignore
20 their contents. I mean, what is the position of the Croatian government
21 as to the accuracy of these Official Notes? Because we don't have to
22 bother about -- primarily about the fact what a Croatian court could do
23 with it; but what we could or could not do with it.
24 MR. CRNCEC: [Interpretation] The Republic of Croatia
25 administrative investigation used these Official Notes as a source of
1 information about certain documents or facts. Therefore, we are in no
2 position to suggest what use could be made of them by this Tribunal. We
3 are merely pointing out the fact that some people were interviewed on
4 several occasions, and that's been 14 years since the events in question,
5 and that there is a possibility of seeing contradictions in their
7 That would be it.
8 JUDGE ORIE: Now, apart from what probative value could be
9 attached to the Official Note of an interview, 11 of July 2008, given by
10 Mr. Rajcic, it -- it looks as if he describes different ways of
11 reporting, Mr. Kardum this way, but he refers to others as, apparently,
12 using other ways of reporting; that is, directly to the command post of
13 the Military District, to Sajkovici. It seems as if Mr. Kardum says,
14 Well, the way in which I did it, we were all together, that is how we did
15 it; whereas, that seems not to be confirmed by Mr. Rajcic.
16 That is, may I take it, one of the parts of what is the
17 contradiction. Mr. Kardum reporting in a different way, and the system
18 being described as written reports which was mostly done.
19 Yes, Mr. Crncec.
20 MR. CRNCEC: [Interpretation] In the quoted Official Note,
21 Mr. Rajcic states that the commanders, for the most part, I underscore
22 "for the most part," drafted such reports.
23 This Official Note drafted by the competent authorities in
25 was used in conducting interviews with other relevant persons;
1 specifically, in this case, the commanders of the artillery groups who
2 were questioned precisely about that particular thing.
3 Mr. Kardum, on several occasions, reiterated that he never
4 drafted written reports about the activities of his artillery group.
5 JUDGE ORIE: And part of the argument of the Prosecution is that
6 even oral reporting finds its way; it's not you listen and you forget
7 about it, but someone would write it down in one way or another.
8 What's your response to that?
9 MR. KESER: [Interpretation] Your Honour, the Republic of Croatia
10 based on the information it has, states that Mr. Kardum did not report in
11 a written form. Therefore, such information did not reach the operative
12 group in written form. He merely stated that all that was relevant was
13 something he noted down in his own notebook and then presented that
14 information during briefing sessions, in terms of the activities of his
15 artillery group.
16 The Republic of Croatia
17 to corroborate that fact, and I must state yet again that we have been
18 unable to come across any traces which would prove the existence of such
20 JUDGE ORIE: Now, apparently reports were made by TRS-1 to
21 Operational Group North and TS-4 to Operational Group Sibenik.
22 Now, would -- is that something that would be just be accepted?
23 One commander doesn't fulfil his duty. I'm trying to understand why half
24 of them did report; others did not. And we're all aware, isn't it, of
25 this game played at children's parties where a message goes from one
1 orally to the other, and we all know that, at the end of the line, the
2 story is usually a different one from the story with which we started,
3 which entails serious risks of mal-communication.
4 Is there anything you would like to further say about this and
5 about the acceptability in a hierarchical command structure?
6 Mr. Sklepic.
7 MR. SKLEPIC: [Interpretation] Your Honour, while we were
8 preparing for today's appearance before you, we envisaged a PowerPoint
9 presentation which we were unable to show you so far. It was supposed to
10 indicate the difference between the Operational Group and the artillery
11 group. These forces were uneven, in terms of numbers, and they did not
12 have the possibility to report the same way or to act in the same
13 fashion. Given that we were unable to present it to you, and regarding
14 your query, I can only say that the Artillery Group 5 which is being
15 discussed, was somewhat specific, because it was at the very end, western
16 end of the area encompassed by Operation Storm, and that the command of
17 that group -- or, rather, commanding of that group by the Split District
18 and its forward command post in --
19 THE INTERPRETER: The interpreter didn't catch the name.
20 MR. SKLEPIC: [Previous translation continues]... by Mr. Rajcic
21 was handed over to his assistant who was within operative group Zadar.
22 In order for one to fully grasp the existing differences - the
23 assistant commander's name is First - he had delegated -- Mr. Rajcic had
24 delegated that to his assistant, Mr. First after having drafted those
25 documents together. Therefore Mr. First was in command of the artillery
1 group itself.
2 In order to fully appreciate the differences in question, I
3 believe it would be of value to present that information by way of the
4 presentation we had prepared.
5 THE INTERPRETER: Interpreter's note: The forward command post
6 location is Sajkovici.
7 JUDGE ORIE: Yes. The reason why the Chamber wanted to focus on
8 the questions rather than to receive a PowerPoint presentation is the
9 experience that often the focus is lost if we would allow such
10 presentations. Apart from that, there may be confusion as to the
11 probative value of any such presentation. Whatever should be said should
12 be already known to the Chamber, and otherwise, of course, you would
13 appear as witnesses, and we want -- we don't want to blur these two
14 sources of information.
15 Now, a statement taken by Mr. First is filed on the 19th of
16 June in Appendix C to the OTP's response to Croatia's request of the
17 2nd of June, 2009. Would we find the relevant information in that
18 Official Note which was compiled 26th of March, 2009, an Official Note of
19 an interview with Marijan First.
20 Is that where we find the relevant information?
21 And, if so, in which paragraph?
22 MR. SKLEPIC: [Interpretation] Your Honour, in the Official Note
23 of the interview with Mr. First dated the 26th of March this year, on
24 page 3, in the Croatian version, of course, it reads, I quote:
25 "Once the command of Operational Group Zadar was formed," he went
1 to the command post which was in the village of Policnik
2 sorry, where he reported to Commander Fuzul. That was probably on the
3 3rd of August, 1995 in the morning. With him, he brought a plan of
4 activity of the artillery for operational group Zadar which had
5 previously been drafted together with Mr. Rajcic. The order of the
6 commander of the Operative Group Zadar was drafted on that occasion. He
7 took part in the drafting of that document and created the artillery
8 attachment to that order.
9 He forwarded those documents to the commander of TG-5,
10 Mr. Ante Kardum. The list of targets Jagoda was in the attachment as
11 well as an expanded list of targets which was to be used as an auxiliary
12 means in the course of providing artillery support. Therefore, the
13 following can be concluded, and I have another quotation:
14 "Concerning the system of command of the corps artillery during
15 Operation Storm, First states that it is beyond question that the
16 activities of all five artillery and artillery rocket groups were planned
17 at the level of the Military District of Split." He is aware of that
18 because he participated in it as ...
19 JUDGE ORIE: I meanwhile found where are you quoting from.
20 Please proceed.
21 MR. SKLEPIC: [Interpretation] He is aware of that because he
22 participated in it as the assistant or, rather, associate of
23 Marko Rajcic.
24 Concerning the implementation of the operation regarding
25 Operative Group Zadar and the activities of TG-5, he states that he
1 enjoyed Rajcic's trust and that Rajcic could not have physically
2 supervised the activities of all artillery and artillery rocket groups in
3 the entire operational area because he was focused on the activities
4 pertaining to Knin itself.
5 Thank you.
6 JUDGE ORIE: Yes, it is not entirely clear to me yet to what
7 extent the quotes you just gave justify a conclusion that there was no
8 reporting as the reporting done by, for example, TRS-1 and TS-4.
9 But this apparently is the matter you would think is -- you want
10 to draw our attention to in support of your position.
11 Anything else in relation to -- yes, Mr. Sklepic.
12 MR. SKLEPIC: [Interpretation] Your Honour, I quoted these
13 portions for the sole reason of showing that this artillery group enjoyed
14 a special status, given that the chief of artillery in operative Group
15 Zadar, Mr. First, had a special status as the first assistant to
16 Marko Rajcic until just before that period.
17 The reports submitted by the commander of TG-5 to Operative Group
18 Zadar were the same as if submitted directly to the Military District of
20 provides no data about the reporting itself, but it does address the
21 chain of command.
22 That is my starting point when I tried to clarify our position.
23 JUDGE ORIE: Thank you for that.
24 Mr. Tieger, any submissions in relation to what was just brought
25 to the attention of the Chamber?
1 MR. TIEGER: No, except to note that those are inferences drawn
2 from sources that don't, themselves, make the explicit connection that
3 Mr. Sklepic just attempted to make. We didn't hear that from -- we
4 certainly didn't hear that from Mr. Rajcic. We didn't even hear from
5 Mr. First.
6 JUDGE ORIE: Any other party or interested party to make any
7 further submissions in relation to this group?
8 MR. MISETIC: Mr. President, just to complete the picture on
10 Another factor that we think should be kept in consideration is
11 that Mr. Rajcic testified on the 3rd there was a change with part of
12 TRS-5 then moving on to assist the special police. And so that -- as I'm
13 told what was left of TRS-5 by the beginning of Operation Storm with the
14 Split Military District was two Howitzers and two artillery pieces, and
15 that may affect, then, why there is different reporting from other
16 operative groups, which would have had complete sets, as opposed to what
17 was left of TRS-5.
18 JUDGE ORIE: Yes, thank you for that submission.
19 Then we move on to my next series.
20 Next series concern 72, 73, 82, 83, 92, 93; reporting from TS-3
21 to Operational Group North.
22 The position of Croatia
23 requested were supposed to have been drafted as requested. And at the
24 end of the statement of the reasons, it says:
25 "We would like to mention that, due to commanding relations, TS-3
1 was not even supposed to report to Operational Group North but to the
2 forward command post, Split Military District, Sajkovici."
3 Now, how to reconcile that the documents were supposed to have
4 been drafted; but, at the same time, to bring to our attention that TS-3
5 was not even supposed to report to Operational Group North. That is not
6 easy to understand.
7 Could we hear from the Croatian government.
8 MR. SKLEPIC: [Interpretation] Your Honour, the explanation of our
9 statement also arises from the chain of command. Operational Group
10 North, whose commander was Rahim Ademi, was positioned -- or, rather, its
11 command was positioned at the same location as that of forward command
12 post of the Split Military District; namely, Sajkovici. Rahim Ademi was
13 also commander of Operational Group North and primarily Chief of Staff of
14 the Split Military District. He wore two hats. He had a dual role to
16 Our statement that Operational Group North did not need to
17 receive these reports to begin with arises from the very fact that these
18 two commands were situated at the same location.
19 JUDGE ORIE: Yes. You say if people are in the same location,
20 then the mere knowledge stored in the memory of the person would do for
21 all operational purposes.
22 Is that the explanation? I see nodding no, but ...
23 MR. SKLEPIC: [Interpretation] Of course, that that is not the
24 explanation. I'm merely pointing out, that, according to the chain of
25 command, the artillery group which is now being discussed, did not need
1 to report to Operational Group North, the reporting itself, and the
2 method of reporting is reflected in the Official Notes of interviews with
3 Mamic and Erak of the 4th of February of this year.
4 MR. CRNCEC: [Interpretation] Your Honour, may I only quote the
5 mentioned Official Notes?
6 There, commander of Artillery Group 3, Mamic, stated, and I
8 "He claims that he, himself, did not write any daily reports, nor
9 is he aware of anyone else writing them."
10 A member of the same artillery group, Zivko Erak stated, and I
12 "On receiving an order, he stated that he used a field phone to
13 get in touch with the positions that were supposed to open fire and
14 related the order to them. Later on, he would report back to Sajkovici
15 and make a note of the order in the operational diary."
16 This was submitted to the Trial Chamber and the OTP.
17 JUDGE ORIE: Mr. Tieger, I think that the documents I mentioned,
18 a series of six, are all dealing with the same problem more or less, so,
19 therefore, I took the explanation for 72 to include all the others as
21 MR. TIEGER: I --
22 JUDGE ORIE: [Overlapping speakers] ...
23 MR. TIEGER: Yes, I understood that in the same context as the
24 earlier reviews, Your Honour.
25 The position was that the method of reporting was reflected in
1 the Official Notes of Mamic and Erak. It's important, therefore, to note
2 that, in addition to what was previously asserted about Mamic's position
3 that he didn't write any daily reports nor does he know anyone else, he
4 was also shown, during the course of that interview, reports which he had
5 written before Storm that had his name and indicated him as commander.
6 And the reason he was shown that is because Mr. Mamic apparently wasn't
7 able to remember that he was the commander. And when shown those notes
8 which stated that he was the commander, indicated that he had written and
9 signed them, he asserted that he was seeing for the first time.
10 I think that bears to a large extent to the weight that can be
11 attributed to the assertions of Mr. Mamic with respect to the reporting
12 system in place at the time. And with respect to Mr. Erak he purported
13 to not be aware of who his commander was.
14 Again, Your Honour, these factors render this information
15 insufficient to resolve this issue, particularly as I mentioned in the
16 context of an investigation which is proceeding now with the heightened
17 awareness that documentation regarding Storm was systematically collected
18 and may be found elsewhere.
19 JUDGE ORIE: The language in your report - and I'm now addressing
20 the representatives of Croatia
21 "In the continuation of the operative processing, interviews were
22 conducted with Goran Mamic and Zivko Erak. None of them confirmed that
23 daily reports were written by the TS-3 to the superior command."
24 That is not a firm denial that ever such reports were written, or
25 do we have to conclude that from the context of their statements?
1 MR. KESER: [Interpretation] Your Honour, in the context of their
2 statements, there was mention of reports from this artillery group to the
3 superior command as part of Operation Storm. These reports were shown to
4 Goran Mamic. They were written informally in handwriting without any
5 reference number or class number. When it came to writing reports, he
6 did say that he wrote them but not in relation to Operation Storm, and
7 that's the gist of what the notes state.
8 JUDGE ORIE: Now, part of the comments of the Office of the
9 Prosecution was that Mr. Mamic's statement is highly unreliable because
10 he - that's at least how I understood it - because he said that reports
11 which bear his name in a commanding position and his signature, that he
12 saw them for the first time, and that, as Mr. Tieger put it, he had
13 forgotten or he didn't know anymore that he was a commander.
14 Any comment on that aspect? Again, the Chamber has not evaluated
15 in detail any of the Official Notes. I would say, any of the evidence,
16 but, of course, it's at least to -- in Croatian courts, it would not be
17 evidence, but it's material which has been made available to us to rely
18 upon to better understand the reasons why these documents either do not
19 exist or were not produced.
20 Any comments on -- on what is presented by Mr. Tieger as indicia
21 of unreliability?
22 MR. KESER: [Interpretation] Your Honour, on the issue of
23 Goran Mamic, it was precisely because of such statements of his that the
24 Republic of Croatia
25 deputy, Mr. Zivko Erak, who, at the time of the implementation of
1 Operation Storm was present at the positions along with artillery group.
2 Whereas, Mr. Mamic was at the observation post during the operation. In
3 other words, he was not at the HQ. Mr. Erak also stated that he had not
4 written any sort of daily reports nor was he aware of anyone else writing
6 As Mamic's deputy, he should have known if such reports were
8 Thank you.
9 JUDGE ORIE: Mr. Tieger.
10 MR. TIEGER: Well, the fact is that Mr. Mamic was just cited in
11 this courtroom as the basis for the assertion with regard to those
12 reports. One more point that should have been considered by the
13 authorities, the Republic of Croatia
14 those reports, and that is that in October of 2008, Mr. Mamic advised
15 investigators according to that Official Note that he was a witness for
16 the Gotovina Defence and that, as a result, prior to the interview, he
17 had consolidations with Mr. Ivanovic who told him he could not give away
18 the operation commanders and other details which could be detrimental to
19 the defence of the general, by reason of which he would answer only those
20 questions that he deemed did not present a problem and continued.
21 Now, my recollection is that that matter was raised and disputed
22 by the Defence. That's -- that's fine. But the point is that that's
23 what Mr. Mamic's position was, about the information he was prepared to
25 JUDGE ORIE: And about Mr. Erak? Because I think that both are
1 mentioned as source of the ...
2 MR. TIEGER: It's -- Mr. Erak's position is far from definitive
3 on that or dispositive on that issue, Your Honour, and as I say his
4 memory was also rather faulty. But in any event he does not take a
5 dispositive position which was the reason why it was framed as, as the
6 deputy he would have been in a position to know. And for all the reasons
7 stated, it cannot be said that those two statements taken together -- or
8 interview notes taken together therefore resolve the issue in the manner
9 suggested by the Croatian authorities.
10 JUDGE ORIE: And you said Mr. Erak said that he wasn't aware who
11 his commander was. Is that how I have to understand page 44, line 15?
12 MR. TIEGER: Well, it's not entirely clear. He makes an indirect
13 reference to -- he is anything but definitive about it. Indicates he
14 does not know who commanded or who was supposed to command the battalion
15 since Vlahov was not there, but he knows that his deputy Goran Mamic was
16 at the observation post and on reconnaissance with the scouts.
17 JUDGE ORIE: Thank you.
18 Mr. Misetic.
19 MR. MISETIC: Yes, Mr. President.
20 First, we agree entirely with the Republic of Croatia
21 would have been, during operation Storm, no reason for reports to be
22 created to Operative Group North. OG North de facto was commanded by the
24 simultaneously the Chief of Staff of the Split Military District and
25 OG North commander. And also because they are in fact the same location.
1 In other words OG North is being commanded from IZM Sajkovici, which is
2 the location of the Split Military District.
3 So it is completely false, it's our position, the Prosecution's
4 position is untenable that such reports were drafted because it defies
5 common sense that you would draft reports first to the OG North and then
6 presumably OG North would send reports up the line to the Split Military
7 District when, as a practical matter, that was not necessary.
8 In terms of Mr. Kardum having prepared reports -- I'm sorry, in
9 terms of reports having been prepared prior to Storm, that is because, as
10 the Court knows from the evidence, Mr. Zdilar was the commander of
11 OG North until he was replaced by General Ademi on the 3rd of August. So
12 it is entirely possible and probable that reports would have been
13 prepared from the TRS-group to the OG North command, until in essence the
14 OG North command was wiped out prior to Operation Storm, and in its place
15 the Split Military District Command took over direct command.
16 That's on the first point.
17 The Prosecution's sole argument in response is a reference to,
18 Systematic collection of documents may be found elsewhere. I'm not sure
19 what that's supposed to mean. There is certain innuendo in that comment,
20 but that is certainly not any evidentiary basis, and the Prosecution has
21 the burden here of providing actual evidence to support their claim in
22 rebuttal that there would have been separate reports created.
23 In this context, there is running throughout the Prosecution's
24 argument an assertion of some sort of a conspiracy in the late 1990s,
25 which I think that innuendo is intended to gin up again. I do believe,
1 therefore, that the Court should consider Exhibit D1212 which is MNA
2 status. That is the "New York Times" article from March of 1999. There,
3 the Prosecution leaked to the international press that they had decided
4 not to charge or not to include shelling in any indictment. And that
5 being the case, that would certainly cut against any reason for the
6 Croatian authorities to engage in a conspiracy to cover up artillery
7 documents when the Office of the Prosecutor was leaking information to
8 the "New York Times" that that was not a topic of the indictment in this
9 case, and in fact a no-charge decision had been issued.
10 Finally on the issue of any innuendo concerning Mr. Ivanovic,
11 fortunately Mr. Ivanovic is here for this purpose; we brought him here in
12 case the Chamber had any questions. I don't know what Mr. Mamic said to
13 the Croatian authorities. We certainly challenge on the basis of
14 Mr. Rajcic's testimony the accuracy of these Official Notes. Mr. Tieger
15 now questions the accuracy and/or reliability of the Official Notes
16 himself, and our position on that point was simply that people should not
17 be giving information about how the Gotovina Defence works. That was far
18 different from saying, You cannot talk generally about what information
19 you knew from 1995. And to the extent that this was an issue raised at
20 the last hearing with Croatia
21 members of the Gotovina Defence or how the Gotovina Defence operates,
22 it's our position that that goes into Rule 70(A) issues because under the
23 work product doctrine, we are entitled to a certain amount of -- not a
24 certain amount. We are entitled to a work product privilege. That was
25 the extent of that issue. Certainly he was never instructed to give
1 false information or incomplete information or anything to that effect,
2 and we certainly wanted, as the Court is aware from last week, for this
3 hearing to have all persons with relevant information being present --
4 JUDGE ORIE: Yes, I think we're moving away now from --
5 [Overlapping speakers] ...
6 MR. MISETIC: And that's why Mr. Ivanovic is here, in case the
7 Court has any questions.
8 JUDGE ORIE: Yes. Just to fully understand, Mr. Rajcic
9 challenged that the Official Notes reflect what he said.
10 From what I understood, Mr. Tieger was challenging the
11 Official Notes for a different reason. That is, that not to say that the
12 Official Note did not reflect what Mr. Mamic had said, but that what he
13 did say, that that was unreliable. So, therefore, the challenge to the
14 reliability seems to be at different levels, if I understood you well,
15 Mr. Tieger, and if I understood your reference well, Mr. Misetic.
16 We'll move --
17 MR. TIEGER: Your Honour, if I may quickly respond. I will be
18 very quick.
19 First of all, just two quick points. With respect to motivation
20 for any systematic collection of documentation related to shelling,
21 there's been -- there's considerable evidence that has been cited before
22 and -- about concern by Croatian authorities with regard to indictments.
23 That's number one.
24 Number two -- I said they would be quick.
25 JUDGE ORIE: Yes, very quick.
1 MR. TIEGER: And the second one is with respect to the systematic
2 collection, the Court has received new information in the November 30th
3 submission by Croatian authorities in the accompanying order that
4 indicates that documents related to Storm were -- there was an effort to
5 collect them systematically outside the normal archiving process. And
6 that's the reference -- or at least one of the references to which I
8 JUDGE ORIE: Yes. Could you please be very precise. You are
9 drawing our attention to apparently a portion of the material that was
10 submitted. Could you give us more details as you find it there in the --
11 MR. MISETIC: Just as a procedural matter, now Mr. Tieger has
12 said that the report of November 30th has submitted to the Chamber;
13 that's something that is news to us, and we have no such report. We have
14 a report from the 14th of December and the 9th of November.
15 MR. TIEGER: I'm referring to tab 6 of the filing we made on
17 JUDGE ORIE: Yes, then it's clear that is the communication
18 between the Office of the Prosecutor and the Republic of Croatia
19 MR. TIEGER: But what I'm referring to is documentation submitted
20 in connection with that.
21 JUDGE ORIE: Yes.
22 Okay. We'll have a --
23 Now, Mr. Misetic, it is clear what we are talking about, at
24 least, and the Chamber will then ...
25 I'd like to move on to my next series, which is number 94. 94 is
1 not a series, but can be placed in the context of 95. 94 and 95 have
2 similarity with 74 and 75 and 84 and 85. It is reporting from TS-4 to
3 the Operational Group Sibenik.
4 Now, for the 5th of August, a morning and afternoon report were
5 received. The same is true for the 4th of August, the day prior. But
6 for the 6th of August, only one report has been produced.
7 Now, first of all, there seems to be some disagreement on whether
8 94 or 95 is missing. It seems that 95 has been received.
9 MR. TIEGER: I think it's the other way around, Your Honour.
10 JUDGE ORIE: It's the other way around.
11 MR. TIEGER: At least as I understand it, yes. And if I can
12 short circuit this discussion perhaps. If I understand the position of
13 the -- essentially, let me say this. There is -- there has been
14 information provided to us about the relocation of TS-4 on the 6th, and
15 in light of that circumstance, the fact that the relocation on that date
16 was confirmed and the unbroken reference numbers, we accept that number
17 95 would not have been produced.
18 JUDGE ORIE: Yes, relocation at what time on that day? Is
19 there ...
20 MR. TIEGER: Or at least that there's a sufficiently credible
21 argument for this not to be a disputed document.
22 JUDGE ORIE: Yes. Is there any further information as to the
23 time of the relocation of TS-4 on the 6th of August?
24 MR. TIEGER: No specific time, Your Honour, but in the afternoon,
25 as I understand it.
1 JUDGE ORIE: Therefore, there's no dispute anymore about the
2 non-existence and therefore non-production of the second report of the
3 6th of August by TS-4 to Operational Group Sibenik.
4 Then that matter has been resolved.
5 We need another break. It takes an enormous amount of time to go
6 through all this in quite some detail and to hear the explanations and to
7 see where the real differences are. The Chamber is considering whether
8 there would be any option to have this kind of - if could I say - to some
9 extent, bookkeeping sessions, let's look at the last series. If the
10 Chamber would have known that there's no dispute anymore about the second
11 report of the 6th of August, we would not have had time to prepare for
12 it, neither would there have been a reason to deal with the matter here
13 in court. We had similar matters earlier, which apparently were easily
15 The Chamber is considering, because we will not finish today, to
16 continue -- I would say the technical aspects of it out of court with
17 representatives of Croatia
18 and then to focus in court exclusively on the remaining issues. Because
19 we could spend days and days in court, and the Chamber wants to make it
20 clear to the parties that where artillery documents are an important
21 issue in this case, that it tries to deal with it with highest level of
22 accuracy and precision.
23 The Chamber -- the parties and the Republic of Croatia
24 invited to think about such solutions or such a way to proceed, which
25 mean everything really contested to be discussed in open court,
1 preparatory meetings, sorting out what really still are the problems, not
2 necessarily to be done in public.
3 The Chamber invites the parties to consider this.
4 We'll now have a break, and we will resume at ten minutes to
6 --- Recess taken at 12.33 p.m.
7 --- On resuming at 1.03 p.m.
8 JUDGE ORIE: We move on.
9 I'd like to deal with the following series, which is 134 --
10 MR. TIEGER: Your Honour, I'm sorry.
11 JUDGE ORIE: Yes, Mr. Tieger.
12 MR. TIEGER: I thought it might be helpful if I indicated to the
13 Court certainly consistent with the guidance I think the Court was
14 suggesting earlier, the documents that I believe are not in dispute by --
15 in addition to the ones we already covered.
16 JUDGE ORIE: Yes, I know of many of them you have received, isn't
17 it. But others that are not in dispute, yes, please.
18 MR. TIEGER: And that would be numbers 134 through 137; 142
19 through 145; 150 through 153. That is the -- [Overlapping speakers] ...
20 JUDGE ORIE: Artillery rocket battalion on the 4th, the 5th and
21 the 6th of August, Mr. Tieger, that's what you're talking about.
22 Because my question was that whether the OTP accepts that they
23 were not were not created or whether they only accepted that the unit was
24 split up, but I do understand now that you accept that they were not
1 MR. TIEGER: And in addition, with regard to the same unit,
2 numbers 27 and 29.
3 JUDGE ORIE: 27 and 29. Thank you, Mr. Tieger.
4 MR. TIEGER: And, finally, Your Honour, numbers 156 and 157.
5 As provided, rather than -- rather than not in dispute.
6 JUDGE ORIE: Yes. One second, please.
7 Yes, 156 and 157 were already on my list as being received and
8 therefore not at stake anymore.
9 Then I move on to the following series, which is 98 up to and
10 including 129, which are all regular reports from various operation
11 groups to the -- to Split Military District.
12 Among these, apparently all Operation Group North reports to the
13 Split Military District are missing. Apart from that, 125 is a report,
14 Operation Group Zadar to the Split Military District, is missing as well.
15 So we focus, as a matter of fact, on the missing ones in this series. I
16 took them all together, not to say that they are all missing, but in
17 these reports of operations groups to the Military Districts, all
18 Operation Group North reports are missing and one Operation Group Zadar,
19 which is 125.
20 Let's start with the easy one. In relation to 125, the
21 submissions were not entirely clear, but I think that that was one of the
22 -- you just mentioned, is that -- let me just check.
23 MR. MISETIC: Mr. President, there's some confusion here.
24 JUDGE ORIE: Yes.
25 MR. MISETIC: 125 is a report -- this is page 55, line 7 --
1 line 6, I should say. Operation Group -- sorry line 7. 125 is a report,
2 Operation Group Zadar to the Split Military District, and you said is
3 missing as well. And, in fact, it's not missing according to our
4 records. And the OTP has --
5 JUDGE ORIE: What I wanted to say, that it was at least unclear
6 and that I was inquiring what it exactly was. Let me just check; one
8 MR. MISETIC: We have it as already in the OTP 65 ter exhibit
9 list as 5719.
10 JUDGE ORIE: If that's the case, it can't be missing.
11 I think it was mainly a matter of unclarity in the submissions
12 than anything else.
13 125, regular report from OG Zadar to the Split Military District
14 is not in any way missing anymore, is it?
15 MR. TIEGER: Yeah, I think that's correct. And I thought that
16 was encompassed in the -- in one of the earlier submissions. But in any
17 event, one way or another, this is not in dispute.
18 JUDGE ORIE: It's not in dispute. That's most important to
19 establish. Then we don't have to look at any unclarity in any
21 Then let's focus on the others, which is all the OG North reports
22 to the Split Military District, which is explained by the Republic of
24 were in the same location. We are now returning to an issue similar to
25 the one we discussed before, and that Mr. Ademi was both commander of
1 Operational Group North and Chief of Staff of the Split Military
2 District. The OTP has submitted, in this respect, why this matter was
3 not further explored in the interview with Mr. Ademi, and apart from
4 that, reference is made in this context to the statement of Mr. Rakic, a
5 statement or an Official Note, of an interview of the 17th of January,
7 Before I give an opportunity to the Prosecution to further
8 explain what reasons they have to assume that these reports do exist, the
9 Chamber wants already to indicate that there are reports mentioned in the
10 submissions by Croatia
11 District Command, Zadar forward command post, submitted to OG North, one
12 dated the 4th of August, and there are more examples mentioned there,
13 which seems a bit of a reporting in reversion order. And the Chamber
14 would like to have a look at least some of these documents to better
15 understand how you report from top to bottom, rather than the other way
16 around, because usually orders come from top to bottom, and reports are
17 usually sent from bottom to top.
18 Now, the Chamber, of course, is aware that there was a kind of a
19 personal union and a -- well, to some extent, even perhaps a merger of
20 the organisation, where Mr. Ademi was both Chief of Staff of the Split
21 Military District and the commander of OG North, but it -- the Chamber
22 would like to have a look at that to better understand what the argument
23 is; so, therefore we would like to be provided with at least one or two
25 And then also reports are mentioned, reports by the OG North
1 command, submitted to the Croatian Army Main Staff Operations Command
2 Centre, one dated the 4th of August, one dated the 5th of August, reports
3 apparently signed by Mr. Gotovina. We'd like to have a look at those
4 documents. To be quite honest, I can't say -- they may be already
5 somewhere in evidence, but I'm not at this moment aware of that. We'd
6 like to have a look at those documents primarily in order to understand
7 the submissions by the Republic of Croatia
8 talking about at this very moment.
9 Mr. Tieger, could you further make further submissions on the
10 matter of the missing reports from OG North to the Split Military
12 MR. TIEGER: Your Honour, I think the Court appears to be aware
13 of the nature of what I'll call the dispute, although I use that term
14 somewhat guardedly, since it's a matter of an exchange of information
15 here. I don't think I have anything to add to that at this point, except
16 to say that as may have been apparent from the nature of the hearing thus
17 far, there are some documents about which the parties can come to -- some
18 documents in either extreme where one party says it was definitely
19 created, one party says it was definitely not produced. There are
20 various permutations including the documents that remain in dispute, not
21 because the Prosecution necessarily asserts that the position taken by
22 the Republic of Croatia
23 documents is patently untenable, but simply that the information provided
24 thus far is not sufficient in the context of the ongoing investigation to
25 consider the documents no longer at issue, and I just want to make that
1 distinction clear.
2 But apart from that, and I will look at more -- somewhat more --
3 focus on those particular documents again. But, at the moment, I have
4 nothing to add to the previous submissions.
5 JUDGE ORIE: Any further submissions to be made by the Republic
6 of Croatia
7 One of the questions arises, of course, if there is no reporting
8 from an artillery group or artillery rocket group to the operational
9 group, but then, as the next step, also no further reporting up, then it
10 looks as if every information -- even if the two would have merged to
11 some extent, you would expect at least something to remain. And even if
12 one step would be missing in the reporting up, two steps taken in one,
13 then -- but I see that Mr. Misetic wants to most likely say something
14 about what I just said.
15 MR. MISETIC: Yes, Mr. President, we don't agree with that. You
16 would get reporting from the rocket groups to IZM Sajkovici, which is the
17 forward command post of the Split Military District, and that wouldn't
18 necessarily go to OG North. You would also have the reporting in P71
19 which is diary of the Split Military District, which would record the
20 oral communications coming in via -- via telephone or other electronic
22 JUDGE ORIE: Yes.
23 MR. MISETIC: So it wouldn't necessarily be reporting that would
24 go to OG North and then would go up to the Split Military District --
25 JUDGE ORIE: If I suggested that that's not what I intended to
1 say --
2 I would like to give a opportunity to the representatives of the
3 Republic of Croatia
4 reports. Therefore, we're focussing on OG North to the Split Military
5 District, and one of the complaints, it having not been further explored
6 in interviews with Mr. Ademi, and what specific portions of the statement
7 of Mr. Rakic, an interview taken the 17th of January, 2009, where we
8 would have to specifically pay attention to.
9 Yes, Mr. -- will it be you, Mr. Markotic? Or Mr. Crncec? Or
10 Mr. Keser? Well, you're seven, so someone.
11 Yes, Mr. Keser.
12 MR. KESER: [Interpretation] Your Honour, concerning the reports
13 sought that would have been sent from SG-1 to OG Split, we state that the
14 Republic of Croatia
15 drafted, not because operation groups in general don't need to report,
16 but because the Operational Group North was specific, as explained
17 already, because of the chain of command. That Operational Group, in
19 no two commands in the same location. There was a single command. A
20 single number of officers working in the same place. There was only one
21 operational centre.
22 For that reason, it would have been illogical to have
23 Operational Group North reporting to the Military District Commander who
24 is in the same location.
25 Furthermore, the documents you referred to put forth by Croatia
1 where the IZM Zadar is reporting to Operational Group North prove that
2 there were differences in the perception of the notion of
3 Operational Group North. This was not a situation in which there would
4 be a reverse process of reporting. In that situation, IZM Zadar is
5 reporting to their superior commander in Sajkovici. IZM Zadar is
6 reporting to the Military District. However, because the title of
7 OG North and the perception of that name as such, that was the name to be
8 included on the list for distribution.
9 The situation with documents remains unclear. Croatia did
10 conduct an interview with General Rahim Ademi. It was established that,
11 at the same time, he was commander of OG North and the Chief of Staff of
12 the Military District. The Official Note, in the latest report which
13 arrived yesterday, is something that we can find, in particular, the last
14 paragraph of his statement, where he directly addresses the issue of
15 reports. I quote:
16 "Concerning regular reports from OG North to ZP or Military
17 District Split, he states that such reports were not drafted because of
18 the aforementioned reason, by which he explained that the commands of
19 OG North and Military District of Split were one and the same."
20 Thank you.
21 JUDGE ORIE: Therefore, Mr. Tieger, I take it that since one of
22 the submissions by the OTP was that the matter should have been further
23 explored with Mr. Ademi that, apparently, now, in the material that was
24 received yesterday, we may find some further clarification of that.
25 How does the Chamber get hold of at least examples of the
1 documents we refer to; that is, the reports by the Split Military
2 District Commands to OG North? We do understand what explains it, but,
3 nevertheless, the Chamber, as I said before, would like to have a look at
4 the -- at these documents. Some examples I mentioned in the submissions
5 of Croatia
6 May I take at that that they were provided to the Prosecution and
7 are in the -- to some extent, unopened boxes? Is that correctly
9 I see everyone nodding yes on the Croatian side, so ...
10 MR. KESER: [Interpretation] Your Honour, the documents you're
11 referring to were sent, together with our reports. We have them here in
12 digital form as well, and we can present them on our screens, if you wish
14 Thank you.
15 JUDGE ORIE: Well, I wouldn't like to have a look at it now,
16 right away, but rather have a look at it -- because the Chamber has to
17 further consider all the arguments and -- but if there is a practical way
18 of avoiding that we have to go through all of the series of documents --
19 again, I certainly did not look into the boxes. I mainly focused on the
20 submissions by the parties and some matters that were specifically
21 brought to our attention in this context. But if there's any practical
22 way of identifying them so that it is easily -- easy to print them out,
23 that would be appreciated. Perhaps by sending another copy to -- to the
24 Chamber's staff. And we do understand that they have been submitted
25 already. It's just a matter of finding them among the huge amount of
1 documents that were received and which we did not want to look at in too
2 much detail.
3 The same would be true, then, for the reports by OG North command
4 submitted to the HV Main Staff Operations Command Centre, that those
5 would be included in that as well.
6 Thank you.
7 Anything else to be said about these documents? If not, we move
8 to the next series. But we'll have little time because we also have to
9 discuss further how to proceed. We'll certainly not finish this exercise
11 The next one would be number 2 on the list, which is an order to
12 attack Operational Group North to TRS-2.
13 This document has been received; I understand that. The
14 importance would rather be why this one is received and the others not.
15 The explanation was given that it was the specific constellation that
16 only HVO units were supported by TRS-2, which explains why this report
18 Now, one of the first things, we received a list of documents
19 that were received in the 7th of December filing. Now, this report is
20 mentioned in that list as an excerpt being received.
21 Is that correctly understood, Mr. Tieger?
22 MR. MISETIC: Mr. President, I must confess I'm somewhat
23 confused. We're talking about the order for attack OG North to TRS-2?
24 JUDGE ORIE: Number 2 on the list is - and let me check again -
25 is order for attack OG North to TRS-2, yes.
1 MR. MISETIC: It's my understanding, and I'll be corrected if I'm
2 wrong, but this document is 65 ter 1639 and was in the possession of OTP
3 before they filed their Rule 54 bis motion in June of 2008. I thought
4 that was agreed. But maybe I'm wrong.
5 MR. TIEGER: Yeah, the point is not that the OTP has been
6 pointing out that we have this document; the point is that we don't have
7 the orders for TRS-1 and TS-3.
8 JUDGE ORIE: Yes. I started with this one, because on the list
9 of received documents -- and, of course, what we have on the 65 ter
10 lists, I hope you will excuse us for not knowing all the details. But
11 this report was also mentioned, I think, in the 7th of December filing as
12 being received, but an excerpt being received. But we could check that.
13 Let me get that list.
14 MR. TIEGER: Your Honour, it bears the title: "Excerpt," on the
15 document itself.
16 JUDGE ORIE: That, then, creates the next question: Where the
17 full version is.
18 MR. TIEGER: That's exactly right. It's the excerpt relevant to
19 TRS-2, which further raises the question I mentioned earlier.
20 JUDGE ORIE: Yes, yes. You say if this is an excerpt and covers
21 the whole of TRS-2, where is TRS-1 and where is TRS-3? Because those are
22 the numbers 1 and 3 on the list.
23 The explanation that it was only HVO units that were supported by
24 TRS-2, and in addition to that, an explanation of why a document is
25 called an excerpt, and where is then the rest of it. First question to
1 you, Mr. Tieger: Any further submissions in relation that -- to the fact
2 that only HVO units were supported as the explanation given why this one
3 is available and the others not?
4 MR. TIEGER: I think, in previous discussions -- well, in any
5 event, I think just one further point would be that I believe that TRS-1
6 also provided support to the HVO. But apart from that issue, I think
7 we've made the other points in our previous submissions.
8 JUDGE ORIE: Yes. Not to say that you did not, but this hearing
9 is aiming at finding out where we are with this -- you say there is
10 nothing specifically to be added to that.
11 Could I ask the representatives of the Republic of Croatia
12 excerpt, apart from the HVO and apart from the comments already made by
13 Mr. Tieger, what explains the word "excerpt"? Which clearly suggests
14 that there's more.
15 Mr. Keser.
16 MR. KESER: [Interpretation] Your Honours, before I answer your
17 question, allow me to make one point which I believe is very important.
18 This order, which has been taken as an illustration as having
19 been delivered is not an order for the TRS-group 2; it is an order for
20 the infantry units of the HVO which were given certain tasks before the
21 commencement of Operation Storm. This order was made before the main
22 order issued by General Gotovina for Operation Storm. You can see from
23 the order that the start of attack was scheduled for the 3rd of August.
24 Now, the main order by General Gotovina schedules the start of
25 Operation Storm for the 4th of August. In other words, it was only after
1 the main order by General Gotovina and the ensuing documents set out the
2 disposition of TS and TRS for Operation Storm.
3 This particular order relates to an earlier structure for an
4 action that followed operation Summer 95, so it was an action that took
5 place between Summer 95 and Operation Storm. That's why we believe that
6 the fact that it says excerpt for TRS-2 that there should be one for 3 or
7 1, because this is an order that was issued at the time that I stated.
8 Furthermore, the document that was sent by the Croatian
9 government was sent as an additional possible source of information and
10 not as a -- as a document sought under item 2. The title of that
11 document is: Order for attack for OG North for TRS-2. It is our position
12 that in -- important information from the document as it is sought is the
13 order of commander of Split Military District of the 1st of August, 1995
14 The existence of this document does not indicate that there were orders
15 for TRS-1 and TRS-3 as well.
16 JUDGE ORIE: Now, is there, then, misunderstanding between the
17 Office of the Prosecutor and the Republic of Croatia
18 the document they were seeking was received or not? Because you say we
19 send it but not as one of the documents sought, but as a document which
20 sheds some light on whether or not the document sought does exist.
21 Is there mal-communication, or is there no mal-communication?
22 Mr. Tieger.
23 MR. TIEGER: First of all, I was not aware of the position that
24 this was -- this document has not yet been provided. And in -- so it
25 appears there is some level of miscommunication, as reflected in the
1 comments today. I suppose I could go back over the previous submissions
2 by both sides to see if that is reflected in -- in -- if my understanding
3 is reflected in the earlier submissions or if the position taken today
5 JUDGE ORIE: Yes. So that's a matter to be sorted out between
6 the Republic of Croatia
7 being received.
8 I have not received an answer yet on my question why this is an
9 excerpt and where the remainder of that document is.
10 MR. MISETIC: Mr. President, I apologise are we still talking
11 about the order for attack of --
12 JUDGE ORIE: We are talking about a document -- I mean, the
13 identity of the document may be unclear, because apparently the
14 Prosecution thinks that they have received a document they asked for,
15 whereas, the Croatian Government says the document we provided is not the
16 document you asked for.
17 So, therefore, don't blame me at this moment for this type of
18 confusion. It is the document which is in the initial list described as
19 - let there be no doubt about that - as order for attack OG North to
20 TRS-2 --
21 MR. MISETIC: Yes, Mr. President, first I have to correct the
22 record, because we have -- in e-court the exhibit number is 65 ter 2606,
23 which is a complete document, as -- as far as can I tell in e-court.
24 JUDGE ORIE: And the title of the document does not start with
1 MR. MISETIC: No, it does not. It's OG North commanders order
2 for -- Oh, I'm sorry, I see excerpt on that, on the bottom.
3 JUDGE ORIE: Yes. Therefore -- Mr. Misetic intervened.
4 Could you explain to me where the full document is. The document
5 apparently is relevant. You provided it in this context.
6 Could you provide the full document?
7 MR. KESER: [Interpretation] Your Honours, although we cannot deny
8 that the title of the document states "excerpt," we have not been able to
9 find a single fact that would point to the existence of a document of
10 which this would be only a part. Because what is contained here only
11 tasks for the HVO units which were supposed to carry out simulation of an
12 attack, to a simulated attack before Operation Storm.
13 The other units involved in Operation Storm received complete
14 information in the orders that followed subsequently. So there would not
15 exist a document which would have been made prior to this one and of
16 which this would only be a part. We believe this document to be a full
17 document, since the searches of the archive did not point to an existence
18 of a document which could be connected to this. This document contains
19 tasks issued to manoeuvre units. That's why we don't believe it is
20 relevant, nor did we submit it as a replacement for this category of
22 In our position, this particular category of documents should not
23 have been made to begin with.
24 Thank you.
25 JUDGE ORIE: But they were made for one reason or another and
1 they were, in the title, apparently, as it has been provided, it says
3 Now, if you say, Well, we didn't find anything else, that,
4 therefore, we believe it was a complete report. Let's be --
5 MR. MISETIC: Mr. President.
6 JUDGE ORIE: Yes, Mr. Misetic.
7 MR. MISETIC: We're coming to the -- to the dilemma.
8 I'm looking at the document in e-court. In the upper right-hand
9 corner, it is noted attachment 11. My staff tells me that because it is
10 an excerpt, because it is an attachment to General Gotovina's wider
11 order, the Kozjak attack order, and this is an attachment order to the
12 wider order of General Gotovina, so this is an excerpt of
13 General Gotovina's wider order, and we're in the process of looking for
14 the admitted exhibit number of the Kozjak attack order, because I'm sure
15 that is in evidence already.
16 JUDGE ORIE: Yes. Now, that apparently is a matter further to be
17 explored and to see whether there is any confusion yes or no.
18 It is close to a quarter to 2.00. We have to finish. I asked
19 the parties to think about out-of-court sessions. I'm not saying that no
20 Judge would be involved in it, but perhaps not the full court. You may
21 have noticed that to some extent it is an administrative exercise, to
22 some extent. We are not hearing evidence at this moment. At least
23 that's not what we are seeking to do.
24 Could I hear, first of all, from Croatia, whether a Croatian
25 delegation would be willing to participate in such preparatory meetings
1 in order to save time in court. And when looking at the accused, I can
2 be -- it could be that they are not really excited by the type of
3 information that went over the tables today. A lot of people are
4 involved in these kind of court sessions, whereas a small number of
5 people, most likely, if procedurally acceptable, could prepare for those
7 What would be the position of the Republic of Croatia
8 MR. MARKOTIC: [Interpretation] Your Honour, since we have
9 expressed our openness and readiness to meet with representatives and
10 specialists of the OTP, and since we have, in relation to these 158
11 categories carried out thorough searches, we express our readiness to
12 resume our discussions with representatives of the OTP and Defence
13 whenever practicable and as soon as possible, because it is under these
14 circumstances -- or, rather, it is precisely these circumstances that are
15 most to the detriment to Croatia
16 Thank you.
17 JUDGE ORIE: Now, in those meetings, as suggested, Chamber's
18 staff and perhaps even one of the Judges would participate. Would that
19 change anything, Mr. Markotic, because the context you were referring to
20 was without Judges? But I see you nodding that that would not make any
22 It would be a kind of meeting preparing the matters as we did
23 today, in court, to see what remains to be discussed, really, as
24 contested in court.
25 Mr. Tieger, position of the OTP.
1 MR. TIEGER: Well, of course, we're prepared at any time to
2 advance this process.
3 I believe that, at this stage of the process meaningful progress
4 will only be achieved with the presence of one or more of the Judges, and
5 I think it is probably advisable also to keep some kind of record of the
6 proceedings so that no ambiguity or confusion or other problems arise.
7 JUDGE ORIE: Yes. I do agree with you that the practicalities
8 and the transparency of such proceedings should be guaranteed and, of
9 course, that proper attention should be paid to that before we exchange
10 in any such discussions out of the courtroom.
11 Mr. Misetic.
12 MR. MISETIC: Mr. President, not only are we for that option, we
13 strongly encourage the Chamber to schedule such a -- I don't want to be
14 -- maybe the word mediation which you used last week with respect to a
15 different issue. But I think it is quite clear - this issue has been
16 pending for almost 20 months - that absent the Trial Chamber's direct
17 involvement in this issue and guidance, it is destined to be unresolved,
18 and I think all parties here have expressed a strong desire to get this
19 issue resolved.
20 So we would encourage the Chamber. We will, of course,
21 participate any time, any place, to get to the bottom of it and resolve
22 it. So we would encourage the Chamber to schedule this and to
23 participate in it.
24 JUDGE ORIE: Mr. Kay.
25 THE INTERPRETER: Microphone, please.
1 MR. KAY: It seems more appropriate that this exercise we've
2 going through today should be dealt with perhaps in a more informal way
3 as it is administrative, Your Honour.
4 JUDGE ORIE: Yes, it is, to some extent, administrative, and, of
5 course, any matter in dispute which remains. It's, of course, also
6 judicial to the extent that we're talking about a motion and we are
7 talking about orders, and we're talking about whether the Republic of
9 goals in this respect.
10 So although the administrative level of it was quite high, it is
11 like housekeeping sessions when we are admitting documents into evidence.
12 We call that housekeeping, but, of course, it is part of judicial
13 process. Not to say that you denied that, but I just want to emphasise
14 that when I use the word "administrative," it is not to say that this
15 Chamber is not in a position where it has to decide on matters that were
16 put before them in their judicial quality.
17 I take it that that's -- but I do see that you support. I just
18 want to avoid any misunderstanding about what is administration and what
19 is adjudication.
20 Mr. Mikulicic.
21 MR. MIKULICIC: Yes, Your Honour, on part of Markac Defence we
22 are much in favour of the suggestion because I think we share the mutual
23 impression that there is an burden of ambiguity of the cooperation of the
24 Republic of Croatia
25 could resolve the problem in much more efficient way than it could be
1 done elsewhere.
2 JUDGE ORIE: Thank you, Mr. Mikulicic.
3 The Chamber will further consider this option. It is unlikely
4 that we would have resolved this matter before the recess, which begins
5 this Friday at 5.00.
6 We'll be in touch with the parties. We have carefully listened
7 to the observations made by the Croatian government, by the Prosecution,
8 and by the Defence.
9 Before we adjourn today, I -- first of all, I would like to thank
10 you very much for coming to The Hague
11 had an opportunity to contribute to what was discussed today, I take it
12 that in the background you all already have made your contribution.
13 Therefore, Mr. Markotic, Mr. Crncec, Mr. Keser, Mr. Sklepic, Ms. Pokupec,
14 Mr. Cule - already for the second time, short notice - and Mr. Bijelic, I
15 would like to thank you all very much for coming to The Hague.
16 You will be informed about any further steps to be taken by this
18 Unless there is anything which needs urgent attention at this
19 moment, I would like to adjourn.
20 MR. MISETIC: Mr. President, there is one issue that we had
21 vis-a-vis Croatia
22 if can I raise that.
23 JUDGE ORIE: I'm hesitant --
24 MR. MISETIC: Two minutes.
25 JUDGE ORIE: Two minutes. One second.
1 [Trial Chamber and registrar confer]
2 JUDGE ORIE: Mr. Misetic, two minutes.
3 MR. MISETIC: Yes, Mr. President, the Republic of Croatia
4 indicated at the end of Friday's session that they would be producing
5 correspondence which we haven't received from the Republic of Croatia
6 yet. There was a second issue with respect to notes of meetings between
7 the Prosecutor and Croatian officials that you had identified
8 Ambassador Paro to check with his government on.
9 I've had a discussion during the break with Mr. Markotic. With
10 respect to those notes, there's an issue concerning whether there is
11 commentary in there that they wouldn't disclosed. I'm perfect prepared
12 to accept redacted notes that would redact any commentary, just so we can
13 get to the bottom of what was discussed.
14 So if we could perhaps resolve when, A, we would get the first
15 portion which was stated that we would get; and, B, whether we can get
16 the second portion.
17 JUDGE ORIE: Mr. Cule was present last Friday. Mr. Markotic you
18 seem to be head of the delegation today. I leave it to you who responds
19 to the two questions put by Mr. Misetic.
20 First, the correspondence, when to be received.
21 MR. MARKOTIC: [Interpretation] As soon as we return, that's to
22 say, tomorrow, we will hand over the correspondence. If my understanding
23 is correct, that's correspondence between Prosecutor Brammertz and the
24 justice minister.
25 Am I right?
1 MR. MISETIC: Yes, unless there was any other communication
2 between the Prosecutor and someone else on the Croatian side, but ...
3 JUDGE ORIE: Yes. Then the next -- yes, Mr. Misetic.
4 MR. MISETIC: Expressly including Prosecutor Bajic.
5 JUDGE ORIE: Yes, specifically Mr. Misetic was speaking the
6 communication between Croatian authorities and the Office of the
7 Prosecution and specifically also including Mr. Bajic. We will then hear
8 from you, I take it.
9 Second question, the notes. Mr. Misetic suggests that you redact
10 the comments in it. Has the Republic of Croatia
11 in that respect?
12 MR. MARKOTIC: [Interpretation] Your Honour, up until we were
13 about to leave Zagreb
14 exactly that we were being sought to provide. When we return tomorrow,
15 we will examine the request and send what has been sought. We have done
16 so in the past as well.
17 JUDGE ORIE: Yes. If you would need the transcript of the
18 hearing to review exactly what Mr. Misetic was seeking, then please ask
19 for it, and it will be provided.
20 If there's no other matter, I would like to, first of all, to
21 thank you interpreters and transcribers and security, all those who
22 stayed, and I am aware that my reputation gets worse and worse for
23 another 12 minutes. We have no hearing tomorrow, I do understand,
24 Mr. Mikulicic, that your next witness would be ready on Friday.
25 MR. MIKULICIC: That's correct, Your Honour.
1 JUDGE ORIE: Therefore, we adjourn until Friday, the 18th of
2 December, at 9.00 in the morning in this same courtroom, III.
3 --- Whereupon the hearing adjourned at 1.57 p.m.
4 to be reconvened on Friday, the 18th day of
5 December, 2009, at 9.00 a.m.