1 Tuesday, 12 October 2010
2 [Review Hearing]
3 [Open session]
4 [Mr. Sljivancanin entered court]
5 --- Upon commencing at 2.29 p.m.
6 JUDGE MERON: Please be seated.
7 Good afternoon, everybody.
8 Registrar, may I ask you please to call the case on the Appeals
9 Chamber's agenda.
10 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honours.
11 Good afternoon, everyone in and around the courtroom. This is case
12 number IT-95-13/1-R.1, the Prosecutor versus Veselin Sljivancanin.
13 Thank you, Your Honours.
14 JUDGE MERON: Thank you, Registrar.
15 May I ask Mr. Sljivancanin if he can hear me and follow the
16 proceedings through the translation.
17 MR. SLJIVANCANIN: [Interpretation] Good afternoon, Mr. President.
18 Good afternoon to everyone in the courtroom. I can hear you and I
19 understand everything and I am capable of following the proceedings.
20 JUDGE MERON: Thank you, Mr. Sljivancanin. You may be seated.
21 MR. SLJIVANCANIN: [Interpretation] Thank you.
22 JUDGE MERON: Appearances for the Prosecution.
23 MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing
24 on behalf of the Prosecution. With me today, Ms. Najwa Nabti,
25 Mr. Kyle Wood, and our case manager, Mr. Colin Nawrot. Thank you.
1 JUDGE MERON: Thank you, Ms. Brady.
2 Appearances for Mr. Sljivancanin, please.
3 MR. LUKIC: [Interpretation] Good afternoon, Your Honours.
4 Mr. Sljivancanin is represented today in the courtroom by myself,
5 Novak Lukic, I am his counsel from Belgrade; next to me is my co-counsel,
6 Mr. Stephane Bourgon; and together with us in the courtroom we have our
7 assistant, Caroline Bouchard; as well as our case manager, Mr. Boris
8 Zorko; and with your approval, Mr. Landry, our military consultant is
9 present with us here today as well.
10 JUDGE MERON: Thank you, Mr. Lukic.
11 Before we proceed, the Bench would like to issue an oral ruling
12 with respect to the Prosecution's notice of filing addendum to Exhibit
13 RP-7, the Theunens expert report, filed by the Prosecution on 11 October.
14 Could counsel for Mr. Sljivancanin confirm whether they agree with this
16 MR. LUKIC: [Interpretation] Yes, Your Honour. We have received
17 notice of it.
18 JUDGE MERON: Thank you, counsel. So we have -- we'll then grant
19 the Prosecution's request and direct the admission of the addendum
20 annexed to the notice into evidence as part of exhibit RP-7.
21 Now, turning to the main focus on the afternoon. This, as you
22 know, is a Review Hearing in the case of the Prosecutor versus
23 Veselin Sljivancanin. At the outset I will briefly summarise the issues
24 which are pending before the Appeals Chamber and the manner in which we
25 will proceed today. I will underscore again that none of my comments
1 today expresses in any way the Appeals Chamber's views on the outcome of
2 review proceedings.
3 During this hearing, counsel will first examine the witness,
4 Reynaud Theunens, and will then present summary arguments. I would
5 underscore, the parties should provide precise references to materials
6 supporting their arguments. I will now turn to the timetable for the
8 This hearing will proceed according to the schedule outlined in
9 the decision on admission of evidence and Scheduling Order issued on 21
10 September 2010. The Prosecution will conduct the examination-in-chief of
11 Mr. Theunens for one hour. Following a 20-minute pause, counsel for
12 Mr. Sljivancanin will cross-examine Mr. Theunens for one hour. The
13 Prosecution will then conduct a re-examination of Mr. Theunens for 15
15 Following a 20-minute pause, the Prosecution and counsel for
16 Mr. Sljivancanin will each present summary arguments for 30 minutes in
17 that order. I note the parties need not exhaust the entirety of their
18 allotted time. It will be most helpful to the Appeals Chamber if the
19 parties could present their submissions in a precise and clear manner. I
20 wish to remind the parties that the Judges may interrupt them at any time
21 to ask questions or they may prefer to ask questions following each
22 party's submission.
23 Having said that, I would now like to call witness
24 Reynaud Theunens.
25 [The witness entered court]
1 JUDGE MERON: Good afternoon, Mr. Theunens.
2 THE WITNESS: Good afternoon, Your Honours.
3 JUDGE MERON: Witness Theunens, could you please read the solemn
4 declaration given to you by the usher.
5 THE WITNESS: I solemnly declare that I will speak the truth, the
6 whole truth, and nothing but the truth.
7 JUDGE MERON: Thank you, Mr. Theunens. You may now be seated.
8 Mr. Theunens, you are being asked to testify in conjunction with
9 Mr. Sljivancanin's application for review of his conviction for aiding
10 and abetting murder as a violation of the laws or customs of war. In the
11 course of the afternoon, counsel for the Prosecution and Mr. -- and for
12 Mr. Sljivancanin will both put questions to you concerning certain issues
13 relating to his conviction. Judges may also choose to ask you questions.
14 So I would now like to invite counsel for the Prosecution to
15 begin the examination-in-chief.
16 Ms. Brady, you are starting that?
17 MS. BRADY: Yes, I am. Thank you, Your Honour.
18 WITNESS: REYNAUD THEUNENS
19 Examination by Ms. Brady:
20 Q. Firstly, good afternoon, Mr. Theunens. And as you know, my name
21 is Helen Brady and I'll be asking you questions in examination-in-chief
22 this afternoon. Before I start, just a few brief points. Firstly, we
23 both speak English, so please remember to take a brief pause -- wait for
24 a brief pause after my question before you answer so that the
25 interpreters don't -- can follow.
1 And secondly, as you already know, your report and CV have
2 already been admitted in these proceedings, that's as Exhibits 7 and 8,
3 and that includes the addendum to your report that you made yesterday,
4 that's part of Exhibit 7.
5 So with those things in mind, I would firstly like to ask you,
6 Mr. Theunens, a few introductory questions, and again because your CV has
7 already been admitted I won't spend too much time on this. But for the
8 benefit of the record and the Bench, could you please provide just a
9 summary background on your education and your work experience.
10 A. Your Honours, after I graduated from military academy in Brussels
11 with a master's degree end of 1987, I spent three years in a tank
12 battalion in -- with the Belgian armed forces in Germany as a platoon
13 commander, acting company commander, and personnel officer. After that I
14 was called back to military academy to be an instructor. Subsequently I
15 was transferred to the Ministry of Defence to work as an intelligence
16 analyst on Balkans, Ministry of Defence of Belgium, obviously. During
17 that time-period which covered more or less nine years, I was also
18 deployed three times in peacekeeping operations in the former Yugoslavia.
19 I mean, the details you can find in my CV. At the end of those nine
20 years, I also worked in plans and policy, again at the Ministry of
21 Defence, intelligence plans and policy. Then in 2001, in July -- excuse
22 me, in June 2001 I moved to the ICTY, Office of the Prosecutor, where I
23 worked until April last year as an intelligence analyst in the military
24 analysis team. I've -- my work mainly consisted of cases involving Serb
25 perpetrators, i.e., JNA, volunteers, and Territorial Defence. And then
1 last year in April I left the ICTY to move to southern Lebanon to UNIFIL
2 where I work since then as a chief of a joint mission analysis centre.
3 And just to be coherent, I mean it's also in the CV, I attended
4 specialised intelligence training in the UK and the US.
5 Q. Thank you. Just in relation to --
6 MS. BRADY: I'm sorry, my friend is standing up. Perhaps he
7 wants to say something.
8 JUDGE MERON: Yes, Mr. Bourgon.
9 MR. BOURGON: Good afternoon, Your Honour. I'd just like to
10 know -- I see that the witness has some material in front of him. I'd
11 just like to know what the material is before we go on.
12 Thank you, Mr. President.
13 THE WITNESS: Your Honours, it's a binder with a printed version
14 of my CV and a printed version of my report which I annotated myself in
15 order to again find back the important points. I mean, if you want I can
16 remove it.
17 JUDGE MERON: I can see no problem with that, and I'm sure you
18 can't either.
19 MR. BOURGON: I just wanted to know what it was, Mr. President.
20 JUDGE MERON: It was a legitimate question.
21 I see no problem, so please continue.
22 MS. BRADY: Thank you.
23 Q. You said that you worked at the ICTY between 2001 and 2009, last
24 year, as a military analyst in the military analyst team of the OTP. In
25 that regard you prepared expert reports for the purpose of court
1 proceedings and you testified for the Prosecution in several cases.
2 Could you tell us about these cases, these reports.
3 A. I -- Your Honours, I testified in five trials. The first one was
4 the trial of Slobodan Milosevic; second was the trial of Milan Martic;
5 then there was the trial of Mile Mrksic, Veselin Sljivancanin, and
6 Miroslav Radic; the fourth one was Vojislav Seselj; and the last one
7 before I left was the trial of Ante Gotovina and Cermak and Markac. I
8 plan to testify also in the trial of Radovan Karadzic and prior to that
9 the trial of Frenki Simatovic and Jovica Stanisic. And so for these
10 trials reports have been filed and admitted, I mean, except for the two
11 last ones.
12 Q. And in your time as a military analyst in the OTP, did you have
13 occasion to analyse or study JNA military doctrine?
14 A. Indeed, Your Honours. Obviously because of the work I did prior
15 to joining the MAT in the OTP, I was already familiar to a large extent
16 SFRY military forces doctrine, JNA and Territorial Defence, as well as
17 the doctrine and the activities of the different parties that
18 participated in the conflict in the former Yugoslavia between 1991 and
19 1995. In addition, obviously here we had original documents, not only
20 regulations but also orders, where we could see where it was actually, as
21 an analyst, very interesting to see how the doctrine, i.e., the theory,
22 was being implemented during the conflict.
23 Q. And coming to the report that's been admitted in these
24 proceedings, Exhibit 7, can you tell us -- well, as background, you were
25 asked by us, the Prosecution, to prepare a report in this case. Is that
2 A. That is correct, Your Honours.
3 Q. And can you tell us the means by which you prepared this report?
4 A. The documents I had access to I received -- or the documents I
5 received from the appeals section are identified in the introduction of
6 the report, and obviously I could also -- I remembered the report I
7 drafted for this -- for the trial, and obviously I could also rely on the
8 other knowledge and experience I still had of the various doctrinal
10 Q. And when were you contacted by the Office of the Prosecutor for
11 that report and when did you come to The Hague in relation to that
13 A. I received an e-mail in I think the second or the third week of
14 July this year, and by coincidence I was in Belgium on rest and
15 recreation annual leave and for a number of reasons I had no particular
16 plans and since my residence is two hours away from here I replied that I
17 was available, and then I spent I believe it was more or less a week here
18 to prepare a preliminary report.
19 Q. And did you come back at another stage?
20 A. Indeed. In the second half of August I was called back -- I mean
21 UNIFIL put me -- how would I say? - provided me on loan to work
22 approximately ten days here at the ICTY, not only for this case but also
23 to review material for the Stanisic/Simatovic trial, as well as the
24 Karadzic trial.
25 Q. And when you prepared your report what were you told was to be
1 the scope of your report?
2 A. Your Honours, in July I was basically told to have a look at the
3 testimony of Mr. Panic and to, yeah, to draw analytical conclusions based
4 on that testimony without precise questions. However, in August I
5 received a number of questions, seven questions, from the appeals section
6 of the OTP which I tried to answer to the best of my abilities in the
7 report that I -- we have now in front of us.
8 Q. And those questions are contained in the annex to your report; is
9 that correct?
10 A. That is correct, Your Honours.
11 Q. Thank you.
12 I'd like to turn now to the substance of your report, and the
13 first thing I'd like to do, Mr. Theunens, is to show you an exhibit from
14 trial. This is Exhibit 368. And I hope that -- it should be appearing
15 on the screens in front of Your Honours in both English and B/C/S.
16 Okay. I think we've got it.
17 Do you see that, Mr. Theunens, on your screen now, it's
18 Exhibit 368 from the Mrksic trial?
19 A. Yes, I can see it.
20 Q. Can you tell me what this document is?
21 A. Your Honours, as we can see from the title which is just beneath
22 the left top heading, it's a regular combat report, "regular" stands for
23 that it's produced at a regular time. I remember from working on this
24 case that these reports were always dated at the end of the day, 1800.
25 And so it covers the activities of the past 24 hours, i.e., this one
1 would cover the activities of the time-period starting the 20th at 1800
2 until the 21st at 1800. And it's sent by -- as we can see the left, top
3 heading, by this Operations Group South or south operative group command.
4 And it discusses the activities, it starts with the enemy forces which
5 are here called Ustasha forces, and the second paragraph, I'm sorry,
6 discusses the activities of the friendly or the own forces.
7 Q. And you've said who it comes from. Can you tell us who it is
8 going to?
9 A. Yes, indeed, Your Honours. It's sent to two addressees. First
10 of all, the command of the 1st Military District. Obviously because
11 that's the superior command of Operational Group South in eastern
12 Slavonia, and it's also sent to the secretariat of the -- I'm sorry, to
13 the SSNO, so the secretariat for national or for people's defence. And
14 why is that? Because the Guards Motorised Brigade, which is the main
15 unit in Operative Group South, in peace time and prior to 30th of
16 September, 1991, was subordinated to the SSNO through his chief of
18 Q. Thank you. I'd like to draw your attention ...
19 JUDGE MERON: [Microphone not activated]
20 Why didn't you submit it with the other exhibits?
21 MS. BRADY: Your Honours, this is already in the record --
22 JUDGE MERON: I realise that, but still it would have made it
23 easier for the Court.
24 MS. BRADY: My apologies. I was under the impression that
25 because it was a trial exhibit --
1 JUDGE MERON: No, no, I'm not suggesting that this is not
2 correct, but still it would have made sense to add it.
3 MS. BRADY: It probably would have.
4 JUDGE MERON: Please continue.
5 MS. BRADY: Thank you.
6 Q. If I could direct your attention, Mr. Theunens, to the bottom of
7 that exhibit, if you look at the B/C/S version of the exhibit you'll see
8 a signature on that exhibit. What does that signature tell you about
9 Mr. Panic's role on the 21st of November, according to JNA doctrine?
10 A. Well, as I have mentioned in my report, I believe it's on page 14
11 or one of these pages -- sorry, when I discuss reporting in the role of
12 the commander, Lieutenant-Colonel Panic signs there as the commander or
13 the acting commander of Operational Group South, and by signing he
14 approves the contents of the document and he takes responsibility for it.
15 And I have explained it in my report what the basis is for my conclusions
16 on that.
17 Q. And what position does it show him to be in that day?
18 A. Well, I only -- I see only the B/C/S, but it's pretty obvious, it
19 says "komandant OG JUG," so it means commander Operational Group South.
20 Of course, the text is still the original one. It still says Mile
21 Mrksic, but we know from other documents that were admitted in the trial
22 and there is, for example, the resubordination order from the 21st in the
23 morning which was also signed by Lieutenant Colonel Panic as acting
24 commander, and this is the same signature. So it shows that at that
25 moment in time Lieutenant Colonel Panic is the acting commander of
1 Operational Group South.
2 Q. Thank you. Now, Mr. Theunens, in your report --
3 MS. BRADY: And, Your Honours, this is in his report in answer to
4 question number 4.
5 Q. -- you speak, Mr. Theunens, about the doctrine of single
6 authority. Can you tell us briefly what this principle means?
7 A. Single authority is one of the three principles in the SFRY armed
8 forces doctrine on command and control as they are stipulated in the All
9 People's Defence law from 1982. In addition to single authority, there
10 is also unity in command and obligation to implement decisions. And
11 single authority means two things. It means, first, that there is only
12 one commander at a time who is entitled to issue orders; and at the same
13 time, there's only one person to whom the subordinate reports on the
14 implementation of the order he or she has received from that commander.
15 Q. And if you could also enlighten us, why is that doctrine or
16 principle of single authority so important for -- under military
18 A. Well, obviously there can only be one commander at a time because
19 otherwise there's confusion or even chaos. If two different people can
20 issue orders at the same time to the same unit or to the same
21 subordinate, the unit -- or I mean the subordinate unit or the
22 subordinate person will be confused about what to do when and how. So
23 that's why there's only one -- there can only be one commander at a time.
24 Q. In light of that principle of single authority and bearing in
25 mind Exhibit 368, in your opinion, and bearing in mind military doctrine,
1 could Mrksic have exercised command authority over OG South during his
2 absence? So that is the period when he was away from -- on the 21st to
3 the 22nd of November?
4 A. Unless he would have violated a basic principle of command and
5 control - and I have not seen any indication whatsoever about that during
6 all the years I worked on this case, including requesting documents from
7 the Republic of Serbia at the time - so unless he would have really
8 violated that basic principle, it can be excluded that he, i.e., Mrksic,
9 during his absence had any command authority over OG South.
10 Q. So if I understand you correctly, does that mean then that the
11 signatory of Exhibit 368 had full command powers at the time he signed it
12 over OG South?
13 A. Indeed, Your Honours.
14 Q. If you could look again at that exhibit, 368, the situational
15 report that's on the screen, and you're familiar with it already from
16 trial, does it include information about the status of the prisoners of
18 A. If we could go down on the -- to the bottom of the English part,
19 please. Thank you. Well, we can see it talks about civilians who have
20 been evacuated on the 20th and the 21st, including wounded. If we could
21 move to the -- maybe the next English page just to be -- okay, it talks
22 about the same activities that are conducted in relation to civilians and
23 wounded. But there's no -- no mention is made of any activities in
24 relation to prisoners of war.
25 Q. And from your knowledge of JNA doctrine and the circumstances of
1 this case that you're familiar with, would you expect a situational
2 report like this, like Exhibit 368, to have included information about
3 prisoners of war; and if so, why?
4 A. Indeed, Your Honours, I would have expected information on any
5 activities with the prisoners of war and for two reasons. First of all,
6 because we know from the context - and I have tried to summarise that in
7 the report - the evacuation of Vukovar Hospital was what could be defined
8 as a high-profile operation. Why? Because there was a specific
9 agreement with the Croats which was -- I mean whereby the evacuation had
10 to be supervised one way or the other by international observers. There
11 was also a high interest from the security administration, including
12 security organs who wanted to have as many prisoners of war as possible
13 under JNA control in order to exchange them with prisoners the Croatian
14 forces were holding. And at the same time we know, again from the
15 context, that what happened with the evacuees from the hospital was not
16 in accordance with the earlier instructions, be it written orders as well
17 as what I just mentioned, the instructions given by the security
18 administration, i.e., instead of bringing as many prisoners as possible
19 to Serbia, Sremska Mitrovica, they were handed over to a body that was
20 qualified as the local government and to the volunteers. And again for
21 all those reasons, the high profile and the fact that the -- I mean, that
22 the hand-over -- what did not correspond with the initial instructions
23 received from the superior commands, those are key reasons to include
24 that activity in the report.
25 Q. Now, in your report - and this is specifically in answer to the
1 question that we asked you, question number 5, in that report you speak
2 of a principle known as the duty of situational awareness. Can you tell
3 us what this principle means.
4 A. Your Honours, just to be fully precise, I'm not the sure whether
5 the word or the expression situational awareness as such is used in SFRY
6 armed forces doctrine, but when you talk about, for example, and that's
7 on paragraph 2 of page 18 of my report about the function -- I mean the
8 number of functions of command and control are defined. There is the
9 function of organisation. Further on -- I mean, there are many JNA as
10 well as SFRY armed forces regulations that clearly specify or clearly
11 stipulate that the commander has to be familiar with the situation, not
12 only of the enemy forces but also his own forces. And if you want I can
13 explain why that is important.
14 Q. Yes, please. Thank you.
15 A. It's pretty obvious. In a sense a commander receives a mission
16 from his superior. And in order to implement that mission, I mean
17 talking here about combat operations, he will have to use his own forces
18 to carry those orders out. Now, if he's not familiar with the status
19 from his own forces, it is difficult to give orders to them. Because,
20 for example, imagine that we are in an offensive scenario and okay in
21 this situation OG South receives a task to capture a particular town
22 before a particular time. It may be that a number of units of OG South
23 are weaker or maybe one unit is less experienced and another unit has
24 suffered a lot of losses, well, these are all factors -- or maybe one
25 unit is less trained. These are all factors the commander has to take
1 into account in order when he plans the -- he prepares the order for his
2 subordinate units to make sure that he uses the best-qualified unit in
3 order to achieve the task he has received in the most efficient and the
4 most successful manner.
5 Q. And if I could just interrupt you at that point, and when we're
6 talking about this duty the commander has to be familiar with the
7 situation at all times, I refer to it as shorthand as situational
8 awareness, but when we're talking about that we're not just talking about
9 in the actual heat of battle, are we?
10 A. I mean, it is at all times the -- the regulations I have seen are
11 very specific -- I mean, they put more emphasis for combat operations for
12 obvious reasons, because then -- that is called the tempo of operations
13 is much higher. But -- I mean if -- I didn't address that, but, for
14 example, if you have to organise a parade you're not going to use, for
15 example, a unit -- I mean, fresh recruits, so you will maybe use a
16 unit -- forces that are better trained or have more experienced in
17 parades and that is also part of situational awareness and maybe a bit of
18 a less important situation.
19 Q. So even on the facts of this case, after the fall of Vukovar,
20 after the combat was over, the commander or the acting commander as the
21 case may be would have to take active steps to find out in accordance
22 with that principle, or duty of situational awareness, to find out what's
23 going on with the units who are in his chain of command; is that correct?
24 A. Yes, that's correct.
25 Q. Now, if I take you back again or remind you of Exhibit 368, under
1 JNA doctrine by signing Exhibit 368, what then does that imply about the
2 steps that the commander of OG South or the acting commander of OG South
3 had taken?
4 A. Well, my signing the report he confirms that the report is
5 accurate and complete. And again, the need, I mean, for that is pretty
6 obvious. The superior command is -- has the same obligation of
7 situational awareness, and the reporting you receive from subordinates is
8 one of your sources in order to familiarise yourself with the status of
9 your own forces. Another way would be to conduct inspections, like to
10 visit a unit to see whether what they are saying is correct and so on.
11 Q. So just taking your answer, when you say he had to ensure that
12 the information is complete, how does he do that?
13 A. Well, usually there is a reporting system whereby the subordinate
14 units send reports to the superior units, and at the start of operations
15 arrangements are made to ensure that the information is made available by
16 the subordinate units at the appropriate times so that the superior
17 command has sufficient time to compile the report. I'm talking there
18 about regular reporting. Of course there can also be I would call
19 irregular reporting, i.e., in case of emergency or a significant
20 development. Because again, it's not a static situation even after the
21 end -- after the fall of Vukovar, things are still happening, I mean,
22 units are moving, units are preparing to withdraw. This is ongoing on a
23 permanent basis and again it's described in the report, but the OG South
24 will have an operational centre where all this information comes in by
25 radio, by reporting, by liaison officers, by different means, and all
1 that information is put together. People -- I mean, they can also keep a
2 war diary. And then a selection is made of the relevant information that
3 is then included in the regular combat report which is then forwarded to
4 the superior command. Of course, at any time an irregular report can be
5 sent. In addition - and I'm sorry for being so extensive - but in
6 addition to relying on the reporting from the lower level, as I mentioned
7 the superior command can implement the inspection function of command and
8 control which is very logical. It means that you verify the degree of
9 implementation of your instructions and also, if needed, if the degree of
10 implementation does not correspond with the expectations that you take
11 corrective action.
12 Another way to ensure this information sharing are the briefings,
13 there are regular briefings, I think they were also around 1800 or just
14 after the report. I'm not sure anymore. There can be visits. I mean,
15 there's so many ways.
16 Q. And when you say that he had to, in signing that report, make
17 sure he was fully informed, what would he do if reports were not
18 forthcoming? What steps should that person take? You've mainly spoken
19 about when reports are coming, but what if there are no reports coming
20 his way, what's he obliged to do?
21 A. Well, then he will instruct the people in the operations centre
22 or the people in the staff to ask the subordinate unit why there is no
23 report. I mean, there can be many reasons. In the worst case if there
24 is a breakdown of the communications system he can send somebody to
25 collect the report or he can ask the subordinate unit to send a liaison
1 officer with the information. Yeah, and again he can also conduct
2 inspections, as I mentioned earlier.
3 Q. So would it be fair to say then that that duty to remain
4 situationally aware would be an active duty to take steps if the
5 information was not forthcoming?
6 A. Of course, and it's what I tried to explain, the report -- it's
7 also out of self-interest. If you have to organise an operation as a
8 commander, and we know from the doctrine that you are responsible, you
9 have all interest in having as much and as accurate information as
10 possible because you don't want to be surprised in this scaling by your
11 own forces in the specific case we are looking at because that is -- it
12 should be one of the factors you can control.
13 What the enemy will do -- or other factors. I mean, for example,
14 the weather can suddenly create problems. These are things you don't
15 control. And as a commander, and that's -- again I mention that in
16 paragraph 8, the duty or the capacity to foresee. It's expected from a
17 commander in SFRY armed forces that he is able to foresee events - and
18 the reasons I explained in my report - the attitude -- I mean, the
19 capabilities, the possibilities of your own subordinate forces is
20 something that should be the least of a worry for yourself in order to
21 get accurate information. I mean, it's important to have that
22 information, but it should be the least difficult to obtain that
23 information, again in a scenario as we had in OG South at the time of the
25 Q. Now, you know because you've read the testimony of Mr. Panic that
1 he testified that on the 21st of November he was basically preoccupied
2 and attending to various tasks, organising a press conference, attending
3 to the return of the Guards Brigade to Belgrade and to the transport of
5 MS. BRADY: For Your Honours' benefit that's at the pre-review
6 hearing transcript page 63 and 83.
7 Q. Under JNA doctrine would such tasks that he's described affect
8 his duty as a commander that day, on the 21st of November, especially
9 that duty to remain situationally aware or to be familiar with the
11 A. No, not at all. Again, in all the years I worked here and also
12 before and studying SFRY armed forces doctrine, workload is not a reason
13 to reduce or not an excuse to reduce responsibility. I mean, again I
14 think it's on page 8, it's clearly stated in JNA command and control
15 doctrine or SFRY armed forces command and control doctrine, a commander,
16 he can delegate authority for obvious reasons. I mean the -- otherwise
17 the chief of Main Staff would have to talk to each and every individual
18 soldier which doesn't work. So the commander can delegate authority but
19 he cannot delegate responsibility. And by delegating authority he still
20 remains responsible, obviously for the tasks he has delegated.
21 And in this particular case, Lieutenant-Colonel Panic was not
22 alone on the 21st of November. He has the OG South. There is
23 specialised personnel in the different branches who should be able to
24 help him with planning and organising all these activities. And then
25 it's his judgement call. And again, referring to the testimony -- I
1 understand from the testimony that on the 20th of November, in the
2 afternoon and the evening, Lieutenant-Colonel Panic was very concerned
3 about the situation of the evacuees or the prisoners of war at Ovcara and
4 at that his Chief of Staff -- so he has no legal obligation to be
5 interested. He is interested. Why? Because he is the chief of staff.
6 And therefore I found it surprising, and I mentioned that in my report,
7 that on the day when he is legally responsible, because he is the acting
8 commander, he based on his testimony does not show any interest in the
9 situation of the prisoners, and that's something I tried to highlight in
10 my report. Based on my understanding of SFRY armed forces doctrine, that
11 is unusual.
12 Q. Just taking you one step further then on the answer you've given,
13 if a commander or acting commander is aware that he's got prisoners of
14 war in his zone of responsibility, in your opinion would it be more
15 important for him to be satisfied about the safety of those prisoners or
16 would it be more important for him to attend to his other tasks such as
17 preparing for press conferences and the return of the Guards four days
19 A. It's not exclusive -- I mean, the fact that there are prisoners
20 of war in the zone of responsibility means that it's a task for the --
21 for OG South. Now, he can take care of it himself or he can delegate it
22 to somebody. It would make sense to delegate that responsibility over
23 the situation of these prisoners of war, i.e., that they are handed over
24 to the appropriate authority, that they are treated well, that nobody can
25 escape, and so on, to another officer who he, i.e., Panic, thinks is
1 qualified to carry out that task in the best possible manner. And that
2 officer would then of course have to inform Panic about the way how he
3 has implemented that order. He would also have to inform Panic about any
4 problems he would encounter while carrying out that authority that Panic
5 has delegated to him. But again, in coherence -- or in accordance, I'm
6 sorry, with the doctrine, Panic would still remain responsible for the
7 situation of the prisoners of war.
8 And coming back to what I said earlier, taking into account the
9 information he had on the 20th, the concern he showed on the 20th, it
10 would seem logical that he would still show the same -- he would -- it
11 would certainly seem logical that he would still show the same concern on
12 21st because on that day he is the acting commander and according to SFRY
13 armed forces doctrine he is legally responsible for the activities and
14 the -- the activities of his units and the situation in his zone of
15 responsibility, including the situation of the prisoners of war.
16 Q. Now, I want to turn to a slightly different topic which is also
17 addressed in your report, and this is about the subordination of the 80th
18 Motorised Brigade to the OG South. In your report - and this is the
19 topic of your answer to our question number 2 - in your report you say
20 that the 80th Motorised Brigade was subordinated to the OG South until at
21 least the 23rd of November, 1991. Why do you say that?
22 A. Your Honours, I say that because we have -- there is one order --
23 I mean, there's an order and there's also an OG South -- a regular combat
24 report that still mention the 80th Motorised Brigade, and I discuss that
25 on pages 9 and 10 of my report. I'm trying to locate the exhibit number
1 of the order -- I know it's the order -- sorry, the order Colonel Mrksic
2 gives on the 22nd which I think is Exhibit 424, where he instructs that
3 as of the 23rd of November, 1991, the 80th Motorised Brigade is obliged,
4 and so on. This is page 9 of my report. Now, if you're not -- I mean,
5 you can only issue orders to units that are subordinated to you. And
6 again we have to look at the context and I discuss the context in the
7 report. So that's why I conclude in addition to the regular combat
8 report of the 23rd that 80th Motorised Brigade has to remain or is still
9 subordinated to OG South until at least the 23rd, 1800 -- the 23rd of
10 November, 1800 hours.
11 Q. And bearing in mind then that the transfer of subordination --
12 sorry. Let me start again.
13 Bearing in mind that the transfer from OG South to the 80th
14 Motorised Brigade occurred sometime -- well, between -- after 6.00 p.m.
15 on the 23rd of November, prior to the 24th of November when the Guards
16 left, can you tell us about the situation in between when preparations
17 are going on for them -- for the Guards to depart.
18 A. Yes, Your Honours. This is a clear example of the implementation
19 or the principle of single authority, i.e., there's only one commander at
20 a time. However, the hand-over is a process because it involves the
21 movement of units -- I mean, one unit will replace the other, one command
22 will replace the other. It also involves an exchange of information and
23 that can take several days. But it's only at the time when there's the
24 formal hand-over from one commander, I mean the previous commander to the
25 new commander, that the actual hand-over takes place in the sense of
1 command and control. So even if prior to that the units -- I mean, the
2 80th Brigade, there may be officers physically present at the OG South
3 Command and they are meeting -- I mean, the plans are co-ordinated, the
4 actual hand-over -- based on the fact that Colonel Mrksic still signs as
5 the commander of OG South on the 23rd at 1800 -- and we don't have a
6 regular combat report for the 24th with his signature, that's why I
7 conclude that the hand-over -- the formal hand-over can only have taken
8 place after the 23rd of November at 1800 hours.
9 Q. Okay. I want to turn now to my last set of questions, my last
10 topic of questions. Most of your testimony that we've heard this
11 afternoon has been about Panic's duties as acting commander on the 21st
12 of November. As you know, the night before, on the 20th of November,
13 Mr. Panic was in his usual role as Chief of Staff. All these duties that
14 you've talked about this afternoon, especially the duty of situational
15 awareness, can you tell us how they apply to the Chief of Staff, bearing
16 in mind the role of a Chief of Staff. You touched a little bit already
17 on this in answer, I know.
18 A. Your Honours, this is largely discussed in the reply I provide to
19 question 1 in a sense that the Chief of Staff, he -- basically he manages
20 the staff. Now, it's maybe -- it's important to notice that in the JNA
21 there was -- in addition to the staff you have a number of assistant
22 commanders. So you have the commander at the top, under him the Chief of
23 Staff who manages the staff; but in addition you also have three
24 assistant commanders, especially in the Guards Motorised Brigade as well
25 as OG South. These were the assistant commander for security, the
1 assistant commander for logistics, and then the assistant commander for
2 political guidance. And they have a direct relation with the commander.
3 All the other staff officers, they are, as I said, managed by Chief of
4 Staff. And just to summarise his role, the commander receives an
5 assignment from his superior - in this case Colonel Mrksic would receive
6 a task from the command of the 1st Military District,
7 General Zivota Panic at the time. And then Mrksic consults with his
8 Chief of Staff in order to transform that instruction which can be very
9 short, can be very long, depends on the situation, into orders -- sorry,
10 into instructions for the subordinate units. And each staff section will
11 compile its part of the report -- of the -- excuse me, of the order.
12 And -- so the Chief of Staff is the closest -- I would say closest
13 collaborator of the commander because he's his interlocutor with the
14 staff, and that's also what I tried to explain. There is no legal duty
15 on the Chief of Staff to be aware of the situation, but he would be a
16 very poor Chief of Staff if he, as the closest advisor to the commander,
17 is not able to assure that he provides the most accurate and most
18 complete information to his commander. Because that's actually also the
19 duty of the staff in addition to elaborating orders and so on, it's --
20 the duty's also to ensure the situational awareness. So he has all
21 interest in being aware of the situation.
22 Q. Now, as we also know - and this is my last question - as we also
23 know, Mr. Panic did become the acting commander the next day. Upon
24 learning -- and that would have had to have been sometime before Mrksic
25 left. Upon learning that he would be the acting commander the following
1 day, under military doctrine what questions would we expect someone in
2 the position of Mr. Panic, who was Chief of Staff at the time, about to
3 take-over the role of acting commander, what should he be asking himself
4 and his commander who is leaving, Mile Mrksic, in order to meet the duty
5 he's about to assume to be aware of what's going on in all the units?
6 A. Your Honours, this is covered by the aspect of -- by the function
7 of continuity of command and control which I have not addressed in this
8 report, but it's in part 1 of my report that was admitted in the trial.
9 But again -- obviously, Panic, as he will be held responsible for
10 everything he does as the commander when Mrksic isn't there, he needs to
11 ensure that Mrksic has given him all the information he, Panic, needs in
12 order to successfully carry out the command over OG South. That
13 doesn't -- that does not just include the instructions Mrksic has
14 received from his superiors, but Panic would also have to know all the
15 concerns Mrksic has in relation to the situation, what the enemy can do,
16 what the problems are for -- eventual problems for friendly units, and so
17 on. We discussed the issues of prisoners of war, he would have to -- he
18 would need to have that information too. And if he doesn't receive it
19 from Mrksic spontaneously, he would ask for it because he wants to be in
20 the best position in order to ensure his responsibilities - when I say
21 "he," I mean Panic - in order to ensure his responsibilities as commander
22 or acting commander -- acting commander.
23 MS. BRADY: Well, that's all the questions that I have for
24 Mr. Theunens in his examination-in-chief. Having said that, the
25 Prosecution relies on the entirety of his evidence which has been
1 admitted in the report that he's given, Exhibit Number 7. Today the
2 questions were to highlight the salient features, but we rely on the
3 whole of his report as well as his testimony that he's given this
4 afternoon. I don't know whether Your Honours have any questions for the
6 JUDGE MERON: I have one or two, and thank you very much for your
7 testimony, Mr. Theunens.
8 You state at page 4, paragraph 6, of your report that a commander
9 can issue orders related to operations directly to his subordinate
10 commanders; correct?
11 THE WITNESS: Yes, Your Honours, but that's not the end of the
13 JUDGE MERON: Go on.
14 THE WITNESS: He can -- I mean, if he issues an order, for
15 example, in writing, he will sign it. But that order -- that's what I
16 tried to explain, the order that the commander gives for the kind of
17 activities we are talking about will be based on, again -- on the work of
18 the staff as I tried to explain. That's the command process --
19 JUDGE MERON: No, I understand. Let me come then to the end of
20 my question --
21 THE WITNESS: I'm sorry.
22 JUDGE MERON: I understand that this is your view, if I cite you,
23 that it would have been "highly unusual" for Mr. Mrksic to issue the
24 withdrawal order directly to the 80th Motorised Brigade without involving
25 his Chief of Staff. And here is my question to you: Can you say that it
1 is impossible, in contrast to highly unusual, that this is what occurred?
2 THE WITNESS: Your Honours, I would say that since it includes
3 human beings, nothing is impossible. I mean, theoretically, Mrksic could
4 have done it, but the whole question is: Why? Because it would be --
5 yeah, a violation of the doctrine. It would be -- it would create a very
6 difficult relations in his staff because everybody would wonder like:
7 Why don't you inform us? Because even if we look at just the withdrawal
8 of the MPs, this has an impact on the forces of OG South because these
9 MPs become available for another unit. And again, you cannot issue an
10 order in isolation because the effects will be visible on the ground.
11 Even if he would -- I mean, imagine that he says directly to Vojnovic,
12 but I wrote here that Ovcara was 10 kilometres away from Negoslavci, but
13 I think it's much less but I didn't have a map at the time. Everybody
14 would notice that suddenly the MPs are not there anymore, and maybe they
15 wouldn't notice in a minute, but they would notice at the latest the next
16 day because again the duty of situational awareness applies. And
17 everybody would wonder like: Why are they gone? Why has Mrksic not told
18 us? So again I think we would end up in the realm of conspiracy
19 theories, and I haven't seen any justification for such -- that would
20 justify such a conspiracy theory. Also mentioning that not just Vojnovic
21 but also as I -- addressing paragraph 9, that Captain Karanfilov of the
22 security organs, he was also informed of the order. So there are at
23 least two people informed of the order; there is Colonel Vojnovic and
24 there is Captain Karanfilov, who was a security organ in OG South.
25 JUDGE MERON: Do you have any theory as to how the captain was
2 THE WITNESS: I explain, Your Honours, in paragraph 9 that as I
3 mentioned earlier since the security organs have a direct relation with
4 the commander because the chief of the security organs, he's an assistant
5 commander for security, one cannot rule out that Mrksic would have spoken
6 directly to the security organs, but then it would be highly unusual
7 to - again looking at the context - that he would talk to a captain,
8 whereas there is a deputy commander of the security organs Vukasinovic,
9 and there is the chief -- I'm sorry, the commander of the chief of
10 security organs, Sljivancanin, who Mrksic himself had put responsible for
11 the evacuation operation. Again, it would be highly -- I mean, I wrote
12 it, it would be a violation of the principles of command and control for
13 the commander to jump -- I mean, to ignore the person he had appointed to
14 lead the operation, to ignore the deputy of that person, and then to go
15 directly to a kind of a junior officer.
16 JUDGE MERON: Thank you, Mr. Theunens, you explained it very
17 well, but you still did not reach the conclusion that such a course of
18 action would be impossible.
19 THE WITNESS: Yeah, I find it's very difficult to use the word
20 "impossible" Your Honours.
21 JUDGE MERON: Well, you know the fog of war and things happen.
22 THE WITNESS: Yeah.
23 JUDGE MERON: I have one more question to you.
24 Page 8, paragraph 2 -- 3 of your report, you state as follows:
25 "Lieutenant-Colonel Miodrag Panic testified during the pre-review
1 hearing on 3rd of June, 2010, that it was the 80th Motorised Brigade and
2 not Operation Group South that was responsible for Ovcara."
3 I had some difficulty in finding this statement exactly in his
4 testimony. Could you direct us, either now or later, to this specific
6 THE WITNESS: Your Honours, it's -- it was more like a conclusion
7 I drew from his testimony which follows where I say like -- I mean where
8 I quote Panic. "There was a different unit assuming responsibility."
9 And at the end, I mean, footnote 46, "We did not have responsibility over
10 that area anymore."
11 So my conclusion was that Panic basically said that actually the
12 80th Brigade is responsible for Ovcara. I mean, that's my military
13 interpretation of his testimony.
14 JUDGE MERON: He did not explicitly say so, sir, that in fact
15 OG South did not have authority over Ovcara at the relevant time?
16 I see Ms. Brady may --
17 MS. BRADY: Yes --
18 JUDGE MERON: -- enlighten the situation to us?
19 MS. BRADY: Well, perhaps I can, Your Honours. Essentially if --
20 and if you can see it in the instructions that we gave to our expert
21 where we quoted certain portions of Panic's evidence. In particular, if
22 you look at under that question 2 we exert -- it's on page 3 of our
23 instructions when he provided the report. We've quoted two paragraphs of
24 evidence of Mr. Panic at the pre-review hearing. One's at page 71 to 72
25 and the other was 83/84. Now, it is an interesting evolution of Panic's
1 use of verb tenses, is very interesting if you look closely at how he
2 describes the situation. He's talking about the 80th was going to take
3 over, the 80th would take over, that's all true. But take a close look
4 at these paragraphs that I've pointed you to, and there he's, in our
5 submission, creating or implying or saying explicitly that the OG South
6 did not have responsibility over that area anymore. Perhaps actually if
7 it's easier I will quote directly from what he said. At -- okay, here --
8 at page 71 to 72 of the review transcript he said:
9 "The commander of the 80th Brigade had taken charge of the area
10 or taken over the command of the area. The Guards was preparing to go
11 back to the Belgrade garrison. We did not have responsibility over that
12 area anymore."
13 And again, later in cross-examination at page 83 to 84, he said
15 "On the 21st of November, 1991, the area of responsibility that
16 includes Ovcara and the hangar where these suspects were was under the
17 responsibility of the 80th Brigade, that is to say it was the 80th
18 Brigade that had this area of responsibility that included Ovcara, and
19 they had already taken over the area of responsibility that had
20 previously been held by the Guards Brigade. Let me note that they had
21 had that zone or area earlier on as well."
22 So, Your Honours, it is a clear impression being made to this
23 Chamber that it had already happened, the transfer had already happened.
24 That's just not the case. We know that already from the Trial Chamber's
25 findings, paragraphs 82 and 253.
1 JUDGE MERON: Thank you, Ms. Brady.
2 Judge Guney.
3 JUDGE GUNEY: Mr. Theunens.
4 THE WITNESS: Yes, Your Honours.
5 JUDGE GUNEY: You state then you were asked to prepare -- to
6 submit your analytical conclusions and you did analytical conclusions
7 which contains a different matter. So in the light of this conclusion
8 let us -- if the report still -- although we had before us the report,
9 Panic still credible in the light of the context of this report
10 concerning Mrksic and Sljivancanin's conversation?
11 THE WITNESS: Your Honours, I don't think it's up to me to say
12 whether a witness is credible or not. What I have tried to do is to look
13 at the testimony Mr. Panic has given, and I compared it with the SFRY
14 armed forces or JNA military doctrine and I compared it with the other
15 evidence that had been presented in the trial as well as the
16 Trial Chamber's judgement and the Appeals Chamber judgement. And that's
17 how I came to the conclusions.
18 JUDGE GUNEY: I would ask your personal point of view on this
19 point and thank you very much for the information.
20 JUDGE MERON: Thank you, Judge Guney.
21 And now my colleagues?
22 So I think that we are I think ten minutes ahead of time, but we
23 might still have now to proceed our 20-minute break. So we will resume
24 at, shall we say I will be generous, at 4.00 p.m.
25 --- Recess taken at 3.37 p.m.
1 --- On resuming at 4.01 p.m.
2 JUDGE MERON: I see Mr. Bourgon rose to speak for the Defence.
3 MR. BOURGON: Indeed, Mr. President.
4 JUDGE MERON: You have one hour.
5 MR. BOURGON: Thank you, Mr. President.
6 Cross-examination by Mr. Bourgon:
7 Q. Good afternoon, Mr. Theunens.
8 A. Good afternoon, Mr. Bourgon.
9 Q. I will be conducting the cross-examination of course on behalf of
10 the applicant, Mr. Sljivancanin. I do not have too many questions for
11 you. I hope to complete my cross in the time allotted, that is no more
12 than one hour. Now, that being said, if there are any questions that you
13 do not understand, a standard warning, you know the drill. Do not
14 hesitate to tell me and I will repeat the question.
15 Let me begin by introducing the people who are present with me
16 today, simply because you weren't there when the introductions were made.
17 Lead counsel in this case, Mr. Novak Lukic; Mr. Boris Zorko, case manager
18 to my left; to my immediate left, Ms. Caroline Bouchard-Lauzon; and to my
19 right the military expert that we have been working with,
20 Lieutenant-Colonel, retired, Remi Landry, from Canada.
21 Sir, I have three preliminary questions before I move into the
22 substance of my cross-examination. And my first such preliminary
23 question relates to your general military knowledge, having been a member
24 of the Belgian armed forces for a number of years. And my question is
25 straightforward. If a commander hears that a subordinate was convicted
1 of a crime on the basis of information he knows is not true, would you
2 expect this commander to come forward and provide the information in his
3 possession in order to avoid an injustice?
4 A. I mean, he should step forward. I would just be surprised why --
5 I mean, if he's in a position to give information and he's a commander, I
6 would have expected that he -- the information that he has would also be
7 available during the investigation phase, i.e., before that the
8 conviction was pronounced. But okay, for one or the other reason that
9 was not possible, yeah, he can always step forward.
10 Q. No, no, that's not my question. It's not he can always. Would
11 you expect the reasonable commander to do so. That's my question.
12 A. I don't think that -- I don't think that that is part of military
13 doctrine. I mean, I haven't seen any regulations to that effect. I'm
14 familiar with the procedure for the enforcement of military discipline
15 and military justice in the JNA. As you know, the 1988 regulations --
16 Q. No, let me stop you --
17 A. No, no, but let me answer the question.
18 Q. Let me stop you here, sir, that's not my question. I will repeat
19 my question.
20 A. No.
21 Q. As you stand here today before this courtroom as a member of the
22 Belgian armed forces, are you saying that a commander from the Belgian
23 armed forces who hears that a subordinate has done -- is being convicted
24 on the basis of information he knows not to be true, will the information
25 that this Belgian commander has, will he step forward, do you expect him
1 to step forward or is it that Belgian commanders do not step forward and
2 stay home with the information that they have? That's my question, sir.
3 A. I don't think there's a reason to raise your voice. Secondly,
4 I'm not here to testify about the Belgian armed forces. I'm here to
5 testify about the SFRY armed forces. I wanted to explain, and I think it
6 would be helpful for everybody to hear, that the 1988 regulations on the
7 implementation of the laws of armed conflict by the SFRY armed forces say
8 that any officer who has information that can be relevant for a crime has
9 to make sure that the competent authorities have that information. And
10 obviously that would happen during the investigation phase. Now, again,
11 if that hasn't happened, then afterwards he has the right to do so and it
12 would be more a moral issue I would say than a legal obligation. I
13 haven't seen any reference to a legal obligation except during the
14 investigation phase. But afterwards, yeah, I mean justice has to
16 Q. Thank you, sir. You're avoiding my question, but I will move on
17 to my next.
18 The second question relates to the Trial Chamber's judgement.
19 The Trial Chamber's judgement adopted a number of findings in relation to
20 the events which took place at Ovcara, including what happened at the
21 Operational Group South Command and the command of 80th Motorised Brigade
22 during the period from 20 to 24 November 1991. I take it you reviewed
23 these findings. My question is: On the basis of the SFRY doctrine,
24 which I understand to be the focus of your report, do you disagree or
25 dispute any of these findings?
1 A. I would appreciate if you would put -- I mean a concrete
2 finding --
3 JUDGE MERON: This question is far too general, Mr. Bourgon.
4 There were lots of findings. I think that if you want to ask the witness
5 a specific question, ask a specific question.
6 MR. BOURGON: Well, I was trying to --
7 JUDGE MERON: And I would counsel that you think of the time that
8 you have. I'm anxious that you should be able to cover the areas that
9 you really need.
10 MR. BOURGON: Thank you, Mr. President. I was simply referring
11 that whether there's any finding that he disputes. He saw the evidence.
12 He can tell me if there's any findings that he disputes on the basis of
13 doctrine. That's an important -- that's a very relevant question for
14 this hearing. Are we relitigating or are we looking at a new fact. Is
15 there any findings that he disputes? It's a very simple question,
16 Mr. President.
17 JUDGE MERON: Okay. Let's see how he handles it.
18 THE WITNESS: Your Honours, the Office of the Prosecutor did not
19 ask me to review the Trial Chamber judgement, so I haven't really looked
20 into that. There may be things -- I mean, if you put a concrete thing in
21 front of me I can maybe try to be of assistance, but it requires
23 JUDGE MERON: I still think if you have a specific question to
24 ask about a finding made by the Trial Court about which you seek comment
25 either in terms of accord or disagreement do ask it specifically.
1 MR. BOURGON: Thank you, Mr. President, I will abide by your
3 Q. Sir, my -- I'd like to ask you a few questions now, coming back
4 to what you said during your testimony before I move on. In your
5 examination-in-chief you testified about -- at page 21, lines 15 to 22,
6 about the difference between a commander -- not the difference. You said
7 that as soon as Panic -- as soon as Mrksic left OG South Command, Panic
8 became the acting commander; that's correct?
9 A. But it's not an assumption, it's a fact because --
10 Q. I'm saying. That's what you said.
11 A. Yeah, but you used the word "assume."
12 Q. Well, let me make that a bit clearer. Did you say that Panic was
13 acting commander when Mrksic left the brigade?
14 A. Yes, and I do that on the basis of two documents. There's one
15 order, the resubordination order --
16 Q. I agree with you. You don't need to explain.
17 A. Okay.
18 Q. I'm just asking yes or no.
19 A. Yeah.
20 Q. Okay. Now, did Panic ever disagree in the evidence that he was
21 standing in for Mrksic on that day?
22 A. I don't remember. I don't think so.
23 Q. That wasn't important to you if Panic accepted or did not accept
24 that he was standing in?
25 A. I don't think that is what I'm saying. I don't remember Panic
1 saying that he disagrees. That can mean two things: That my
2 recollection is bad or that he indeed disagrees. I don't think he
3 disagreed to that, and if he disagrees then there is a problem with the
4 fact that he signed an order, a key order, at 6.00 in the morning on the
5 21st and he signs --
6 Q. I agree with you --
7 A. Okay.
8 Q. You don't need to explain. I agree with you.
9 A. Yeah.
10 Q. Very quick questions.
11 My next question: When Mrksic left Operational Group South
12 command on the 21st in your opinion -- please yes or no, I don't want an
13 explanation --
14 A. Okay, okay.
15 Q. Was he still the commander of Operational Group South?
16 A. I mean, there is no short answer to that question because
17 obviously he goes as the commander of Operational Group South to
18 Belgrade; however, because he's absent there is an acting commander who
19 has all the duties and responsibilities of the commander of the
20 operational group.
21 Q. Sir, is it your testimony - because you spoke about this at page
22 21, lines 15 to 22. Now, let me give you a scenario and just tell me yes
23 or no and we'll do the rest in writing, unless you feel obligated to
24 explain of course. If Mrksic calls the brigade from Belgrade and he
25 speaks to the operations officer, will the operations officer answer in
1 your view: Sorry comrade Mrksic, I cannot speak to you today because you
2 are away in Belgrade and my boss is Panic? Is that your view, yes or no?
3 A. I can give you a very short answer. It depends what he calls
5 Q. Thank you, sir. I'll move on.
6 A. But, I mean, if it's an operational matter why would -- if he
7 calls the operations officer, it would mean that he cannot reach Panic,
8 but then the operations officer would have the duty to ensure that Panic
9 has all the information Mrksic -- operational information Mrksic shared
10 with the operations officer.
11 Q. That's not the question again. Will the operations officer
12 refuse to speak to him and to abide by instructions given to him by
13 Mrksic, yes or no?
14 A. I don't understand the question because we have to first
15 establish why would Mrksic call the operations officer for an operational
16 matter when we know that actually his Chief of Staff is the acting
18 Q. Again you're avoiding my question. I will move on to my next
19 one. And I would like to now address your report and I would like to ask
20 you some questions about your CV. Now, correct me if I'm wrong, sir,
21 but --
22 JUDGE MERON: Mr. Bourgon, and what if the telephone call from
23 Mrksic would say: I would suggest in light of my experience that this be
24 done? How would you react to that? No order.
25 MR. BOURGON: Well, that's what I was hoping that the expert
1 would say. I'm saying that the commander is calling -- I was simply
2 asking him. Will the operations officer say: I can't speak to you.
3 You're away and I've got my commander here, or will he entertain the
4 information? My position is he will entertain, but that's what the --
5 my question I asked.
6 THE WITNESS: That's not my answer, I'm sorry.
7 MS. BRADY: Your Honour, perhaps Mr. Theunens could be given a
8 chance to answer that properly. I think he's being cut off.
9 THE WITNESS: I mean, you have been in the military. It wouldn't
10 make sense for the operations officer to say to Mrksic: Sorry, I don't
11 talk to you. I mean, it wouldn't make sense.
12 MR. BOURGON:
13 Q. Thank you, sir, that's all I wanted to hear.
14 A. No, but please. I mean, this is not one-liners. The operations
15 officer will not keep Panic fully like -- how do you call it? Would not
16 avoid to inform Panic about everything Mrksic tells him because his
17 duty -- I mean, the operations officer, his duty is to ensure that he
18 assists Panic in maintaining permanent situational awareness. So it may
19 be that Mrksic calls Panic -- calls the operations officer, but then the
20 operations officer, who has no command authority by the way, he will talk
21 immediately to Panic.
22 Q. Let me make that easier, sir. Mrksic calls --
23 A. Yup.
24 Q. -- and he speaks to Panic --
25 A. To Panic, yeah.
1 Q. And he gives him an order. Will Panic refuse to execute the
3 A. Normally not.
4 Q. Thank you. Let me move my next question.
5 On the basis of my reading of your CV, I take it that you have no
6 war experience, you've never been involved in a war --
7 JUDGE MERON: Sorry, if he would execute the order, how does this
8 fit into your theory of unity of command?
9 THE WITNESS: I mean, it could be -- but Mrksic is talking to
10 Panic only. It could be that Mrksic, because he's in Belgrade, he
11 receives an oral instruction, for example, from the command of the 1st
12 Military District who is there. And then Mrksic is not going to order
13 the commanders, like 80th Brigade or other subordinate units of OG South,
14 no, he will speak to Panic because Panic is the commander on the ground.
15 And then it will be Panic who issues orders on the basis again of the
16 plans and another assistant -- assistance provided by his staff to the
17 units, but Mrksic is not going to call in directly to the command of the
18 80th Brigade. It would go via Panic because Panic is the commander on
19 the ground.
20 JUDGE MERON: Please proceed -- I'm sorry.
21 JUDGE POCAR: Just to be clear about the situation. Assuming
22 Mrksic would call directly the unit instead of going to Panic just
23 because either he does not find the commander, Panic, on the phone, he --
24 or he has the number of the other one, whatever the reason, and gives the
25 order -- an order to the head of the unit, is that your view that the
1 unit commander will not implement the order without prior going to check
2 to give the information to Panic and have Panic confirm the order? Is
3 that your point?
4 THE WITNESS: Exactly, Your Honours. Because Panic is the
5 commander on the ground.
6 JUDGE POCAR: Thank you.
7 MR. BOURGON:
8 Q. Thank you, sir. That's very helpful.
9 Now, let me move again to your CV.
10 A. Mm-hmm.
11 Q. I was just asking you that on the basis of your CV, please answer
12 yes or no, you have never been involved yourself in a war?
13 A. I have held no command position in a war, that's correct.
14 Q. And no staff positions in the war either within a unit involved
15 as a party to a conflict?
16 A. No -- I mean, the UN was not involved in a war, that's obvious.
17 No, the Belgian armed forces were not involved in a war during the time I
18 served in them.
19 Q. And your command experience, sir, is limited to when you -- at
20 early on in your career when you were commander of a tank platoon which
21 has four tanks; is that correct?
22 A. That's correct. And I've been also acting a command of a company
23 which has 13 tanks.
24 Q. And if I tried to -- if I asked you to describe yourself in
25 military terms, or if your colleagues would describe yourself in military
1 terms, they would simply say that you are an intelligence officer; is
2 that right?
3 A. I'm an intelligence analyst because an intelligence officer can
4 be many things, it can be somebody who collects information and so on.
5 Intelligence analyst would be a good definition, yeah.
6 Q. Thank you. I appreciate and I apologise because I fully agree
7 with you. It's intelligence analyst I should have used. Now, you have
8 never worked yourself in an operational brigade headquarters; is that
10 A. That is not correct because -- I mean, two points. First, I've
11 been a liaison officer between two brigades doing exercises with the
12 Belgian armed forces, whereby I had a very close look at how a NATO
13 brigade works, and I've also attended a one-year staff course in Belgium
14 which was brigade level. And I've had -- during the time-period I worked
15 here I saw many documents, I mean, regulations, operational reports,
16 orders, as well as I had the privilege to interview a number of senior
17 officers of the Guards Motorised Brigade, including Defence witnesses, so
18 I think I'm in a position to issue a number of analytical conclusions in
19 relation to how the Guards Brigade operated in Vukovar.
20 Q. Did you work in an operational brigade headquarters?
21 A. Yes.
22 Q. Where?
23 A. Well, I was a liaison officer --
24 Q. A liaison officer is not in a brigade --
25 A. Well, I'm sorry --
1 Q. Were you ever a G2?
2 A. No.
3 Q. Thank you. Now --
4 A. But a liaison officer can work in a brigade because actually the
5 liaison officer, he passes the information from one brigade commander to
6 the other brigade commander. So I -- it's still a member of the staff.
7 Q. Thank you, sir. And you've never been a Chief of Staff, have
9 A. No, I haven't.
10 Q. Let me move on to the methodology of your report, and I'd like to
11 address what you said in answer to Judge Guney's question a little
12 earlier, which is on page 31, lines 14 to 19:
13 "What I have tried to do is to look at the testimony Mr. Panic
14 has given and I compared it with SFRY armed forces doctrine or JNA
15 military doctrine and I compared it with the other evidence that had been
16 presented in the trial as well as the Trial Chamber's judgement and the
17 Appeals Chamber judgement, and that is how I came to the conclusions."
18 That's your statement that you said at page 31, lines 14 to 19 --
19 13 to 14. I would just like to confirm that this is what you did in this
20 case. That's what you tried to do?
21 A. This is actually how I implemented the methodology.
22 Q. Thank you. Now, let's --
23 A. I mean -- sorry, just to clarify, because maybe -- I mean,
24 English is not my first English. I implemented the methodology, the
25 intelligence side which I've also described in previous -- during
1 previous testimony and I -- or I applied that methodology to the
2 information that was in front of me.
3 Q. Okay. I'd like to move on, talking about methodology and
4 reference has been made to this by my colleague and by yourself. You use
5 a number of documents, including trial Exhibit 578?
6 A. Yeah, that's my report in the trial which was admitted.
7 Q. And that's a comprehensive report of some 300 pages which
8 addresses the concepts and the principles found in the doctrine that you
9 talked about today?
10 A. Among other things, yes.
11 Q. And this report was prepared for the Mrksic, Radic, and
12 Sljivancanin trial?
13 A. Exactly.
14 Q. And if I look at the footnotes in this report, I see, for
15 example, the All People's Defence law, that was Exhibit 392; I see the
16 manual for the work of commands and staff, that was 393; I see the JNA
17 textbook on command and control, that was 394; I see the JNA brigade
18 rules, that was 395; I see the regulations on the applications of the
19 rules of international law, that was 396; and I look at JNA battalion
20 manual, 397. Now, it's my understanding that your report for this review
21 hearing is based on the same sources of doctrine?
22 A. Yeah, and you -- I think you listed a number of examples, yeah,
23 the most relevant ones.
24 Q. Which ones did I miss?
25 A. I don't know by heart, but the other report I don't know how many
1 exhibits I listed there. But I also looked -- and I think -- I mean some
2 of the documents were presented by the Prosecution. I looked at also not
3 just the doctrine but also how the Guards Motorised Brigade implemented
4 the doctrine, i.e., I looked at orders and combat reports.
5 Q. I know that. But --
6 A. Okay.
7 Q. -- doctrine point of view, SFRY doctrine --
8 A. Yeah --
9 Q. -- is there anything that is in 578 that you look for this case
10 that is not in 578, doctrine point of view?
11 A. I don't think so.
12 Q. So would it be right to conclude then that those sources which
13 form the basis of your report that was in evidence at trial, this was
14 available to the Judges when they rendered their judgement in that case;
15 is that correct?
16 A. Mr. Bourgon, I don't think I'm in a position to comment on how
17 the Judges came to their conclusions.
18 Q. Okay. Well, you would agree with me that you testified in this
19 trial; right?
20 A. Yes, I did.
21 Q. And you explained the concepts developed in your report, 578?
22 A. Indeed -- there's maybe one difference that I didn't really
23 address the role of the Chief of Staff, and I think when you compare my
24 report, Exhibit 578, with the report that is now in front of you, I tried
25 to focus more on the duties according to SFRY armed forces doctrine of
1 the Chief of Staff. So -- and that's why I think it's relevant to
2 highlight these things because -- I mean, you know as well as I do, these
3 regulations, some are 400 pages. You cannot expect somebody to look in
4 at all these pages.
5 Q. And that's why you testified to explain it to the Judges at
7 A. I don't decide myself about testimony. I was called, so.
8 Q. Okay. Now, I just want to clarify because we -- I read your
9 quote, you tried to explain it more. But looking at what you said today
10 and in your report, what you really tried to do is you analysed the acts
11 and conduct of Panic in light of the doctrine; that was your aim, right?
12 A. That is what I was asked to do by the OTP appeals chamber [sic].
13 Q. And to say whether it was in accordance with or consistent or not
14 consistent with the doctrine?
15 A. To a -- yeah. Or whether it was consistent not just with the
16 doctrine but also to the -- again, the reports -- OG South regular combat
17 reports as well as orders, i.e., how the doctrine was implemented.
18 Because the doctrine as such is one thing, but you also have to compare
19 it with how it is implemented, and if there are differences you try to
20 understand these differences because there must be reasons. And what I
21 noticed is that actually that the testimony of Mr. Panic -- and I don't
22 want to talk too long, but I interviewed -- I had a lot to participate in
23 the witness interview of Mr. Panic before he was a witness. And there
24 was -- let's say there was -- the views were very coherent, doctrine and
25 OG South how they implemented through the documents and the orders. I
1 noticed that when I compared now his testimony in the pre-review hearing
2 that there was significant differences.
3 Q. Okay. Now, just to confirm that -- I want to confirm that when
4 Panic was interviewed by the Prosecution --
5 A. Yeah.
6 Q. -- and he gave his statement for this trial -- for the trial --
7 A. Yeah.
8 Q. -- you were a member -- you were there?
9 A. Yes.
10 Q. Okay.
11 A. And I think it's -- sorry, it's useful because at that time it
12 wasn't clear whether he would be Prosecution or Defence or whatever.
13 So -- or whether he would even be called.
14 Q. Okay. Now, my question now is when you say that you analysed the
15 combat reports, which is the evidence, the doctrine, and the findings and
16 then you say is it consistent or not with the doctrine, and if it's not
17 consistent it's highly unusual or rather implausible, was that your
19 A. No, that's not the methodology. Again, the methodology is the
20 intelligence cycle more or less, and I would focus just on the processing
21 phase; i.e., where you look at the information. First of all, you're
22 going to verify the reliability of the source and the credibility of
23 the -- first of all, you evaluate that information.
24 Q. I'm talking what you did for this case --
25 A. Yeah, no, no, but that's the methodology, the intelligence cycle.
1 And the processing phase where first I collate, I organise my
2 information, okay, I receive a number of questions from the Prosecution.
3 Q. Mm-hmm.
4 A. I look for -- I mean based on my recollection for documents, I
5 look at relevant sections of the testimony. I looked at my previous
6 report to see what -- which section was dealing with what. I noticed,
7 for example, that there was not very much about the role of the Chief of
8 Staff. So I thought okay, let's take again the regulations. I could
9 establish that the regulations were a reliable source. Why? Because I
10 participated in a number of interviews where these senior officers
11 confirmed this was the regulation that we should apply. Then I start
12 to -- in the analysis step of the processing phase, I compared the
13 information, the new information, with the existing body of knowledge.
14 That is what this analysis is about. And then --
15 Q. That's what you did in this case?
16 A. Yeah.
17 Q. And you drew conclusions on that?
18 A. Exactly.
19 Q. And when the new testimony in your view was against doctrine, you
20 said it was highly unusual or rather implausible?
21 A. I'm sorry, you always focus or you try to limit it just to
22 doctrine. Doctrine is I would say -- I mean, the logic is I start with
23 doctrine. And then I say like, how was the doctrine implemented by OG
24 South, and I see that through the combat documents at different times.
25 Q. That's the evidence; right?
1 A. Exactly. And then I compared it with my military experience
2 which I have acquired at different moments -- even at this moment I still
3 acquire military experience because UNIFIL is a quiet military mission.
4 And when looking at all these three key elements I draw conclusions.
5 Q. Okay. Now, I take it you're familiar with the findings of the
6 Trial Chamber with respect to the application of doctrine, how the
7 doctrine was applied. I take it you're familiar with these findings?
8 I'll bring them to your attention if you're not.
9 A. No, that would be helpful just to avoid misunderstandings.
10 Q. Okay. Let's begin, for example, the creation of OG South
12 A. Mm-hmm.
13 Q. The Trial Chamber held at paragraph -- that was at paragraph --
14 sorry, paragraph 69 on page 24, they concluded that the creation of
15 Operational Group South, okay, was established as an expedient to deal
16 with a situation which had not been anticipated by the applicable formal
17 rules, i.e., the internal breakup of the SFRY, and that Operational Group
18 South did not strictly comply in structure to any formal formation.
19 Do you agree with the Trial Chamber?
20 A. Yeah.
21 Q. Okay. Now, the fact that the normal -- another finding, I'll go
22 straight to the point. Another finding of the Trial Chamber at paragraph
23 285, and I just want to know that you agree with this finding, and it's
24 the following:
25 "The Chamber is not able to accept that normal JNA procedures
1 were consistently observed or regarding as so binding as Sljivancanin
2 Defence has so strongly urged. The facts of this case disclosed frequent
3 non-observance of normal JNA procedures and standards at all levels
4 affecting matter as varied as the very establishment and structure of
5 Operational Group South," okay, that's one, "but to the observance of the
6 chain of command."
7 Do you dispute that finding?
8 JUDGE MERON: That's paragraph 285?
9 MR. BOURGON: 285, Mr. President.
10 THE WITNESS: I don't understand the sentence as it is in the
11 transcript. Okay. When I read in the middle "and structure of
12 Operational Group South, okay, that's one but to the observance of the
13 chain of command."
14 MR. BOURGON:
15 Q. Let me read it again. I'm sure the Judges, if I need, will at
16 least entertain my request for more time if I need some. Let me read
17 that quote.
18 "The Chamber is not able to accept that normal JNA procedures
19 were consistently observed or regarding as so binding."
20 Do you agree with that? Do you dispute this finding?
21 A. You gave one example -- I mean the --
22 Q. No, that's a finding. Do you dispute --
23 A. No, no I don't --
24 Q. [Overlapping speakers] You analysed the judgement --
25 A. No, I didn't analyse the judgement, but I don't dispute what you
1 just told me. I was not asked to analyse the judgement.
2 Q. Okay. I know you weren't, but you did consider the judgement,
3 that's what you said in your answer.
4 A. Yeah, but not to analyse the judgement. The judgement was a
5 source of information.
6 Q. Did you, yes or no, look at a number of trial judgement findings
7 to do your report? They're all over the place in the footnotes.
8 A. Yeah, but I mean it's maybe the matter of interpretation, but I
9 did not analyse the judgement. I looked at the judgement and I -- for
10 certain things -- where it was -- things were not clear to me, I used the
11 judgement. Now, okay there are -- there may be doubt about the
12 procedures as to how OG South was established. I think it was a
13 complicated situation. But I haven't seen any -- I don't remember
14 seeing, and again I worked very long on this trial also requesting
15 documents I mean for years that there were -- that there was a pattern of
16 a violation -- I mean the most basic principle of command and control,
17 i.e., single authority. I haven't seen such evidence.
18 Q. So you disagree with the Trial Chamber's finding, and I will read
19 you the quote, okay.
20 "This case discloses" --
21 MR. BOURGON: Sorry, my colleague is standing up.
22 JUDGE MERON: Ms. Brady.
23 MS. BRADY: Yes, of course we have no problem with Mr. Bourgon
24 putting this quote to the witness, but it has to be put in the context of
25 the whole quote of the whole paragraph. This is in effect the prelude --
1 the Trial Chamber's prelude to its reasoning as to why it was not
2 prepared to find beyond reasonable doubt and gave the benefit to
3 Mr. Sljivancanin in his being involved in the transmission of the order.
4 So I think that's a very important detail that Mr. Bourgon is not
5 covering in his question and it's quite misleading.
6 MR. BOURGON: I disagree, Mr. President, but I will move on
7 simply by reading the quote.
8 Q. And the quote goes as follows, and that's part of the quote which
9 can be isolated:
10 "This case" -- okay, the facts of this case, we're not talking
11 about a specific example here, "the facts of this case disclose frequent
12 non-observance of normal JNA procedures and standards at all levels
13 affecting matter as varied as the very establishment and structure of
14 OG South to the observance of the chain of command."
15 Do you agree or disagree with the Trial Chamber's finding?
16 A. I have to give the same answer I gave earlier. It's a very
17 general -- I mean kind of statement where, from an analytical point of
18 view at least. If I were asked to analyse it and to give an opinion,
19 well, then I would like to see examples. And on the basis of this
20 example, so far I only heard one example, that was the establishment of
21 OG South, and there I agree with you. But I don't think that that is a
22 significant matter. And I tried to explain to you that the evidence I
23 have reviewed and also -- I mean the documents -- the -- what I heard
24 from various witnesses, violation of the principle of command and
25 control, i.e., single authority, I haven't seen an example of that.
1 Q. Thank you. I'll move on to my next question. I'd like to
2 address a few issues in your report, and I will begin by question 1 which
3 is found at page 3. Now, at the review hearing Panic testified - so
4 you're familiar with that - that no commander is duty-bound to inform all
5 of his subordinates of the orders that he issues. Panic also answered
6 yes to the proposition put to him by Judge Meron that it is not
7 impossible that Mrksic issued the withdrawal order directly to the 80th
8 Motorised Brigade without telling his own Chief of Staff.
9 Now, I personally fail to find a clear answer in your -- in
10 question 1, but that's not what I want to discuss with you today --
11 A. Yeah, but I don't think it's correct what you say because I do
12 say that -- I use the expression apos -- to inform Panic a posteriori in
13 paragraph 8 where I do leave the door open that Mrksic would have spoken
14 directly to Vojnovic. But then soon -- I mean, the order is
15 implemented -- it is visible on the ground to what is the effect of the
16 order, and then I would expect, well, if he doesn't do it in advance,
17 which would have been logical because Mrksic needs input from his staff
18 for that order. It's not just like move the truck 20 metres, it's a
19 serious matter. And leaving the door open for the possibility that he
20 could have issued the order directly to Vojnovic without telling anyone,
21 as you suggest, even though he told Karanfilov as we know, then to me it
22 would be highly unusual that he wouldn't inform Panic immediately after.
23 Q. I move on to my next question --
24 A. Okay.
25 Q. Because the Judge covered that with you.
1 In your report --
2 A. Yup.
3 Q. -- does it say anywhere it's impossible that Mrksic did that
4 either with prior or after notice, is it impossible? Do we find these
5 words in your report?
6 A. No, because as I tried to explain we're working with human
7 beings. Of course Mrksic can do it. But we have to look at the next
8 step. Why do you issue an order? To have something done.
9 Q. Okay.
10 A. And the action would be visible. And so -- I mean, there would
11 be an immediate effect and everybody would know. So of course Mrksic
12 could tell Vojnovic, but where would it lead us to? Everybody would know
13 immediately, i.e., contradicting what Panic has tried to explain during
14 the pre-review hearing that nobody knew.
15 Q. Okay. Let's move on to a practical example and that will be much
16 easier to cover this. Okay. Because the crux of the matter really, even
17 if it was not addressed in direct examination, to us is at paragraph 14
18 of page 7, so if I can have that in e-court and that would be -- because
19 you say in this report -- in this paragraph that the testimony of Panic
20 that he was not aware of the order issued by Mrksic is inconsistent with
21 SFRY armed forces doctrine. Okay. That's your conclusion?
22 A. Yeah.
23 Q. In your report. Okay. So let's try -- what I would like to
24 suggest to you is some reasons Mrksic might have had of doing so without
25 informing Panic, and you can tell me if I'm out to left field or if what
1 I'm saying makes a bit of sense. Let's try one possibility.
2 The Trial Chamber found at paragraph 621 that:
3 "When Mrksic issued the withdrawal of the JNA Guards, he well
4 knew that this left the TO and the paramilitary" units or -- sorry, units
5 is not there, "with unrestrained access to the prisoners and that by
6 enabling this he was assisting in the commission of the offences of
7 violence and murder and that he was aware what indeed probably followed."
8 Do you agree what really this means is that when Mrksic issued
9 the withdrawal order he knew well that he was committing a crime; right?
10 A. Yeah, that the absence of a person of Guards Motorised Brigade or
11 OG South staff guarding the prisoners could or would result in crimes,
12 yeah, could result in crimes. Mm-hmm.
13 Q. So it wasn't certain according to you or was it certain? It's
14 very important. If the Trial Chamber says it is. What do you say?
15 A. No, no, no, I'm not referring to the trial judgement here. I'm
16 just looking from the military point of view. Mrksic has received
17 information actually throughout -- and actually the command of OG South,
18 they all -- I mean they knew it, also the Chief of Staff. Panic himself
19 is there on the 20th in the afternoon. He testified that he informed
20 Mrksic. They know that something can happen, they have to foresee it,
21 that's the duty -- I'm not referring to the judgement here. I'm just
22 looking at military regulations.
23 Q. No, but that's very important that you would say this because you
24 say that Panic knows and Mrksic knows. Now, very different -- very big
25 difference here. Mrksic is withdrawing the MPs. He knows that there
1 will be a crime. You agree with that?
2 A. From the doctrinal point of view, on the basis that -- on the
3 basis of the informations received, yeah, it could result in crimes, and
4 he would be held accountable because he had a duty to foresee.
5 Q. But the Trial Chamber said when he did this --
6 A. Okay.
7 Q. He knew very well.
8 A. Yeah.
9 Q. Do you agree or disagree?
10 A. I don't disagree with the Trial Chamber's judgement.
11 Q. Okay. I take it that you would agree with me then that when you
12 look at SFRY doctrine, okay, at the way you referred it because I never
13 found any term like that in the books, but --
14 A. Which term --
15 Q. -- if in all of these books [overlapping speakers] --
16 A. Which term?
17 Q. I never found the term "SFRY armed forces doctrine" in any of the
18 sources you reviewed?
19 A. No, but doctrine is a concept. Doctrine is a set of regulations
20 for which -- I mean for military doctrine military behaviour is based.
21 The SFRY armed forces should be a known entity. I mean, they were
22 established -- I don't have the exact reference here, but I think it's
23 referred in my document when the name changes.
24 Q. But to put that all together this concept --
25 A. Yes.
1 Q. -- and you say number of books is your call; right? You decide
2 what is SFRY armed forces doctrine. That's what you told the Judges when
3 you testified?
4 A. I don't decide that. That is what I think what also senior
5 officers of the JNA have told us, that, okay, the doctrine said this and
6 they referred to the same kind of regulations I did. So I didn't invent
7 something knew here.
8 Q. In that doctrine, in that doctrine --
9 A. Yeah.
10 Q. -- is there anything that says that when a commander is going to
11 commit a crime he has to inform his Chief of Staff?
12 A. I mean, I don't understand -- again, I come back to the point,
13 the order -- no, no, you cannot --
14 Q. It's simple, it's simple --
15 A. No, no --
16 Q. Is there anything in the book -- is there a rule that says that
17 if I'm about to commit a crime I have to tell my Chief of Staff if I'm
18 the commander. It's a very simple question. Yes or no? Find me the
20 A. I'm sorry, this question is nonsensical from the military point
21 of view.
22 Q. Thank you. I'll move on to my next question --
23 A. But I would like to mention. You cannot look at an order. An
24 order is not something in isolation. Why do you give an order? Not just
25 to issue a document. No. You issue an order to have an action executed.
1 That action here consists of withdrawing the MPs.
2 Q. Now --
3 A. Ovcara was, I don't know, less than 10 kilometres away from
5 Q. Sir, we agree that the order is a crime?
6 A. It would result in a crime, yeah?
7 Q. So you're not sure whether it could or not result in a crime?
8 It's very important. From a military point of view, because you say it's
10 A. No, no. Your question is nonsensical. I didn't say that the
11 order is nonsense.
12 Q. No, but is the order -- do you agree, yes or no, that Mrksic knew
13 that he was committing a crime? That's what the Trial Chamber said.
14 A. Yeah, I mean, I go along with the Trial Chamber's judgement. I
15 have no problem with that.
16 Q. And then my question is: Find me a rule where it says the
17 commander has to tell his Chief of Staff if he's committing a crime, yes
18 or no?
19 A. Yeah, but I cannot answer your question in the context of like
20 when I look at SFRY armed forces documents, the facts, I don't understand
21 your question.
22 Q. Okay. I'll move on because I think the Trial Chamber will. But
23 let's look at another example -- sorry, the Appeals Chamber.
24 MR. BOURGON: Sorry, I apologise, Mr. President.
25 Q. If we look at the facts of this case as established by the
1 Trial Chamber. Now, you will agree with me based on the facts that
2 Mrksic did not issue the withdrawal order or mention the withdrawal order
3 during the daily briefing, did he?
4 A. Yeah, that is -- I think what is stated in the judgement and the
5 evidence. I don't know -- why how -- yeah.
6 Q. No, but your conclusion did he say it in the daily briefing yes
7 or no?
8 A. I haven't looked into that.
9 Q. Wouldn't that be important to know whether it was mentioned
10 because one of your conclusions is that Panic should have mentioned it at
11 the daily briefing. Did you not look to see if the commander mentioned
12 it at the daily briefing?
13 A. No, no. What I wrote is that -- I mean, Panic testified that he
14 informed the commander Mrksic about what he had seen in Ovcara and he'd
15 also asked Mrksic to take measures.
16 Q. We are at one step further.
17 A. Yeah, yeah.
18 Q. We are at the withdrawal order, sir.
19 A. Indeed, indeed. But when I write that Panic should have
20 mentioned it during the briefing, I would expect that Panic would also --
21 because the briefing everybody is together there, the people from Ovcara
22 are there Vojnovic, that Panic would check with them in -- of course in
23 close co-ordination with Mrksic, like how is the situation now? Because
24 we are three or four hours later.
25 Q. Sir.
1 A. Yeah?
2 Q. Would you have expected the commander to mention this order at
3 the daily briefing?
4 A. If the order had been taken already then it should have been
5 mentioned, but I don't remember exactly when the order was given. I
6 think it's only later that the people are informed.
7 Q. The evidence in this case --
8 A. Yeah.
9 Q. -- do you agree, reveals that it was not mentioned at the daily
11 A. No. Okay.
12 Q. All right. So let's put that aside. You agree, then, that Panic
13 did not learn this order at the daily briefing?
14 A. That's correct.
15 Q. We're together on this?
16 A. Yeah, yeah.
17 Q. Now, let's go a bit further and you say that -- and of course,
18 and the fact that Mrksic did not mention this is also a violation of the
19 doctrine because a commander should share with his staff; right?
20 A. It depends when he decides to issue that order. If he decides to
21 issue it after the meeting, then obviously he cannot mention it during
22 the meeting. If he had decided to issue the order and if he issued it
23 prior to the meeting, he should have mentioned it.
24 Q. Okay. He should have mentioned it, and if he did not it's a
25 violation of the doctrine?
1 A. No, it depends on the timing of the order. Tell me --
2 Q. So all this is a grey area?
3 A. No, no, it's not a grey area. I don't have the trial judgement
4 in front of me but I don't remember exactly when Mrksic issued the order
5 to withdraw the MPs. I'm just trying to clarify my answer.
6 Q. Okay. Well I will help you.
7 A. Okay.
8 Q. The Trial Chamber held that the order was issued shortly before
9 or shortly after the daily briefing. Does that help you?
10 A. Well, if it's before the daily briefing he should have told them.
11 If it's after the daily briefing, then he should have communicated it
12 otherwise. But he cannot -- if it's issued after the briefing he cannot
13 mention it during the briefing.
14 MS. BRADY: I'm sorry to interrupt, but can you give us the
15 reference to the judgement that you've made just then on the finding.
16 MR. BOURGON: Which one?
17 MS. BRADY: The --
18 MR. BOURGON: Earlier or after?
19 MS. BRADY: Yes. That one.
20 MR. BOURGON: I'll find it and get back to you unless you want it
21 now because I'm quite short of time, but of course that's a finding that
22 we have in the judgement and I forgot to have it here in my notes.
23 Q. But let me look then -- we know from the evidence, and you
24 referred to that, that Mrksic then met with Vojnovic, and he gave his
25 order only to Vojnovic at that time? You're aware of that?
1 A. Yes, and I think there's also Vukosavljevic in the area. I know
2 of that. But again let's be careful not to think in exclusives. The
3 fact that we can establish to whom he gave it does not exclude that he
4 would have given it to somebody else.
5 Q. Sir, this is criminal law --
6 A. No --
7 Q. We have a judgement, we have findings, and I'm willing to
8 entertain any dispute or challenges on your part because I think that
9 that's what your whole report is about, relitigating this case.
10 A. No, not at all.
11 Q. That's [overlapping speakers] --
12 A. No, no, no --
13 JUDGE MERON: Now, Mr. Bourgon, Colonel Panic, if I remember
14 correctly, himself testified on a number of occasions - and this is in
15 the exhibits which have been submitted to us - that he would be
16 tremendously surprised that it would be completely exceptional for Mrksic
17 not to share the order with him at one point.
18 MR. BOURGON: Absolutely. That's one of my questions coming up,
19 Mr. President.
20 JUDGE MERON: Also, the testimonies of Mr. Panic suggest and they
21 were given before the trial judgement, I quite agree, suggest that on the
22 whole OG South functioned well in terms of transmission of orders. There
23 may have been -- he mentions one or two sort of exceptions, but on the
24 whole he's much more flattering to the performance of OG South than the
25 Trial Chamber was in the sentence that you have cited. It's a complex
1 issue and it's really quite difficult to -- but I would really suggest
2 that since your time is limited, try to focus as much on the problems
3 that you are trying to establish.
4 MR. BOURGON: Thank you, Mr. President. I will do so.
5 Q. Let us look at the facts of the case that Mrksic, we agree -- you
6 know from the evidence that he did not say it at the daily briefing. But
7 you mentioned in your testimony that he said it to two people.
8 A. Mm-hmm.
9 Q. He said it to Karanfilov and he said it to Vojnovic, probably in
10 the presence, we're not sure, of Vukosavljevic. That's the evidence.
11 Okay. Now, what I'm simply suggesting to you: If a commander, okay, is
12 about to issue an illegal order and -- no, not about, has issued an
13 illegal order to two subordinates, would that be a fair thing to say,
14 that he's not going to -- he will limit this to as few individuals as
15 possible simply to protect himself. Is that a possibility, sir?
16 A. I'm sorry. It doesn't -- if -- I mean, the order is intended to
17 carry out an activity. Now, the activity consists of withdrawing forces.
18 Everybody will see that the forces are gone and they will ask what
19 happened. And the only logical conclusion is that the commander, because
20 there is single authority, has issued the order to withdraw them. So he
21 cannot hide that. Karanfilov, it would be highly unlikely that Mrksic,
22 again according to doctrine and what we've seen in the trial, that Mrksic
23 would talk directly to Karanfilov ignoring Vukasinovic, i.e., the deputy
24 of the security organs and most importantly ignoring Sljivancanin who was
25 actually in charge of this operation where then Mrksic, according to you,
1 would just talk to a captain to say, look, let's get them out of there.
2 It wouldn't make sense because within minutes everybody would know,
3 and Sljivancanin would hear it from Karanfilov, and he would go to Mrksic
4 and say, colonel, what are you doing. That would be the reality.
5 Q. Okay. Now, let me just get one question on this because if I
6 listen to you correctly I take it that 20 military policemen who are in
7 Ovcara, they return to their barracks or wherever they live, okay, at the
8 command or in or around the command of the 80th Brigade. That's your
9 position that within minutes everybody will know that?
10 A. Yeah, because -- I mean, I'm not talking about the 20 military
11 policemen, I'm talking about Karanfilov. If Mrksic talks to Karanfilov
12 directly, I mean Karanfilov should be -- should ask himself, should check
13 with Sljivancanin, hey, the commander has told me that, it's your
14 operation, how do you see that. I mean that would be the logical
16 Q. Sir, that's not what you said. You said within minutes people
17 will know that the MPs have been withdrawn and they will say commander
18 what did you do? Are you saying that --
19 A. No, I -
20 Q. I'm just asking you.
21 A. Yeah, yeah.
22 Q. 20 men leaving from Ovcara and returning to OG South -- not OG
23 South, returning to the 80th Brigade. I just want to know if it's your
24 professional opinion that within minutes everyone will know in OG South.
25 Is that your professional opinion?
1 A. Well, I will give you two elements of reply. First of all, it's
2 not about the 20 men. It's about handing over authority from OG South to
3 another entity. That is a key issue. Secondly, I mean you are familiar
4 with the inspection function of command and control and also the fact
5 that they have to report on the implementation of the order. So in
6 concrete terms the MPs will inform the operations centre of the 80th
7 Brigade, hi, we're back, and the operations centre of the 80th Brigade
8 will inform the operations centre of the OG South, gentlemen, we have
9 implemented your mission, they are now back in the camp.
10 Q. Okay. Now if I look at what you're saying now, okay, is there
11 any evidence on the record that there was a report made to Operational
12 Group South Command, did you see any evidence to that effect?
13 A. No, there is no such evidence, but again if Karanfilov -- I think
14 it's established -- it is established in the evidence --
15 Q. No, is there a finding --
16 A. Karanfilov -- it is established Karanfilov goes to Ovcara to tell
17 the MPs of the 80th Brigade to withdraw. Karanfilov has to come back to
18 the OG South and say: I have passed the order. They are withdrawing.
19 That is military reality, and I don't know whether the Trial Chamber
20 confirmed that.
21 Q. So -- well, the Trial Chamber did not.
22 A. Okay.
23 Q. So but I'll ask you if I want to confirm that today, I need to
24 call Karanfilov to testify again; right? That's what you want if you
25 want to determine that?
1 A. No, no. I mean there is a finding that Karanfilov knew about the
2 order because he informed the 80th Brigade, and then again based on how
3 militaries work, Karanfilov reports to his commander to his -- actually,
4 he should report to Sljivancanin, I have implemented your order, that's
6 Q. But is there evidence to that that you saw. You looked at the
8 A. I didn't look at all the evidence now.
9 Q. So that was not interesting to you?
10 A. That's not the issue. I don't think it -- I mean, it's probably
11 not -- it's not mentioned in the -- I don't know whether it's mentioned
12 in the trial judgement or the Appeals Chamber's judgement.
13 Q. You mentioned that three people were made aware of that order:
14 Karanfilov, Vukosavljevic, and Vojnovic. You will agree with me we can
15 add to this, we can add a Vezmarovic because he's the guy who withdrew
16 the MPs. So that's four people; right?
17 A. Yeah, I mean you can add the 20 MPs if you want.
18 Q. And the 20 MPs. Yes. Okay.
19 Now, let me tell you is there any finding in the judgement of
20 anybody else who was informed of that order, is there any findings in the
22 A. I have not analysed the judgement. That was not the tasking I
23 have received.
24 Q. I thought you were going to compare the judgement with the
25 findings and the SFRY doctrine?
1 A. No, no.
2 Q. That's not what you did?
3 A. No, no, I compared the testimony of Mr. Panic with the doctrine
4 with the operational -- I mean, the combat documents, i.e., reports and
5 orders of OG South. And indeed I received a copy of the trial judgement
6 and the appeals judgement. But I haven't looked in -- I haven't -- those
7 were sources. But it was not my duty or my -- I was not requested to
8 analyse these sources in detail.
9 Q. Okay. Let me move on to a quick question --
10 JUDGE MERON: I really don't think that it was within his remit
11 to come with a notation on the judgement as a whole.
12 MR. BOURGON: No, it wasn't, Mr. President, but it was his job to
13 look at the judgement. He said he did. How can he make a report --
14 JUDGE MERON: I mean, he was given a specific remit by the
16 MR. BOURGON: I'll save that for argument, Mr. President.
17 JUDGE MERON: I think he was given a specific remit by the
18 Prosecution and he tried to carry that out.
19 MR. BOURGON: Thank you, Mr. President.
20 Q. Sir, is it a possibility, possibility, that Mrksic -- and there's
21 a reference to this in the judgement at the finding in paragraph 586,
22 okay, where it says that there are suspicions to that effect. Is it
23 possible that Mrksic received an order from superior command and the
24 order is: Give them the prisoners, we cannot avoid a conflict with these
25 people at this time? Is that a possibility, sir, that in such a case,
1 okay, if the order said: Don't tell anyone, that Mrksic would not tell
2 anyone? Is that a possibility?
3 A. I mean, I have tried to explain that "don't tell anyone" doesn't
4 work in the military because the people have left. OG South will
5 familiarise themself -- I mean Panic when he's the commander, he has to
6 be really sure that what he tells to the 1st military district is
7 correct. He will have a look at what is happening there.
8 Q. Sir.
9 A. You cannot hide that there are no more MPs in Ovcara.
10 Q. When a crime is committed --
11 A. Yeah.
12 Q. Okay. It's not what you say that there is no don't tell. I'm
13 just asking you, okay, and we'll go to another scenario and that will be
14 my last one.
15 A. Yeah.
16 Q. You -- Panic said when he testified, first of all, he said that
17 Panic -- sorry, that Mrksic should have told him. So you and him agree
18 on this. No problem there. Then Panic said: If I had heard this during
19 the conversation between Mrksic and Sljivancanin, if I had heard this, I
20 would immediately have reacted. Okay. Now, you agree with me that this
21 would have been the thing to do?
22 A. Yeah.
23 Q. Okay. Now, given that this was the thing to do, I'm simply
24 suggesting to you the possibility, okay, that Mrksic, he knew very well
25 that Panic would oppose this order and that's why he did not tell him.
1 Is that a possibility, sir?
2 A. But -- I'm sorry, I'm repeating myself, but it doesn't work like
3 that. I mean, Panic is the Chief of Staff. He will be informed of the
4 fact that the MPs are not there anymore, especially since on the 20th
5 Panic goes out of his own initiative to Ovcara to see what is happening.
6 Why could -- I mean, I cannot imagine that Mrksic would think like I can
7 hide the order and Panic will certainly not have a look on the 21st, he
8 will not be interested anymore. It doesn't make sense.
9 Q. So if there are no findings that Panic found this information,
10 what you're saying is that he's a liar; right?
11 A. I don't say that.
12 Q. Well, you met with him. Did he look to you as a reasonable
14 A. I will reserve my comments for myself. I've never commented on a
15 witness and I will never do so, I mean not in this environment.
16 Q. But did he co-operate with you when you met with him?
17 A. Overall yes, but we had to use at certain occasions documents to
18 clarify certain issues.
19 Q. Okay. Now, let's look to --
20 JUDGE MERON: Now to go on and move on. It is curious,
21 Mr. Bourgon, that having visited Ovcara and brought back a rather
22 worrying situation about dangers to which the POWs were exposed and the
23 treatment which was being meted out to them, that Panic on the following
24 day did not show any interest regarding the sequence, what happened
25 later. This is a bit puzzling.
1 MR. BOURGON: Thank you, Mr. President. I will then go straight
2 to a line of questioning referring to what the witness has said.
3 JUDGE MERON: Judge Liu has a question.
4 Judge Liu.
5 JUDGE LIU: Witness, let me ask you a question. I would like to
6 draw your attention to your report on the paragraph 10 on page 6. You
7 said that:
8 "Considering the SFRY armed forces doctrine and the operational
9 context, any suggestion that Mrksic would have tried to hide his
10 withdrawal order from his closest collaborator and the deputy
11 Lieutenant-Colonel Miodrag Panic and the officer he had put in charge of
12 the evacuation operation Sljivancanin, appeared to be rather
14 Did you find that sentence?
15 THE WITNESS: Yes, Your Honours, I did.
16 JUDGE LIU: I would like you to explain to me how could I arrive
17 in this conclusion and what SFRY armed forces doctrine you mean and what
18 that operational context in your mind when you're writing this report.
19 Thank you.
20 THE WITNESS: Yes, Your Honours. I will try to be brief. The
21 reference to SFRY armed forces doctrine refers to the aspect of a
22 situational awareness, whereby the staff managed or organised by the
23 Chief of Staff is responsible for ensuring the situational awareness of
24 the commander. And that is something I have addressed in question 1
25 where you can find the different regulations. So of course the commander
1 has the legal duty to be aware, but he is assisted by his staff and there
2 the Chief of Staff is the organiser.
3 The operational context, just two elements. Ovcara I think is I
4 wrote here less than 10 kilometres, but in fact is shorter, from
5 Negoslavci. There was no -- I'm not aware of any impediment for members
6 of the OG South Command to visit Ovcara at any moment in time on the 20th
7 or the 21st. So -- and that's what I've tried to explain to Mr. Bourgon.
8 The order as such doesn't mean anything. It is the effect of the order.
9 I.e., when it is implemented it will have a result on the situation, and
10 in this particular case on the situation of the friendly force, i.e., the
11 units of OG South, where a number of forces have been withdrawn, more
12 importantly prisoners of war which were under the control of OG South are
13 now -- have been handed over to another entity and all that is part of
14 the situational awareness where the Chief of Staff has the duty to inform
15 the commander of these events and of these developments.
16 JUDGE LIU: Thank you.
17 JUDGE MERON: Mr. Bourgon, you have another ten minutes.
18 MR. BOURGON: Thank you, Mr. President.
19 Q. Sir, is there any evidence on the record that you saw of anyone
20 noticing the departure of these 20 MPs?
21 A. I will give two --
22 Q. No, the evidence on the record, please. Do you see any?
23 A. I think the war diary or the operational diary of the 80th
24 Motorised Brigade has an entry for the 20th in the evening that the
25 military police of the 80th Brigade has returned to the -- yeah, the 80th
1 Brigade, and that the prisoners have been handed over.
2 Q. And did you see any evidence of this information reaching
3 Operational Group South Command at any time?
4 A. Well, actually the issue should not be -- should not be evidence
5 of it reaching because that is common sense in the military. The
6 evidence should have been -- or the question should have been not
7 reaching. Because if that information -- if the 80th Brigade has not
8 informed OG South then OG South has to tell the 80th Brigade what is
9 happening, why didn't you tell us? Because we issued you an order we
10 have to be informed of the implementation, that's how it works.
11 Q. Absolutely agree, as long as they know what the order is; right?
12 A. Yeah, but it's --
13 Q. If they don't know the order they can't expect a come-back;
14 right? Can they?
15 JUDGE MERON: Mr. Theunens, I am told that you, when you speak
16 you speak too quickly for the interpreters.
17 THE WITNESS: I'm sorry, Your Honours.
18 No, because the order -- as I -- the order is one thing, but it's
19 the effect of the order, implementation, that is the key issue, and the
20 implementation is very visible. I have also tried to explain in my
21 report that situational awareness is not a passive duty. You don't sit
22 and wait like, is somebody going to tell me they have withdrawn. No.
23 The commander has the duty to inform himself about the situation of his
24 troops. Because you can -- I mean, it's like everywhere. Nobody is
25 going to tell bad news or like to give bad news. So the commander has to
1 be active, send these guys, invite the commanders of subordinate units
2 like to know what is happening, and that is all part of the picture that
3 is being created with the assistance of the staff under the management of
4 the Chief of Staff.
5 MR. BOURGON:
6 Q. Sir, is it your position then that if the doctrine says a report
7 should have been sent back, then unless we have evidence that it was not
8 we are to believe it was. That's your position?
9 A. No. My position is that if the report was not sent then OG South
10 should have complained to the 80th Brigade what is happening, why don't
11 you send the report.
12 Q. If they don't know that the order was given they can't; right?
13 A. But it's their duty to know what is happening --
14 Q. If the order was not given, can they expect a back order?
15 A. But if the order was not given they couldn't withdraw, because
16 then that's anarchy. Militaries act upon orders and orders have to be --
17 everything has to be verified. It's very simple.
18 Q. Sir, my colleague reminded you that we have to focus on the
19 findings of the Trial Chamber, okay, and we're not here to relitigate.
20 A. Okay.
21 Q. Now, the Trial Chamber found that there's no report going back to
22 Operational Group South command. Okay. Vojnovic testified that he never
23 told Mrksic that he had executed the order and that he had never told
24 anyone for that matter. None of the persons that you say were aware of
25 this order were found to have shared it with somebody with Panic.
1 Nobody -- you mentioned those who are aware. Okay. You said the MPs.
2 You said Vezmarovic. You said Vukosavljevic, you said Vojnovic, okay,
3 and I'm going to add another one -- and of course Karanfilov, and I'm
4 going to add another one to this and that's P14.
5 A. Mm-hmm.
6 Q. Okay. And P14, okay, he discussed and they knew about the fate
7 of the prisoners or they had rumours about the fate of the prisoners on
8 the morning of 21st; whereas, the information in OG South according to
9 the evidence was nil, and the information according to the record did not
10 reach Operational Group South. Are they supposed to expect a back order
11 when they are not even aware that the order was implemented?
12 A. I'm not sure I understand the question, but --
13 Q. Okay. I'll move on because I'll keep this for argument.
14 One more issue I'd like to address with you. Now, Vojnovic when
15 he received this order, now this man accepted to carry out an illegal
16 order, would you agree with that?
17 A. With hindsight, yes.
18 Q. You mean he did not know on the spot?
19 A. I mean, you would have to ask Vojnovic. Vojnovic -- one could --
20 one could argue that Vojnovic should have known that the withdrawal of
21 the MPs could have resulted in crimes, yeah, that's Article I think 36 of
22 the --
23 Q. So he accepted to carry out an illegal order?
24 JUDGE MERON: We have a question from Judge Guney.
25 JUDGE GUNEY: [Microphone not activated]
1 THE INTERPRETER: Microphone for the Judge, please.
2 Microphone, please.
3 JUDGE GUNEY: Mr. Theunens, in light of the irregularity of the
4 order itself, would it not be expected to have it transmitted irregularly
5 as well? This is the first question.
6 THE WITNESS: Mm-hmm. Yes, Your Honours.
7 JUDGE GUNEY: The second question is: Are you aware of another
8 illegal order that was transmitted through the regular chain of command?
9 Thank you.
10 THE WITNESS: Yes, Your Honour. To answer the first part, I
11 think -- I mean, that's only a partial aspect because of course we can
12 imagine the situation that Mrksic tries to hide the order -- I mean,
13 let's develop a scenario. We could try to imagine that scenario, that he
14 hides the issuing of the order. But it's about the effect of the order,
15 the implementation, because the order as such as long as it is not
16 implemented has no value. It's the implementation of the order which is
17 a key issue here. And -- okay, Mr. Bourgon disputes that it would be
18 noticeable to the command of OG South when I say in a very short
20 On the 21st of November, OG South reports that everything is
21 going in according with the regulations, i.e., the evacuation of the
22 civilians and the wounded and the Geneva Conventions, whereas it was
23 their duty to verify the situation, the status of the prisoners at
24 Ovcara. Coming back to the second part of your question, I'm not aware
25 of any other example of an -- call it illegal order that was transmitted
1 via the regular or irregular manner. I'm not aware of such an example.
2 JUDGE GUNEY: Thank you.
3 MR. BOURGON: Mr. President, how much time do I have left?
4 JUDGE MERON: You have three minutes.
5 MR. BOURGON: Three minutes. Then --
6 JUDGE MERON: If I can be an accountant.
7 MR. BOURGON: Thank you, Mr. President.
8 Q. Sir, I will -- I have two questions, then, that I will ask you,
9 and the first one is the following. You know because you saw the appeal
10 judgement's findings that we are here to discuss a new fact which was
11 accepted by the Trial Chamber as being a new fact, which is that Panic
12 heard a conversation between Mrksic and Sljivancanin and that during that
13 conversation Mrksic did not tell Sljivancanin that he had withdrawn the
14 military police. Now, that's why we are here today. Okay. I would like
15 to know from you since you were involved or invited by the Prosecution to
16 take part in these proceedings, were you -- was any additional evidence
17 not known to the Trial Chamber at the time brought to your attention
18 concerning this conversation?
19 A. The -- I mean, the material I used -- or the material I used -- I
20 received -- I apologise, from the OTP appeals section is identified in
21 the introduction. I looked at military regulations, but I haven't seen
22 any additional material -- or any additional evidence in relation to that
24 Q. And, sir, the Prosecution I take it did not discuss any such
25 evidence with you, say, listen, we've got something here that we did not
1 know of? That never came up; right?
2 A. No, no, it didn't.
3 Q. Now, you've been an analyst with the Office of the Prosecutor in
4 the Military Analysis Team for quite a while or you were for a number of
5 years, so you're quite familiar with these cases. And I take it that you
6 are familiar with the fact that within the JNA officers and all members
7 of the JNA are quite scared or at least do not like security officers,
8 members of the security branch, because they can file a report at any
9 time against anybody? Are you familiar in general with this concept?
10 A. Yeah, I think it -- it's a bit of a -- maybe -- if you allow me,
11 a liberal interpretation of doctrine, but there was some -- it's like in
12 any armed force, I guess, some kind of, I mean, fear of security organs
13 because they only show up at the bad moment. But it's not in writing,
14 this is just interpretation of the people. It's never a good thing when
15 a security officer comes to you because he may have something against
17 Q. And he may -- and security officers because of this special chain
18 they have, they can make an investigation against a commander without a
19 commander even knowing about it. You're familiar with that?
20 A. Yeah, indeed, I mean more or less.
21 Q. Now, if Mrksic has committed a crime by withdrawing the MPs,
22 okay, I suggest to you that the last person he would tell this to is the
23 security officer who can make an investigation on him; do you agree with
25 A. No, I don't because Article 36, as I mentioned, from the 1988
1 regulations on the implementation of the laws of war says that any
2 officer whenever he discovers that a crime may have been committed has a
3 duty to report it and, sorry, to provide information to the competent
4 authorities. So the particular position of the security organs does not
5 apply to these kind of crimes, I mean crimes -- a violation of the laws
6 of war.
7 JUDGE MERON: We really have to end this now, and of course,
8 Mr. Bourgon, Karanfilov belonged to the security organ, didn't he?
9 MR. BOURGON: Absolutely, Mr. President. That was my last
11 JUDGE MERON: Well, why don't you just merge it with your summary
12 later on.
13 MR. BOURGON: I will do so.
14 JUDGE MERON: Argument.
15 MR. BOURGON: I will do so, Mr. President, because if he's scared
16 of telling Sljivancanin, of course he would not tell Sljivancanin either
17 that he told Karanfilov.
18 JUDGE MERON: Thank you.
19 We will now have a 20-minute pause which is required by technical
21 Ms. Brady, I am aware that you have both 15 minutes which have
22 been allotted to you and subsequently the 30 minutes.
23 MS. BRADY: Yes [overlapping speakers] --
24 JUDGE MERON: So we will keep your rights to those two sections.
25 20 minutes, so we will meet at about 25 minutes before 6.00.
1 --- Recess taken at 5.18 p.m.
2 --- On resuming at 5.38 p.m.
3 JUDGE MERON: Ms. Brady, I, as I said before we recessed briefly,
4 you have 15 minutes for the examination of the witness and then 30
5 minutes for your summary argument. And if you do not really need the
6 entirety of these 45 minutes, we will not regret it if you cut it short.
7 MS. BRADY: Well, Your Honour, I have only two questions in
8 re-examination, so that will definitely be quite short. Perhaps I could
9 borrow from that time for a little bit of extra time for my submissions
10 if need be, but we'll get to that at that point.
11 Re-examination by Ms. Brady:
12 Q. Mr. Theunens, I want to ask you, firstly, it relates to the
13 question that you were asked right at the end by Mr. Bourgon about the
14 order having gone to Mr. Karanfilov, Mrksic's order having gone to
15 Karanfilov. And just to ask you, in the normal chain of events how would
16 such an order to a subordinate in a security organ, how would it travel
17 up to the head of that security organ?
18 A. The normal -- I'm sorry. The normal procedure would have been
19 that Colonel Mrksic would have spoken to Major Sljivancanin and informed
20 him directly, in particular because for this specific operation
21 Sljivancanin was also in charge of the operation.
22 Q. But if we take the scenario that somehow -- that Mrksic gave the
23 order directly to Karanfilov --
24 A. Okay.
25 Q. -- how under normal military procedures would that information
1 have travelled to his boss, the head of the security organ,
2 Mr. Sljivancanin?
3 A. Karanfilov at the earliest possible time would inform
4 Sljivancanin, and even prior to that he could ask Mrksic: Have you
5 spoken to my commander -- I mean to my chief, i.e., Sljivancanin. And
6 then Mrksic could explain to Karanfilov why he was not following the
7 regular chain of command. But Sljivancanin would have to be informed as
8 soon as possible by Karanfilov because otherwise it would be a violation
9 of the chain of command.
10 Q. Thank you. And the only other question I have for you in
11 re-examination is Mr. Bourgon pointed out - this is at transcript page 70
12 of today's proceedings - that the OG South couldn't be expected to
13 inquire about the implementation of the withdrawal order if it was not
14 generally known that it had been issued. Now, what I'm interested in
15 hearing is your view, even if Panic didn't know of the withdrawal order,
16 does that mean -- doesn't that mean he had a duty to inform himself about
17 the previous 24 hours activities of the 80th Motorised Brigade when he
18 was acting commander on the 21st? So maybe if I could repeat. Even if
19 Panic didn't know of that withdrawal order, didn't he have a duty to
20 inform himself in any event about what had been going on 24 hours before
21 vis-a-vis the 80th and vis-a-vis the prisoners, assuming - if we go to
22 Panic's mind - that they're still there?
23 A. Indeed, Your Honours, as I've tried to explain during
24 cross-examination, the order is one thing and the implementation is
25 another thing and is actually the most important aspect. In accordance
1 with the need to ensure situational awareness not only at the level of
2 the OG South but also at the level of OG South superior command, i.e.,
3 the 1st Military District, OG South was obliged to provide accurate and
4 complete reporting on its activities. We have explained how they
5 obtained that information. And so in order to provide that accurate and
6 complete report on their activities, they would inquire on the situation
7 Ovcara, as it is located in the zone of responsibility of OG South. And
8 sooner or later somebody, I mean, would have discovered that the MPs are
9 not there anymore. Again, that's in the scenario that nobody was
10 informed about the order. The effect of the order, it cannot be hidden
11 and that is what I've tried to explain.
12 Q. Thank you.
13 MS. BRADY: Your Honours, I have no further questions for
14 Mr. Theunens, so I think he can be excused.
15 JUDGE MERON: Mr. Theunens, the Appeals Chamber thanks you very
16 much for having come today and having provided your written report and
17 having testified today, and in the name of my colleagues and I'm sure
18 also of the parties, I would like to thank you.
19 You are now free to go.
20 THE WITNESS: Thank you, Your Honour.
21 [The witness withdrew]
22 JUDGE MERON: If my colleagues have questions to the Prosecution,
23 perhaps it would be wise to do that after her summary arguments, but if
24 somebody has a question now that the Judge feels should be asked now you
25 are of course free to -- there are no questions now.
1 So, Ms. Brady, your summary argument. You have 30 minutes, but I
2 am aware of the fact that you have not used up your time for
4 MS. BRADY: Thank you, Your Honour. Thank you.
5 Your Honours, Panic's evidence that he didn't hear Mrksic tell
6 Sljivancanin on the evening of the 20th of November about his order to
7 withdraw the JNA from Ovcara has no impact on the verdict because he
8 cannot be believed on this matter. And we say this for three main
10 First, self-interest. His evidence about the conversation is
11 unreliable because what -- because of what it might suggest about his own
12 knowledge of Mrksic's patently illegal order and his own responsibility
13 for its disastrous consequences, and this follows the same pattern of
14 evidence that he gave at trial.
15 Second, bias. His evidence is unreliable because -- in addition,
16 I should say, because of his demonstrated bias for the Guards Brigade and
17 Sljivancanin. In our submission he's tailored parts of his testimony
18 both at trial and in this review so as to best insulate himself and
19 Sljivancanin from any knowledge of the order and thereby any
20 responsibility for the crime.
21 Third, implausibility. It is inconceivable given JNA military
22 doctrine and the context of these events that Panic, the Chief of Staff
23 who was acting commander the next day, remained ignorant of the
24 withdrawal order throughout the evening of the 20th of November and then
25 for the entire four days that he and the Guards Brigade stayed in
1 Vukovar. These lies render his testimony about what he heard Mrksic say
2 to Sljivancanin, or rather, not say to Sljivancanin simply not credible.
3 Mr. Theunens' report and his evidence that we've just heard help
4 to illuminate the lies and the half-truths that Panic had to tell this
5 Chamber in order to support his claim of ignorance. And when seen in
6 light of normal military doctrine, it's clear that Panic acted we could
7 say most unusually from the time the withdrawal order was issued. And
8 when this becomes apparent, one begins to see why the Trial Chamber
9 treated his evidence so cautiously.
10 Panic is obviously a highly professional -- successful,
11 professional soldier. He's highly decorated. When he contravenes the
12 military rules he's always lived by, you have to ask yourself why. When
13 he buries his head in the sand, you have to ask yourself why. And when
14 he lies to you, you have to ask yourself why.
15 And this afternoon what I'm going to do with the rest of the
16 session here is to highlight some of the most glaring occasions when
17 Panic, on his own account, acted unusually. In the context of his
18 broader knowledge, there's only one conclusion as to his motive for doing
19 so. And of course we will be relying on our written submissions to make
20 our argument in more detail.
21 I'll turn first to his self-interest. The Trial Chamber observed
22 Panic testify for four days and assessed his credibility at length, and
23 these findings were upheld by this Chamber. It concluded that it could
24 not believe his evidence when it came to matters that could expose him to
25 criminal liability or which could put him in an unfavourable light. And,
1 Your Honours, the Trial Chamber had this to say about Mr. Panic, and I'm
2 quoting from 297 of -- paragraph 297 of the trial judgement.
3 "Regrettably the Chamber also finds that in his evidence
4 Lieutenant-Colonel Panic sought to present aspects of his own role in a
5 more favourable light and to avoid disclosing matters that could be
6 construed as implicating Panic himself in criminal conduct. Because of
7 this, while the Chamber is entirely persuaded it should accept much of
8 his evidence, it has and will identify its reservations about some
10 Now, what I'd like to do is just to take you briefly to three
11 examples from trial where the Trial Chamber had these reservations and
12 did not believe Panic. And you'll see that Panic's knowledge of the
13 withdrawal order or lack of knowledge, as he claims, is of the same
14 nature of evidence and for the same reason you should disbelieve it.
15 First, the question of what Panic saw at the barracks, the JNA
16 barracks, in the morning before he phoned Mrksic prior to going to the
17 SAO government meeting. The Trial Chamber found that Panic "underplays
18 the full extent of his knowledge of the situation at the barracks that
19 morning" --
20 JUDGE MERON: Could we have the paragraph in the transcript.
21 MS. BRADY: Certainly, Your Honours. I'm quoting from paragraph
22 297 of the trial judgement.
23 JUDGE MERON: Still from the same paragraph?
24 MS. BRADY: It is. It's a different part. It's a very long
1 That he "underplays the full extent of his knowledge of the
2 situation at the barracks that morning" and was "not fully frank and
3 honest about the events he saw at the barracks concerning the convoy of
4 prisoners of war."
5 You will recall that here was a situation where Panic said there
6 was one bus, no real security threat. The Trial Chamber found there were
7 actually five buses there at that time and already the TOs were verbally
8 and physically assaulting the prisoners on the bus. That's an example of
9 minimising what he saw.
10 Second, why Panic visited Ovcara after the government meeting.
11 The Trial Chamber found his reason for going to Ovcara, remember he said
12 he was going there to check on the progress of the trials, they found it
13 "entirely lacking in credibility" and found instead that he went there in
14 fact to assess the situation so he could make a report to Mrksic. That's
15 at paragraph 307. Another example where he is minimising or downplaying
16 his role or knowledge.
17 Finally, what Panic saw at Ovcara. Again, the Trial Chamber
18 found that he was "not being frank when speaking of his own knowledge of
19 mistreatment of the prisoners of war that day, so as to minimise the
20 truth in that respect." That's at paragraph 308. So while they did
21 accept that he went and told Mrksic, you know, there's a security
22 situation, you better -- you should send some further -- some further
23 forces to deal with it, they accepted him on that but they found that he
24 was not willing to admit the full extent of what he said because he was
25 basically saying it was under control at that point, again to minimise
1 himself from information that could really harm him.
2 Panic's denial of any knowledge of the withdrawal order in this
3 review proceeding follows that same pattern, as we can see from his trial
4 evidence. Panic has repeatedly denied any knowledge of who ordered the
5 withdrawal of the JNA security from Ovcara. So it's no surprise that
6 he's come in these proceedings and continued to say or said he didn't
7 hear Mrksic tell Sljivancanin about the withdrawal order that evening.
8 It's a consistency. He's always said he didn't know, so of course from
9 his point of view he's going to say he didn't hear. Because to admit
10 hearing this - and, Your Honours, allowing the Appeals Chamber's finding
11 to stand would have the same effect because he's privy to that
12 conversation in accordance with the finding that you made - if he admits
13 hearing that conversation he too would have been privy to that illegal
14 order, something that he has never admitted to, can never admit to,
15 because it would mean that he did nothing to stop it. So in our
16 submission his self-interest in the events gives him every reason to hide
17 the truth on what was said that evening at the command post between
18 Mrksic and Sljivancanin.
19 JUDGE MERON: Do mind refreshing my memory, Ms. Brady, did we
20 make a specific finding regarding Panic listening to the order that was
21 given, according to us, by Mrksic to Sljivancanin?
22 MS. BRADY: I believe that Panic is --
23 JUDGE MERON: You say that he was privy and that we so found.
24 Would you --
25 MS. BRADY: Yes.
1 JUDGE MERON: Did we --
2 MS. BRADY: Paragraph 62 of the appeals judgement in a
3 footnote -- excuse me, Your Honours, I thought that it had been footnoted
4 in that part of the judgement, but nevertheless that was the evidence at
5 trial of Sljivancanin --
6 JUDGE MERON: But that was your conclusion --
7 MS. BRADY: -- and Panic.
8 JUDGE MERON: But when you said that we so found, this is not
9 quite so, is it?
10 MS. BRADY: Your Honours, you made the finding that when
11 Sljivancanin went in to report to Mrksic, the conversation had occurred.
12 JUDGE MERON: I simply did not remember our alluding in that
13 context to the presence of Panic, but --
14 MS. BRADY: Your Honours, I would like to double-check that
15 because you've quoted -- I think this is the reasoning, actually. You've
16 quoted from Veselin Sljivancanin's testimony, the trial testimony. And
17 in that there's reference to the fact that Panic was there at that
19 JUDGE MERON: Okay. Let's proceed. If you have something to add
20 you can always --
21 MS. BRADY: Yes.
22 JUDGE MERON: -- insert a short sentence in your summary.
24 MS. BRADY: I will carry on.
25 The second point bias. Panic's self-interest has to be
1 considered together with the clear bias that he exhibits for the Guards
2 Brigade and Sljivancanin. Panic spent almost a quarter of his career
3 with the Guards Brigade and his reputation is clearly bound up with
4 theirs. He was Chief of Staff at the time. The next year he was made
5 commander. We will be detailing this more in our brief. But he well
6 knows that the impact of the Ovcara massacre on the reputation of the
7 Guards Brigade -- and, Your Honours, I would like to remind you how
8 Panic -- Mr. Panic opened his testimony in the Belgrade trial in the 2004
9 Belgrade trial, this is Exhibit Number 1, and I'm quoting from page 15.
10 He said this, this is how he opened:
11 "Allow me to say, first of all, that I'm very sorry and upset
12 that it has come to this. That team of officers of the Guards Brigade or
13 the Guards Brigade itself did not deserve this. What happened happened,
14 a job done professionally, and here in the end the Guards Brigade is
15 being called to account, so what can I say about that?"
16 The image that Panic wants to project here in this proceeding is
17 that of a neutral observer only wanting the truth. That image is some
18 way from reality. And again we will be going through this more in our
19 written submissions. This is just a summary form of that argument. But
20 what is more interesting is that you can actually see Panic's bias in his
21 trial evidence.
22 You will recall at trial the rather major shift in Panic's
23 testimony when for the first time at trial he named Pavkovic as having
24 been the person in charge of the evacuation, and he said, "Well,
25 Sljivancanin was only in charge of the security tasks at the hospital."
1 And the Trial Chamber noted that that diverged sharply from his 2000 --
2 his previous statement that he'd given in 2005, that's Exhibit 2 in these
3 proceedings, because in that statement Panic had said that he was present
4 at the command briefing the night before when Mrksic placed Sljivancanin
5 in charge of the evacuation and could use as many military police as
6 possible. So at trial he did an about-face and the Trial Chamber relied
7 on his statement and what was the contents of his statement rather than
8 that trial testimony. This is a finding that the Appeals Chamber upheld
9 on appeal.
10 Another example of his bias can be seen in his claim that it
11 appeared from the government meeting that they planned to try the
12 prisoners of war, something he told Mrksic. And the Trial Chamber said
13 at paragraph 585 that it was "quite unable to accept the honesty of this
14 aspect of his evidence. It was obviously self-serving and ... an attempt
15 to put the JNA and Mile Mrksic in a more favourable light."
16 And, Your Honours, in our submission his bias is also evident in
17 these current -- in this present review proceeding. When he testified in
18 the review hearing he mentioned two additional topics of discussion in
19 that conversation which had not appeared previously in his statement
20 which he gave to Mr. Lukic last year in 2009. This is Exhibit 4. Where
21 he was writing down his recollection of that conversation. When he came
22 here at the review he gave two other bits of information, we call it,
23 that hadn't appeared in the statement about that discussion, one, that
24 Sljivancanin had reported to Mrksic that he was back from his mission;
25 and two, that the government had decided to take the prisoners to Ovcara.
1 And it's no coincidence in our submission that these matters had featured
2 as part of Sljivancanin's trial testimony and then they appear now in the
3 review hearing.
4 We'll -- again, we'll be detailing these inconsistencies in our
5 brief in more beet.
6 In summary on these two points, Panic's account of the
7 conversation should be given no weight given his powerful incentive to
8 protect himself, his revered unit, and Sljivancanin.
9 Before I turn to my third point which is the other reason you
10 shouldn't believe him, I wanted to clarify that in answer to your
11 question you did actually make the finding that in paragraph 61 of the
12 trial -- of the appeals judgement that, it's about five lines from the
13 bottom --
14 JUDGE MERON: [Microphone not activated]
15 MS. BRADY: I was thinking it was a footnote to paragraph 62, but
16 in fact it's in paragraph 61, Your Honours.
17 You recall basically what Sljivancanin did when he got back to
18 the command post, and in the middle of it you have said:
19 "Sljivancanin then met with Captain Borisavljevic who told him
20 about the meeting of the SAO government" --
21 JUDGE MERON: That's in paragraph 61?
22 MS. BRADY: Yes. It's in the middle.
23 JUDGE MERON: Yeah.
24 MS. BRADY: And then it says, and this is the relevant part for
1 "Finally Sljivancanin met with Mrksic and Panic."
2 That's the reference I'm talking about when I say Panic knows
3 that he's named as part of that conversation.
4 JUDGE MERON: There is no direct mention here of the withdrawal
5 order in that context in that sentence.
6 MS. BRADY: No, Your Honours, but if you put paragraphs 61 and 62
7 here, what you've said is that Sljivancanin went to see Panic -- went and
8 had a conversation with Mrksic and Panic, and the next -- very next
9 paragraph you've said that in the course of that meeting Mrksic must have
10 told Sljivancanin of the order. So I think the logical implication, at
11 least to an outside reader, is that Panic was there and that's something
12 that Panic himself could well recognise if somebody picked up that
13 judgement and read it about themselves they would say, "Well, you know,
14 I'm also part of that discussion about an illegal order."
15 I'll move now to my third reason as to why you shouldn't believe
16 Panic, and that is that his evidence is implausible in light of JNA
17 military doctrine. Now, this Chamber has not had the same opportunity as
18 the Trial Chamber did to observe Panic testifying for four days, but even
19 from the comparatively brief evidence that he gave in June of this year,
20 in the pre-review hearing, it's clear that he's not telling the truth.
21 Now, we have to remember a few things. First, on the 20th of November
22 Panic was the Chief of Staff and he'd already played a significant role
23 regarding the prisoners that day, being the conveyor of Mrksic's order to
24 the government meeting, and he knew about the precariousness of their
25 situation. The next day, the 21st of November, he took over from Mrksic
1 as acting commander. His testimony that he wasn't aware of the
2 withdrawal order during this whole period, from the evening of the 20th
3 of November and then throughout the remaining four days that he and the
4 Guards stayed in Vukovar, simply defies military doctrine. Because to
5 believe Panic would mean that three core principles of military
6 doctrine - and I'm talking about singleness of authority and unity of
7 command and situational awareness, the duty to be situationally
8 aware - that these core principles had completely broken down in this
9 highly disciplined and elite unit of the JNA.
10 Now, firstly Panic's evidence when he says he didn't know of the
11 withdrawal order that evening, this defies military doctrine. And we say
12 this, first, because he was the Chief of Staff and we've heard today and
13 in the report that under the JNA armed forces military doctrine, that
14 person, the Chief of Staff, plays a central role in the commander's work.
15 He's the principal advisor to the commander, he's the deputy, he's got to
16 be there waiting -- able, I should say, to take over if something bad
17 happens to the commander. He works closely with him to formulate orders
18 and decisions and implement them. It's almost -- these are my words, not
19 the expert's, but it's almost a symbiotic working relationship. And
20 Panic wasn't in disagreement about this. Panic agreed that the Chief of
21 Staff plays a big role, a very important role, a very close role with the
23 But apart from being just the Chief of Staff, if I can say that,
24 we have to consider his role that day and his awareness of the prisoners'
25 situation. Because here we have not just a Chief of Staff but one who
1 was highly engaged in his commander's activities on the 20th of November
2 concerning the prisoners. Now, don't forget, Mrksic had sent Panic to be
3 his representative to the government meeting. So he trusted Panic to go
4 and convey his agreement with the government's decision to take over the
5 prisoners. They spoke before Panic went to the meeting, they spoke after
6 he got out of the meeting, Panic all the while keeping Mrksic updated
7 about basically what was going on with the prisoners and the government's
8 decision. And then he goes off to Ovcara so he can go and make a report
9 to Mrksic. They're actively involved together about the prisoners at
10 this stage. And he went and told Mrksic what he'd seen, although he gave
11 a rather sanitised account about that.
12 The third fact that we have to bear in mind is that he was taking
13 over as acting commander the next day, and also considering the
14 importance of the decision to withdraw the security from Ovcara. And in
15 light of the time we will detail this more in our submissions, but
16 essentially it's simply not believable that Mrksic kept his Chief of
17 Staff out of the loop on this order.
18 Now, even more inconceivable, Your Honours, is his claim that he
19 did not learn of the withdrawal order or anything about its terrible
20 consequences until he returned to Belgrade several days later, four days
21 later. So the implication is that he thought that the prisoners of war
22 were at Ovcara being guarded by the 80th Brigade, if you accept his
23 version. Yet, despite taking over as acting commander on the 21st and
24 22nd of November, he failed to take any steps whatsoever to even acquaint
25 himself with their situation or take steps to follow up. And this has to
1 be seen -- questioned in light of his previous concern for the prisoners
2 the day before. And in our submission, the only reason for this
3 incoherence is that he knew the true state of affairs and was determined
4 to isolate himself as much as possible from it.
5 Now, I've mentioned from the 21st of November until Mrksic
6 returned on the 22nd of November, Panic was acting commander of the OG
7 South. And we heard today from Mr. Theunens that that position carries
8 with it the duty to keep aware of the situation in the units over which
9 he's commanding. He was obliged to seek out information about his units
10 and what they were doing. He was obliged to seek out information about
11 the prisoners under guard by the OG South units. And as Mr. Theunens
12 explained, this isn't like a passive duty where you sort of wait around
13 and hope the information sort of comes your way, it's not a passive duty;
14 it's a very active duty. He has to ensure a constant monitoring of data,
15 monitoring of the situation, so he can issue prompt decisions and orders
16 and so thereby make prompt and timely reports to his superiors.
17 So upon assuming command of OG South on the 21st, military
18 doctrine dictates that Panic should have kept himself apprised of the
19 situation. If he didn't get reports from the 80th, he was duty-bound to
20 go and get them, either personally or he could send somebody, especially
21 given his concerns the previous day. In our submission, the fact he did
22 nothing at all speaks volumes. And the reason why is that he knew the
23 true state of affairs and he was distancing himself from it.
24 Now, I want to turn to three I guess key reasons, the three main
25 reasons why -- which Panic gives as to why he did nothing to follow-up on
1 the prisoners, nothing, not a word about these prisoners that he's so
2 concerned with before. Each one of his explanations is -- so defies key
3 tenets of military doctrine that these lies should cause you to have
4 serious doubts about his credibility.
5 First, he suggested, and Judge Meron asked me -- Judge Meron
6 asked me to point to the transcript where Panic had said this. He
7 suggested -- well, he actually said it, that the 80th Motorised Brigade
8 had sole responsibility for the Ovcara area and had ceased to be the
9 subordinate to the OG South by the 21st of November. This is completely
10 false and it runs directly counter to the principle of single authority
11 and unity of command. What he's trying to imply is that from the
12 20th/21st of November, the 80th already had sole responsibility for
13 Ovcara, even though the Trial Chamber itself already found that the OG
14 South was -- retained responsibility for all subordinate units within its
15 zone including the 80th until the 23rd of November. These are the
16 Trial Chamber's findings at 82 and 253.
17 Now, it's true, the 80th Brigade was going to take over when the
18 Guards departed, but until that - and we heard this today from
19 Mr. Theunens and it's very much part of his report - according to that
20 principle of single authority and unity of command, only one unit can be
21 in charge at one time and that was OG South. So while the preparations
22 for the take-over by the 80th of the OG South zone was a gradual process
23 and taking place over several days, the actual transfer of authority took
24 place at a specific moment in time and that was after the 23rd of
25 November, 6.00 p.m., and before 24th of November when they left. And
1 until that point the OG South commander retains responsibility, overall
2 responsibility, for the situation in that zone of responsibility. And we
3 can see this clearly from the orders that were issued by both Mrksic and
4 Panic to the 80th Motorised Brigade in the period 21 to 23 November.
5 These are Exhibits 422 and 424. If the 80th were not still being
6 subordinate, were not then subordinate to the OG South, why are they
7 being issued orders.
8 The second reason -- I'm sorry, I realised, Your Honours, that
9 I'm actually now at the 30 minutes. If I could ask for your indulgence,
10 I should be able to complete my submissions in about five more minutes,
11 seven minutes maximum.
12 The second reason Mr. Panic gave why he showed no concern, no
13 follow-up to the prisoners when he was acting commander is he says in
14 effect that he was command in a formal sense only. And by this I mean --
15 we refer to his testimony at the pre-review hearing, page 71, you will
16 recall he said this:
17 "Mrksic was still alive. He was right there. He had
18 communications equipment and was soon back from Belgrade."
19 And he also left open the possibility and it was explored today
20 in questioning of Mr. Theunens, not with much effect I would add, but
21 that he claimed he didn't communicate with the 80th command on the
22 morning of the 21st, but he suggested that Mrksic may have. He said
23 "perhaps by phone," and that's at page 71.
24 Well, we heard what Mr. Theunens said about that in answer to
25 Judge Pocar's question, that essentially if Mrksic had rung up and told
1 an operations officer, the operations officer would have gone to
2 Mr. Panic who was then acting commander, otherwise there's complete chaos
3 and that's the whole idea of singleness of authority and unity of
5 Basically, this is another example of Panic misleading this
6 Chamber. It defies core -- you know, this core principle of single
7 authority to suggest that he was not fully in command that day, but
8 somehow Mrksic was pulling the strings from outside and actively
9 commanding and receiving operational reports to Panic's exclusion. Well,
10 if that in itself contradicts Exhibit 368, which is the regular combat
11 report which he signed which he sent to his superiors in the 1 MD, signed
12 as acting commander on the 21st of November at 6.00 p.m., where he's
13 covering all the situational developments in the preceding 24 hours.
14 The last explanation Mr. Panic gave for why he wouldn't have
15 followed up with the prisoners is that basically he said he was too busy
16 attending to other tasks, all these other things that he had that day,
17 like the press conference, the return of the Guards to Belgrade, and
18 taking care of civilian convoys. This is an astonishing statement. It
19 runs completely counter to his duty as acting commander to remain aware
20 of what the units under his command are doing, not to mention prisoners
21 of war who were being guarded by them. And as Mr. Theunens has
22 explained, the number and nature of tasks that a commander has at any one
23 given time doesn't impact on the duties that he has under this SFRY or
24 armed forces doctrine, very basic points of military doctrine. He has to
25 keep aware of the situation of his units and the prisoners of war, not
1 just so he knows what to do himself but he's also got this obligation
2 going up to his superiors. So he can't just say, "Oh, well, you know, I
3 was too busy." If need be, he's got to prioritise, he's got to delegate
4 his tasks. In our submission, if he was truly so preoccupied with other
5 tasks, this was a deliberate choice by him to remain purposely ignorant.
6 One final remark, Your Honours, before I conclude. When you come
7 to assess Panic's credibility, I ask you to look closely at Exhibit 368,
8 this report that he signed as acting commander and sent to his superiors
9 at 6.00 p.m. on the 21st of November. And don't forget what this is,
10 it's a report to his superiors about the preceding 24 hours in Vukovar.
11 So by necessity it should have mentioned the main activities in that
12 period by OG South units, which would, by necessity, include information
13 about 200 prisoners of war that they'd got and, you know, the fact that
14 the 80th Motorised Brigade was with them. Well, what does it record
15 about those topics when we have a look at that report? Nothing.
16 Absolutely nothing. It does mention the transfer of the civilians and it
17 does mention the transfer of the wounded and the sick in the previous 24
18 hours, but absolutely no mention at all of the transfer of 200 prisoners
19 of war to the government or even -- or to Ovcara. They have simply
20 vanished, vanished from the radar, not in his report.
21 The exclusion of any information whatsoever about the prisoners
22 from this 21st of November report was Panic's deliberate attempt to
23 isolate himself from the situation at Ovcara, just as he has done
24 whenever he testifies about these matters including in these review
1 In conclusion, Your Honours, Panic cannot be believed about the
2 conversation. On this issue his self-interest and his bias is palpable.
3 His professed ignorance of the withdrawal order that evening and the
4 following four days, despite being Chief of Staff, despite being acting
5 commander, is implausible in light of military doctrine and the
6 operational context. That being so, his testimony, what he's told you
7 about the conversation between Mrksic and Sljivancanin, has no impact on
8 Sljivancanin's conviction.
9 And those conclude my submissions. I'm happy to answer any
11 JUDGE MERON: Thank you, Ms. Brady. I note that you use now in
12 concluding the word "implausible" which appeared throughout the report of
13 your expert. At one point today at least you upgraded that word a little
14 bit to "inconceivable." I did ask Mr. Theunens whether implausible means
15 impossible and you know that he was not prepared to make a commitment on
16 that. And things happen in the fog of war and we must be very careful
17 about very serious matters like that.
18 MS. BRADY: Yes.
19 JUDGE MERON: And you rightly pointed out that the question of
20 credibility of Colonel Panic is very central to this review. And I trust
21 that in your summary submissions you will identify -- try to identify any
22 discrepancies between Mr. -- Colonel Panic's testimony and prior
23 statements or anything else relevant to the question of his credibility
24 and of course Mr. Bourgon will have six days after that so he will have
25 ample time and space to answer this.
1 Do I see any questions? I do not.
2 So we will now move -- I'm terribly sorry.
3 Judge Vaz.
4 JUDGE VAZ: [Interpretation] Thank you, Mr. President. I would
5 like to ask Ms. Brady the following. Is it really possible for someone
6 who is not prosecuted by the Prosecutor, someone like Mr. Panic -- just
7 the fact of coming to testify in favour of someone, here it's
8 Mr. Sljivancanin. Does this mean that he absolutely has to defend him in
9 order to protect himself? Is it automatic according to you or do you
10 think that someone can just -- can't someone just come to say the truth
11 must be told and I will testify to the truth without trying to protect
12 this person, especially since this person is not being prosecuted at the
14 MS. BRADY: Yes. You're quite right, Your Honour. It is
15 possible someone could come and say, "Well, no, I want to have the truth
16 be told and this is what it is" without himself being guilty -- without
17 himself actually being guilt. But in our submission if you put all the
18 facts that we've outlined, and our submissions will make it clearer,
19 together you get a picture, and taking into account the Trial Chamber 's
20 findings about his credibility where they treated it with rather a large
21 grain of salt, we are submitting that you should also treat his evidence
22 with a large grain of salt that, yes, somebody could come along and just
23 tell the truth. You don't mean to say you're biassed for that person or
24 you're protecting yourself, but in light of all the facts, in light of
25 the military doctrine which was sort of out the window completely, thrown
1 out the window, none of this was working that day, frankly when you add
2 up all these details it does not add up in our submission. And the real
3 reason why he came to give evidence is a combination of self-interest.
4 Yes, I know he wasn't actually prosecuted, but that doesn't mean that
5 he's not potentially in a difficult situation, in a tight situation,
6 himself in other countries or in other jurisdictions.
7 He doesn't have to be an accused himself to have self-interest.
8 In our submission, he's so close to these events and that in itself would
9 cause you to have a serious doubt when seen in light of everything else
10 that he's testified about. And the clear three lies, the foundational
11 lies that I've pointed out to -- I think in my submission establish that.
13 JUDGE MERON: I believe that Judge Pocar has a follow-up
15 JUDGE POCAR: [Microphone not activated]
16 I was just wondering whether it is your position -- we heard that
17 Panic spontaneously went, if I'm correct, to the Defence team after he
18 heard that Sljivancanin had been convicted. Is that correct? My
19 recollection is correct?
20 MS. BRADY: Yes.
21 JUDGE POCAR: Now, is that your point that he did so because the
22 judgement of the Trial Chamber as referred to by the Appeals Chamber
23 mentioned that -- or claim to the conclusion that Mrksic told or must
24 have told Sljivancanin during that conversation to which Panic was
25 present, was attending that conversation. So if Mrksic had told
1 Sljivancanin on that occasion that the order had been given, Panic would
2 have heard of the order because he was present.
3 So he -- it's your point that for your position that he came up
4 with the -- to the Defence trying to protect himself against a possible
5 prosecution based on the fact that it was -- that he knew of the order
6 according to the conclusions of the Appeals Chamber?
7 MS. BRADY: Well --
8 JUDGE POCAR: Of course you mentioned yourself he would not be
9 subject to any prosecution before this Tribunal.
10 MS. BRADY: Right.
11 JUDGE POCAR: Because the prosecutions are closed here.
12 MS. BRADY: Right, right but they --
13 JUDGE POCAR: But he may be before a domestic court.
14 MS. BRADY: But Your Honours --
15 JUDGE POCAR: I was wondering if it was your point.
16 MS. BRADY: Well, firstly I think you need to say that it's not
17 just a question of is he going to be prosecuted, but also how it looks to
18 the outside world when this finding is left hanging, as it were, in the
19 appeals judgement. So when he finds out -- he told us that when he found
20 out that Sljivancanin was convicted he said, "Oh, you know, what's the
21 basis?" And we recall that he asked his daughter to help him with the
22 translation and he quickly looked at that. It's very difficult. I would
23 be in the land of speculation if I said, "Well, it's definitely for this
24 reason that he got up out of his house and charged over and contacted
25 Mr. Lukic." Of course we can't say that, but what we can say is that he
1 has several very powerful incentives to come up with this story, to help
2 Sljivancanin, to continue to protect the Guards Brigade, to protect
3 himself. Any one or more the combination of those reasons could have led
4 him to finally decide: Yes, great, I'm going to go and contact
5 Mr. Lukic. But apart from that, I would be speculating, Your Honours.
6 JUDGE MERON: Well, thank you. I think that we will now move on
7 to Mr. Bourgon for 30 minutes.
8 MR. BOURGON: Mr. President, honourable Judges, as I begin this
9 oral submission which is so important for Mr. Sljivancanin, I will begin
10 simply by recalling why is it that we are here today. In other words, we
11 need to remind ourselves of the exceptional circumstances of this case.
12 What are the exceptional circumstances of this case? Well, you have an
13 officer who has been convicted for aiding and abetting by omission a
14 number of prisoners of war which is a very severe conviction. The
15 gravity can certainly not be undermined.
16 But how did this conviction come about? This conviction come
17 about of something that was not anticipated initially, whether at trial
18 or even on appeal. It wasn't even a ground of appeal. It did become a
19 ground of appeal or not a ground of appeal -- it did draw the interests
20 of the Appeals Chamber in extremis, on the basis of what the Appeals
21 Chamber found in paragraph 62 of its judgement. And what did the Appeals
22 Chamber find? They say the only possible conclusion or reasonable
23 conclusion is that Mrksic must have told Sljivancanin that he had
24 withdrawn the military police. And on this basis, this provided
25 Sljivancanin with the necessary mens rea for aiding and abetting by
1 omission and he was convicted.
2 The issue here is that as soon as this conviction became public
3 knowledge someone who was present during that specific conversation, a
4 senior officer of the JNA, and this senior officer, a former very
5 high-level commander, he said, "I was there. I know that Mrksic did not
6 say that. And I must do something about it."
7 Now, Mr. Theunens today did not want to agree with me that any
8 senior officer would want to do that if he knows the truth. That's okay.
9 You saw -- you saw Mr. Theunens how he reacted to my question and how
10 defensive he was in trying to avoid answering the plain truth. Because
11 of course I look at it from the opposite point of view as opposed to the
12 Prosecution. They look at it from the point of view he came forward to
13 protect himself. I submit to you, Mr. President, that he came to you to
14 prevent an injustice. And that's the whole difference, complete
15 difference, between the two positions. And this is the crux of the
16 matter in this case.
17 Everyone knew that Panic was there during that conversation.
18 That was established by the Trial Chamber. The Appeals Chamber also
19 referred to the Trial Chamber's conclusion in saying that Panic was
20 there. But it was established in your decision, Mr. President, on 14
21 July that the fact that Panic heard this conversation and the fact that
22 during this conversation Mrksic did not say that he had withdrawn the
23 military police, that this was something new, that this was a new fact
24 that could reverse the judgement. From that point on, all of our
25 attention must be directed to one thing: Did Panic hear the conversation
1 and did Mrksic say whether there was -- whether he had withdrawn the MPs.
2 The Prosecution's position, they have not one iota of evidence in
3 addition to what was already considered by the Trial Chamber and what was
4 reviewed by the Appeals Chamber to say that Mrksic did say that he had
5 withdrawn the military police during this conversation. So they say then
6 we have no evidence. Panic must be a liar. That's all they got.
7 I agree with you, Mr. President, it is a central issue, but
8 before we go and we think and we make the step of thinking that someone
9 can simply to avoid an absolutely hypothetical prosecution, hypothetical
10 problems, to come and put himself before this Tribunal -- and having been
11 there he testified here before, he worked before with all -- with the
12 Defence team of Mrksic, he worked before with the Defence team of
13 Sljivancanin, he gave a statement to the Prosecution, he testified here
14 for four days, he was examined, cross-examined by three different
15 parties, asked questions to the Judges. Even if someone did not have
16 anything to hide, they would say: I'm not going to go back there again.
17 But him, yes, he will go back there.
18 So the key question with respect to the credibility is exactly
19 this: Did he try to protect himself? Did he do this in order to shield
20 some possible responsibility? And my question -- my response to this
21 answer is a clear no.
22 Now, we look at the conversation itself and that's what we have
23 to focus on. The conversation itself, we say how could the Prosecution
24 say or show that what Panic says is not true? Well, there are many
25 things which the Prosecution could have done to find evidence. What is
1 more, they did it. We all know that they investigated this case to the
2 limit. When the Prosecution filed its motion for extension of time, that
3 was I believe on 22 July, they said, "Well, we looked at Panic's
4 testimony and we have lots of witnesses that we identified that we want
5 to speak to. And we also have filed a request for assistance to this
6 government and a request for assistance to that government. It is
7 evident that they were going out of their way to find something in order
8 to show that this was not the truth. What'd they come up with? An
9 expert witness who says that because SFRY doctrine was not applied, Panic
10 is a liar. Of course it's a bit of a jump what I'm saying here, but it
11 remains the fact. All they can come up with is an expert witness who's
12 going to say SFRY doctrine was not applied, so these actions are not
14 But the Trial Chamber looked at the doctrine, had the opportunity
15 of hearing expert witnesses on the doctrine, and they made some pretty
16 good findings on the doctrine, saying the doctrine was not being applied
17 consistently, the doctrine was not being adhered to. But not only in the
18 creation of Operational Group South but also in the chain of command. So
19 now we have to look again. I look at Mrksic because the expert says and
20 I guess the Prosecution would like us to believe that, that Mrksic --
21 it's not possible that Mrksic did not give the order without telling
22 Panic. Okay. Well, let's look at that. Of course the expert will never
23 want to say that there are such possibilities. But when a man commits a
24 crime - and that's what Mrksic did at that time, he was committing a
25 crime. So he's committing a crime and this expert who's never been to
1 war, who's never been a Chief of Staff, who's never been into any
2 operational environment, is going to go on and say: Oh, yes, he had to
3 tell the Chief of Staff, of course. Mr. President, we can't bring any
4 weight to such statement. He didn't even want to put his money where his
5 mouth is, as we say, and say that it's impossible. He agrees that it was
7 Let's take a look, Mr. President, at what the Prosecution could
8 have done and most likely did in order to look for evidence. Because if
9 Panic lied about the conversation, there are many people who could have
10 been interviewed again to give us some idea that Panic knew of the order
11 in the evening of 20 November 1991 and there is also a number of people
12 who could have been interviewed to know that during the period from 21
13 November until 24 November, Panic somehow did get the information that a
14 crime had been committed. And if he did, that's why he obtained
15 information on the 23rd that may possibly bring his liability, so he's
16 going to lie about a conversation in the evening of 20 November. He will
17 take the risk to come here, to get into this environment, and to testify
18 that it was not mentioned in the evening of 20 November because he wants
19 to avoid the fact and hide the fact that he learned later on.
20 The Prosecution could have interviewed the persons in the command
21 of Operational Group South. They must have done it. No evidence. The
22 Prosecution could have interviewed witnesses who were with Panic during
23 those days. They must have done it. No evidence. Not one who can come
24 and say: I know that Panic was aware, not one. That's the key,
25 Mr. President. They could have interviewed witnesses who were present at
1 any event attended by Panic to find someone who could say that he was
2 made aware. Now, this applies to witnesses who already testified and it
3 applies to new witnesses, and new witnesses would have been admitted at
4 this hearing to come and say that Panic was aware, that Panic really did
5 not do something knowing that this was the case. Nope, nothing, not one.
6 But I'm sure that the Office of the Prosecution did investigate.
7 Let's take one example, Mr. President. There was - and I'm
8 looking now to 21 November because the Prosecution focused most of its
9 cross-examination -- of its examination-in-chief today to the 21 of
10 November, that appears to be their -- main thrust of their theory, that
11 he learned later on and because of that he comes and lies about the 20th
12 because he learned on the 22nd.
13 On the 21st Panic was at a press briefing. There were at this
14 press briefing, according to the evidence we have, 120 or more people
15 from the media, both national and international. If there had been
16 rumours about what happened to the prisoners, one of these people from
17 the media would have picked that up. If it was so much known, it would
18 have been picked up somehow by somebody. No. The only people who talked
19 about this order are those who were involved. The evidence in this case
20 shows, if you look at the evidence, you have the colonel of 80th
21 Motorised Brigade, he was giving the order; you have Karanfilov, he
22 denied receiving the order; you have Vukosavljevic, he was given the
23 order to transmit; you have Vezmarovic, he was the guy who executed the
24 order; and you have P14, the guy who was right beside Ovcara, less than
25 200 metres away and who discusses the issue with Mrksic; you also have
1 the Chief of Staff of 80th Motorised Brigade, Danilovic, he testified, he
2 was cross-examined. Those people became in possession of the order but
3 no one else. There's a reason for that. There's a reason why Mrksic did
4 not tell Panic. There's a reason why Vojnovic did not tell anybody. And
5 there's a reason why it did not get out of this close circle. And
6 there's no evidence that this information ever reached Miodrag Panic.
7 That's the key to this information.
8 Let us look at what the expert said today because we think that
9 this is nothing but relitigation. That's been our view. We put it on
10 paper and we say it again today.
11 The expert, I asked him a few questions about the evidence; he
12 wasn't even aware of it. Some key findings quite closely related to the
13 issue at hand, he did not look. Of course he looked at the paragraphs
14 that the Prosecution gave him. That's normal. He's a former OTP
15 Prosecutor -- or Prosecutor is not the right word but analyst working for
16 the Prosecution. If we think of bias in this case, Mr. President, it's
17 certainly not Panic who's biassed; it's this guy who comes and sits here
18 and plays the game with the Prosecution. At least if they could bring
19 forward a real general, someone who's been there. They must have found
20 one -- I mean, I know it's different, I have access to lots of those
21 before somebody says that, but they could have brought a real general,
22 they could have brought somebody with operational experience.
23 The way he answered the question to Judge Pocar -- I mean, I'm
24 not going to take the time to get -- to lead further evidence to show
25 that it's simply not correct, but I will argue to you that it is simply
1 not correct. It is not true that the commander of the 80th Brigade
2 getting an order from Mrksic who is in Belgrade is going to say, well,
3 comrade Mrksic wait a minute, I need to check with Panic before I take
4 your order. This is simply not the way it works. Where does this guy
5 come from? I don't know. And when a question is put to him, what's more
6 important? Is it more important to look at the prisoners or to look at
7 other operational requirements? How could he ever know? He's never been
8 a Chief of Staff. The book will not be of any assistance in saying that.
9 He might have conducted interviews with generals. I too. Could I give
10 you a real solid opinion as to what is the choice to be made by someone
11 in such difficult circumstances? I could not. And I put it to you that
12 he cannot either and which shows that everything that he said must be
13 completely disregarded because that's not the issue. The issue in this
14 case is the evidence and nothing but the evidence.
15 But the fact that the Prosecution -- sorry, the Trial Chamber has
16 looked at all these events. When I look at the evidence I say: Okay,
17 let's see what we got to show that Panic was aware before the
18 conversation, before the conversation. I asked this -- the expert,
19 Mr. Theunens, I asked him -- of course you know that it was not mentioned
20 at the briefing. Now, is it the Prosecution's case that it was? Well,
21 then we have to relitigate and call all these witnesses again. We'll
22 have to call Gluscevic, Lesanovic, Trifunovic, who else? Because it's
23 clear from the evidence that this was never mentioned at the judgement --
24 sorry, at the daily briefing.
25 If it's not mentioned at the daily briefing, what possibility --
1 what timing is left between the daily briefing and the conversation with
2 Sljivancanin? Very little time. What happens during that very little
3 time? Well, we know that during that time Mrksic has the conversation
4 with Vojnovic and with Vukosavljevic and that this conversation takes
5 place outside. Was Panic privy to that conversation in any way based on
6 the evidence? No. Did the Prosecution bring a witness to say that Panic
7 was close to that conversation? No. Why did the Prosecution not call
8 Vojnovic back here? He's the one who failed to report the order. He's
9 the one who did -- executed an illegal order. He's the one who told the
10 next day according to the evidence he told all his officers: Make sure
11 you tell everybody that this shall not happen again. He's the one who
12 told P14, and he was surprised when P14 told him the people -- there are
13 rumours -- that there are rumours that the prisoners were murdered. And
14 this guy, he should be here to testify and to tell the Appeals Chamber:
15 I know that Panic knows, but he's not here to do that. Why did they not
16 call him back? Why not call back Vukosavljevic and see maybe Panic heard
17 or he was at the end of the room. The reason is simple: They're not
18 coming because Panic was not aware of that conversation. Not only it's
19 not in the evidence, they can't find more evidence that it was.
20 So now we're in the middle of the conversation. We covered
21 before because Panic said that he did not see Karanfilov at the command
22 and the Prosecution did nothing about that. And then we say the daily
23 briefing, that's covered. The period between the daily briefing and the
24 conversation, that's covered. The conversation itself, we have no other
25 evidence. We are left with nothing, Mr. President. We're left with
1 simply the Prosecution's theory that someone lied because he learned
2 later -- because he must have learned. The stakes are too high to jump
3 into that -- to make that jump, way too high. What matters is the
4 evidence, not whether doctrine was applied. Because -- especially about
5 the doctrine, it's important to recall that when this -- the expert -- he
6 says Mrksic should have told Panic. Panic says yes. He says Panic
7 should have reacted when he was told. Panic says: If I had been told I
8 would have reacted. So where is the line?
9 The Prosecution would like to give you three examples where
10 apparently Panic misled or misguided or lied before the Trial Chamber.
11 Well, there's two issues here: One, all those three issues that they
12 relate to have nothing to do with responsibility, but I don't have time
13 to do this right now. This will be later. But the key issue - and I
14 was -- I did not know that Mr. Theunens was present when Mr. Panic was
15 interviewed. Now we know, he was there. At trial in his statement and
16 at trial Panic said: I don't know who issued the order. I know Mrksic,
17 he's not the type to issue such an order, but it can only come from the
18 commander. Biassed you say? He got his commander convicted and he's
19 biassed? Biassed for Sljivancanin? Where's the evidence? Where's the
20 evidence that he biassed? There's no bias here. He convicted the
21 commander of the Operational Group South. Can you imagine how difficult
22 that must have been for Mr. Panic to do that. And he said no order. And
23 the Prosecution, they took this information, they liked what he said
24 because he said that it can only come from Mrksic, so they grabbed the
25 ball and they ran with the ball and they ran as quick as they can -- as
1 they could and they got a conviction against Mrksic. You want to
2 challenge Panic? Hey listen, it's not possible that you did not know
3 that. Come on. Don't pull a fast one like us. We're going to look like
4 fools in the evidence if you say that. Don't do that to us. That's not
5 possible. I mean, Theunens was there, that was the time to say:
6 Mr. Panic, you're the Chief of Staff, it's not possible that you don't
7 know. Did he say that? Did the Prosecution do anything at that time?
8 No. But now, oh, now it's different. Now it's different because he's
9 saying the truth again but this time they don't like it because they
10 might have a conviction overturned. So suddenly Panic becomes not
11 credible and they will do everything to ensure that the world knows that
12 Panic is a bad officer. Well, I hope, Mr. President, that this will not
13 be the case in whatever judgement you render about the qualities of Panic
14 who came here to testify.
15 I have four minutes left. I will do one more -- one last thing I
16 wish to say and that's the following, which is of course -- again I come
17 back to the conversation because we really believe that this is the crux
18 of the matter, not after, not before, it's the conversation. We already
19 said if Mrksic is committing a criminal act he's not likely to tell
20 Sljivancanin. I mean, this theme of being scared of security officers is
21 a recurring theme in many trials before this Tribunal. Now, the expert
22 would like you -- would like you to believe that because of Article 36 of
23 the Law on the Applicability of International Laws of War, because under
24 law I commit a crime and I'm going to turn myself in, I'm going to tell
25 Sljivancanin I committed a crime. And then, Mr. President, the same goes
1 for Karanfilov. Why would Mrksic tell Sljivancanin, oh, by the way,
2 Sljivancanin I told Karanfilov to remove the MPs. It makes no sense.
3 And my last thing, Mr. President, is you've seen Panic testify.
4 He's not the type of guy, unlike my friend Sljivancanin who likes the
5 media and who likes the highlight, and who's paying a big price because
6 he liked the media in 1991. You saw Panic, very reserved, you saw his
7 character, you saw how he testified, you saw him respond to your
8 questions. And on all the -- on the basis of what you saw and on the
9 basis of the evidence on the record and on the basis of the fact that
10 there is no additional evidence pointing to the contrary, we respectfully
11 ask you, Mr. President, to recognise that what Panic came to say before
12 this Tribunal has been proved and accordingly that the conviction of
13 Sljivancanin for aiding and abetting murder by omission must be
15 Thank you, Mr. President.
16 JUDGE MERON: Thank you, Mr. Bourgon.
17 These proceedings are now coming to a close. I remind the
18 parties that pursuant to our order entitled: "Decision of the Admission
19 of Evidence and Scheduling Order," the parties are ordered to file
20 written submissions following today's hearing. The Prosecution has been
21 granted seven days following the review hearing to file its submission.
22 And counsel for Mr. Sljivancanin will then have seven days from the date
23 of the Prosecution's filing to respond.
24 [Appeals Chamber confers]
25 JUDGE MERON: The Prosecution is then given a further four days
1 from the date of Mr. Sljivancanin's filing to reply. Before concluding,
2 I want to consult the Bench about something, so you will bear with me a
4 MR. BOURGON: Mr. President.
5 JUDGE MERON: Yes.
6 MR. BOURGON: I'm not sure what you are about to consult about --
7 JUDGE MERON: Not about -- please give me a second.
8 MR. BOURGON: I wanted to ask you maybe -- because we are -- we
9 would like to address you concerning a number of pages in those
10 submissions. Thank you, Mr. President.
11 [Appeals Chamber confers]
12 JUDGE MERON: Back to you, Mr. Bourgon. I did not forget you.
13 You want to make a statement or say something about the number of pages?
14 MR. BOURGON: Indeed, Mr. President.
15 JUDGE MERON: You -- the norm is 3.000 normally in these things,
16 isn't it?
17 MR. BOURGON: That would be perfectly fine with us,
18 Mr. President.
19 JUDGE MERON: So this resolves the problem.
20 Is this a problem for you?
21 MS. BRADY: It is a problem for us.
22 JUDGE MERON: It is a problem?
23 MS. BRADY: It is a problem because we need more words than 3.000
24 to put all the evidence to make all the links. It's a complicated
1 JUDGE MERON: So what do you need, Ms. Brady.
2 MS. BRADY: We would be asking for 15.000 words.
3 JUDGE MERON: No, that does not sound --
4 MS. BRADY: That's approximately --
5 JUDGE MERON: That does not sound reasonable.
6 MS. BRADY: -- 35 pages.
7 JUDGE MERON: 15.000 instead of 3.000?
8 MS. BRADY: Your Honour, there's a number of different matters we
9 have to go into and we have exhibits. We want to show you precisely
10 where the inconsistencies where occurred. I mean, I'm in your hands,
11 Your Honours, but we certainly need more than 3.000.
12 JUDGE MERON: Let me first hear what Mr. Bourgon has to say about
14 MR. BOURGON: Thank you, Mr. President. There are two issues
15 here on behalf of the applicant. The first issue of course is that this
16 is -- we are now briefing in writing after oral arguments. So everything
17 has been heard already. We -- parties should be able to summarise their
18 arguments, and for us a 3.000-word limit is perfectly fine.
19 The second issue, Mr. President, is one of time and resources.
20 Both Mr. Lukic and myself, we are both on other cases and we do not have
21 the resources that are available to the Office of the Prosecution,
22 whether in time or real resources. We would like and we believe that it
23 is sufficient to maintain the 3.000 words. Thank you, Mr. President.
24 JUDGE MERON: Thank you.
25 I will consult my colleagues -- yes, Ms. Brady.
1 MS. BRADY: If I could just make one further comment on the word
2 limit. Because 3.000 words, Your Honours, applies to motions. And here
3 we're talking about something far more complicated. It's a review of an
4 appeals judgement. Too much -- as my friend has said, too much rides on
5 it to say, you know, put it in 3.000 words. That's ten pages,
6 Your Honours.
7 JUDGE MERON: Thank you. I will consult my colleagues and try to
8 issue a ruling right away.
9 [Appeals Chamber confers]
10 JUDGE MERON: Okay. The Bench will now rule with its own
11 symbiotic judgement which is 4.000 words. Now, before concluding I would
12 like to ask whether Mr. Sljivancanin would like to make a five-minute
13 statement. It's -- you're certainly not obliged to do it,
14 Major Sljivancanin. It's up to you.
15 MR. SLJIVANCANIN: [Interpretation] Mr. President, Your Honours,
16 ladies and gentlemen of the courtroom, I have spoken a lot in this trial.
17 There has been no session when I didn't speak. I have come here to speak
18 the truth and for nine days I have been examined by various Prosecutors
19 and I have spoken the truth. I'm worried by the fact that honourable
20 people are being attacked. Mr. Panic has never been a friend of mine and
21 he associated more with other people than me. I'm sure that he spoke the
22 truth and nothing but the truth, and I'm sorry for all the victims and
23 I'm sorry that I lost my country which was Yugoslavia and that people had
24 to die in those wars. I'm having a difficult time and I -- but I'm sure
25 that the Judges will pass a -- the correct decision on behalf of all the
1 future generations and for all the people who stand for truth and
2 justice. Thank you.
3 JUDGE MERON: Thank you, Major Sljivancanin. You may sit down.
4 [Appeals Chamber confers]
5 JUDGE MERON: I have consulted the Bench on another aspect. I
6 think that in my sort of conclusions I have suggested that the
7 Prosecution would go first. I think it's more correct that
8 Mr. Sljivancanin, who has submitted the appeal, should go first with the
9 4.000 words and be replied by the Prosecution. And I think that this
10 will be it.
11 Is there any problem with that?
12 [Overlapping speakers]
13 MS. BRADY: Who wants to go first?
14 We have no problem with that change of order. It makes sense to
15 us to put it in that order, given that the Defence bears the burden of
16 showing how the new fact impacts on the conviction, so we would be happy
17 with that.
18 MR. BOURGON: No difficulty, Mr. President.
19 JUDGE MERON: Very good.
20 MR. BOURGON: It is -- we're the applicant. As long as we get to
21 reply to reply. Thank you, Mr. President.
22 [Appeals Chamber and Legal Officer confer]
23 JUDGE MERON: I draw the attention of the parties that in the
24 ruling that we now gave about the 4.000 and the order of submissions and
25 this being it, basically we have somewhat diverted from the written
1 order, Scheduling Order we have issued, but we think that in the
2 circumstances of this rather exceptional case on review this may be a
3 simpler way of proceeding. And I see no objections, and so it will be.
4 So if I hear no additional comments from the parties or from my
5 colleagues, the Court will now rise and we will await your submissions
6 and work diligently on our decision. Thank you.
7 --- Whereupon the Review Hearing
8 adjourned at 7.15 p.m.