1 Monday, 9 December 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.36 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours.
9 This is the case number IT-09-92-T, the Prosecutor versus
10 Ratko Mladic.
11 JUDGE ORIE: Thank you, Madam Registrar.
12 The Chamber was -- is not aware of any preliminaries to be
13 raised. Therefore, could the witness be escorted into the courtroom.
14 Meanwhile, I use the time and say something about P2508 which is
15 MFI'd. It was tendered with Witness Riedlmayer.
16 On the 3rd of December of this year, the Chamber asked the
17 Prosecution to redact P2508, which is a lengthy document covering more
18 than 450 pages. On the 6th of December, the Prosecution informed the
19 Chamber and the Defence that it had redacted the document to portions
20 referred to by Witness Riedlmayer and Okun. And the Prosecution has
21 uploaded the redacted version of P2508 under 65 ter number 02382A.
22 [The witness takes the stand]
23 JUDGE ORIE: And the Chamber would like to hear from the Defence
24 what their position is on the admission of the now redacted or the
25 reduced -- the document which is reduced in size.
1 Could we hear later from you today, Mr. Lukic? Yes.
2 Good morning, Mr. Theunens.
3 THE WITNESS: Good morning, Your Honours.
4 JUDGE ORIE: Mr. Theunens, I have to remind you that you are
5 still bound by the solemn declaration you have given at the beginning of
6 your testimony.
7 WITNESS: REYNAUD THEUNENS [Resumed]
8 JUDGE ORIE: And Mr. Ivetic will now continue his
10 MR. IVETIC: Thank you, Your Honours.
11 Cross-examination by Mr. Ivetic [Continued]
12 Q. Good day, Mr. Theunens.
13 A. Good morning, Mr. Ivetic.
14 Q. At the beginning of your direct examination, at transcript
15 page 20228, you were shown 65 ter number 03975, a copy of your
16 curriculum vitae. You commented that you were surprised that the
17 Prosecution was using that particular version as it had been subsequently
18 corrected by you.
19 MR. IVETIC: If we can please call up 65 ter number 11462 in
21 Q. Sir, on the screen is the version of your curriculum vitae which
22 was also disclosed to us by the Prosecution and which I reviewed to
23 prepare for your examination. Is this, in fact, a more recent and
24 accurate CV than the one we looked at last week, which was
25 65 ter number 03975?
1 A. Your Honours, I would like to make two comments. It is indeed --
2 I mean, this version is accurate for what my educational background is
3 concerned, but it does -- still doesn't include my currently professional
4 occupations; i.e., the position I have held since leaving the ICTY in
5 April 2009. If my recollection is correct, in the Hadzic trial, I mean
6 the last trial I testified prior to this trial, a fully correct version
7 of my CV was tendered, but I am not 100 per cent sure.
8 Q. Thank you. Now I'd like to focus on the educational portion of
9 this curriculum vitae which you have now indicated is correct. The
10 curriculum vitae which was being used last week by the Prosecution listed
11 some additional degree work from the years 2000 to 2001 at CERIS in
12 Brussels for a masters in international politics, yet that course work is
13 missing from this newer CV. Can you explain for us if you ever finished
14 that second degree and why that information is not to be located on this
15 curriculum vitae?
16 A. Your Honours, I did not finish that additional -- those
17 additional studies, and this is largely due to my move to the ICTY in
18 June 2001. I had hoped that during the initial years of my work in ICTY
19 I had been in a position to finish that, but I had no time. And this is
20 why, obviously -- I mean, it doesn't make much sense to include
21 unfinished studies in a CV. This is why in a later version of my CV,
22 those studies were not included.
23 Q. Thank you, sir. Now in this version just above the section
24 relating to education, in the personal data we have a notation of your
25 military rank --
1 A. Yes.
2 Q. -- as a commandant, in parenthesis (OF-3), end parenthesis. And
3 I wanted to ask you to explain for us what the designation OF-3 means
4 here in relation to your rank?
5 A. Your Honours, in the Belgian military for officers we have a rank
6 between captain and major and that rank is called commandant or sometimes
7 captain commandant, not to be confounded with the French rank of
8 commandant which is the same as a major, or, also, I think, in the Irish
9 military the rank of commandant corresponds with major. However, in --
10 when using NATO equivalents, NATO uses OF and then various digits to
11 describe the rank level. In NATO equivalent, the rank of
12 captain-commandant or commandant, as it is used in the Belgian military,
13 corresponds with an OF-3, which is also the acronym used for major, in
15 Q. Thank you, sir. Now with respect to the Belgian military, am I
16 correct that there is a position which is called chief of the defence
17 staff within the Belgian military that is to be staffed according to the
18 establishment by a four-star general as its chief -- as the chief?
19 A. That is correct, Your Honours.
20 Q. Could you please tell us within the Belgian military's rank
21 echelons, how many ranks are between that of a commandant at OF-3 and the
22 four-star general, that is the chief of the defence staff? If I can
23 assist, would it be approximately six or seven rank echelons?
24 A. Well, you know, for maybe -- for the interests of the trial
25 court -- of the Trial Chamber, I'm sorry, I can give you all ranks. The
1 next rank is major; then the one above is lieutenant-colonel; then we
2 have colonel; then we have major-general; I jump brigadier-general
3 because it's only recently that the Belgian military, I mean, if you
4 consider relevant, has designated brigadier-generals, otherwise
5 brigadier-generals were only appointed on a temporary basis for
6 assignments outside the Belgian military; and after the major-general,
7 you have lieutenant-general; and then there is the one four-star. If I
8 am not mistaken, the Belgian king is also a four-star. Maybe that is
9 also of interest for you.
10 Q. Correct. And the Belgian king is the commandant of all forces
11 would sit -- would sit above the chief of the defence staff in the
12 hierarchy; isn't that also correct?
13 A. He's actually the supreme commander.
14 Q. Just waiting for the translation to catch up with us. Now, in
15 relation to your military career within the Belgian military, and your
16 experience as a commanding officer, is it correct that you served as
17 acting commander of a company consisting of 80 soldiers on a few
18 occasions, but that apart from those instances your top command post was
19 as a platoon commander responsible for 15 subordinate soldiers?
20 A. I mean, factually that is correct. But, I mean, I don't like the
21 expression "top command post," because when discussing military careers,
22 I mean, the expression top command post, it's not like a hit parade or
23 something. The command post you have is equivalent to your rank and
24 obviously then to your age. So if I left the military when I was a
25 commandant, it was difficult for me to achieve a more senior command
1 post, because in order to command a battalion, for example, you have to
2 be at least lieutenant-colonel.
3 Q. When I use "top," I mean "most senior," sir, so if there is any
4 confusion about that, please take that into consideration. And apart
5 from the position that you held as acting commander of a company on
6 several occasions, your most senior commandant post as a platoon
7 commander would have involved command over approximately four tanks; is
8 that correct?
9 A. That is correct. A tank platoon is four tanks, full stop. So it
10 wouldn't make more sense -- it wouldn't make sense to try to command more
11 tanks in one platoon. That is a reason why a platoon has only four
12 tanks, a tank platoon, I mean.
13 Q. And now if we can focus again on the most senior position that
14 you did hold, which was as an acting commander of a company. Am I
15 correct that this post was only held by you approximately one or two
16 weeks at a time on several occasions during the course of your military
18 A. That is correct. And I -- I mean, this was for shorter
19 time-periods because I replaced the actual commander who was on training
21 Q. And can you confirm for us that in relation to your command
22 experience, at all times this was service during peacetime; that is, you
23 did not serve in a commander function during any time of war or in a war
25 A. That is correct.
1 Q. Can you clarify for us that you have never commanded over any
2 artillery unit at any level in the course of your career?
3 A. No, I have not. I mean, just to -- I think it's important to
4 clarify. As a junior officer in armour, I attended, I think it was a
5 one- or a two-week training in what we call advanced observer; i.e., that
6 you are -- because you are closer to the confrontation line than the
7 artillery commander, and, as you know, artillery uses the concept of
8 indirect fire. I have been trained in adjusting artillery fire on a
9 target. And I have also, I mean, if that can be of assistance, during my
10 military education academy, I attended the optional training of
11 ballistics which actually was very useful for the work I did here as a
12 military analyst in the OTP because it allowed me to understand the
13 concept of how artillery fire functions, the fact that you do not
14 necessarily hit a target because you cover a zone, and the various
15 mathematical and statistical calculations that are involved in that. So
16 I do believe I have an understanding of that.
17 Q. Do you believe that your understanding of command over artillery
18 units and the functioning of artillery weapons is such that you would
19 hold yourself out to be an expert on those topics?
20 A. I think this is the second time that you raise the issue of
21 expert or not. I mean, my answer will be the same. It's up to the
22 Trial Chamber to decide whether or not I am an expert or not. I just
23 want to add also that when I attended the brigade level staff course,
24 1996, 1997, obviously that also involved the preparation of artillery
25 orders; i.e., the use of artillery support in a manner that would be the
1 most effective to support the operations offensive or defensive of ground
2 forces, whether those were infantry or artillery, and obviously we also
3 had courses on the international laws of war.
4 Q. Now how about General Mladic's position as the commander of the
5 Main Staff of the VRS? Do you consider yourself to be able to reliably
6 opine as a military expert as to a military commander holding a position
7 at that echelon level based on your limited command experience within the
8 Belgian military?
9 JUDGE ORIE: Mr. Ivetic, to the extent over the last five pages
10 you want to draw attention to the fact that Mr. Theunens did not gain his
11 knowledge and skills primarily in operational functions, then that is
12 perfectly clear and could have been done in half a page. If there is
13 anything more important, please go to that matter, that issue directly.
14 Next question, please.
15 MR. IVETIC: Your Honours, this goes to methodology not to his
16 background, as he believed, based upon his experiences --
17 JUDGE ORIE: Then go to methodology, Mr. Ivetic, instead of going
18 through 15 people, four tanks, that is all practical experience you are
19 focusing at. And if there is any methodological matter, please put it to
20 the witness.
21 MR. IVETIC: Okay.
22 Q. Sir, based upon your limited command experience within the
23 Belgian military, do you believe, methodologically speaking, that you are
24 able to opine as to General Mladic's position as commander of the
25 Main Staff of the VRS?
1 A. Your Honours, or Mr. Ivetic, also, I believe there is a
2 misunderstanding. The methodology apply -- that I applied for the report
3 is not an aspect of command and control. The methodology consists of
4 reviewing a substantial amount of documents and then to draw -- I mean,
5 to try to identify, first of all, patterns or trends; and then on the
6 basis of those, to try to draw analytical conclusions. We have discussed
7 the methodology in the examination. I believe that on the basis of my
8 educational background, including the additional trainings I attended in
9 UK and the US on the one hand, and on the other hand my professional
10 experience, that I am qualified to draw analytical conclusions on a
11 subject like the role of General Mladic as commander -- excuse me, as
12 deputy commander of the 2nd Military District, and subsequently commander
13 of the 2nd Military District, as well as commander of the VRS Main Staff.
14 And as I mentioned before, it is then up to the Trial Chamber to
15 decide whether or not that experience and the way how I have used that
16 experience and expertise matches the requirements to be considered and
17 accepted as an expert or not.
18 MR. IVETIC: If we can take a look at page 2 in both languages of
19 this curriculum vitae, I want to now switch gears and look at the
20 publications listed.
21 Actually, if we can have the next in B/C/S. I think we have --
22 one more page in B/C/S. It should be item number 6 on the last part of
23 the CV. There we go.
24 Q. Now, looking at the publications listed, I want to ask you if
25 apart from these publications listed here, are there any other
1 publications that you have authored about the JNA or the VRS which you
2 feel to be significant which are not identified on this list?
3 A. I see that the list of publications is incomplete because, I
4 mean, I also -- first of all, the reports I wrote for various trials
5 which were then admitted into evidence as expert reports, I listed them
6 here as publications because this is my CV only for court. Obviously
7 these are not publications outside the context of ICTY. I have the
8 impression that this list stops as 2005. I mean, after that there were
9 reports for - I am just trying to check - for the Stanisic-Simatovic
10 case. There was a report for the Hadzic case. There was a report --
11 I'm -- also for the Seselj case, I don't think it's included. So those
12 are missing. I did a report for Gotovina et al. case, but obviously that
13 was not focused on the JNA but more on the ZNG and the HV. So that is
14 what I can answer to your question.
15 Q. Did you also have occasion to draft or author an article on the
16 role of military expertise in the prosecution of trials for international
17 crimes in 2009?
18 A. I did, Your Honours. And that was indeed published outside the
20 MR. IVETIC: At this time I would like to look at document 1D1498
21 in e-court.
22 THE REGISTRAR: Your Honours, document is not in e-court.
23 MR. IVETIC: One moment.
24 Q. In relation to the publication which you authored in 2009 on the
25 role of military expertise in the prosecution and trials for
1 international crimes, you in the introduction, talking about the systemic
2 and/or wide-spread nature of crimes, cite to -- cite twice to a different
3 publication authored by Ms. Carla del Ponte. And I'd like to ask you,
4 methodologically speaking, do you consider it appropriate and
5 professional to cite to the Prosecutor as a sole supporting reference in
6 relation to professional articles that you are authoring on points of
8 A. Your Honours, we don't have the article here and I don't exactly
9 recall for which specific package I cited another publication by
10 Ms. Del Ponte. But in that context, I don't see a problem with that. I
11 mean, in this specific context, I don't see a problem with that.
12 Q. Now in relation to the article by del Ponte, do you recall the
13 article that you would have reviewed by Ms. Del Ponte from 2006 called:
14 "Investigation and Prosecution of Large-Scale Crimes at the International
16 A. Your Honours, I have a general impression of what the article
17 states but it's seven years ago, and the last four years I have been
18 focusing on rather different matters, so I couldn't say more about the
19 article. So for the transcript, the last -- during the last four years,
20 I have been focusing on very different matters, so I wouldn't be able to
21 say more about the 2006 article by Mrs. Del Ponte.
22 Q. One moment. I'm just trying to get this one up and running.
23 MR. IVETIC: If we can now try again to have 1D1498 up in
24 e-court. And if we can turn to page 3 in e-court.
25 Q. And the quote I was making reference to is in the first
1 paragraph, the middle of the same, and -- well, actually, the entire
2 first two sentences, the first two footnotes relate to the material that
3 you are citing to Ms. Del Ponte on. They read --
4 JUDGE MOLOTO: Can we see the footnotes, please.
5 MR. IVETIC: There we go. That's probably the best way.
6 Q. Does that refresh your recollection as to what subject matter you
7 would have been relying upon Ms. Del Ponte on for purposes of your
8 professionally written article?
9 A. It does, Your Honours.
10 Q. Okay. And now I'd like to ask you again, do you consider as
11 someone said to be an expert for this type of -- these type of
12 assertions, for you to have the sole reference being Ms. Carla del Ponte
13 who was the Prosecutor at the Tribunal, from a methodological standpoint?
14 A. Your Honours, I mean, you can always include more footnotes but I
15 think these -- these statements are very straight-forward and very
16 obvious for anyone who is familiar with this subject matter, so I don't
17 think it would have been of assistance to include more footnotes.
18 Q. Now looking at the date of Ms. Del Ponte's article, I believe she
19 was still your boss at the time that she wrote it. Do you know if the
20 assertions made by Ms. Del Ponte in her article are her own opinion or is
21 she relying upon your work as an analyst in making these assertions?
22 A. I wouldn't know, Your Honours. And, I mean, in my language the
23 word "boss" would be inappropriate in this context. She was the
24 Prosecutor. I was working in the Office of the Prosecutor. But she was
25 not my direct nor second supervisor. So in my language, pets have
2 JUDGE ORIE: Mr. Ivetic, I do see that footnote 1 is supporting a
3 statement which says that:
4 "Serious violations of international humanitarian law in the
5 context of the conflict of the former Yugoslavia often involved
6 co-ordinated action between various enforcement agencies ..."
7 Is there dispute about that? You say there was -- it did not or
8 not often involved such co-ordinated action.
9 MR. IVETIC: Well, Your Honours I -- I an talking about the
10 methodology of an expert report.
11 JUDGE ORIE: Yes, and I'm asking --
12 MR. IVETIC: I think it's a one-side view of the facts to present
13 it in this matter.
14 JUDGE ORIE: Yes.
15 MR. IVETIC: I think it's not entirely accurate the way it's
16 presented. Co-ordination of the various forces is a tenet of the
17 Prosecution's theory of the case.
18 JUDGE ORIE: No, I think she describes a factual situation. But
19 it often involved, that's one. Second, for footnote 2:
20 "The systemic and/or wide-spread nature of some of the crimes
21 suggests that the actions and operations of these physical perpetrators
22 were planned, co-ordinated, and organised at the highest ...
23 decision-making levels."
24 Is it the position of the Defence that systemic and wide-spread
25 do not suggest, apart from what happened in relation to the charges, that
1 this is not something a prosecutor could use? And the question then, of
2 course, is -- but let me leave it to that. Let's focus not on factual
3 matters. If there is any problem here, what you should demonstrate is
4 that it is inappropriate for what this witness says to rely on the
5 Prosecutor where the Prosecutor describes practical experience.
6 MR. IVETIC: Okay. Then if we can look down further on the page,
7 the end of the second paragraph. I'd like to look at something that
8 Mr. Theunens, I believe, has written that is not related to the
9 Prosecutor. And I believe it's the result of his practical experience,
10 if I'm reading it correctly.
11 Q. The last line of that -- the last sentence in that paragraph,
12 sir, reads as follows:
13 "The evidence presented at various trials at the
14 International Criminal Tribunal for the former Yugoslavia (ICTY),
15 however, demonstrates that these paramilitary formations, together with
16 local Serb forces, were supported by the republic of Serbia and the JNA
17 and operated in co-ordination with or under JNA command."
18 And now you are citing two various judgements from the ICTY in
19 relation to this part of your article. Do you consider it
20 methodologically appropriate for a military expert to rely upon holdings
21 of Trial Chambers as to the source for conclusions about command over
23 A. Your Honours, there is a distinction between an article and a
24 report that is to be submitted for a trial as an expert report. I do not
25 see a problem in using judgements of the ICTY as references for an
1 article that is for -- of public interest. As you can see from the
2 expert report -- or the report, sorry, that's has been tendered in this
3 case, there are no references to any judgements or what I would call
4 similar secondary or even third sources in -- to substantiate or to
5 support conclusions. I have almost exclusively for this underlying
6 report for this case, based myself on primary sources, i.e., military as
7 well as other documents from the SFRY, FRY, the SRBiH, and the RS. So
8 there is a distinction between the two.
9 MR. IVETIC: If we can move to page 5 in e-court of this
11 Q. In the section that is now on the screen, you are talking about
12 the military analyst team or MAT team at the Tribunal. I'd like to look
13 at -- with you at the second paragraph, the first two sentences of the
14 same, which read:
15 "Military analysis or (in-house) military expertise provides
16 investigation and subsequently prosecution cases with the military
17 dimension of integrated events, personalities, organisations, and crimes
18 under scrutiny. In simple terms, military expertise present a picture of
19 who was doing what to whom, when, where, how, and why in the military
21 Does this accurately depict your understanding and belief about
22 the role that you were to fulfil as a military analyst expert within the
23 Office of the Prosecutor at the Tribunal?
24 A. Your Honours, my job title was intelligence analyst (military),
25 the word "expert" was not part of my job title.
1 Q. Okay. Does this selection that we have just read comport with
2 what you believed your job title was meant to do?
3 A. Actually, this is how my former team leader, Mr. Peter Nicholson
4 described the role of military analysis in an article he published in
5 2003, as the footnote states, and I agree with his view on that.
6 Q. Thank you. Do you consider Mr. Nicholson to be authoritative on
7 the topic of military analysts and military experts?
8 A. Your Honours, on military analysis, I do. I mean, I understand
9 that he was selected here, I mean, and he worked on a number of years as
10 a team leader of the military analyst team, so I trust that he was
11 competent to do that job. Now, where I -- my personal view is that an
12 expert should also be an analyst. Obviously, not every analyst is an
14 Q. Okay.
15 MR. IVETIC: If we can turn to 65 ter number 1D1496.
16 THE REGISTRAR: The document is not in e-court, Your Honours.
17 MR. IVETIC: One moment. If we can now again try to have 1D01496
18 called up in e-court.
19 Q. Now, is this the article that we are discussing by your former
20 team leader, Mr. Peter Nicholson, that you cited to in the prior article
21 that we just looked at?
22 A. It does Your Honours. I cited some of the passages from this
23 article for my own article.
24 Q. Now in relation to citing just some of this article in your
25 article, do you agree with everything that has -- do you agree that
1 Mr. Nicholson has written everything in here as accurately and truthfully
2 setting forth the standards for the field of military analysis and
3 military expertise, or is there anything in here that you would disagree
5 A. Your Honours, I have not seen this article since 2009, so if
6 Mr. Ivetic would like me to comment on the article, then I would propose
7 that he give me a hard copy, I review it during that break, and then
8 after the break we go into it. And I would also like to draw the
9 Trial Chamber's attention that I have not used Mr. Nicholson's article
10 for the report on the role and authority of the General Mladic.
11 Q. Okay, I propose while we wait for the hard copy for you to review
12 at the break, that I could point to the specific items and have you
13 comment on them.
14 MR. IVETIC: If we could move to page 2 in e-court of this
16 Q. I'd like to direct your attention to the heading of topic 2,
17 Function of Military Analysis. And Mr. Nicholson has written here as
19 "Military analysis provides investigation and subsequently
20 prosecution cases with the military dimension of integrated events,
21 personalities, organisations, and crimes under scrutiny. The analyst
22 will exam de jure and de facto issues relating to crimes, prosecution
23 targets, and events, and will provide analysis from the most preliminary
24 stages of an investigation or assessment, right through to the
25 presentation in court of such analyses by the analyst for the
1 prosecution. She/he provides the ability to monitor, research for, and
2 advise, the prosecutor in the defence phase of a trial."
3 Do you agree that he has accurately described your role here in
4 this paragraph?
5 A. I don't understand, my role, when, how, what?
6 Q. Your role as a military analyst within the
7 Office of the Prosecutor, sir.
8 A. I think it's a fairly accurately description. Personally, I
9 didn't like the expression "prosecution targets" because I don't see my
10 work as targeting. I see my work as providing military knowledge and
11 background to, as I was employed by the Office of the Prosecutor, to
12 members of the Office of the Prosecutor.
13 Q. Okay.
14 MR. IVETIC: If we could please move to page 3 of this article in
15 e-court. I would like to focus on the last paragraph of the same, under
16 the heading "Command Responsibility, use of Military Experts."
17 Q. And here Mr. Nicholson states as follows:
18 "The analyst will offer advice in the use or not of an external
19 military expert or experts during the investigative and prosecutorial
20 phase of a case. Such an expert/experts can provide added value to the
21 case by providing advice, and eventually writing a report and giving
22 evidence, in relation to the targeted accused, his/her knowledge and
23 his/her likely command responsibility for events and crimes which have
24 taken place. The expert should be of similar or higher rank than the
25 target/accused, and have had operational experience or similar in order
1 to authenticate and valid the 'expert' label."
2 Do you agree with that which Mr. Nicholson has written here about
3 the qualifications necessary more a military expert?
4 A. Your Honours, the views of Mr. Nicholson are obviously very
5 interesting, but it's -- again, its up to the Trial Chamber to decide
6 whether a -- an individual that has been presented as an expert witness -
7 whether it's on the side of the Prosecution or Defence - will indeed be
8 recognised as an expert and his or her evidence accepted as such.
9 Q. Sir, do you agree or disagree with Mr. Nicholson as to what is
10 the standard for a person to be retained as a military expert?
11 A. Again, I don't disagree with him. I think you have to look at
12 the specific situation and the specific nature of the expertise that is
13 required. The article dates from 2003 and then the common practice, as I
14 understand it, in the OTP was to have both an in-house expert whose focus
15 would be on reviewing documents and again identifying patterns and trends
16 among these documents and then present those conclusions to the
17 Trial Chamber during testimony; and secondly, to have also an external
18 expert who would obviously not be tasked with reviewing such significant
19 amounts of documents but where first and foremost the OTP would rely on
20 that person's experience, practical experience in command and control.
21 And this is actually also exactly what I have described my article. So
22 this double approach.
23 JUDGE ORIE: Mr. Ivetic, could you tell us exactly where you read
24 in the portion you have drawn our attention to that Mr. Nicholson has
25 written about - and you're referring to ranks and experience - are a
1 qualifications necessary to be a military expert?
2 MR. IVETIC: Yes, Your Honour. The last line of page 3 and the
3 first half line of page 4, that read:
4 "The expert should be of similar or higher rank than the target
5 accused and have had the operational experience or similar in order to
6 authenticate and validate the expert label."
7 JUDGE ORIE: Now, could you tell us where he says that that is a
8 necessary requirement? Is there a possibility, for example, that you
9 could understand this as a strategic approach by the
10 Office of the Prosecution? I do not see the words "this is necessary,
11 otherwise he does not qualify as a expert," because that's what you're
12 putting to the witness?
13 MR. IVETIC: Well, Your Honour, if someone cannot validate the
14 expert label, he is not an expert. That's my reading of the English
15 language used by Mr. Nicholson.
16 JUDGE ORIE: Okay. Yes. Then perhaps the first thing we could
17 ask the witness is whether he agrees with that reading of this text.
18 MR. IVETIC: Fine.
19 JUDGE ORIE: Do you agree, Mr. Theunens, with Mr. Ivetic, that
20 Mr. Nicholson here describes the necessary qualifications to be -- to
21 qualify as a military expert?
22 THE WITNESS: No, Your Honours, I do not. I mean, as you had
23 clarified. And as I also tried to clarify, Mr. Nicholson is talking
24 about the very specific case of military experts, a very specific type of
25 military experts.
1 JUDGE ORIE: Please proceed, Mr. Ivetic.
2 MR. IVETIC: Thank you.
3 If we can look at the last --
4 JUDGE ORIE: By the way, Mr. Theunens, I did not -- I have not
5 clarified anything. I have raised a question in relation to the
6 interpretation of the text written by Mr. Nicholson, just to avoid any
8 Please proceed.
9 MR. IVETIC: If we could scroll down to the bottom of the page
10 that we have on the screen before us.
11 Q. Mr. Nicholson also talks about the use of military experts in an
12 organisational function analysis. And if you read -- I don't think we
13 need to read aloud the two paragraphs involved about this section, but I
14 think you will agree with me that Mr. Nicholson makes the same
15 observations about an expert needing to be -- should be of appropriate
16 rank and/or experience, be of sufficient knowledge, and have had
17 operational experience or similar where appropriate in order to
18 authenticate or validate the expert label. In relation to this type of
19 expert and this type of analysis of an organisation rather than an
20 individual, do you agree with what Mr. Nicholson has included here?
21 A. I don't agree nor disagree. I mean, there are things in what
22 Mr. Nicholson writes that do make sense. There are others where I think
23 given the fact his article dates from 2003 that maybe now, ten years
24 later, we may draw different conclusions. And again, I have the
25 impression that you paraphrase what Mr. Nicholson writes in a particular
1 way to create, I don't know, some kind of even suspicion where it's all
2 very factual and very simple as I also described my own article.
3 Q. Okay. What you do you feel -- if it's so simple, what do you
4 feel would be the appropriate rank and/or experience for an expert to
5 perform the type of analysis that we are talking about here, sir?
6 A. Your Honours, what Mr. Nicholson describes is the approach that
7 was applied at the ICTY, say, between 2001 or even before that in, I
8 believe, 2004 and 2005; that is, that we would have at least two military
9 experts. There would be the in-house person who would -- whose first
10 task would be or whose main task would be to review documents, and those
11 would be thousands of documents held by the OTP. This includes also
12 documents provided by the Defence at various trials. And that analyst
13 would apply then the well known methodology of the intelligence cycle in
14 order to identify patterns and trends, which would then lay the
15 foundation for conclusions that would be included in an expert report
16 that would be submitted during the Prosecution phase of the trial.
17 The second category that was used at the time were the so-called
18 external experts, where you could have on the one hand technical
19 experts - for example, an artillery expert - who would then focus on the
20 technical aspects that were believed to be relevant for the
21 Trial Chamber. Among the second category of experts, we also had senior
22 officers, former generals, or others who would testify or would be called
23 to testify on their expertise in relation to command and control, and
24 they would only review a minimum of documents in order to support their
25 conclusions because their expertise would be the main basis for their
2 So, I mean, the two approaches are complementary and this was
3 applied then and it's my understanding that Mr. Nicholson tries to
4 describe that approach also in his article of 2003. And this is also
5 what I have described in my article of 2009, because I believe that that
6 approach makes a lot of sense.
7 JUDGE ORIE: Mr. Ivetic, I am looking at the clock.
8 MR. IVETIC: Yes. Before the break, can I ask the assistance of
9 the usher to give a clean copy of the article to Mr. Theunens as he asked
10 for to review during the break.
11 JUDGE ORIE: Mr. Theunens, you are invited to read it and to see
12 to what extent you agree or disagree with.
13 Could Mr. Theunens be escorted out of the courtroom. We take a
14 break of 20 minutes.
15 We'll take a break and we'll resume at 5 minutes to 11.00.
16 --- Recess taken at 10.32 a.m.
17 [The witness stands down]
18 --- On resuming at 10.57 a.m.
19 JUDGE ORIE: Could the witness be escorted into the courtroom.
20 Could I meanwhile deal with a matter related to Witness Turkusic
21 and Witness Higgs. During their testimonies, D356 and D399 were marked
22 for identification.
23 Now, for D356, which are excerpts of an 82-millimetre mortar
24 menu, the Prosecutor was waiting for a translation of selected additional
25 excerpts, and Chamber wonders whether the translation are there yet.
1 [The witness takes the stand]
2 JUDGE ORIE: Could perhaps we hear an answer later this morning.
3 Welcome back, Mr. Theunens.
4 Mr. Ivetic, you amy proceed.
5 MR. IVETIC: Thank you, Your Honours.
6 Q. Sir, have you had an opportunity during the break to review the
7 entirety of the article by Mr. Nicholson which I have provided by way of
8 the Court Usher?
9 A. Yes, Your Honours, I did.
10 Q. Did you find any areas of that article where you are in drastic
11 odds with what is written by Mr. Nicholson that you would like to
12 highlight for us, or do you consider that on the overall you agree with
13 most of what is written there?
14 A. Your Honours, I would agree to most of what is written based,
15 again, on the fact that this article dates from 2003. And I think
16 Mr. Nicholson had left the ICTY the year before or in the course of 2002,
17 so the situation he was describing, without referring explicitly to the
18 ICTY, but still was, in my view, different to the situation I have known
19 at ICTY, for example, in relation to the availability of what I would
20 call primary sources, i.e., military documentation concerning the parties
21 that the analyst was to -- to -- yeah, to analyse.
22 MR. IVETIC: If we could turn to, I believe, the next page in
23 e-court of this article.
24 Q. I think this touches on an area that you have mentioned about
25 the -- access to documents. Under heading 3, "Evidence Requirements for
1 Military Analysis," Mr. Nicholson writes as follows:
2 "Military analysis, as defined above, demands specific forms of
3 evidence to establish the fullest and most comprehensive picture as
4 possible. It is critical to note that breadth of sources is vital for
5 quality analysis and that the majority of evidence will not come from
6 victim and 'low-level witnesses to crimes' testimony but from information
7 collected by other means."
8 Do you agree with what is written here by Mr. Nicholson?
9 A. Yes, I do, Your Honours.
10 Q. Do you feel that for purposes of your work on the report that we
11 have in the Mladic case, which has been identified now as P3029 marked
12 for identification, that you have adhered to this requirement to have a
13 breadth of sources?
14 A. What I would like to say is as follows, and again I explained
15 that in my previous answer that when Mr. Nicholson drafted his article he
16 was not necessarily familiar with - how would I say it? - the facts that
17 over the years the ICTY, I mean, the OTP, obtained an enormous volume of
18 original documents that had been released or disseminated by the parties
19 themselves, in a sense that -- I mean, I arrived here in July 2009. The
20 OTP had obtained a large volume of documents concerning the Krajina Serbs
21 that originate mainly from archives in Croatia. Since these documents
22 had been seized by the Croatian Armed Forces, i.e., the HV, during
23 Operation Storm, later on, the OTP obtained documents from the
24 authorities of the Republic of Serbia, FRY, Serbia-Montenegro, and so on.
25 There was also an increasing number of archive missions which all allowed
1 to gather original documents concerning the activities, I mean, events,
2 organisations, personalities, activities, analysts were to review, study
3 and prepare conclusions on.
4 So where I agree with the importance of looking at different
5 types of sources, for the specific requirements of an expert report, for
6 example, or a report that could be considered an expert report, my
7 conclusion is that primary documents are the most important source.
8 Obviously, if there is evidence from other sources or information from
9 other sources that would, for example, contradict events or statements or
10 any other information included in these primary documents, i.e.,
11 documents by the parties themselves, then those have to be studied too.
12 But otherwise from my experience, these primary documents are the best
13 source and the most effective in order to, yeah, draft an analytical
14 report on the subject matter like the one covered in the underlying
15 report or the report we are discussing now.
16 JUDGE MOLOTO: If I might just ask a question, Mr. Ivetic.
17 Mr. Theunens, Mr. Nicholson gives examples in the next paragraph
18 of the kind of documents that he thinks should be consulted. And without
19 accepting that that is necessarily an exhaustive list, would you agree or
20 disagree with him in principle that the kind of documents he refers to
21 there are similar to the kind of documents that you say are necessary to
22 consult, primary documents?
23 THE WITNESS: Yes, Your Honours, I do.
24 JUDGE MOLOTO: You do what? Disagree or agree?
25 THE WITNESS: I agree. I do agree.
1 JUDGE MOLOTO: Thank you so much.
2 MR. IVETIC: Thank you, Judge Moloto.
3 Q. And I believe the Judge's question was in relation to the
4 paragraph on indigenous documents. As I -- I read this article --
5 JUDGE MOLOTO: And the next ones.
6 MR. IVETIC: And the next one, pardon me, on de jure documents.
7 Q. The remain paragraphs in this section identify what comes to a
8 total of six different categories or types of sources that Mr. Nicholson
9 is talking about. Can you look at these categories, sir, and tell us if
10 your report --
11 JUDGE ORIE: If you -- I think Judge Moloto, and I verified with
12 that, said or meant to say and the next ones, not only the de jure
13 documents but the whole list of documents as we find it under the
14 evidence requirements for military analysis.
15 MR. IVETIC: Perfect. Then I apologise. I stand corrected. And
16 the Judge has anticipated my next question.
17 Q. So I'd like to ask now, in relation to these six types of
18 sources, can you confirm if your report relies on each of these types or
19 if only certain types, if you could identify what types?
20 A. I'm sorry, Mr. Ivetic. I'm not sure whether you understand the
21 methodology or what I have tried to answer in the previous -- in my
22 previous answers. It is not a question of looking at all the categories
23 and then ticking the box, and then saying, Yes, I have used all these
24 categories so it has to be a good report. You have to look at the
25 specific requirements and the material that is available to you. I have
1 never used, throughout the -- I think the ten reports I have compiled
2 here, I have never used witness interviews, for example. Why? Not that
3 I have doubts about these witnesses, whether it's Prosecution or Defence
4 witnesses, but the basic question for me was: Well, a witness can say
5 one thing in a statement, but if that witness is not called to provide
6 evidence, then people may doubt about what he said in his statement. Or,
7 and we have seen that, whether it's Defence witnesses or Prosecution
8 witnesses, or witnesses called by these parties, they may say one thing
9 in a statement, they may testify to another thing. So in my view, and
10 again given the ability -- the abundant availability of primary
11 documents, I do not see a requirement to use witness statement. Open
12 source information, I have used that a few times. Why? Because, for
13 example, a public statement of a commanding officer can be quite
14 indicative of, as we discussed last week, his state of mind, his
15 personality. If it is about certain events, from the methodological
16 point of view, I would still try to look for or I still try to identify
17 primary documents because in my view they are, generally speaking, more
18 reliable sources that open sources. But it's not a black and white
19 situation. You look at it, and you apply the methodology case-by-case.
20 Internationals? Of course. I have seen many documents both when
21 I was working in peacekeeping missions as well as when I was here, for
22 example, of meetings between internationals and certain military
23 officials, or reports on the situation, I mean, drawn by these
24 international organisations. And there again, I may have used some of
25 those, but I will always like to look for the primary documents in order
1 to find corroboration.
2 Intelligence. This is one of the issues where I have problem
3 with the article. Mr. Nicholson uses the expression "intelligence"
4 without defining it. There is a lot of confusion and mystery about
5 intelligence. Intelligence is not espionage. Intelligence simply is
6 information that has been subjected to most often human judgement. So
7 that is the difference between intelligence and -- between information
8 and intelligence.
9 Sorry, I will repeat. And I'm sorry I'm a bit fast.
10 Intelligence is not to be confused with espionage. Everybody does
11 intelligence. It is just subjecting information to your human judgement
12 in the framework of specific requirements you have. Looking at the types
13 of intelligence Mr. Nicholson lists, imagery, I have not used that; human
14 intelligence, I have not used that; signals intercepts, I didn't use
15 those, because again I felt that the primary documents that were
16 available to me were sufficient in order to draw the kind of report I --
17 to draft the kind of report I have drafted.
18 THE INTERPRETER: Could the witness kindly slow down, thank you.
19 THE WITNESS: I apologise.
20 MR. IVETIC: If we can please turn to page 8 of this document in
22 Q. I have just one more item I would like to address with you. It
23 is under the heading of "Strategic Use of the Broader Analysis Function,"
24 and is the fourth paragraph down from the top of that section. And it
25 reads as follows:
1 "The analyst should have a separated management chain in terms of
2 the execution of his/her professional obligations to the OTP, namely
3 objectivity, ethical analyse process, qualitative contribution, and
4 proper utilisation of the resource."
5 First of all, sir, do you agree with the position expressed
6 herein on this topic?
7 A. Your Honours, I think I should see the context in which
8 Mr. Nicholson drafted this paragraph because I haven't cited from it. I
9 think I understand why he wrote it, but I am not sure, so, I mean --
10 obviously, an analyst has to be able to apply the methodology in the most
11 independent possible manner without being influenced by outside factors.
12 We are all biassed. You're biassed, I'm biassed, we're all biassed. But
13 a good analyst will be able to identify bias and also to prevent it in
14 expressing or in applying, I'm sorry, the methodology. So that -- I
15 don't think I can say more about this paragraph.
16 Q. Let me ask you then about your own work, sir. Do you feel that
17 as a part of your work within the MAT and for purposes of the expert
18 reports you have authored for cases including this one, do you feel that
19 you had a separate management chain?
20 A. Well, it's -- it's not so much a management chain. You know, I
21 was given a dead-line by -- first of all, in general, when I was still
22 working here, the trial team asked me or my team leader, rather, whether
23 I could draft a report. In the affirmative case, there was a
24 conversation about the subject matter, so I asked for guidelines as well
25 as for a dead-line. And then it was basically up to me to draft a report
1 within the set dead-lines. There were no outside influence as to what I
2 was about to write or which documents I was about to consult. And then
3 when the dead-line approached I submitted a draft report. There may be a
4 meeting on it in order to clarify certain issues. But otherwise, the
5 report would be -- we called it the in-house databases. And then you
6 have based on, I mean, the ongoing trial and calendar and so on, I would
7 be called to testify or not. This is in a nutshell the management
8 process that existed when I was still working at the OTP.
9 MR. IVETIC: Your Honours, I would tender the document as the
10 next available Defence exhibit.
11 JUDGE ORIE: Madam Registrar.
12 THE REGISTRAR: Document 1D1496 receives number D447,
13 Your Honours.
14 JUDGE ORIE: Absence of any objections, admitted.
15 MR. IVETIC: If we can turn to 65 ter number 1D1492 in e-court.
16 And if we could turn to page 3 of the same in e-court. That should
17 correlate to the transcript page 4399 of the Hadzic proceedings. And I
18 would like to focus on lines 4 through 15 of the same.
19 Q. Sir, I will read this and ask some comments from you following.
20 So please follow along:
21 "Q. And who was signing your e-passes over the course of the
22 eight years that you were employed by the Tribunal?
23 "A. My -- I mean, the first reporting officers I mentioned
24 earlier, those were the team leaders of the military analysis team, and
25 then the second reporting officer I believe it was in most cases
1 Mr. Bob Reid and I forget now the official job title he had -- but I mean
2 he was a senior investigator and then I think he -- whether he was a
3 chief of investigations or -- I think he was chief of investigations for
4 most of the time.
5 "Q. In any event, he's a part of the Office of the Prosecutor;
6 is that right?
7 "A. That is correct, yeah."
8 Sir, is this testimony from the Hadzic trial truthful and
9 accurate such that you would testify the same way today if asked these
10 question subject to the solemn declaration you have taken?
11 A. Yes, it is.
12 Q. Could you explain for us or for those unfamiliar with the system
13 what is an e-pass and what is its significance within the management
15 A. Your Honours, e-pass stands for electronic appraisal system which
16 is the common system for UN staff members for their annual appraisal,
17 performance appraisal.
18 Q. And is the e-pass a source for -- or a source document that is to
19 be submitted for future employment opportunities that are applied through
20 the UN system?
21 A. Usually it is and then the applicant is invited to submit his or
22 her last two e-passes.
23 Q. Do you consider Bob Reid to have been from a separate management
24 chain in the spirit of the Mr. Nicholson's article that we have just
25 looked at?
1 A. Your Honours, I don't know. I don't remember.
2 MR. IVETIC: If we can turn back one page --
3 JUDGE MOLOTO: Mr. Ivetic.
4 MR. IVETIC: Yes.
5 JUDGE MOLOTO: When you said Mr. Bob Reid was from a separate
6 management chain, where does Mr. Nicholson say in his article that a
7 human being forms part of a management chain? The paragraph that you
8 read out to Mr. Theunens just before you removed the last document.
9 MR. IVETIC: The paragraph from Mr. Nicholson's article says:
10 "The analyst should have a separate management chain in terms of the
11 execution of his/her professional obligations to the OTP," and it talks
12 about objectivity, et cetera. Perhaps I should ask the witness, is his
13 understanding of the separate chain meaning someone who is not involved
14 in the Prosecutor and the investigations of the Prosecutor?
15 JUDGE MOLOTO: No, no. My problem is if you read that paragraph
16 by Mr. Nicholson, it doesn't mention a human being as part of that chain.
17 It talks of objectivity, professional something, something, and two other
18 things: Proper use of his sources and ethical -- and analytical ethics.
19 There is no mention of a human being forming that separate chain,
20 management chain. Now Mr. Bob Reid is a human being. He's neither of
21 the four things that are mentioned by Mr. Nicholson.
22 MR. IVETIC: Okay. And perhaps if we could briefly go back to
23 that document which has now been marked.
24 JUDGE MOLOTO: D447.
25 MR. IVETIC: D447, thank you, Your Honour. And if we could go to
1 page 9 of the same. This is the continuation of the Nicholson article.
2 And at the top there is talk of structure under heading 9, and it says:
3 "The analyst should support the investigative function and
4 investigative teams from outside of the immediate investigative
5 management structure. This ensures integrity of tasking, quality of
6 product, focus of requirements, and proper use of resources. Similarly,
7 the analyst should support the Prosecution's team from without but
8 working in close liaison with attorneys to provide advice, knowledge, and
9 guidance of the case."
10 JUDGE MOLOTO: You accept that this is something --
11 MR. IVETIC: Yes. Yes, I do, Your Honours. I apologise.
12 JUDGE MOLOTO: And this doesn't talk about management chain.
13 MR. IVETIC: Correct.
14 Q. In the context of this part of Mr. Nicholson's article, do you
15 consider that having Mr. Bob Reid as one of the persons responsible for
16 your e-pass is consistent with the analyst, you, being from outside of
17 the immediate investigative management structure?
18 A. Your Honours, I mean, I'm not sure whether it is an effective use
19 of court time to explain the electronic UN appraisal system, but -- or
20 maybe you should review my -- the e-passes I had from the ICTY. The
21 first reporting officer was my team leader in the military analysis team,
22 while I was mainly working with trial teams. So from that point of view,
23 there is a separate management chain, because I worked together with
24 investigators, trial attorneys, senior trial attorneys, but they don't
25 write my e-pass. They are not my first reporting officer. My team
1 leader in the military analysis team was my first reporting officer.
2 The second reporting officer, indeed, was a person of the -- of
3 the same management chain, but, again, if you're familiar with this
4 system, a second reporting officer rarely writes something else or rarely
5 amends what the first reporting officer has said because Mr. Reid, I
6 think there were several hundreds of staff for whom he was the second
7 reporting officer, it would have been difficult for him I think, just
8 from a human point of view, to have a detailed views on the work
9 performance of each and every of these several hundred staff members. I
10 don't recall exactly what Mr. Reid may have written in my previous
11 e-passes, but again I repeat myself, I'm sorry for that, the first
12 reporting officer was the team leader of the MAT. So from that point of
13 view, the requirement as you describe it is indeed met.
14 JUDGE MOLOTO: We may just clarify this point again, and I know
15 that the e-pass system is not part of this case. Your first reporting
16 officer would have been your direct supervisor; is that correct?
17 THE WITNESS: That is correct, Your Honours.
18 JUDGE MOLOTO: And your second reporting officer is not
19 necessarily the person who works with you on a daily basis but he may be
20 at the head of the section which you are?
21 THE WITNESS: Indeed, Your Honours.
22 JUDGE MOLOTO: Does he form a membership of the immediate
23 management structure within which you work, given that situation?
24 THE WITNESS: Well, it would be unusual for him or her to address
25 me directly as a second reporting officer. It would make more sense to
1 go by --
2 JUDGE MOLOTO: Let me stop you. Would you see him as forming
3 part of your immediate management structure if he is somebody up there
4 and not working with you on a daily basis?
5 THE WITNESS: No, Your Honours.
6 JUDGE MOLOTO: Thank you.
7 MR. IVETIC: If we can now return to 65 ter number 1D1492. And
8 this time turn to page 2 of the same. And this will correlate to
9 transcript page 4397. It will be at the bottom of page, starting at
10 lines 20 through 25, and will bleed over onto lines 1 through 10 of the
11 next page.
12 Q. Again, sir, if you could follow along as I read into the record
13 what is reflected and then I will have some follow-up questions:
14 "Q. And in assessing command and control structures,
15 organisations, roles of the military, in a given week how often did you
16 speak, exchange an e-mail, pick up the telephone and speak with lawyers
17 in the Office of the Prosecutor during your eight years with the
19 "A. Your Honours, I wasn't requested to keep statistics. I
20 don't want to give the impression that I want to argue, but one of your
21 colleagues once asked me how my salary was established. I think it was
22 in the Vukovar case, whether I was paid --
23 "Q. Mr. Theunens --
24 "A. -- whether I was paid in according to the results that were
25 achieved. Of course I had daily contacts with other team members and
1 those team members consisted of lawyers, I mean senior trial attorneys,
2 trial attorneys, junior lawyers, interns, as I had contacts with
3 investigators and criminal analysts.
4 "Q. So the answer to my question is daily?
5 "A. Yes."
6 First of all, sir, can you confirm that this is all accurate and
7 truthful such that you would stand by the same today if asked the same
8 questions subject to the solemn declaration?
9 A. Yes, I do, Your Honours. I confirm that this is an accurate
10 reflection of my testimony. And if I would -- you would ask me the same,
11 I may leave out the reference to the Vukovar case because it's maybe not
12 relevant. But otherwise, I would say the same.
13 Q. Thank you. And in relation to the contact that you would have
14 had on a daily basis with various members of the
15 Office of the Prosecution as outlined herein, did you ever have occasion
16 to participate in meetings or offer advice about the drafting or
17 amendment of indictments?
18 A. I would just like to ask for clarification because I'm a bit
19 confused. Are you asking for this case and this report or are you asking
20 for everything that happened prior to the drafting of this report?
21 Q. My use of the term "did you ever" implies both A and B of your
22 two scenarios, both before and including this case.
23 A. Well, Your Honours, I left the ICTY in April 2009, so after that
24 I had no meetings with any members of the OTP except in relation to
25 drafting expert reports or reports after that date, and those I think
1 were Hadzic and Mladic. Those two cases. As for before 2009, I indeed
2 participated in meetings concerning the review of indictments. But as I
3 have testified in other trials, my input was limited to ensuring that the
4 appropriate or the accurate military terminology was being used when
5 military events, personalities, positions, and so on were being discussed
6 or were being addressed in the indictment.
7 Q. Okay.
8 MR. IVETIC: If we could return to 1D1498. And if we could turn
9 to page 6 of the same in e-court.
10 Q. Once we get to page 6, I would like to together look at --
11 together look at second paragraph under the heading "Role of Militarily
12 Expertise During the Investigative Phase":
13 "(Military) analysts apply a methodology which is commonly known
14 as the 'intelligence cycle.' The intelligence cycle consists of four
15 discrete phases: Direction, collection, processing, dissemination.
16 Based on the direction received from the Senior Trial attorneys, the
17 analyst will participate in the collection of information. The analyst's
18 specialist knowledge can assist in better focussing the direction and the
20 Does this -- does this paragraph accurately describe the
21 situation you operated under for purposes of drafting your various expert
22 reports while at the MAT at the Tribunal?
23 A. It does, Your Honours, because, for example, in -- in context of
24 the Vukovar case, I mean, Mrksic, Sljivancanin, Radic, the trial
25 attorney -- I asked -- I mean, the trial attorney clearly told me -- the
1 Senior Trial Attorney clearly told me, I want to have a report on the
2 role of these three individuals as well as on the role of
3 Operational Group South. And then we would have a discussion as to,
4 Okay, when would you like to start with the report, i.e., what would be
5 the starting date or the time-period I was to cover, what would be the
6 end date. So that is the nature of the direction that was given by the
7 Senior Trial Attorney.
8 Q. If we could look at footnote number 16 from this selection. It's
9 at the bottom of the page. Perhaps you can zoom in on it some more as it
10 is smaller in size. You identify, "The intelligence cycle is universally
11 applied in the implementation of the process of intelligence." I want to
12 ask you, sir, is it your position that the intelligence cycle is the only
13 accepted methodology for the processing of intelligence?
14 A. Your Honours, I don't understand the question because what do you
15 mean by "the process of intelligence"?
16 Q. The processing of intelligence. I apologise if I misspoke.
17 A. Well, as I understand it processing is a phase of the
18 intelligence cycle which consists of evaluation, colation, analysis,
19 integration, and interpretation. So if you have another definition for
20 processing, then maybe I am in a better position to answer the question.
21 Q. Tell me what definition you meant what you used the word "process
22 of intelligence" in footnote 16.
23 A. Well, that is the -- I mean, as it is stated there and as I have
24 given, the intelligence cycle.
25 Q. Okay.
1 A. What -- I mean, I'm trying to understand your question. I may
2 well be that you are referring to other terminology to identify the
3 phases of the intelligence cycle. I know that criminal analysts, for
4 example, they don't like to -- or they don't use direction, they have
5 consultation or something for the first phase. And I've also seen some
6 more recent US doctrinal publications that kind of split or divide the
7 processing phase in a different manner. But otherwise I stick to the
8 intelligence cycle as I have given it.
9 Q. Okay. Is it your position that within the community of analysts,
10 the intelligence cycle methodology has not been the subject of criticism
11 for flaws?
12 A. I am familiar with -- I mean, there are lots of discussions, and
13 especially with the internet and blogs where, I mean, people can
14 basically publish what they want. There is a lot of debate, but it
15 doesn't put into question this methodology; otherwise, you should put
16 some specific challenges to me and give me the opportunity to comment on
17 them. I am not inclined to put the methodology into question because you
18 say that there are a few people that have -- have put it into question.
19 Q. Do you consider the publishers Routledge to be bloggers or
20 internet columnists?
21 A. No, I don't. And, you know -- I don't consider them bloggers or
22 internal columnist. But again Routledge publishes I don't know how
23 many -- how many books a day or how many studies, so come with a specific
24 claim and then give me the opportunity to review it.
25 Q. I promise you we'll do that. I'd like to finish with your
1 article first.
2 JUDGE ORIE: Before we continue.
3 Mr. Theunens, I'm revisiting one of the previous question put to
4 you. That is about intelligence cycle and processing. In the text of
5 the article, a methodology is mentioned commonly known as the
6 intelligence cycle. And then it continues that the intelligence cycle
7 consists of four discrete phases, one of them being processing.
8 Now in the footnote, I read:
9 "The intelligence cycle is universally applied in the
10 implementation of the process of intelligence ..."
11 That confuses me because in the text the processing is described
12 as one of the phases of the intelligence cycle, whereas in the footnote
13 it seems that the intelligence cycle the something is you would apply in
14 the implementation of what is one of the phases of that same intelligence
15 cycle as described in the text. Could you -- apart from definitions,
16 could you explain to me whether this is unfortunate use of language or
17 whether my confusion is based on perhaps a misunderstanding? Could you
18 further explain.
19 THE WITNESS: Your Honours, the use of the expression
20 "processing," paragraph 16, is indeed an unfortunate use of language in
21 the sense that it could also have been there the implementation of the
22 intelligence activities or something like that. I mean, there is always
23 a discussion whether intelligence is a product or a process, but then the
24 word "process" does not mean the same as the processing phase of the
25 intelligence cycle.
1 JUDGE MOLOTO: Mr. Theunens, did you mean to say footnote 16
2 instead of paragraph 16?
3 THE WITNESS: I'm sorry, Your Honours. Yeah. It should be
4 "footnote 16."
5 JUDGE MOLOTO: Thank you.
6 THE WITNESS: So you could say in the implementation of the
7 activity of intelligence or in the implementation of intelligence support
8 as you usually see it in the doctrinal publications to avoid this
9 potential confusion over the expression "process."
10 JUDGE ORIE: So there in the footnote, the word "process" is used
11 as covering the four phases of what you call the intelligence cycle?
12 THE WITNESS: Exactly, Your Honours.
13 JUDGE ORIE: Thank you.
14 Please proceed.
15 MR. IVETIC: Thank you, Your Honours.
16 If we can turn to page 8 in e-court. And once we get there, I
17 will be interested in footnote number 25. And if we could perhaps zoom
18 in on the footnote, that should be sufficient.
19 Q. Here, sir, you state as follows:
20 "The party that wishes to introduce intercepts into evidence must
21 demonstrate that the recordings are genuine and that the voices that are
22 heard in the recording belong to the persons it alleges. The
23 authentication is achieved through witnesses who testify to the
24 procedures and circumstances of the intercepts and recordings, and
25 witnesses who can identify the voices."
1 Now, sir, in relation to this issue of intercepts, in your
2 opinion would you ascribe a lesser reliability factor to purported
3 intercepts for which there is no corroborative recording but only written
4 notes of what allegedly was heard?
5 A. Your Honours, there are two aspects: There is the reliability of
6 the source and the credibility of the information, as we explained when
7 discussing the methodology. At face value, if you only have handwritten
8 notes and not the original recording, you would say that the source is
9 less reliable than when you have a real intercept. However, it may well
10 still be that the information in those notes is credible and that you
11 have to see by applying the methodology; i.e., by seeking corroboration,
12 identifying other sources that discuss the same event, and then see
13 whether the information between these different sources or provided by
14 these different sources is consistent.
15 Q. Thank you.
16 MR. IVETIC: If we can turn to the next page in e-court. And I'd
17 like to focus on the second paragraph from the top.
18 Q. And I propose to go through the -- that one and the two remaining
19 paragraphs on this page and the first sentence on the next page and ask
20 you some questions in relation to this:
21 "Taking into account the complexity of the cases before the ICTY
22 (and other International Tribunals and Courts), it should be obvious that
23 (military) analysis should be placed on equal footing with other
24 components of the investigation. (Military) analysis should be included
25 from the very beginning in all parts of the investigation. It should
1 also be clear that the use of the in-house political, financial, military
2 or other expertise should not be restricted to the analysis of
3 documentary evidence only, but as explained here-above, the in-house
4 expertise also needs to be actively involved in the review of other
5 evidence, as well as the collection of evidence.
6 "Because of their specific knowledge, analysts should also assist
7 with the preparation, or, provided they have received training in this
8 area, participate in the taking of statements of senior witnesses and/or
9 suspects. Experience shows that high level political and military
10 leaders tend to be more co-operative when they are interviewed by people
11 who have a similar educational and/or professional background (i.e.
12 education and training as a military officer), and who are familiar with
13 the events that are discussed. This applies in particular to military
14 witnesses and suspects, who expect OTP staff interviewing them to be
15 familiar with the doctrine of their armed forces, the operations of their
16 units, the background to the conflict, etc. Members of armed forces also
17 appear to be more inclined to share their thoughts with other members of
18 armed forces (even if these are totally different armed forces).
19 "Even though (military) analysts are part of the OTP and work
20 under the direction of senior trial attorneys, it is important to
21 emphasise that the task of a military (or any other) analyst is not
22 simply to assist in building a case against an Accused by selecting only
23 incriminating information. The analyst's role is to review and analyse
24 as much information as possible with the aim of compiling a picture that
25 is as comprehensive and as accurate (i.e. as close to the facts) as
1 possible. The need for accuracy and objectivity is not only a matter of
2 professional ethics, but also one of the requirements to be accepted as
3 an expert witness by a Trial Chamber (see below)."
4 Now, sir, I went through that entire section so as not to
5 myopically view out of context of the words. Does all of this together
6 accurately and truthfully reflect the position that you held at the time
7 that you were part of the MAT and your understanding of the role of an
8 analyst of your type within the OTP?
9 A. Yes, Your Honours, and I still hold these views.
10 Q. Thank you.
11 MR. IVETIC: I guess, Your Honours, if we could ask for this
12 document to also be introduced into evidence. We've used it quite a bit.
13 JUDGE ORIE: No objections, apparently.
14 Madam Registrar.
15 THE REGISTRAR: Document 1D1498 receives number D448,
16 Your Honours.
17 JUDGE ORIE: And is admitted into evidence.
18 MR. IVETIC: Thank you.
19 Q. Now, in order to better understand this situation, can you tell
20 us if you have actually participated in interviews of witnesses or
21 suspects while at the OTP. And if so, how many instances in particular
22 for suspects?
23 A. Your Honours, I did indeed participate in the interviews of
24 military witnesses and suspects, including also some senior political
25 officials. I have no exact recollection of the number of suspects. I
1 think the number was very small.
2 Q. If we can focus on the suspects for which you participated in the
3 interviews. During those occasions, did you ever take the lead and
4 directly question the suspects yourself?
5 A. I remember at least one interview, indeed, where I asked a number
6 of questions, clearly supervised by a Senior Trial Attorney who was
8 Q. Did you offer advice to other Prosecution staff before, during,
9 or after suspect interviews?
10 A. Yes, I did, Your Honours, and that advice was limited to
11 clarifying what I would call military issues; i.e., if there were any
12 military events that were going to be discussed or military structures or
13 personalities, then the investigative team could ask me for my support or
14 I volunteered this kind of support just to provide that military context
15 to the team.
16 Q. Okay. And now I want to focus on witness interviews. I'm not
17 concerned with the number. But during those interviews, did you ever
18 take the lead and directly question witnesses yourself?
19 A. Yes, Your Honours, I did, and this concerned both witnesses
20 called by the Prosecution as well as witnesses by the Defence. And I
21 would invite you to review the trial records of the trials where these
22 people -- these witnesses testified, and then you will see to what extent
23 these interviews were conducted in a professional manner. I think one
24 good example is the interview that was conducted of retired
25 General Miodrag Panic, who was the chief of staff of the OG South and the
1 Guards Motorised Brigade, and he also testified as a Defence witness in
2 the trial of Colonel Mrksic, Colonel Sljivancanin, and Captain Radic.
3 Q. You have mentioned OG South. I'd like to ask if you have an
4 approximation of how many of the suspect or witness interviews you
5 participated in actually pertained to topics germane to parts of the
6 Mladic indictment?
7 A. I mean, if you are talking about the OG South in -- that was
8 active in Vukovar between, say, early September 1991 and the
9 20th of November, 1991, I don't recall any of those aspects, unless
10 maybe, excuse me, general aspects of the concept of All People's Defence
11 and how it was implemented, including the validity of military
12 regulations that have been included in part one of this report.
13 Q. If I can clarify. What I meant to say is that you mentioned
14 OG South in your answer, and I would like to ask you if apart from that,
15 did you also have occasion to participate in witness or suspect
16 interviews on topics that are actually germane to the Mladic indictment?
17 A. No, I'm not a hundred per cent familiar with the indictment, to
18 be honest. I mean, why do I say that? Because I have participated in
19 witness interviews on, for example, events in the zone of responsibility
20 of the 9th Corps in the second half of 1991. That was in the framework
21 of my work for the Martic investigation team. And obviously we discussed
22 matters like Skabrnja and Nadin. But I don't know whether these are
23 included in the Mladic indictment for this case.
24 My work focused, when I was working for the OTP, was really
25 Croatia and the activities of the Krajina Serb TO, Krajina Serb MUP, as
1 well as the same structures for SBWS, and the JNA during the latter half
2 of 1991. Later, I mean, the last report I drafted before leaving the OTP
3 discussed the role of the ZNG in the HV in Croatia. But otherwise, my
4 work on Bosnia-Herzegovina was, I would say -- I wouldn't say fairly
5 limited but was related to specific aspects; for example, in the
6 Stanisic-Simatovic case, in the Seselj case, there were a number of
7 alleged crimes, of course, that I also discussed in this report that were
8 allegedly perpetrated in Bosnia-Herzegovina.
9 JUDGE ORIE: Mr. Ivetic, I'm looking at the clock.
10 MR. IVETIC: I apologise, Your Honours. We could have the break.
11 JUDGE ORIE: Yes. Could the witness be escorted out of the
13 We take a break of 20 minutes, Mr. Theunens.
14 [The witness stands down]
15 JUDGE ORIE: And we will resume at quarter past 12.00.
16 --- Recess taken at 11.56 a.m.
17 --- On resuming at 12.19 p.m.
18 JUDGE ORIE: While we are waiting for the witness, I started
19 in -- after the previous break with two documents. I dealt with D356.
20 But D399 [Realtime transcript read in error "D359"], a map of Sarajevo
21 with markings, the Prosecution questioned the Defence's assertion that
22 the marked Colina Kapa area depicted OP 1's location. However, OP 1 is
23 not plotted on the map itself, and therefore the Chamber admits D399 into
25 [The witness takes the stand]
1 JUDGE ORIE: Mr. Weber.
2 MR. WEBER: Your Honour, I see D399 -- or D -- I believe it
3 records "359."
4 JUDGE ORIE: Yes, I hoped that I said "399."
5 MR. WEBER: And that's the one I understood it to be, Your
6 Honour. If at some point in the future, if the Chamber would be willing,
7 the Prosecution would just like to make some general submissions on the
8 use of Google Earth during trial. I just --
9 JUDGE ORIE: Yes.
10 MR. WEBER: -- want to note it since it's really related to this
11 but not at this time.
12 JUDGE ORIE: Whatever you want to bring to the attention of the
13 Trial Chamber, please ask leave to do so and then we will consider it.
14 Mr. Ivetic.
15 MR. IVETIC: Thank you, Your Honour.
16 If we can call up 1D1493 in e-court. And once we have that
17 document, if we could turn to page 5 of the same. And that should
18 correlate to transcript page 4514 from the underlying -- from that case.
19 Q. And I would like to focus on lines 5 through 13 with you, sir,
20 and again follow along as I read into the record the testimony and then
21 I'll have some follow-up questions:
22 "Q. You testified on Friday, I believe, it was, that you had
23 participated in the drafting of final trial briefs for the Prosecution.
24 Did that include the final trial or reviewing and revising final trial
25 briefs for the Prosecution? Did that include the Mrksic final trial
2 "A. It did. And just to avoid misunderstandings, I didn't
3 participate in such activities for the Hadzic trial.
4 "Q. But you did for the Mrksic case?
5 "A. Indeed."
6 First of all, sir, is this truthful and accurate such that you
7 would so testify the same way today on this topic if asked these same
9 A. It is. And if you allow me, I would just like to add one
10 clarification, that is that I conducted these activities within the field
11 of my competence; i.e., military analysis.
12 Q. Thank you for that clarification. Can you tell us how many cases
13 in total you would have participated in drafting, reviewing, or revising
14 the final trial brief for the Prosecution?
15 A. Your Honours, I see that Mr. Ivetic is now expanding the issue.
16 He's adding "drafting, revising." Reviewing -- it, I mean, I can -- my
17 best guess is two -- six or seven of the cases I worked on, I mean,
18 between 2001 and 2009.
19 Q. Do any of those cases deal with Bosnia and the subject matters
20 that are concurrent with the Mladic case as you understand them?
21 A. They deal with Bosnia-Herzegovina. And in relation to the
22 subject matters, yes, i.e., general aspects of doctrine on the use of
23 armed forces and any unrelated aspect on the JNA or local Serb TO.
24 JUDGE ORIE: Mr. Theunens, I was a bit puzzled by your
25 observation that Mr. Ivetic had expanded, where the -- the transcript
1 reads that you testified that you participated in the drafting of final
2 briefs, whether that included the final trial or reviewing and revising
3 final trial briefs for the Prosecution. You said it did. So therefore,
4 I do not see where Mr. Ivetic, who is talking about participation,
5 drafting, reviewing, and revising, where he expands in any way.
6 THE WITNESS: That is correct, Your Honours. Mr. Ivetic did not
8 JUDGE ORIE: Okay. Then let's leave it to that.
9 Then please proceed.
10 MR. IVETIC: Thank you, Your Honour.
11 Q. In relation to any ICTY cases, have you ever assisted the
12 Prosecution either by drafting, reviewing, or revising pre-trial briefs
13 submitted by the Prosecution?
14 A. Your Honours, I think it's -- it's good to make a distinction
15 between the cases I worked on prior to 2009 and after 2009, because I --
16 there is a difference. After 2009, I didn't work anymore for the OTP or
17 for the ICTY. So prior 2009, indeed, I participated in reviewing and
18 sometimes drafting very specific sections of pre-trial briefs for the
19 Office of the Prosecutor.
20 Q. If I may follow-up on that, then. In approximately how many
21 cases did you so participate and did any of them deal with Bosnia and the
22 same subject matters that are germane to this case?
23 A. Maybe six or seven. But, you know, I want to come back to the
24 methodology. I understand the purpose of your questions, Mr. Ivetic,
25 because --
1 JUDGE ORIE: Mr. Theunens, there was a simple question: How many
2 cases. You've answered that question. If you'd like to add anything at
3 the end of your testimony, then you are free to do so, but we leave it to
4 that. Please focus on the questions.
5 Mr. Ivetic --
6 MR. IVETIC: Thank you, Your Honour.
7 JUDGE ORIE: -- next question.
8 MR. IVETIC:
9 Q. Have you ever assisted Prosecution counsel in any manner with
10 appeal briefs and filing?
11 A. I don't recall specifically with -- in relation to appeal briefs,
12 but I was -- as you remember, I was called by the
13 Office of the Prosecutor to testify in the -- the so-called appeal of the
14 appeal in the Sljivancanin case, where I had to draft a report which was
15 obviously something different from an appeals brief.
16 Q. Okay. Have you ever assisted Prosecution counsel in preparation
17 for closing arguments in a trial?
18 A. Yes, I did, within the same limitations or within the same
19 context I explained earlier; i.e., my field of competence, military
21 Q. During the time-period of eight years that you were at the MAT of
22 the Tribunal, what level or classification was your salary for that post?
23 JUDGE ORIE: Mr. Ivetic, is that really relevant? All UN
24 officials are well paid for the jobs they are doing. Therefore, to know
25 the exact amount seems to be irrelevant. Again, we are well paid and I
1 take it that you had a position as --
2 THE WITNESS: Your Honours --
3 JUDGE ORIE: -- the --
4 THE WITNESS: Your Honours, I started as a P2. I think after two
5 or three years I became P3. And for the information of Mr. Ivetic, I'm a
6 P5 in Lebanon.
7 JUDGE ORIE: Yes. But you didn't earn that money when you were
8 in The Hague Mr. Theunens, then.
9 THE WITNESS: No, but I think Mr. Seselj asked the same question
10 and --
11 JUDGE ORIE: Yes. That doesn't add to the relevance.
12 Please proceed, Mr. Ivetic.
13 MR. IVETIC: Thank you.
14 Q. For the Mladic case, were you separately engaged by the Office of
15 the Prosecutor or did you volunteer your services?
16 A. Your Honours, Mr. Groome, if I recall well, in October 2011 sent
17 me an e-mail to ask me whether -- October 2011, sorry. To ask me whether
18 I would be willing to draft -- willing and available to draft a report
19 for the Mladic case. I saw this as an honour and I accepted that
21 Q. And so part -- apart from your salary at your regular job, were
22 you commissioned or compensated additionally or separately for the work
23 you did in preparing the report that has been presented in this case?
24 A. Your Honours, as a UN staff member, I am not allowed to accept or
25 to receive other payments than my salary and a compensation for the daily
1 costs when I'm away from my office, i.e., daily substance allowance. And
2 I think, Mr. Ivetic, you enjoy the same benefit so I don't have to give
3 the amount.
4 Q. I actually don't, but that's irrelevant.
5 JUDGE ORIE: Mr. Theunens, there is no need to make that
6 comparison. Whether for Defence counsel the same applies as for
7 officials is a matter which is not relevant here. But I think that is
8 what Mr. Ivetic would like to know. Your salary was still paid for your
9 present position. You are not cut there. And you did not receive any
10 additional remuneration for the work done for writing the report.
11 THE WITNESS: That is correct, Your Honours.
12 JUDGE ORIE: Thank you.
13 Please proceed.
14 MR. IVETIC: If I can return to 65 ter number 11462 in e-court.
15 Q. This is again your CV, and I'd like to focus on the first page.
16 Your employment at the SGRS at 1992 as a Balkans analyst. When you
17 started working on the Balkans, had this been a previously existing focus
18 of your employer or was it a new addition to their work to the subject
19 matter of its work due to the conflict in the Balkans and the deployment
20 of Belgian troops as part of UNPROFOR?
21 A. Your Honours, I am not entitled to discuss these issues because I
22 have not received a waiver from the Belgian authorities to discuss these
23 issues. I think my CV is sufficiently clear.
24 Q. Okay. Was this your first opportunity to act in the capacity of
25 an intelligence analyst, or had you fulfilled that role previously as a
1 commander in the Belgian military?
2 A. Your Honours, both at military academy as well as at junior staff
3 courses, an officer is trained in intelligence work and the intelligence
4 cycle. And while I did not conduct such activities - I mean, analysis -
5 in my previous job, I had some familiarity with its main aspects.
6 Q. Okay. Could you tell us how it came to be that you, a platoon
7 tank commander, were recruited for such a position and for undertaking
8 intelligence analysis work as your primary focus?
9 A. Your Honours, I was not a tank platoon commander just prior to
10 joining SGRS. I was a deputy and then a promotion commander in military
11 academy, first years polytechnic division, and I asked at the end of that
12 year for another assignment. And I even wanted to leave the military
13 because I had found a job in civilian which replied or met my aspirations
14 I thought in a more adequate manner, but since I had studied military
15 academy I was not allowed to leave the military at that stage. And then
16 by coincidence I met the deputy head of the intelligence and security
17 service. We had a good conversation. And a few weeks later, I was
18 informed that I had obtained a position as an analyst work in the Balkans
19 because they needed personnel there and that's it.
20 Q. From a summary of your professional skills, it would appear that
21 the intelligence officer and intelligence training programmes that you
22 participated in date from 1993 and 1997, respectively. Apart from the
23 training that all recruits in the military academy undergo and on
24 intelligence and the intelligence cycle which you just identified, did
25 you have any specific training in the field of intelligence analysis
1 prior to or at the time of commencing your post as a Balkans analyst in
2 September 1992?
3 A. Yeah, I mentioned, I mean, junior staff course. As a lieutenant
4 you have a few hours on intelligence cycle. And again you -- I mean, in
5 military academy, since it's a masters degree level, you have to apply
6 scientific research methods, and I realised that these methods are very
7 similar to the intelligence cycle, basically -- I mean, at least for the
8 processing phase is concerned.
9 Q. Okay.
10 MR. IVETIC: If we could turn to 1D1492 in e-court and page 53 of
11 the same. That should correlate to transcript page 4499 of the
12 underlying Hadzic transcript. And I would focus on 19 through 25 of the
13 bottom half of the page. And then it bleeds onto the following page.
14 Q. And I read for you the questions and answers as follows:
15 "Q. Have you heard the thesis expressed that the training centre
16 in Erdut was controlled by one or another organ from Belgrade?
17 "A. You know, from my work at the Belgium Ministry of Defence, I
18 started to look at the Balkans in September 1992. I went for the first
19 time to Erdut in August 1993. At various times obviously and since
20 Belgian troops were deployed in Baranja since I think April or May 1992
21 until the course of 1997, the presence of Arkan and his activities was of
22 relevance for us, not to the least for force protection issues. And
23 various information concerning Arkan's relations with Belgrade as well as
24 with Mr. Hadzic were available, but obviously I haven't used them for my
25 report. For my report, I rely on JNA and other official documentation.
1 "Q. Why are you mentioning it here if it's not part of your
2 report? What relevance is that?
3 "A. Because I tried to answer your question.
4 "Q. Did you take that into account in preparing your report?
5 "A. I took it into account -- I mean, I haven't explained the
6 methodology, so if you want I can explain the methodology. But
7 interpretation of the information is a step in the processing phase of
8 the intelligence cycle. Interpretation means that you compare new
9 information that you have obtained or information you were not aware of
10 before with the existing 'body' of knowledge and then you draw certain
11 conclusions. So in this particular context, imagine that I assumed or
12 that I was convinced that Arkan -- say that Arkan was sent by
13 President Milosevic, assuming that. Well, before I would put that on
14 paper, I would look for information in order to establish or to see
15 whether I would be in a position to establish who sent Arkan on the basis
16 of the information in front of me. Since I didn't see any such JNA
17 documents except for the security organ reports who do not answer that
18 question I think very clearly, but they make suggestions as to the nature
19 of relations Arkan enjoys with officials in Belgrade, so I was not able
20 to answer that question so I haven't made any statement in the report or
21 statement by me that Arkan was sent by President Milosevic, for example."
22 First of all, sir, is this accurate and truthful such that your
23 answers would not change today to these questions?
24 A. It is accurate and truthful. With hindsight, I think I would try
25 to be shorter.
1 JUDGE MOLOTO: If I might just get clarification for myself.
2 Mr. Theunens, when you look at starting from line 1 on this page,
3 you say:
4 "And various information concerning Arkan's relations with
5 Belgrade as well as with Mr. Hadzic where available, but obviously I
6 haven't used them for my report."
7 Then you look at line 8, the question to you put is:
8 "Did you take that into account in preparing your report?"
10 "I took it into account."
11 Now here you say you took it into account at line -- the previous
12 lines, you say you didn't use them for your report. Are you able to
13 reconcile these apparently differing conditions for us?
14 THE WITNESS: Yes, Your Honours, because it's a distinction
15 between specific information on one side; and on the other hand, on
16 knowledge. When answering -- when testifying -- I mean, at the beginning
17 of my testimony in lines 2 and 3 on this page, I'm referring to specific
18 information. When I then talk about -- starting on line 9 when I discuss
19 how I applied the methodology, it is knowledge. Whenever and whoever
20 reviews an element of information, we have prior knowledge. This prior
21 knowledge consists most likely of specific information and various bits
22 of information. And while, indeed, I didn't use the specific information
23 or specific elements of information, obviously I had that available in
24 my -- in my mind and it was part of my knowledge.
25 And then during the processing phase, whenever I saw a document
1 here that I used, I compared the information -- the specification
2 information contained in that document with my general knowledge. I am
3 not sure whether this explains what I'm trying to -- or the distinction
4 that I'm trying to make, but that is how I applied methodology.
5 JUDGE MOLOTO: Just so that I understand the distinction you make
6 a little further, what do you mean in line 9 by saying "I took it into
7 account?" How did you take it into account?
8 THE WITNESS: Your Honours, that refers to the knowledge you --
9 unconsciously you take it into account, because when you are applying the
10 intelligence cycle in the processing phase, and more specifically in the
11 analysis and interpretation steps, you have new information, you're
12 reviewing it, and your judgement -- the judgement you will apply is
13 influenced by your knowledge, and that knowledge you have acquired over
14 the years by maybe seeing other information or working in a specific area
15 or studying a specific area, and it all comes -- I mean, it all comes
16 together. But -- so you take it -- you take it unconsciously into
17 account because the specific information has become part of your
18 knowledge and is probably, as such, not identifiable anymore. So in this
19 context if we may have had a specific information on an issue with Arkan,
20 it was part of my knowledge, but I wouldn't write down that specific
21 element. No. It would be used during the analysis and interpretation
22 steps of the processing phase of the methodology.
23 JUDGE MOLOTO: Thank you.
24 Mr. Ivetic.
25 MR. IVETIC: Thank you.
1 Q. Sir, do you likewise have knowledge gained from your employment
2 at the Belgian Ministry of Defence about any topics germane to the expert
3 report that you drafted in the Mladic case which you would have taken
4 into account but not cited to or relied upon in the report as was the
5 case in Hadzic?
6 A. That is -- that is possible. I mean, as I just explained when
7 referring to the methodology and the distinction between specific
8 information and knowledge, my overall recollection is that I acquired
9 most knowledge concerning General Mladic at two moments or two -- two
10 times: First of all, my service in UN-lead peacekeeping operations in
11 the Balkans between 1994 and 1997; and then, of course, the eight years I
12 spent at the Office of the Prosecutor in particular through the access to
13 primary documents of the VRS and the SRBiH TO, as well as the JNA
14 2nd Military District.
15 Q. Okay. During last Tuesday's testimony, at transcript page 20273,
16 lines 6 through 7, you were talking about the different types of command
17 posts that were foreseen or that existed under JNA doctrines and
18 normative writings. The Prosecutor skipped the reserve command posts
19 when defining the different command posts that existed. Is it your
20 position that reserve command posts are not relevant to the situation of
21 the VRS?
22 A. You can find reserve posts on page 42 of part one of the report.
23 At this moment, I don't have a concrete recollection of an example of
24 reserve command post organised by the VRS Main Staff. I don't claim it's
25 irrelevant, but at this stage I don't have a recollection. So if you
1 have an example, then we can -- we can look at the context, and then I'm
2 probably in a better position to answer your question.
3 Q. Okay. Well, sir, would you agree with me that the Crna Rijeka
4 feature at Han Pijesak, where the headquarters of the VRS Main Staff was
5 located, was not a main or basic command post of the
6 2nd Military District of the JNA but, rather, was a reserve command post
7 of the 1st Army from Belgrade in the event of an attack from the
8 direction of Hungary?
9 A. That is -- that is, I'm sorry. That is possible. As I said, I
10 don't recall a specific document, I mean this would have been described
11 in a certain document. So if you show me a document, I can -- I can be
12 of more assistance.
13 Q. Well, based upon your knowledge of the different types of command
14 posts, sir, would you agree that the communication and other command and
15 control assets at a reserve command post would not be as well endowed as
16 at a regular or main command post?
17 A. Again, I think we should look at the specific documents. I think
18 I would agree with you that the reserve command post is probably less
19 well equipped. But I think as far as communication is concerned, you
20 know, permanent communication is -- is a requirement to exercise command
21 and control. I think that if the reserve command post was to become the
22 main command post or the principal command post at -- measures would be
23 taken accordingly in order to ensure uninterrupted and continuous command
24 and control.
25 Q. Now, if we can focus in terms of the regular command post of the
1 2nd Military District, which is located in Sarajevo, could you please
2 tell us if from your review of the documentation if you know what was the
3 formational strength for wartime which was supposed to be at that
4 location as to officers according to the SFRY and JNA systems?
5 A. I cannot provide you with an exact figure. There may be
6 2nd Military District documents that provide an exact figure.
7 Q. Well, let me -- let me see if I can help you out. I am not
8 concerned with an exact figure. Can you tell us based upon your review
9 of the documents and your understanding of the -- of the -- of the facts
10 whether if -- whether the headquarters of the 2nd Military District in
11 Sarajevo, according to the establishment, was intended to be staffed by
12 over or under a hundred officers? Over or under 200? Can you give us
13 any kind of range or belief that you have as to what the staffing of that
14 entity ought to have been according to the --
15 A. No, I cannot give you an exact figure, you know. A hundred would
16 make sense. Two-hundred seems a bit high. But again, I'm guessing now.
17 I cannot give you an exact figure.
18 Q. That's fair enough. Now in May of 1992, when the Main Staff of
19 the VRS was established and when General Mladic was appointed its
20 commander, would you agree at that time that the Main Staff of the VRS
21 was staffed with less than a dozen officers?
22 A. At the very early stages that is possible, but then I think we
23 should take into account what is written in the 1999 -- 1993, sorry,
24 analysis of combat readiness of the VRS for the year 1992, which provides
25 very detailed information not only on the staffing levels and their
1 evaluation but also on -- on how the Main Staff exercised command and
2 control and how it was able to do that in an appropriate manner.
3 Q. Why don't we call up P338 in evidence, which is I think the same
4 report that you talked about just now and you also talked about last
5 Tuesday at transcript page 20260.
6 While we wait for that report, sir, do you consider that the
7 staffing of the Main Staff and whether it was staffed according to
8 establishment strength would have an effect of degrading the ability of
9 the Main Staff to exercise efficient command and control as foreseen by
10 the relevant SFRY and JNA literature?
11 A. In theory you are right, but I think in this context it would
12 also be good to look at how the command of the Main Staff described the
13 situation and what his assessment was together with, as I mentioned, the
14 analysis of the combat readiness, because numbers is one thing but how
15 the available staff is then used is another thing.
16 Q. Okay.
17 MR. IVETIC: If we could turn to page 71 in both versions, I
18 believe. Actually, if we could go to the -- I believe it should be
19 the -- the -- two pages forward in the B/C/S. One more page. No, we've
20 passed it. It must be before. Let's try page 70 of the B/C/S, otherwise
21 I think, since we're dealing with the chart, we can focus on the -- no,
22 that's a different chart. Let's focus on the English version. I think
23 the figures are easy enough to follow.
24 Q. Now, this chart compares the envisaged war establishment strength
25 with the actual war establishment strength of various elements.
1 MR. IVETIC: I thank you. Now I do see we have the appropriate
2 page in B/C/S.
3 Q. The Main Staff -- looking at the fact that the VRS Main Staff had
4 about 50 percent of the officers foreseen under the establishment and
5 only two of the 23 foreseen NCOs under the establishment, would you agree
6 that this lack of personnel to this degree degraded the ability of the
7 Main Staff to function as intended under the SFRY and JNA literature?
8 A. Your Honours, based on my review of the 1993 analysis of combat
9 readiness and other documents in my report, I do not agree with
10 Mr. Ivetic's proposition.
11 Q. Okay. Is it your position, sir, that staffing levels within the
12 Main Staff of the VRS are irrelevant to an analysis of the efficiency and
13 effectiveness of command and control which could be exercised?
14 A. Your Honours, I do not -- I didn't say that they were irrelevant,
15 but I say that in the context of other documents that were available to
16 me, they were useful but they were not -- I mean, based on my review of
17 the other documents and what was stated there about the functioning of
18 the command and control system in the VRS and how the Main Staff was able
19 to lead operations, these figures were not the determining factor. And
20 the lack of certain people was certainly not an inhibiting factor.
21 Q. Okay.
22 JUDGE ORIE: Before we continue, what we see on our screen at
23 this moment, could I ask one or two questions about the numbers presented
25 First of all, if we look at the Main Staff of the VRS, first
1 column, "officers, actual war establish strength," it reads "61" and then
2 underlined and under the line 59. What does that exactly mean? In the
3 next column we have 50 above and 94 below. What does that mean?
4 THE WITNESS: Your Honours, if -- at the -- at face value, I
5 cannot provide an answer because I do not have the document in hard copy.
6 Maybe it refers to figures that I have given in other parts of the
7 document. Again, I have a hard -- no, I do not have a hard copy with me,
8 but if I have a hard copy I can review the figures.
9 JUDGE ORIE: Yes. Now we also see that in the actual war
10 establishment strength, that every column, the first one being
11 "officers," the second "non-commissioned officers," the third "soldiers,"
12 is then followed by a column without a title. Could you tell us what
13 that column stands for?
14 THE WITNESS: Not at this stage, Your Honours. I would have to
15 go through the document.
16 JUDGE ORIE: Mr. Ivetic, are you cross-examining the witness or
17 have you asked to consult with Mr. Mladic?
18 MR. IVETIC: I apologise, Your Honours. Co-counsel had called me
19 over to --
20 JUDGE ORIE: Yes.
21 MR. IVETIC: -- consult with the witness -- or Mladic.
22 JUDGE ORIE: Yes, Mr. Ivetic, you know, on cross-examination
23 leading questions are not -- not unacceptable. If by any leading
24 questions you could clarify the matters I raised by suggesting a possible
25 answer, which again is allowed, it might assist the Chamber in
1 understanding the chart, which you apparently want to use for a purpose
2 that is to establish what the actual strength was compared to what was
3 the envisaged war establishment strength.
4 MR. IVETIC:
5 Q. If I can perhaps assist you, Mr. Theunens, and in doing so assist
6 the Chamber: Based upon your review of this document and other documents
7 and your knowledge of the facts, would you agree that the staffing at --
8 let's focus now on just the Main Staff for the purpose of keeping it
9 simple, would have fluctuated at -- during the time-period that is
10 covered by this analysis such that the top figure -- such that taking
11 into account the column related to the Main Staff at the highest level of
12 staffing, it was 51 per cent of the establishment and that perhaps due to
13 persons being injured or on leave or not active because of -- of other
14 factors, that the actual current state at the time of the report would
15 have been a figure lower than the highest staffing during the report
16 period covered by the report? Does that comport with what you observed
17 or what you know?
18 JUDGE MOLOTO: As you asked, Mr. Ivetic, can you help the Chamber
19 understand how you derived the percentage 51 per cent?
20 MR. IVETIC: It's the last column on the right, Your Honour.
21 JUDGE FLUEGGE: But how can we understand that this relates to
22 percentage? If you look some lines down, then you have 113 per cent.
23 MR. IVETIC: That's correct, Your Honour.
24 JUDGE FLUEGGE: What does --
25 MR. IVETIC: And the in the B/C/S original, that column is
1 predated with a per cent -- a per cent sign. So there are some --
2 JUDGE FLUEGGE: Yes, I see that.
3 MR. IVETIC: -- elements that were staffed at over a hundred
4 per cent.
5 JUDGE FLUEGGE: Yes, I see it.
6 MR. IVETIC:
7 Q. Mr. Theunens have you been able to follow and do you have a
8 comment, if not, so I don't want you to speculate.
9 A. No, no, I mean, it's possible but as I said I focused on
10 qualitative aspect, not so much quantitative aspects.
11 Q. Okay. Fair enough. Let's see -- if I could ask you to look at
12 some of the other entities. And perhaps for -- since the chart is wider,
13 if we could perhaps have for now just the English on the screen so we can
14 have the whole chart before us in a manner that we can zoom in and focus
15 on the elements. My understanding, the 1st KK, 2nd KK, SRK, IBK, HK, and
16 DK are -- that these are corps of the VRS. Is that also your
17 understanding, sir?
18 A. That is correct, Your Honours.
19 Q. And looking at the remaining entities listed, these would also be
20 different organisational elements of the VRS; is that correct?
21 A. Yes. The remaining are units that are directly subordinated to
22 the Main Staff.
23 Q. Okay. Now --
24 JUDGE ORIE: Mr. Theunens, are you able to assist, then, the
25 Chamber in understanding what 65th ZMTI stands for, where the
1 interpreters -- or the translators do not know the explanation?
2 THE WITNESS: It should be a -- I'm sorry, I'm looking at my
3 glossary. A motorised protection unit. But I'm not sure that for the
4 last I what it stands for, because normally you have the ZMPT, where the
5 P stands for "puk," but the I as a unit -- I'm just checking, and again I
6 can check during the break.
7 MR. IVETIC: And we don't have the B/C/S original on the screen.
8 It might also be an instance where the P is recorded as an I. That would
9 be my guess, but I don't have the -- it's possible since the Cyrillic
10 P --
11 JUDGE ORIE: Yes.
12 MR. IVETIC: -- could be the -- yeah.
13 THE WITNESS: So if it's a P, then its stands for
14 motorised protection regiment, Your Honours. The I as a P.
15 JUDGE ORIE: The other unknown expansions, if you could shed some
16 light on those, perhaps during the break, that would be appreciated.
17 THE WITNESS: Yes, Your Honours.
18 JUDGE ORIE: Or at least to shed light after the break, but study
19 it during the break.
20 MR. IVETIC:
21 Q. Now, if we could look at the column that is after "officers" on
22 the actual war establishment strength, the percentage -- and again, this
23 is another one that has percentage in the original B/C/S which is not in
24 the translation. Do you believe, sir, based upon the figures, let's look
25 at, again, the Main Staff, that the 50 that is on the top would correlate
1 to 61 being 50 per cent of the 122 officers envisioned in column number 1
2 and the 94 on the bottom of that fraction would be 94 per cent,
3 representing 59 of the current officers as opposed -- of 61 of those at
4 the highest level? Does that help us better understand the graph? If
5 you do not have any comment, that's fine as well. I'll just checking.
6 A. Yes, Your Honours. It's possible. And I -- I do remember that
7 there was, I mean, some documents mention was made that the staffs were
8 not fully manned. However, when you look at the qualitative analysis
9 done by the VRS Main Staff as well as by General Mladic, and putting
10 those documents into context with other Main Staff documents, my
11 conclusion is that even if a hundred per cent was not always reached, and
12 there were lacks in personnel at the Main Staff, that it did not affect
13 the Main Staff's ability to command and control VRS units.
14 Q. If we look at -- I apologise.
15 JUDGE ORIE: Mr. Weber.
16 MR. WEBER: Your Honour, Mr. Ivetic referred that -- that this
17 column has the percentage mark over it in the B/C/S. I don't see it in
18 this column.
19 MR. IVETIC: [Overlapping speakers]
20 JUDGE ORIE: Could we look at the B/C/S as well?
21 MR. IVETIC: I thought it did. I can see that it does not.
22 Well, by the math I did, I came up with 50 and 94. So I guess we're
23 still at a -- I guess it's still a proposition rather than a --
24 JUDGE ORIE: Mr. Weber, I think that Mr. Ivetic addresses is that
25 he sees a mathematical logic in the numbers presented which would be the
1 following, if I just look at the Main Staff of the VRS: That 61 out of a
2 scheduled or an established number of 122 would be exactly 50 per cent;
3 that the 59, we do not know yet exactly what it stands for but would be
4 94 per cent of the 61 which appears above. And if you would analyse the
5 column "officers actual war establishment strength," and the next one
6 which is without a title, then it seems that this is consistently the
7 situation. Just to take one other example, for the
8 Eastern Bosnian Corps, which is the fifth row, we see that the number of
9 officers would be 670, which would be 43 per cent of the officers
10 envisaged, which is 1563. And whereas the number of 117, whatever it
11 stands for, may make up 17 per cent of the 670 that appears on the -- in
12 the officers column at the -- above the little line. And that seems to
13 be, and everyone is invited to carefully consider it.
14 Yes, Mr. Weber.
15 MR. WEBER: Your Honour, I understand what you're saying. I'm
16 just a little cautious. There is a lot of other detailed information
17 that corresponds before and after to this chart in the document. Before
18 we draw some overly simplistic conclusions about, I can't --
19 JUDGE ORIE: I don't draw any conclusions. I'm just trying to
20 explain what kind of pattern Mr. Ivetic points at in terms of numbers and
21 percentages and whether it's the amount of bread consumed during a day by
22 officers or whether it is anything else, I have not expressed anything on
23 that. I'm just trying to follow Mr. Ivetic's pattern, mathematical
24 pattern, he has detected. That's all.
25 Please proceed.
1 MR. IVETIC: Thank you, Your Honour.
2 JUDGE FLUEGGE: But, Mr. Ivetic, could you perhaps with the
3 witness, try to find out what -- why we have two figures in the column
5 MR. IVETIC: I thought I had already asked that and the witness
6 was not sure. But I could ask him again.
7 Q. Sir, do you have a comment on that?
8 A. No. No, I mean, I have a hard copy but not with me. It's in the
9 hotel, but then I can check the document in order to provide you with an
10 answer, but at face value I cannot give it to you.
11 JUDGE ORIE: Is there any -- has any of the parties a copy
12 available which could be given to Mr. Theunens?
13 MR. WEBER: Your Honour, I have a clean one upstairs. I can
14 bring it down outside of the next break if you would like.
15 JUDGE ORIE: If you would then give it to the usher.
16 Mr. Ivetic, is there any need that Mr. Weber first passes your --
17 MR. IVETIC: No --
18 JUDGE ORIE: [Overlapping speakers]
19 MR. IVETIC: -- by all means he can give it directly.
20 JUDGE ORIE: Yes, and then there's always a possibility if
21 Mr. Theunens brings it after the break. If you want to expect it then
22 you have an opportunity to do so.
23 MR. IVETIC: Thank you.
24 JUDGE ORIE: That's appreciated.
25 MR. IVETIC: Are we at the break?
1 JUDGE ORIE: We are almost at the break. If you want to start a
2 new subject, perhaps --
3 MR. IVETIC: Same subject.
4 JUDGE ORIE: [Overlapping speakers]
5 MR. IVETIC: I could actually ask one more question or --
6 JUDGE ORIE: Yes, then please proceed.
7 JUDGE MOLOTO: Before you do that, Mr. Ivetic.
8 MR. IVETIC: Yes.
9 JUDGE MOLOTO: Can I just express my concern. I understand that
10 the mathematical pattern that you suggest to the witness is your
11 interpretation of the figures, and I'm not -- you put the questions as --
12 possible suggestion that you are putting to the witness wanting him to
13 confirm whether he would agree with that or not. I would be helped if
14 you would be able to put questions that relate to the actual intended
15 interpretation of this, rather than a speculative interpretation, which
16 may just take a lot of time without us getting to the correct conclusion.
17 Maybe just following a wild goose chase. I leave it at that.
18 MR. IVETIC: Perhaps with -- actually, Your Honours, why don't we
19 then go ahead and have the break now, and I'll check with -- perhaps
20 Mr. Mladic can assist me to have that nailed down.
21 JUDGE ORIE: Then we have perhaps the input of Mr. Mladic for the
22 Defence and then we have Mr. Theunens having read all of the report. And
23 I can't imagine that any mystery remain after the break.
24 We take the break.
25 Mr. Theunens, you'll receive during the break a copy of the full
1 report, and we'd like to see you back in 20 minutes.
2 [The witness stands down]
3 JUDGE ORIE: We will resume at 25 minutes to 2.00.
4 --- Recess taken at 1.14 p.m.
5 --- On resuming at 1.40 p.m.
6 JUDGE ORIE: While the witness is brought in, any position as far
7 as the Defence is concerned in relation to D356?
8 MR. STOJANOVIC: [Interpretation] Your Honours will have it by the
9 end of working hours today, and we will inform you accordingly.
10 JUDGE ORIE: And for D399, same report?
11 [The witness takes the stand]
12 JUDGE ORIE: D399, Mr. Stojanovic.
13 MR. STOJANOVIC: [Interpretation] Yes, the same position,
14 Your Honours.
15 JUDGE ORIE: As a matter of fact, D399, I have dealt with that,
16 so that was a mistake on my side.
17 Yes, I also do understand that not a full translation of the
18 portions of the -- of D356 which the Prosecution seeks to tender are
19 available yet, so therefore we most likely have to wait for that as well.
20 Then moving back, Mr. Theunens, we now and then use the little
21 moments before you enter to deal with other matters. Apologies for
22 ignoring you when you entered the courtroom.
23 Two questions: First, has your reading of the full report shed
24 any further light on the table we had before us, especially in relation
25 to the actual war establishment's strength, the columns without a title?
1 THE WITNESS: Yes, Your Honours. I mean, the columns without a
2 title, as the B/C/S states, they refer to percentages --
3 JUDGE ORIE: Well, then I have to correct you, because only the
4 very last one deals with percentages, but the column following
5 "officers," at least the document doesn't say that it deals with
6 percentages. It's only the very last one, after the total.
7 THE WITNESS: Yeah.
8 JUDGE ORIE: It may well be that it deals with percentages but --
9 THE WITNESS: [Overlapping speakers]
10 JUDGE ORIE: -- the document doesn't say so.
11 THE WITNESS: That is correct, but I quickly -- I mean, as you
12 also did yourself, Your Honours, I quickly cross-checked the figures, and
13 I thought it corresponded with percentage, but I will look into that
14 again. But I can help you -- I can assist the Trial Chamber with the
15 unknown acronyms as well as the double digits in some of the columns. So
16 the acronyms, as was mentioned, the 65 -- what follows stands for the
17 motorised protection regiment, which was a unit under the command of the
18 Main Staff; below that, we have the 1st Guards Motorised Brigade, okay;
19 and then we have the 67th Signals Regiment; and below that the
20 89th Rocket Artillery Brigade.
21 JUDGE ORIE: Yes.
22 THE WITNESS: And then going to the double digits, for example,
23 the officers, we have a 61 underlined with below that a 59. If we look
24 on page 79 of the English translation, at the bottom we can find the
25 explanation; that is, that the number -- the top number, I mean the
1 number at the top that is underlined refers to the total number. So, for
2 example, for officers in the Main Staff we have 61 officers. The figure
3 below indicates the number of active duty among those, in this case 61.
4 And then when you look at the right-hand table, 61 would indeed be
5 50 per cent. And 59 -- so these 59 are included in the 61, but there is
6 only 59 active duty, and that corresponds with 94 per cent. And this is
7 the same for the other cases where we have two -- two numbers in the same
8 case; i.e., underlined is the total number and below that is the -- the
9 portion of active duty among those.
10 JUDGE ORIE: Yes.
11 JUDGE MOLOTO: Would I, if I may just [Microphone not activated].
12 If we look at the row below 61 and 59, Mr. Theunens, it shows 2.371
13 underlined. And are we to understand that out of that total number of
14 staff available, only 398 are on active duty?
15 THE WITNESS: That is correct, Your Honours. And this you can
16 find in the last paragraph of English page 79.
17 JUDGE MOLOTO: Okay. That being the case, what would be your
18 understanding or interpretation of the question put to you by Mr. Ivetic
19 relating to the efficiency of the staff where you have over 2.000 staff
20 and you're only using 398?
21 THE WITNESS: Your Honours, I would word it slightly different,
22 that is that of the 2.371 officers, 398 are active duty, which means that
23 the others are reservists that have been mobilised. Now, that is, I
24 would say, a qualitative -- this is data. Now, to understand what this
25 data means, we have to look at other documents -- or this document
1 itself, because actually on the pages 7 to 13 it discusses how command
2 and control functioned in the VRS in --
3 JUDGE MOLOTO: No, I'm sorry. I just wanted to say you have
4 actually answered me by saying active duty is used in relation to reserve
5 not in relation to people who are actively working. So I understand. I
6 beg your pardon.
7 JUDGE ORIE: Please proceed.
8 MR. IVETIC: And I can confirm that that is the position that I
9 determined during the break as well, and that I had the same misreading
10 of active that Your Honour had, and that's why I was asking about people
11 that were sick or injured, but now that is cleared up hopefully.
12 Q. Now, looking at the various corps and the various regiments and
13 brigades that are reflected on this chart, we see that the percentages of
14 officers - dealing just now only with officers which includes both active
15 and reservist - i.e., the top number in the column that has the
16 fractions - most of the numbers are below 50 per cent with the lowest
17 being the 1st Guards Motorised Brigade having just 7 per cent of that
18 under the establishment. Did your research confirm or dispute the
19 figures listed here for both officers and both non-commissioned officers
20 as to the total numbers and what percentage of those total numbers would
21 have been active as opposed to reservists?
22 A. There are several elements in your question. A possible
23 explanation for the low manning in officers of the
24 Guards Motorised Brigade may well be related to the fact that the unit
25 was only established in December of 1992 and was considered operational
1 in January 1993, and this is discussed on page 76 of part two of my
3 Now, I have seen several documents with manning levels and
4 figures and related statistics, but as I have mentioned prior to the
5 break this is only one part of the picture, and it's an important part, I
6 don't deny that, but I have also looked at the other part, i.e., the
7 significance of these figures, the qualitative interpretation, and there
8 I would like to draw the Court's attention to pages -- English pages 7 to
9 13 of the analysis of the combat readiness, which provides a detailed
10 discussion as to how command and control were implemented by the VRS
11 Main Staff.
12 On pages 79, indeed, personnel problems at the level of the units
13 are being discussed, but I have nowhere seen in the analysis of the
14 combat readiness that the lack of full manning of the various units and
15 the Main Staff prevented the VRS from conducting operations or prevented
16 the Main Staff from effectively implementing the system of command and
17 control. And I believe -- I mean, the analysis of the combat readiness
18 would be the best -- the most appropriate document to -- for the command
19 of the Main Staff to notify the reader, i.e., political decision makers,
20 of the problems, but there is no reference made to the potential impact
21 or the alleged impact of the insufficient manning levels.
22 Q. If we could take a look together at page 80 of the English and
23 page 71 of the B/C/S. And I'd like to look at the second through the
24 fourth paragraph after the end of the bullet points. And it reads as
25 follows --
1 MR. IVETIC: If we can scroll down just a little bit more.
3 Q. It reads as follows --
4 JUDGE ORIE: Are we on the right page for the B/C/S, Mr. --
5 MR. IVETIC: I apologise, it should be the next page in the
6 B/C/S - you're right - 72.
7 Q. And it reads as follows:
8 "The above data clearly shows that filling establishment posts
9 with officers is still a problem. This mainly concerning company leaders
10 and battalion and equivalent rank unit commanders, while the number of
11 non-commissioned officers meets the requirements of the Army of
12 Republika Srpska. So far, this problem has been addressed by assigning
13 non-commissioned officers and brave and able soldiers, mostly from
14 blue collar occupations, to the mentioned establishment posts, although
15 they are discharging their duties successfully and capably, they cannot
16 be promoted to the rank of officer because that is not allowed under the
17 order, on the appointment and promotion of non-commissioned officers and
18 officers in wartime which should be changed. The problem of filling
19 officer establishment posts has also been addressed by the promotion of
20 non-commissioned officers and soldiers who have performed the duties of
21 establishment officers and given a good account of themselves as
22 professionals and capable organisers while holding such posts."
23 Now, does this, in fact, demonstrate what you talked about, that
24 it was seen as a problem, the lack of officers, and that in fact persons
25 who did not have the school training to become officers had to fulfil
1 roles particularly in these lower level or echelon units of VRS?
2 A. Your Honours, I do not dispute that the lack of sufficient
3 manning is a problem. But what I try to explain that it is according to
4 my review of this document and the other documents, it is not a command
5 and control problem. If you allow me, we can go to page 81 of this
6 document, on the third paragraph -- excuse me, the fourth paragraph from
7 the top, it states in clearing wording:
8 "Our successes so far and results achieved in combat have
9 demonstrated that the existing officer corps of our army is able with
10 maximum effort to successfully perform its duties."
11 When I connect this passage then with what we can find in the
12 beginning of the report, for example, on page 7, and this you can also
13 find in footnote 931 of my report, we have, I think, a critical
14 evaluation of the command and control system in the VRS. There, I do not
15 see any -- any indication that the insufficient or the absence of full
16 manning was a problem for command and control. So it is a problem, but
17 not for command and control.
18 Q. Let me ask you this, sir: The lower echelon units that were
19 identified as having non-commissioned officers or regular soldiers put in
20 establishment posts, isn't that where command and control is most
21 important to be exercised, where you need trained, qualified officers
22 precisely at those levels? Isn't that the case in all armies?
23 A. It is indeed generally said that command and control becomes more
24 difficult the closer you get to the soldiers. But, again, what you say,
25 I compare it with what is actually mentioned in the report, and there it
1 states - I mean, the paragraphs that I just read out - that it didn't
2 prevent the existing personnel from -- I mean, officers from successfully
3 performing their duties. So this is how the situation is. I haven't
4 seen a document where, for example, General Mladic states, you know
5 because of the lack of NCOs the VRS is not able -- or the lack of junior
6 officers the VRS is not able to conduct operations. I have seen
7 documents where mention is made of certain problems with discipline, as
8 also discussed during the examination, and there General Mladic issues
10 JUDGE MOLOTO: May I try to understand. It does look,
11 Mr. Ivetic, that there is some passing each other in your discussion with
12 Mr. Theunens.
13 As I understand command and control, it means the ability to
14 control your subordinates and to give them orders and for them to obey
15 the orders, and when they do not, to be able to punish them and make them
16 do your orders. Now, I do not see that being dependent on education. It
17 depends on being compliant. So a non-commissioned, uneducated officer
18 who is obedient will still take commands from his superior even though he
19 may not be educated. Whether he works efficiently like an educated
20 person is another matter, and this is what Mr. Theunens is at pains
21 trying to explain, that the lack of education and the lack of
22 commissioned officers is a problem but not a problem of command and
24 It's not as if because these people are uneducated, they
25 therefore defy orders. They don't defy orders. They do take orders.
1 They work successfully he says, the report says. So it doesn't seem to
2 be a problem of command and control. It just seems to be a problem of
3 the efficiency of the army to perform at maximum level had it had
4 properly trained soldiers.
5 MR. IVETIC: And I believe Your Honours will recall, I think I've
6 spent several times today referring to the efficiency of command and
7 control that --
8 JUDGE MOLOTO: That's the point.
9 MR. IVETIC: Yeah.
10 JUDGE MOLOTO: The efficiency of the command and control is not
11 the issue as -- according to what Mr. Theunens is saying. It's
12 efficiency of performance of the job. That's a different story.
13 MR. IVETIC: Correct.
14 JUDGE MOLOTO: But not command and control. When General Mladic
15 said to an non-commissioned, uneducated officer, You go and do that, that
16 officer went and did it. There is no evidence that he didn't do it.
17 That's subordinate, which would be an element of command and control.
18 MR. IVETIC: Agreed.
19 JUDGE MOLOTO: If you are agreed, then I hope you can communicate
20 meaningfully with each other.
21 MR. IVETIC: I will try to. I would like to look at just one
22 more item from this. I don't know what page we're on at the present, but
23 if we could turn to page 82 in the English and 73 in the B/C/S, and in
24 both instances it will be the last bullet point.
25 Q. And it indicates that:
1 "Urgent measures should be taken to organise training courses for
2 the officer cadre by command levels and by branches and by services."
3 Did your analysis look at and/or assess the training that would
4 have been completed subsequent to this report within the VRS of the
5 various officer cadres in the various levels?
6 A. Your Honours, I do not believe I have looked into training. I
7 have no recollection. And this is -- I mean, training by the VRS
8 because -- I mean, this is mainly due to the absence of specific
9 documents, but I will check my report for it.
10 Q. Okay. Fair enough. We can move on, then.
11 I'd like to focus on the beginning of your report, specifically
12 at page 5 of the same in --
13 MR. IVETIC: Pardon me, page 15 of the page in the e-court. So
14 that would be page 15 of P3029 marked for identification, in both
15 languages at paragraph 3.
16 Q. You identify that you use the intelligence cycle methodology and
17 you identify the different phases of the cycle and that you have utilised
18 it during the course of your work.
19 MR. IVETIC: Maybe I'll wait for that to come up. Again, it
20 should be page 15 in both languages, paragraph 3.
21 Q. And what I wanted to ask you, and let me try to do this very
22 carefully, can you verify for us that for the purposes of the reports
23 that you have authored for the Prosecution, including this one, you
24 personally have only utilised or exercised one phase of the intelligence
25 cycle; namely, the processing phase?
1 A. Your Honours, I think that is incorrect. I mean, I am sure this
2 is incorrect because before I can start to analyse -- I mean, process
3 information, I first have to collect it. So, I mean, generically
4 speaking, once I have received the assignment from the
5 Senior Trial Attorney, and that was most of the times a fairly general
6 assignment, to write a report on a specific organisation or a specific
7 individual between or during a certain time-period, I would start
8 conducting searches in the various databases that are available to the
9 Office of the Prosecutor. And as I have explained also in other trials,
10 each of these searches generates new searches.
11 Allow me to explain with just one example. When I find an order,
12 orders often refer to other documents. I mean, to prior orders, to an
13 order of a higher echelon, to a regulation. I will, of course, also try
14 to identify these documents in order to provide the context for the
15 specific order. And this is how the methodology is then identified.
16 And, again, generically speaking, I think most of the time for the
17 preparation of report is spent on collecting the information; i.e.,
18 conducting searches in the database and then organising them in one way
19 or the other.
20 And if I can express myself in that manner, the easiest part is
21 then to use that material to write the report. First you collect it,
22 then you process it; i.e., you try to understand what it means. During
23 that procedure or during that processing, you will identify certain
24 patterns, you will draw certain conclusions, and then at the end you will
25 write those conclusions down in a report.
1 Q. Now let me see if I can clear this up. My understanding of
2 intelligence cycle, the collection phase of the intelligence cycle
3 relates to collection of material and information by way of missions, the
4 actual collection of intelligence, not searching through existing
5 material that has been collected by others. Am I wrong?
6 A. Indeed. I think it's a too narrow interpretation. It is correct
7 that among the documents that are available in the databases of the OTP,
8 there are documents that have been collected during missions; i.e.,
9 search missions conducted at various archives. But, of course, there are
10 also documents that have been obtained by sending requests to state
11 authorities, there are documents that have been provided by witnesses,
12 and so on.
13 Q. Okay. Now it is also my understanding from the literature that
14 the intelligence cycle is supposed to repeat itself after the
15 dissemination phase because the user - that is, the individual or entity
16 who asked for the information in the first place, for the analysis in the
17 first place - is supposed to give feedback. Did that happen here in
18 relation to the report for the Prosecution in the Mladic case?
19 A. Yeah. I would just -- sorry, I forgot to mention that we also
20 have documents that were provided by Defence witnesses. In this case --
21 I mean, two elements: The intelligence cycle consists of discrete
22 phases, each phase influences the previous phase. If I analyse something
23 that would obviously influence collection and vice versa. Now,
24 concerning the dissemination, I remember receiving feedback from
25 Mr. Groome, but I think that was a long time after the report had been
1 filed, had been submitted into the databases; i.e., a long time after I
2 had finalised the report, where he stated, I think orally or maybe in
3 e-mail, that it was a very compressive report -- or a very comprehensive
4 report. That is the only feedback I remember.
5 Q. Okay. Now moving along then, would you agree with me that you
6 did not undertake to evaluate the authenticity of any of the documents
7 that you reviewed in the processing, in the collection and the
8 processing, and upon which you based your opinions in the report?
9 A. Your Honours, again, this is not correct because after eight
10 [Realtime transcript read in error "80"] years here and including
11 interacting -- I mean, interviewing senior military witnesses with whom
12 many of the documents that are available have been -- have been
13 checked -- I wasn't "80" years here but "eight," sorry, I think I'm -- I
14 was in a position to -- to assess the reliability of the documents and
15 including their authenticity. Many of the documents I have used have
16 also been submitted in other trials. If -- I mean, you can always raise
17 a question of whether or not a document is authentic, but then you try to
18 look at what would be the purpose of providing a non-authentic document;
19 in particular, if the documents have been provided by the authorities of
20 the Republic of Serbia.
21 And again, we are not talking about individual documents. I
22 have, I think, reviewed thousands of documents. Again, these allow to
23 identify trends and patterns of -- or patterns. Non-authentic documents,
24 you know, the contents would also be very different and they would
25 probably be very different from the other documents. I mean, you would
1 see it. You would discover it.
2 JUDGE ORIE: Mr. Theunens, would you agree that if there would be
3 a non-authentic document, which is very skillfully produced, that you
4 would not see it any further? I mean, apparently you are talking about
5 those documents which you identified as non-authentic and then you say
6 it's -- it's different. Now, one of the skills of a master forger is to
7 make them look exactly as the original.
8 THE WITNESS: Um-hm.
9 JUDGE ORIE: Would you agree with me that what you said is that
10 non-authentic documents you would immediately detect them because they
11 are different, that that is perhaps a bit of a naive approach?
12 THE WITNESS: No, Your Honours, I have to clarify. I mean, by
13 the -- the overall looks or the template that is used, I would fully
14 agree with you. A master forger will use the correct template, numbering
15 system and so on, but then it's about the contents of the document. I
16 would say there needs to be a purpose in forging a document. And, again,
17 I don't look at individual documents but to draw conclusions you compare
18 them with other documents. So I would -- I would -- my view would be the
19 purpose of a forged -- of a forgery would be to come with a story or
20 information that is -- it has a specific purpose, which is not obviously
21 to provide a factual account.
22 Now, when I look at documents and I have different document, I
23 think it's reasonable --
24 JUDGE ORIE: Mr. Theunens, couldn't it be the purpose to provide
25 a factual account which is not in accordance with the truth? Couldn't
1 that be the purpose of someone forging a document?
2 THE WITNESS: It -- of course, Your Honours. That would be, I
3 would say, the most obvious purpose. But then you look at several
4 documents on the same issue. And I would say the forgery, in the context
5 of what we're doing here, would come with a very different story line or
6 would have a very different story line or would maybe have some kind of
7 sensational information, because if it's coherent with the authentic
8 documents, then I wonder what is the purpose of the forgery?
9 JUDGE ORIE: Yes. Now, the problem is that you do not know what
10 the authentic documents are and what the forged documents are, isn't it?
11 I'm just dealing with the matter from a theoretical approach. Not to say
12 that forgeries are not often detected, sometimes easily, but sometimes
13 not detected also, and to compare them with the authentic ones you would
14 have to know which are the authentic ones and which are the forgeries.
15 THE WITNESS: But, Your Honours, all I can offer is then the
16 methodology where when you are -- you are interpreting the -- I mean, you
17 are analysing the document, you have a document that comes with a totally
18 different version or -- of a particular event. Well, you compare that
19 with your knowledge, and you say, Hmm, this is different from what I
20 thought. Now, of course, anything is possible. Maybe my -- what I
21 thought is all based on forgeries, but then we have a big problem.
22 But --
23 JUDGE ORIE: Yes, well, that's perhaps what Mr. Ivetic points at,
24 that there may be big problems. I leave it to that at this moment.
25 Mr. Weber.
1 MR. WEBER: Your Honour, just on this discussion, before we get
2 too far afield on a theoretical notion, the Prosecution did provide the
3 origin information for every single document in the report in its filing
4 of 23 September.
5 JUDGE ORIE: One second. One second. Yes, I do understand that
6 you provided Mr. Theunens with all the relevant information which would
7 be relevant to draw conclusions as to authenticity.
8 MR. WEBER: I did not provide that. I provided it to the
9 Chamber, so the Chamber has the origin information. Now, whether
10 Mr. Theunens independently checked that information as part of his own
11 methodology, that's something different. But I provided that information
12 to the Chamber, for the record.
13 JUDGE ORIE: Let's keep --
14 MR. IVETIC: And to the Defence.
15 MR. WEBER: And to the Defence.
16 JUDGE ORIE: I think what Mr. Ivetic wanted to raise is the issue
17 as to what extent you have made efforts, great efforts, small efforts,
18 huge efforts, very small efforts, to verify the authenticity of the
19 documents which you used in preparing your report. That issue is clear.
20 Your answer is: I had an open eye for it. I looked at both content,
21 format, et cetera, et cetera. And I do understand that you didn't use
22 documents which you considered on the basis of such a -- well, perhaps I
23 shouldn't call it a verification but at least such an assessment of the
24 authenticity, you wouldn't use any where you had doubts as to their
25 authenticity. Is that correctly understood?
1 THE WITNESS: That is correct, Your Honours. And I would just
2 like to add, since it is -- this is an issue. I also obviously verified
3 the origin of the document as it is recorded in the database; i.e., how
4 it was obtained, where, and -- or who handed it over.
5 JUDGE ORIE: That was part of your assessment of the
7 It's time to adjourn for the day. I earlier did not only make
8 one mistake but I made two mistakes when I asked for the position of the
9 Defence. I referred to D356, which was wrong anyhow. What I intended to
10 ask for was the position of the Defence in relation to P2508.
11 Mr. Ivetic, you have used three hours approximately until now.
12 Mr. Theunens, I give you the same instructions as I did before,
13 that is, not no communicate with whomever about your testimony. And we
14 would like to see you back tomorrow morning at 9.30.
15 THE WITNESS: Yes, Your Honours.
16 JUDGE ORIE: You may follow the usher.
17 THE WITNESS: Thank you.
18 [The witness stands down]
19 JUDGE ORIE: Mr. Stojanovic, you are on your feet.
20 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. We have
21 undertaken upon us to inform you before the end of business today about
22 our position regarding P2508. I just wanted to convey to you that we are
23 in agreement that document P2508 be admitted in the current form.
24 JUDGE ORIE: Yes. Then 65 ter number 02382a will be admitted
25 into evidence -- is hereby admitted into evidence as P2508. And the
1 Registrar is instructed to replace the document which is at present under
2 that number known in the e-court system.
3 We adjourn for the day and will resume tomorrow, Tuesday, the
4 10th of December, at 9.30 in the morning in this same courtroom III.
5 --- Whereupon the hearing adjourned at 2.18 p.m.,
6 to be reconvened on, the Tuesday, 10th day
7 of December, 2013, at 9.30 a.m.