1 Tuesday, 17 May 2005
2 [Open session]
3 --- Upon commencing at 9.06 a.m.
4 [The accused entered court].
5 JUDGE AGIUS: So could you call the case, please, Madam Registrar?
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-03-68-T, the Prosecutor versus Naser Oric.
8 JUDGE AGIUS: I thank you. Mr. Oric, can you follow the
9 proceedings in your own language?
10 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies
11 and gentlemen. Yes, I can.
12 JUDGE AGIUS: I thank you.
13 Appearances for the Prosecution?
14 MR. WUBBEN: Good morning, Your Honours. My name is Jan Wubben,
15 lead counsel for the Prosecution. I'm here together with co-counsel, Ms.
16 Patricia Sellers, and our case manager, Mrs. Donnica Henry-Frijlink. And
17 also good morning to the Defence.
18 JUDGE AGIUS: Thank you and good morning to you and your team.
19 Madam Vidovic, appearances for the Defence.
20 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. I'm
21 Vasvija Vidovic. Together with Mr. John Jones I appear for Mr. Naser
22 Oric. We have with us our legal assistant, Ms. Adisa Mehic, and our
23 CaseMap manager, Mr. Geoff Roberts. Good morning also to my learned
24 friends from the OTP.
25 JUDGE AGIUS: Thank you and good morning to you and your team.
1 As you have -- may have noticed I thought may have -- you surely
2 noticed there is our colleague Judge Eser missing today. For justified
3 urgent personal reasons, he cannot be with us and he won't be with us
4 today and tomorrow, so we have had recourse to Rule 15 bis and it's
5 paragraph A which authorises the remaining judges of the Chamber to decide
6 that the hearing of the case could continue in the absence of that judge
7 for a period of not more than five working days. As you know, we are only
8 sitting today and tomorrow this week, so we decided to proceed,
9 particularly considering that this witness has already been here and sent
10 home around about Easter he was here, and in fact the first thing that I
11 will do is to explain to him and also apologise to him.
12 So any preliminaries? Apart from the fact that you hope you have
13 not forgotten that we have a meeting in my room at 10.30?
14 MR. WUBBEN: No preliminaries.
15 JUDGE AGIUS: All right.
16 MS. VIDOVIC: [Interpretation] None, Your Honour.
17 JUDGE AGIUS: So let's bring the witness in, and as I made it
18 clear last Thursday, you've got today and not more than today, and Defence
19 has got tomorrow and not more than tomorrow.
20 [The witness entered court]
21 JUDGE AGIUS: Good morning to you, Professor Brkic. And welcome
22 to this Tribunal. As you may have noticed I'm speaking in English and
23 what I am saying and what others will be saying in English will be
24 translated to you by our very able interpreters into your own language. I
25 want to confirm therefore first and foremost that you are receiving
1 interpretation in your own language.
2 THE WITNESS: Okay.
3 JUDGE AGIUS: Yes. If at any time during the proceedings there is
4 faulty interpretation in the sense that it's not reaching you, or the
5 level -- sound level is uncomfortable, please let us know immediately and
6 we will address the problem and try to find a solution.
7 You are very soon going to start giving evidence. Our rules
8 require that before you do so, you enter a solemn declaration equivalent
9 to an oath in which you declare that -- solemnly, that in the course of
10 your testimony you will be speaking the truth, the whole truth and nothing
11 but the truth. Madam Usher is going to give you the text of the solemn
12 declaration. Please read it out aloud and that will be your solemn
13 declaration with us.
14 WITNESS: MUSIR BRKIC
15 [Witness answered through interpreter]
16 JUDGE AGIUS: Okay. I thank you. Please take a chair.
17 THE WITNESS: [Interpretation] Thank you.
18 JUDGE AGIUS: Ms. Sellers will go first for the Prosecution. The
19 examination-in-chief is expected to last the whole of today -- of this
20 session, of this sitting, and then tomorrow, she will be followed by Madam
21 Vidovic, who is lead counsel for Naser Oric.
22 Ms. Sellers.
23 MS. SELLERS: Good morning, Your Honours. I would like to inform
24 you of two things first of all --
25 JUDGE AGIUS: Before -- I apologise to you, Ms. Sellers.
1 Also, Professor Brkic, it's the first thing I wanted to tell you
2 as soon as you were seated but for a moment I forgot. You have been here
3 already waiting to testify around about our Easter. Unfortunately things
4 went wrong at that period of time. We had planned one thing, and you are
5 a lawyer, you know how things sometimes go a different direction, and
6 unfortunately we could not hear your testimony at the time when you had
7 taken the trouble to come over and make yourself available. I wish to
8 tell you how much we appreciate the fact that you have returned and how
9 sorry we are that we put you through all that inconvenience. On behalf of
10 my two colleagues, Judge Eser, who is not here today because of some
11 problems, and Judge Brydensholt from Denmark and on my own behalf and on
12 behalf of the Tribunal in general, I would like to apologise to you.
13 THE WITNESS: [Interpretation] No problem, Your Honour. Thank you.
14 JUDGE AGIUS: Yes, Ms. Sellers.
15 MS. SELLERS: Yes. Once again good morning, Your Honour.
16 I would like to state here in open court that we have informed the
17 Defence this morning that we would be using an additional exhibit P325, in
18 addition to that, that we would like to use something that has not been
19 marked as a Prosecution exhibit yet, and I've explained to the Defence
20 that unfortunately we do not have B/C/S translations. We will be handing
21 that out and I certainly will entertain any delay on the part of the
22 Defence in terms of using that document until they've had ample
23 opportunity, if needed, to study it.
24 JUDGE AGIUS: Yes. Will both documents be available on Sanction
25 for us, 315 in particular?
1 MS. SELLERS: Yes, they will, Your Honour.
2 JUDGE AGIUS: What's your position, Madam Vidovic?
3 MS. VIDOVIC: [Interpretation] Your Honour, I have accepted this
4 and Ms. Sellers and I indeed have an agreement for this document to be
5 delivered to us during the first break. In the English version, I believe
6 that the B/C/S copy will be made available in the course of the day so
7 that we can consult with our client and prepare for tomorrow.
8 JUDGE AGIUS: Okay. I thank you for your cooperation, Madam
10 MS. SELLERS: Thank you, Your Honour.
11 JUDGE AGIUS: Which I must say has never been faulty. It has
12 always been forthcoming and I can assure you if the day comes when your
13 client has to be sentenced, all these acts of cooperation will be taken
14 into consideration.
15 Examined by Ms. Sellers:
16 Q. Good morning, Mr. Brkic. Could you please, for the record, just
17 state your complete name.
18 A. Musir Brkic.
19 Q. Mr. Brkic, would you just confirm for the Trial Chamber that you
20 trained at the JNA military academy in Belgrade and graduated in July
22 A. From October 1966 until the 20th of July 1970, I completed a
23 four-year programme at the military academy, a programme for infantry.
24 Q. And also could you also confirm to the Trial Chamber that you're a
25 graduate of the faculty of law in Belgrade and what year you graduated?
1 A. I graduated from the General Dzemal Bijedic faculty of law in
2 Mostar in 1976. I had started my studies at the law school in Belgrade.
3 Q. And would you please also confirm that you were the deputy
4 military prosecutor of the 7th army in Sarajevo in the summer of 1981?
5 A. From July 1971 to midway through 1985, yes, I was the deputy
6 military prosecutor of the 7th army district of -- military district.
7 Q. And also likewise I would like you to confirm that you received
8 your Ph.D. at the university of Banja Luka in March of 1989.
9 A. On the 7th -- rather the 10th of March, 1989, I received my Ph.D.
10 at the Djuro Pucar Stari university of Banja Luka, the law school.
11 Q. Now, on February -- in February 1988 isn't it true that you were
12 transferred to Tuzla as a military attorney and you worked as a chief of
13 the legal section for the 7th -- 17th Corps of the JNA?
14 A. Just a small correction. I took up my duties as the chief
15 military Defence counsel, and I was also the chief of the legal
16 administration sector of the 17th Corps of the JNA. I was defending the
17 interests of the state in matters relating to property ownership.
18 Q. Thank you very much. Now, in April of 1992, did you offer your
19 assistance to the government of Bosnia-Herzegovina?
20 A. In April 1992, I went to get a medical examination at military
21 hospital in Sarajevo. It was supposed to be a general examination. I was
22 facing -- I was suffering from some health problems, but on that day the
23 demonstrations in Sarajevo had already begun, so that from the 4th until
24 the 23rd of April, I was on leave at the military hospital in Sarajevo and
25 I never returned to the JNA at all.
1 Q. Did you then volunteer or join the government of
2 Bosnia-Herzegovina and, if so, in what capacity?
3 A. I volunteered. On the 8th of April, I offered my services to the
4 BH government, just in case they needed my assistance in my capacity as an
5 officer and a lawyer.
6 Q. Now, at this point in time, were you in any type of military
7 formation or did you hold any rank?
8 A. No. Not at the time. I was not a member of any military
9 establishment. This was a civilian Defence Ministry that I offered my
10 services to. I held no rank in the state of Bosnia-Herzegovina. I still
11 had my rank of Lieutenant Colonel from the JNA.
12 Q. Now on August 11, is that when you went to the Ministry of Defence
13 to commence working?
14 A. On the 11th of April.
15 Q. 11th of April, I'm sorry.
16 A. 1992.
17 Q. And would you also confirm that on the 16th of April 1992 that you
18 then went to the Presidency building and started to commencing work there?
19 A. From the 16th of April to the 28th of August, 1992, I spent this
20 whole time at the building of the Presidency of Bosnia-Herzegovina. I
21 started working pursuant to their instructions and requests.
22 Q. Would you please describe to the Trial Chamber what was your
23 function, what type of work were you doing, in the Office of the
25 A. In those days on the 11th of April 1992, I called the Defence
1 Minister, Mr. Jerko Dzoko and told him that I was making my services
2 available to him and my assistance for the Defence of Bosnia-Herzegovina.
3 There had already been the first division between the Bosniak component
4 and the other components. He told me to get in touch with the deputy
5 Defence Minister, Munib Bisic, who was in charge of the Bosniak component.
6 By the time I called, by the time I got in touch, I had been
7 vetted probably. It was still peacetime, and they sent me to what used to
8 be the building of the government of Bosnia-Herzegovina at Marijin Dvor -
9 this is the skyscraper that burned down later on - on the 11th floor they
10 gave me a room, an office and that's where I stayed for three consecutive
11 days. They had tasked me with producing a law on military court and a law
12 on military prosecutors and also a law -- draft law on military courts.
13 After I finished that I was sent back home and told to wait until I was
14 again called.
15 If you want me to continue, I waited for four or five days. Four
16 or five days later on the 16th of April, 1992, I went back to the
17 Presidency building and was told to report to the commander of the
18 Territorial Defence staff of Bosnia-Herzegovina, the person who was the
19 commander at the time, Mr. Hasan Efendic. He assigned me as his assistant
20 for legal matters in what was then the TO staff of Bosnia-Herzegovina. He
21 gave me an office on the third floor of the Presidency. On that day and
22 in those days, I was alone on the third floor and there must have been
23 over 100 officers there. I was alone on the third floor of that building.
24 There was no one else. So I went through the laws again, the draft laws,
25 that I had produced some days before, and certain people started getting
1 in touch with me, people who were either lawyers or from the former JNA
2 but lawyers by profession, and they offered their help in revising and
3 drafting these regulations and setting up all the legal services and other
4 such tasks. As the number of people involved increased, it became clear
5 after a while who would be the assistant of the TO Staff Commander for
6 legal and religion-related issues and who my boss would be.
7 As far as I remember, I was told to bring together those people
8 who had got in touch with me and start producing all the provisions and
9 regulations that are necessary for the proper functioning of a military
10 force. From those days, which means mid-April, to the 13th of August
11 1992, if my memory serves, when the last provisions were adopted, the last
12 laws which together comprised a whole set of laws that were sufficient for
13 the proper functioning of a military force, we worked round the clock, all
14 those days. For two or three months, we continued working round the clock
15 in order to draw up the necessary drafts of all the documents that we had
16 been requested to prepare for the Bosnian authorities.
17 In the early days, of course, we had no regulations from the
18 former Yugoslavia because those offices were land surveyors' offices, and
19 there were no copies of documents around that could have been used as a
20 blueprint to draft any laws. That would only happen two or three months
21 later. Units came to a military library and took away some documents. So
22 that at a later date, we could use them more by way of having
23 [unintelligible] experience. I must say that I have a very extensive
24 experience and I know my subject. I also studied a very peculiar subject
25 for my Ph.D., and I had to go through a great many regulations governing
1 the work of the armed forces and the legal service of the armed forces. I
2 was quite familiar with the military regulations. My apologies. I may be
3 speaking a bit too fast so my apologies to the interpreters.
4 Q. Mr. Brkic, yes, I would ask you two things, please slow down
5 because we do have interpretation, but the others I just want to confirm
6 again that on the 1st of June 1992 your position was affirmed or
7 regularised as the chief of legal administration and general affairs in
8 the section of the Ministry of Defence; is that correct? Now during the
9 time -- you have to say yes or no.
10 A. Yes, yes.
11 Q. During the time period that you were writing the various rules or
12 regulation, did you have a staff that worked with you?
13 A. At the beginning, there was just a skeleton staff, you might say,
14 both men and women from the former JNA, and later, the number increased.
15 Therefore at the end, in early 1993, and throughout 1993, I had about 17
16 lawyers and other staff, typists, and clerks. That was at the then
17 headquarters of the General Staff of the BH army.
18 Q. Now, excuse me, could I ask you, did you personally write some of
19 the rules and regulations that would then apply to any of the armed forces
20 or fighting forces in Bosnia-Herzegovina after April 1992?
21 A. If you look at the overall number of all the laws and decree laws
22 at the time, which were applied in wartime and were later confirmed in
23 1994, I drafted about 90 per cent of all those rules and regulations, and
24 was the author of most of those. The rules governing the registration of
25 motor vehicles, for example, were drafted by a different section, but with
1 the assistance of the legal service. That means myself and my colleagues.
2 There were some rules from the security area that were not drafted by my
3 service, nor did we have any insight into what exactly was being done in
4 that department.
5 Q. Now, Mr. Brkic, those rules that pertain to armed forces or
6 military members, if you did not draft those, those that came out of your
7 department, did you supervise or edit or in any way maintain some type of
8 official control over the issuing of those documents?
9 A. Each and every document, quite literally, passed through my hands
10 and it can be said that I drafted all these documents, regardless of the
11 fact that it was actually my subordinates or people who worked within my
12 department. Final approval and endorsement always had to be given by me.
13 Q. All right. And one other point of clarification: Could you tell
14 the Trial Chamber, in terms of the chronological order of the documents or
15 rules that you drafted, were they drafted in succession or were they
16 drafted, let's say, at one time and then given chronological dates, or
17 were they drafted based upon any scheme that had been set forward to you?
18 A. Given what I have said so far, given my knowledge of the army, I
19 knew from the experience that I had with the previous army what it was
20 that an armed force should have in order to have all the legal background
21 for operation. That is why on our desks we had all the laws
22 simultaneously. For example, laws and decrees -- decree laws, books of
23 regulations and other regulations that were immediately connected with the
24 legal support to the armed forces. So we worked on all the regulations
1 The chronological order of their adoption by the Presidency,
2 however, was different. It happened at different times. It depended on
3 the approval of various ministries because some of these regulations had
4 to be approved by other ministries, which had been prescribed by the
5 constitution and other laws. It was prescribed that some documents had to
6 be approved by various ministries because some of the regulations dealt
7 with various areas. For example, some of our laws prescribed the ways of
8 health care was regulated. Since we were not competent and we were not
9 supposed to deal with that part, we had to send our law for approval to
10 the ministry of health, and finally, after their approval, our law would
11 become an integral legal document.
12 After that, all the laws were coordinated. I'm talking about the
13 draft laws which were coordinated, so in one room, there were people
14 working on one law. In the other room, there were people working on
15 another law. But I coordinated and authored all of these laws so there
16 was a lot of coordination. The only difference we're dealing with is the
17 time when the laws were adopted by the Presidency. However, in practical
18 terms, all the laws and all the legal documents were drafted during that
19 period of three months, at the same time.
20 Q. During that time period, while the laws were being coordinated,
21 was it the intent of the legal section to make sure that those laws were
22 harmonious, that they were consistent with each other as opposed to being
23 inconsistent with each other?
24 A. As far as I can remember, it was our main desire that neither the
25 laws nor competences clashed. Our obligations that we had - and that
1 arose from the civilian laws on the adoption of the regulations of the
2 former Yugoslavia in the territory of Bosnia-Herzegovina as republican
3 laws - were strictly applied to other laws that we drafted. As far as I
4 know, there were no collisions, maybe some things remained unsaid or
5 uncovered. But as far as I remember, there were no collisions amongst
6 these laws.
7 Q. Thank you. Now, when you started your duties on the 16th of
8 April, in terms of -- I'm sorry, the 11th of April in terms of drafting,
9 did you have to familiarise yourself with any decrees, laws or legal
10 documents that had been issued by the newly independent Bosnian
12 A. It was a very difficult time, and none of these regulations were
13 published at the time. Only two regulations, one of them the decision on
14 renaming the Territorial Defence Staff of Republic of Bosnia-Herzegovina
15 by deleting the word "socialist" from that name, as well as the decree law
16 on the removal of the former commander and the appointment of a new
17 commander are the only two laws that I was aware of. I did not see them
18 at the time. However, subsequently I saw them in the Official Gazettes.
19 I also saw people who were appointed but I never knew
20 at the time how they had been appointed, by what mechanism. And after
21 that, if I may allow -- if I may continue, when I was appointed to the
22 duty that I since then occupied, my colleagues and myself started looking
23 for these basic documents, and the first Official Gazettes of the Republic
24 of Bosnia-Herzegovina that we saw were issues number 1 and number 2 of
25 that gazette, and in those we could see what were the regulations of the
1 former Yugoslavia that were adopted as regulations of Bosnia-Herzegovina
2 and from then on were used as regulations of Bosnia-Herzegovina. Also, we
3 could see which regulations of the former Yugoslavia were no longer
4 applied in Bosnia-Herzegovina as of the date of the publication of these
5 two issues of the Official Gazette.
6 Q. Thank you very much. I would like the witness to be shown P286,
8 A. I don't know whether you're referring to this decree law on the
9 adoption of the books of regulations on the service or the decree law on
10 defence. Which law are you referring to?
11 Q. Mr. Brkic, I was just about to say I'm referring to the decree law
12 on taking over the law on services in the armed forces, the application.
13 Now in the English version it's at the bottom of the first page and will
14 continue on the second page.
15 Now, Mr. Brkic, is this what you're referring to in terms of some
16 of the prior laws that you were familiarising yourself with upon taking on
17 your services?
18 A. No. No. This is not the decree. I was referring to the decree
19 law on taking over laws and other regulations of the Socialist Federal
20 Republic of Yugoslavia, which were to be applied in Bosnia-Herzegovina as
21 republican laws, and I found this in the Official Gazette of the Republic
22 of Bosnia-Herzegovina, issue number 2/92. This decree law lists all the
23 laws of the former Yugoslavia which were taken over by the Republic of
24 Bosnia-Herzegovina and as of the date of publication, these laws were to
25 be considered laws and regulations of the Republic of Bosnia-Herzegovina.
1 Q. And within those laws that were taken over, was the federal
2 Criminal Code incorporated into the new laws of Bosnia-Herzegovina?
3 A. Although I was not involved in that, I can confirm that this
4 decree law on taking over Yugoslav laws with certain amendments and
5 supplements, the penal code of the Socialist Federal Republic of
6 Yugoslavia was adopted as the penal code of Bosnia-Herzegovina or, to be
7 more precise, the name was the penal code of the Socialist Federal
8 Republic of Yugoslavia was taken over as the republican law of the
9 Republic of Bosnia-Herzegovina. There was the formulation. This was the
11 Q. Thank you. Now if you would look at this decree that I've placed
12 in front of you, the decree on the law on service in the armed forces,
13 would you look at that briefly and tell the Trial Chamber whether you're
14 familiar with this decree.
15 A. As you can see from the number of this decree law, it was signed
16 on the 18th of April, which is before I joined the armed forces, before I
17 offered my services to the armed forces. This decree law was drafted by
18 unskilled people, people who were not professionals, and it says here that
19 the law on service in the armed forces was adopted. However, during that
20 period of time there were no armed forces in the Republic of
21 Bosnia-Herzegovina. What I'm saying is that a law was taken over to be
22 applied on to something that didn't exist.
23 Secondly, only a few articles of the law were left by this decree
24 law. As soon as I spotted this shortcoming, that was when I assumed my
25 duties in the Ministry of Defence, the first law that we drafted was the
1 decree law on the armed forces, and in its Article 42, as far as I can
2 remember, we prescribed that this decree law was made null and void
3 because it was impossible to apply and its application, in practical
4 terms, lasted no longer than a month and a half. The application of this
5 particular decree law that was adopted previously.
6 Q. Thank you. I would like you to describe for the Trial Chamber at
7 that point what would have been the armed forces or fighting members or a
8 substitution for the armed forces that existed in Bosnia-Herzegovina at
9 that time.
10 A. Up to the 6th of April 1992, in the so-called or the ex-Republic
11 of Bosnia-Herzegovina, there was a component of the armed forces of
12 Yugoslavia which was called the Territorial Defence. It existed on the
13 so-called territorial principle. If I tell you that the armed forces of
14 Yugoslavia had two components, of which one was the Yugoslav People's Army
15 and the other one was the Territorial Defence, then you have to know that
16 on the 6th of April, the Territorial Defence as one of the components of
17 the armed forces of the former Yugoslavia was renamed into the Territorial
18 Defence of the Republic of Bosnia-Herzegovina. I suppose that the
19 underlying cause was for this force to be the starting point of the future
20 armed forces of Bosnia-Herzegovina. When I joined the Ministry of Defence
21 and when I assumed the duties that I have already described, my task
22 became to -- in view of those units and the future armed forces that would
23 be created, to draft the regulations that I've already mentioned.
24 When we were drafting the law on the armed forces, which was a
25 prerequisite for the existence of the armed forces, in one of its
1 articles, Article 41, we expressly said, and I would like to quote
2 something that I read yesterday afternoon again, therefore in Article 41
3 we said that until the army of Bosnia-Herzegovina was fully established,
4 its function will be performed by the Territorial Defence of
6 Q. Thank you, Mr. Brkic.
7 MS. SELLERS: I would now like to have a document with ERN number
8 0052760 handed out.
9 JUDGE AGIUS: Yes, Madam Vidovic.
10 MS. VIDOVIC: [Interpretation] Your Honour, maybe just an
11 explanation here. I believe that an explanation should enter the
12 transcript, referring to the exhibit. P286 refers to the decree law on
13 defence. However, today we have seen the decree law on adoption of the
14 law on the service in the armed forces. Are we going to say that P286
15 also includes the latter decree law? Later, as we discuss things, we may
16 have difficulty in referring to this P286. So can we then consider that
17 this decree law is part and parcel of this exhibit P286? I would like to
18 draw attention to the fact that we are talking about two entirely
19 different legal documents, two entirely different laws.
20 MS. SELLERS: Your Honour, Defence counsel is correct. As a
21 matter of fact, within P286 for clarification there is also a decision on
22 the declaration of imminent threat of war, it also contains -- so that's
23 certainly -- within our intention that's clear.
24 JUDGE AGIUS: Okay. Thank you.
25 Does that satisfy you, Ms. Vidovic?
1 MS. VIDOVIC: [Interpretation] Yes, Your Honour. We might have had
2 problems in subsequent use, the matter might have been confused if we had
3 not clarified it.
4 JUDGE AGIUS: The important thing is that we have on the record
5 although the document itself speaks for itself, because once you go to it
6 you realise that it is more than one document and one -- but anyway, I
7 thank you both for raising this matter and for clarifying it.
8 So let's proceed. Ms. Sellers.
9 MS. SELLERS: Yes, I'm going to ask Mr. Brkic to look at the
11 JUDGE AGIUS: Yes, please.
12 THE WITNESS: [Interpretation] Number? Number? The number of
14 MS. SELLERS: It will be handed to you.
15 Q. I'm particularly interested under number 54, decree law on the
16 armed forces of the Republic of Bosnia-Herzegovina.
17 A. Okay.
18 Q. Mr. Brkic, is this the law that you were referring to?
19 A. Yes. Here we have Article 41. However, I'm missing a page of the
20 law here. A page is missing. The law is not complete. It's not
22 Q. Which number are you missing, sir? Which page number?
23 A. You're missing the page containing Articles 28 onwards.
24 MS. SELLERS: If the usher could please assist. We understand
25 that Article 28 is on --
1 THE WITNESS: [Interpretation] This one is missing, this one.
2 MS. SELLERS: 00520761 at the bottom of the page we see
3 Article 28.
4 JUDGE AGIUS: Definitely if you look at the two texts, the one
5 in --
6 THE WITNESS: [Interpretation] Yes, yes, but Articles from 28 to 43
7 are missing. Articles actually from 29 to 43 are missing from your
9 MS. SELLERS: Your Honour, might I --
10 JUDGE AGIUS: What is happening, Ms. Sellers -- what happened is
11 this, that whoever stapled these together, after the second -- I'm
12 referring to the B/C/S, after the second page of the government gazette,
13 instead of putting the third page, which is page 155, they stapled
14 page 156. So all we need to do is transpose the last page with the
15 previous page, and there you find on the last page as stapled you get the
16 sixth section of the law starting with Article 29 and then it finishes on
17 that page, and we don't really need the next page, which is page 156,
18 which has also been stapled. This is basically it.
19 MS. SELLERS: I'm grateful, Your Honour.
20 Q. Mr. Brkic, have you found it?
21 A. Yes.
22 Q. Yes, thank you.
23 JUDGE AGIUS: Yes. For all intents and purposes for the time
24 being, I would retain it because I don't know if there is a special reason
25 why this has been inserted because it may come as a question or part of a
1 question later on, if we are going to talk about law 55, 56 and 57. So
2 leave it. But -- all right.
3 MS. SELLERS:
4 Q. Mr. Brkic, first I'd like to draw your attention to Article 1.
5 A. Yes.
6 Q. Would you just confirm for the Trial Chamber what was the intent
7 of Article 1?
8 A. To regulate the placement of all the armed and non-armed forces in
9 Bosnia and Herzegovina under a single command, with a view to create
10 the -- creating the legitimacy of these formations and creation of the
11 armed forces of Bosnia-Herzegovina of all its nationalities as it says in
12 Article 1, Muslims, Serbs, Croats and all the other members of other
13 ethnic groups living together in Bosnia-Herzegovina, as well as to
14 prescribe the ways the newly formed armed force would be commanded and
16 Q. I'd like to turn your attention to Article 2, and it says that in
17 addition to the army that there is a police and armed units. Now, was the
18 intent of Article 2 to bring these other additional units within what
19 you've -- you have testified about as a unified command?
20 A. No.
21 Q. What was the intent?
22 JUDGE AGIUS: Mr. Jones.
23 THE WITNESS: [Interpretation] The intent was to, under exceptional
24 circumstances, when the combat situation dictated, that the Supreme
25 Command could use certain police troops and other units such as customs
1 and armed forces in companies, to place them under a single command of the
2 command of the military unit in a territory in order to perform a certain
3 combat task. Once this specific combat task was over, the police would
4 return to its original strength within the Ministry of the Interior and
5 the other armed units into their respective strengths. That is why you
6 will have an order which -- I don't know whether you have amongst your
7 exhibits, pursuant to which the Presidency of Bosnia-Herzegovina as the
8 Supreme Command resubordinated the reserve forces of the Ministry of the
9 Interior of the -- of Bosnia-Herzegovina and ordered them to carry out a
10 certain set of tasks within a very critical period, the period in
12 JUDGE AGIUS: Yes, Mr. Jones.
13 MR. JONES: Thank you, Your Honour. It was two points really.
14 First, it was to the leading nature of the question and we can see that
15 when it was rephrased is what was the intent we got a more realistic
16 answer, and I would prefer it if my learned friend wouldn't suggest what
17 the intents of legislation would be but merely ask.
18 The second is a broader point - and I raise it now because it's
19 probably going to surface throughout the course of this witness's
20 testimony - is when we go on to talk about the intent of legislation,
21 firstly, one only has recourse to what the intent was behind draftsmen and
22 et cetera when the words are unclear; and secondly this
23 witness obviously isn't the mouth of the oracle as to what the legislation
24 means. In my country, we wouldn't go to the parliamentary
25 draftsmen, we would go to Hansard and the debates of the legislature to
1 see what legislation means. So it's merely to put that on the record,
2 that this witness can talk about what he social security a draftsman had
3 in mind, but of course that's not the last word as to what legislation
4 means. That's for the legislature and the executive.
5 JUDGE AGIUS: Definitely point taken, Mr. Jones, and as you know,
6 in our system, when the law is still a draft bill, there you have at the
7 end of the bill a declared intent and purpose behind each proposed
8 legislation, which is then omitted when the bill becomes law, and as you
9 say, we go back to the parliamentary debates and see from there.
10 This case, the gentleman, the witness is -- happens also to be the
11 person drafting. So what we should be seeking to obtain from him is
12 whether, first of all, he had instructions, because I take it that at the
13 time there was no really parliamentary system functioning when all this
14 was happening. So we can't have recourse to parliamentary debates.
15 That's number 1.
16 Secondly, in other words, whether he had instructions from above
17 or whether he was just taking the initiative and drafting laws without any
18 direction from anyone. And he would then explain, I mean, if he had a
19 direction or instructions, he would be able to tell us what the purpose
20 behind the whole exercise was supposed to be.
21 MS. SELLERS: Certainly, Your Honour.
22 JUDGE AGIUS: But I think he also gave us a lot of information in
23 answering the last question.
24 MS. SELLERS: Yes. Might I just briefly return to the last
25 question then I think we should answer Your Honour's question, and that is
1 the clarification that he gave in Article 2.
2 Q. When it refers to the police and armed units, is that reference to
3 the police reference to the military police or to the civilian police?
4 A. Civilian police only. In one of the regulations, the mention is
5 made of the police, of the Ministry of the Interior of the Republic of
6 Bosnia-Herzegovina. The military police is part of the armed forces
7 already, so the military police don't have to be resubordinated as is
8 separate unit. They are part of the military already.
9 Q. Thank you. Now I would ask to you please direct your attention to
10 the question posed by the Trial Chamber. Would you please describe
11 whether you had instructions or the purpose behind your drafting of these
12 various laws and regulations.
13 A. Your Honour, I don't think that Madam Prosecutor is leading me or
14 asking me leading questions, and that is why I would like to object, if I
15 have the right to do that, to the objection put forth by the defence.
16 JUDGE AGIUS: Professor, let -- please allow us to be the Judges.
17 THE WITNESS: Okay.
18 JUDGE AGIUS: Don't try to take over our role. Thank you.
19 THE WITNESS: [Interpretation] Thank you. I apologise. As I've
20 already said - at the beginning, that is - of my own initiative and based
21 on my knowledge, I drafted all the regulations in Bosnia and Herzegovina
22 that refer to the armed forces, without any suggestions, proposals,
23 recommendations, by anybody else, by any body. In other words, nobody
24 determined any goals for me. They -- nobody provided me with any
25 instructions. I was the most prominent person in the army by knowledge
1 and by experience in that area. I had such an academic background that I
2 was allowed to do all this on my own initiative, and I drafted all these
3 laws based on my knowledge, and as the president of the Trial Chamber
4 pointed out, this implied that every draft law or bill had to contain an
5 explanation based on the constitution for drafting such a law. And this
6 was done for the members of the government or the Presidency to help them
7 why a law was being proposed in the version that was being proposed.
8 This was an instruction for them, helping them to give their
9 remarks, help -- to help them to either adopt or discard a certain draft
10 of the future law.
11 MS. SELLERS: Your Honour, is that sufficient? Would you want him
12 to elaborate more.
13 JUDGE AGIUS: He's not my witness.
14 MS. SELLERS: In terms of the question you've asked, if you
15 thought that --
16 JUDGE AGIUS: Well, more or less but I still have a big question
17 mark on the overall scenario. I mean --
18 But someone would come to you and tell you, Professor or
19 Dr. Brkic, we need a law on the armed forces of BiH, because otherwise you
20 wouldn't sit down and start drafting a law just because you think it is --
21 it is -- it is or it has become useful. I mean, you would have or seek
22 some direction from above because otherwise you would run the risk of
23 creating a whole corpus of draft laws which nobody wants. So what was the
24 situation? You are allowed a lot of free hand on how to draft these laws
25 but you must have received some kind of direction.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 THE WITNESS: [Interpretation] Shall I reply?
2 JUDGE AGIUS: Yes, please.
3 THE WITNESS: [Interpretation] At the time when I arrived at the
4 Defence Ministry, which was the 13th of April, 1992, at that very time
5 there was a meeting at the Defence Ministry attended by ministers from a
6 number of different ministries. They were considering a draft law on
7 Defence as a fundamental document that any country should have in order to
8 ensure the security and defence of that country. I attended that meeting.
9 That law was to be the fundamental basic law from which all further laws
10 in relation to defence would then stem.
11 Once -- when this law was adopted, it was submitted to the
12 Presidency of Bosnia-Herzegovina, which, as the legislative body that was
13 adopted and passed this law on defence of the Republic of
14 Bosnia-Herzegovina. This is a fundamental document governing both defence
15 and civilian protection, as well as reporting and civilian defence bodies.
16 This was the cornerstone for all other provisions in the area of defence,
17 including the law on the armed forces as well as other laws that were
18 later to follow.
19 JUDGE AGIUS: Thank you. That explains things a bit.
20 MS. SELLERS:
21 Q. Now, Mr. Brkic, can I ask you to go to Article 41 that you
22 testified about earlier, now that the Trial Chamber and Defence counsel
23 have that in front of them. Yes, please.
24 A. The meaning behind Article 41 was as follows. For the existing
25 armed units in Bosnia-Herzegovina, which since the 16th of April, 1992 had
1 been transformed into the Territorial Defence units of the Republic of
2 Bosnia-Herzegovina, the word "socialist" having been deleted, the meaning
3 was until they were organised, the armed forces were organised along
4 proper lines, that the Territorial Defence units should act as the armed
5 forces or in lieu of the armed forces, and that's why Article 1 of the law
6 says the armed forces are made up by the army of Bosnia-Herzegovina, and
7 then you asked me about the police and other armed units, but the obvious
8 thing at the time was that on the ground we had no army but, rather, we
9 had the TO units organised in terms of district and republican staffs.
10 And all the provision that is were drafted were drafted for the benefit of
11 the armed forces but the Article prescribes that until such time as a
12 proper army is established, the function of the armed forces should be
13 taken over by the Territorial Defence. And the same laws and
14 prescriptions apply to the Territorial Defence at the time as would later
15 apply to the armed forces of Bosnia-Herzegovina. In -- by way of
16 corroboration, you have Article 36 of the same decree, saying that the
17 15th of April should be the day of the army in Bosnia-Herzegovina, the
18 15th of April, 1992, the day the army was established, because that was
19 the day when all armed formations existing in the territory of
20 Bosnia-Herzegovina were united under the Bosnia-Herzegovina TO.
21 Q. So do armed forces, armed formations, according to the legal
22 documents, include the formations of the Territorial Defence at that time
24 A. No. None of the legal documents or provisions that were drafted
25 under my supervision considered the Territorial Defence as an armed force.
1 It was just the state of affairs at the time. But that was the reality on
2 the ground. There were units around and we had to provide some sort of
3 legal protection, and in a manner of speaking, legalise these units and
4 organise them along some proper lines. And that is why this clause was
5 included in the transitional provisions of the law, that until such time
6 as a proper army was established, the TO would take over its role.
7 Q. Thank you very much, Mr. Brkic. I would like to --
8 A. You're welcome.
9 MS. SELLERS: We are finished with this exhibit, Your Honour and
10 we would like to ask for a P number.
11 THE REGISTRAR: That will be P543.
12 JUDGE AGIUS: So this document will be P543.
13 MS. SELLERS:
14 Q. Mr. Brkic --
15 JUDGE AGIUS: I just wanted to make sure, Ms. Sellers, this
16 document does not already form part of the Official Gazette? Because I
17 have a vague recollection that already we've had a government gazette or
18 the first sets of government gazettes of Bosnia -- of the Republic of -- I
20 MS. SELLERS: We had that with one of the expert witness
21 testimonies. Your Honour, we did try --
22 JUDGE AGIUS: You want to keep it separate, we will keep it
24 MS. SELLERS: That's fine. I think at this point we will keep it
25 separate. Otherwise it will be confusing. Thank you.
1 JUDGE AGIUS: All right.
2 MS. SELLERS:
3 Q. Mr. Brkic, did there come a time when Bosnia-Herzegovina made a
4 decision to declare a state of war?
5 A. Yes.
6 Q. Are you familiar with the legal documents that inform the public
7 of that decision to declare a state of war?
8 A. Members of the Presidency of Bosnia-Herzegovina at the time
9 decided on the 20th of June, 1992, or rather they were sitting in the
10 office of one of the members of the Presidency, the president, this
11 very -- this member of the Presidency that I have referred to, and I was
12 present too, a decision was written to declare the state of war. I didn't
13 draft this decision myself because this decision did not reflect my
14 principles, technically speaking. It was written in the same form as a
15 preamble by the United Nations General Assembly might have been, although
16 the Minister of the Territorial Defence had earlier been adamant that a
17 state of war should be proclaimed since there was fighting going on
18 already in the territory of Bosnia-Herzegovina, and members of that
19 Territorial Defence force were not to be envied in terms of their legal
20 position. They were not guaranteed protection by the Geneva Conventions
21 or any other set of laws that would give them legitimacy to wage war, or
22 to be protected by the international humanitarian law.
23 Q. Do you know whether those groups were covered by the laws and
24 customs of war at that point in time?
25 A. If you take as the starting point the fact that if you look at the
1 Official Gazette 2/92 of the Republic of Bosnia-Herzegovina, the Criminal
2 Code of the former Socialist Federative Republic of Yugoslavia was adopted
3 as a Bosnia-Herzegovina law which, in chapter 16, I think that's Article
4 141, but I can't be certain, that's at least as far as my memory serves,
5 defined criminal offences against the international law of
6 war and the international law, genocide, war crime, that sort of thing.
7 So if you look at the Criminal Code of Bosnia-Herzegovina, it
8 already contained some provisions of international humanitarian law,
9 within the domestic legal system, and if you consider that, you can see
10 that these provisions of the international humanitarian law were already
11 being applied de facto, through these provisions that had been adopted
12 from the former Yugoslav Criminal Code.
13 JUDGE AGIUS: Just one moment, Ms. Sellers.
14 Is this part that Ms. Sellers is dealing with or is addressing the
15 witness to contested by the Defence? In other words, whether the existing
16 law in BiH at the beginning of the war afterwards already contained
17 provisions on what war crimes and humanitarian laws or not, because if
18 it's not let's not waste much time on it.
19 MR. JONES: Yes, certainly the Defence doesn't contest that those
20 provisions existed in the Criminal Code. What's more complex is what the
21 witness was actually addressing a moment ago about whether particular
22 formations enjoy the protection of international humanitarian law and
23 obviously nothing is conceded on that front.
24 JUDGE AGIUS: Perfect. Thank you, Mr. Jones and Madam Vidovic.
25 I would concentrate on that, Ms. Sellers, rather than on what the
1 Criminal Code contained because, first of all, we've heard ample evidence
2 on that already. We have the copy of the Criminal Code itself plus other
3 laws and so I would concentrate on what seems to be of more interest to --
4 MS. SELLERS: Your Honour, for that reason we have not produced
5 the Criminal Code again as an exhibit.
6 Q. But I do want to clarify one point and that the application of the
7 Criminal Code within Bosnia-Herzegovina at that time period, that that
8 applied to persons in regards -- irrespective of whether they were members
9 of the armed forces or any military formation, organised formation or
10 civilians. Is that correct, Mr. Brkic?
11 A. In view of the fact that the law existed, it wasn't specified who
12 the law was to be applied to. It was to be applied to anyone who was
13 guilty of committing a criminal offence. This is not a matter of personal
14 jurisdiction, in terms of the relation between courts and perpetrators.
15 This applied to everyone who was guilty of a criminal offence, and we can
16 go back to Article 141. This person would have been taken to account for
17 whichever crime he or she had committed; may have been murder or anything
18 else. It's a question of lex specialis. The question was whether in a
19 country -- and at the time this was Bosnia-Herzegovina. As I said, on the
20 15th of April, 1992 the law on military courts and military prosecutors
21 was drafted as well as special courts, but it was not adopted at the time
22 in order to transfer cases of personal jurisdiction to -- under the
23 jurisdiction of special courts. At the time there were no such military
24 courts, though, and this is the reason why the laws apply to all the
25 citizens of Bosnia-Herzegovina or anyone else who may not have been a
1 citizen but was found -- was suspected of committing criminal offence in
2 the territory of Bosnia-Herzegovina.
3 Q. Thank you. Now to return to the question of whether the laws and
4 customs of war applied to any armed formations or formations carrying out
5 activity that could be considered combat during that time period, could
6 you please address that?
7 A. If I understand you correctly, you're asking me whether the
8 international conventions, the Geneva Conventions, or humanitarian
9 conventions, were applied in Bosnia-Herzegovina. Is that what your
10 question about?
11 Q. Could have been applied at that time.
12 A. Bearing in mind my experience as a lawyer, as a judge, as a former
13 JNA officer, and knowing that this was the most important subject in all
14 our military schools, that is international law and international law of
15 war, our primary objective at the outbreak of clashes was to make sure
16 that all standards of international humanitarian law and customs of war
17 were being fully complied with, and that's why as part of this whole
18 package of regulations, as far as concerned the Supreme Command, which was
19 the supreme body in our military organisation, as early as the 23rd of
20 August, 1992, I think, we drew up an order by the Supreme Command of the
21 armed forces, the Supreme Command, regulating, as far as I can remember,
22 and I believe it had four or five items only, so item 1 said that the
23 armed forces of Bosnia-Herzegovina would be obliged to strictly and to the
24 letter apply all the provisions of international law of war. One of the
25 subsequent provisions was that all military commanders who are members of
1 the armed forces were made responsible for compliance with the
2 international provisions, and thirdly, that military commanders were
3 responsible for training and informing their subordinate commanders and
4 soldiers to fully comply with the provisions of international and
5 humanitarian laws. And the next provision was, if I remember correctly,
6 that all those who failed to comply with the provisions of the
7 international humanitarian law and international law of war, their
8 superiors would be entitled to -- and obliged to take steps against them.
9 Pursuant to this order of the supreme staff that applied to the armed
10 forces, a set of rules was written and other by-laws and decrees on the
11 application of international law of war by the then Defence Minister and
12 so on and so forth. I'm not sure if this answers your question.
13 Q. Thank you very much. We will be getting to that a little bit
14 later in the direct examination. Going back to the 20th of June, you
15 describe that there was a decision to declare a state of war. Was there
16 also any issuance of a legal document concerning the public mobilisation
17 within Bosnia-Herzegovina at that time period?
18 A. At the same time as the decision to declare the state of war was
19 produced, it was done by members of the Presidency, the same day I was
20 given the task of writing the order for general mobilisation to apply
21 throughout the territory of Bosnia-Herzegovina. I drafted this decision
22 to the best of my ability, and as far as I remember it was at 12.00 that
23 another member of the Presidency and I, facing TV cameras, and there was a
24 lot of shelling going on around the building itself. This was the Bosnian
25 railways building which is next to the Presidency, we read both these
1 decisions, both the decision to declare a state of war and the decision
2 for general mobilisation.
3 Q. Might I have --
4 JUDGE AGIUS: One moment, Ms. Sellers, please.
5 You said or I heard you say, I was given a task of writing the
6 order for general mobilisation. Who gave you the order? Who gave you
7 the -- who instructed you to draft this law?
8 THE WITNESS: [Interpretation] Should I name the person? Should I
9 give you the name of the body, or should I give you the position of the
10 person? Because the people present at the meeting of the Presidency were
11 the late President Alija Izetbegovic, Fikret Abdic, Ejub Ganic. I'm not
12 sure if anyone else was there, and I attended the meeting too.
13 JUDGE AGIUS: Was it they who gave you the instructions to
14 draft --
15 THE WITNESS: [Interpretation] Yes, yes.
16 JUDGE AGIUS: Okay. Yes, let's move ahead.
17 MS. SELLERS: I would like to have the witness be given
18 Prosecution Exhibit 278, please.
19 Q. Mr. Brkic, if you could look at the decision to declare a state of
20 war and then the following, the order to proclaim general public
21 mobilisation in the territory of the Republic of Bosnia-Herzegovina, and
22 confirm to the Trial Chamber that these are the two decrees or decisions
23 and orders that you've just testified about.
24 A. These are two decisions. Firstly the decision to declare a state
25 of war, which was drafted by the Presidency of Bosnia and Herzegovina.
1 Secondly the order to proclaim general public mobilisation in the
2 territory of the Republic of Bosnia-Herzegovina that I drafted myself
3 pursuant to a request by members of the Presidency.
4 Q. Could I please direct your attention to the decision to declare a
5 state of war and, in particular, Article 4? In Article 4 we see mention
6 of the provisions of international law, international conventions
7 regulating the conduct of states in a state of war in conformity with
8 Article 51 of the United Nations charter. Could you tell the Trial
9 Chamber what types or which international laws and conventions that
10 Article 4 implicitly refers to?
11 A. Well, the way we wrote laws, that would be Article 4 of this
12 decision. This is in reference to the Geneva Conventions on how prisoners
13 of war should be treated, on how the wounded should be treated. Those
14 four conventions and other conventions from the area of humanitarian law
15 that had already been ratified or were about to be ratified those very
16 days by the Republic of Bosnia-Herzegovina. This is in reference to the
17 application of the international laws and customs of war.
18 Q. Yes. And I would just briefly ask you to look at number 3, maybe
19 I shouldn't say Article 3, the armed forces of Bosnia-Herzegovina. Is the
20 reference to the armed forces consistent with your testimony earlier that
21 the composition of the armed forces or armed organisations comprising of
22 army and other possibly police units, is that phrase, "armed forces,"
23 consistent with your prior testimony?
24 A. The police of the interior ministry did not constitute the armed
1 Q. So what would that phrase be referring to in terms of groups,
2 organisations or institutions?
3 A. This sentence, rather this item, refers to the armed forces,
4 meaning the army of the Republic of Bosnia-Herzegovina, and until such
5 time as this army is set up the reference is to the Territorial Defence.
6 Q. Thank you. I would like you now to look at the order to proclaim
7 general public mobilisation in the territory of the Republic of
8 Bosnia-Herzegovina and particularly under section 1, please.
9 Now, Mr. Brkic, you drafted, if I understand correctly, this order
10 and under section 1, we have in quotes "shall report" -- I'm sorry.
11 "Between 18 and 55 years of age who shall report immediately to the
12 nearest Territorial Defence unit with their military equipment and
13 personal weapons." Would you please just tell the Trial Chamber what was
14 the purpose of having people between 18 and 55 years report to the
15 Territorial Defence unit?
16 A. In Bosnia-Herzegovina, there were a number of independent or
17 illegal units as well as units or individuals who had left the former JNA.
18 Not a great number of those, or at least not at that time. And the goal
19 was to have this newly established staff of the Territorial Defence of
20 Bosnia-Herzegovina to have the Territorial Defence forces and all these
21 armed units legalised and for them to be given the status of Territorial
22 Defence units. There was a different decision saying that all those who
23 failed to place themselves under the single command of the Territorial
24 Defence would be considered illegal and that legal steps would be taken
25 against them. Therefore, the objective was to gather all those who were
1 carrying weapons, no matter whether military conscripts or not, all those
2 aged between 17 and 65. The objective was for the -- all these people to
3 be placed under a single command and system of subordination so that these
4 people could not just go around doing whatever they pleased.
5 Q. Thank you very much, Mr. Brkic.
6 MS. SELLERS: Your Honours, I understand we are coming up on the
7 break, and this would be an appropriate time period for me to break in
8 this direct examination.
9 JUDGE AGIUS: Thank you.
10 Professor Brkic, we are going to have a short break now of about
11 25 to 30 minutes, during which we all have a meeting in my room. So we --
12 if the meeting doesn't finish within those 25 minutes there will be a
13 short delay. We will try to stick to the 25 minutes but in case it takes
14 us longer, please do understand.
15 So let's break for 25 minutes.
16 I think they will need assistance to be able to -- you look, okay.
17 --- Recess taken at 10.29 a.m.
18 --- On resuming at 11.26 a.m.
19 JUDGE AGIUS: Yes.
20 MS. SELLERS: Thank you, Your Honour.
21 JUDGE AGIUS: Yes, Ms. Sellers. As you see, Professor, we took a
22 little bit longer, as I had anticipated, but I'm sorry for that.
23 Let's continue.
24 MS. SELLERS:
25 Q. Mr. Brkic, we had been looking for over a document, it's P278 of
1 the Prosecution exhibits but you would know it by the order to proclaim
2 general public mobilisation in the territory of the Republic of
3 Bosnia-Herzegovina. I would just ask you now to look under section 6 of
4 the document and I have this highlighted in Sanction. And if you know,
5 could you inform the Trial Chamber why the mobilisation order has stated
6 that the commander of the Territorial Defence would be responsible for
7 the -- its execution?
8 A. The practical execution of all the orders of the Supreme Command,
9 according to the constitution of the Republic of Bosnia-Herzegovina, was
10 in the hands of the staff of the Territorial Defence and its commander,
11 whoever it was at the time.
12 Q. Thank you. Yes, we may remove the exhibit now from Mr. Brkic.
13 Mr. Brkic, I would like to ask you whether you drafted or in any
14 manner supervised a decree law on service in Republic of
15 Bosnia-Herzegovina army.
16 A. I personally worked on drafting this law, given my previous
17 experience and knowledge, and I knew that the service in the army had to
18 be regulated, especially when it came to the officers, non-commissioned
19 officers, and civilians working in the armed forces.
20 Q. Was that the purpose of the decree law on service in the Republic
21 of Bosnia-Herzegovina, the regulation of the armed forces, the members of
22 the armed forces?
23 A. Yes. The purpose was to regulate the status of active members of
24 the armed forces, namely generals, officers, non-commissioned officers,
25 and civilians working in the BiH army. The concept of the army was to
1 have its permanent staff or permanent employees.
2 Q. And do you remember the date in which that decree was written or
3 signed by the president?
4 JUDGE AGIUS: You can show him if you want.
5 MS. SELLERS: Fine, thank you, Your Honour.
6 Q. Just one further question prior to showing you the document, did
7 you also participate in writing the rules of service in the army of the
8 Republic of Bosnia-Herzegovina?
9 A. No, not personally. One of my subordinates whose name was Sotirov
10 Sota worked on that. I was just the coordinator. I made some corrections
11 and then when these corrections were done, I was the one who authorised
12 the use of these rules of service in the army of Bosnia-Herzegovina.
13 Q. Thank you.
14 MS. SELLERS: Your Honour, just for a point of clarity, Mr. Brkic
15 has pulled a document that he has in front of him. At this point -- yes,
16 I just wanted to make sure that that was clear on the record. He is not
17 consulting it.
18 Q. I wonder if, Mr. Brkic, you would just inform the Trial Chamber
19 what document you have pulled out.
20 A. This is a compilation of all the laws and regulations that I
21 worked on and in which I participated as the author of the drafts or
22 any -- in any other way. In other words, this is a compilation of the
23 Official Gazettes that carried these regulations. This was a civilian
24 gazette which was delivered to the armed forces to inform them of the
25 shortened version of the legal texts that concerned them.
1 MS. SELLERS: Yes. And, Your Honour, for the record we will be
2 referring to Prosecution exhibits but just so it's clear I see that Mr.
3 Brkic at times refers to his own personal copies of some of these rules
4 and laws.
5 JUDGE AGIUS: But I take it that what he has held in his hands is
6 nothing else but the -- some editions of the government gazette or
7 Official Gazette, call it whatever you like.
8 MS. SELLERS: Absolutely.
9 Q. Mr. Brkic, you would confirm that; right?
10 A. This is a compilation of all the official army gazettes issued in
11 1992 and in 1993.
12 JUDGE AGIUS: All right.
13 THE WITNESS: [Interpretation] These are the military Official
15 JUDGE AGIUS: If necessary, we will have a look at them.
16 MS. SELLERS: I would like to have Mr. Brkic now shown the
17 document bearing the ERN number 03091741. I'm sorry, 706.
18 JUDGE AGIUS: This is one of the new documents that you mentioned
19 in the beginning of today's sitting, Ms. Sellers?
20 MS. SELLERS: Yes, it is, Your Honour. We will eventually have to
21 ask for a P number.
22 JUDGE AGIUS: Is this the one that has not yet been translated?
23 MS. SELLERS: No, Your Honour, that is not the one that we
24 referred to.
25 Your Honour, for purposes of clarification, that's 03091706. I'll
1 be referring to page numbers in the English version.
2 Q. Mr. Brkic, I would ask you to look at the decree law on service in
3 the Republic of Bosnia-Herzegovina, the general provisions, Articles 1
4 through 5, please. If you could just briefly look at that. Now, I would
5 like you to tell the Trial Chamber that the term armed forces during
6 wartime, does that incorporate more than just members of the army?
7 A. The armed forces also comprise the military reservists, members of
8 the reserve force, in addition to the army as the operative part of the
9 armed forces during wartime or an imminent threat of a war. The way the
10 armed forces are replenished is from the body of the reservists and
11 conscripts, and all of these constitute the armed forces.
12 Q. Now, could I draw your attention to Article 3. And is Article 3
13 consistent with the testimony that you've just given us?
14 A. I said that the army is composed of generals, officers,
15 non-commissioned officers, and civilians working in the army, namely those
16 civilians who are employed by the BiH army. This law applies only to
17 these four types of persons working in the armed forces. This law
18 regulates their status, the way they are promoted. The way they are paid,
19 their responsibilities, their health insurance, retirement, and other
20 benefits, and let me just refer to the law to see if there is anything
21 else. Health insurance, responsibility, pension, responsibility, working
22 hours, and the way their service in the armed forces, in the active
23 service of the armed forces, may be terminated.
24 Q. Now, can I ask you also is the term "armed forces" or person
25 serving in the armed forces, is that analogous or is that the same or
1 related to the term "servicemen"?
2 A. When you say "analog," people serving or servicemen is an analog
3 to those who are employed, who are employees in the armed forces.
4 Q. Would you look at Article 3, the second sentence, that begins
5 with: "Servicemen as defined by this decree."
6 A. Active servicemen -- give me just a moment, please.
7 I apologise, can you refer me again to the particular article?
8 Q. Article 3, the second sentence, please.
9 A. Active servicemen are non-commissioned officers, officers and
10 generals and civilians serving in the army, are those civilians who are
11 actively employed by the army. This means that the army is composed of
12 generals, officers, non-commissioned officers and civilians who have been
13 employed to work for the army. Here I am referring to some craftsmen or
14 other types of personnel who do not necessarily have to have any military
16 Q. Right. And the sentence above that, the second sentence in
17 paragraph 1 of Article 3, just to slightly belabour the point, would you
18 confirm that servicemen there also incorporate reserved forces?
19 A. According to the second sentence in paragraph 1, active servicemen
20 shall also include reservists or reserve members of the army.
21 Q. Thank you. I would now like to draw your attention to Article 5
22 of the decree. And if you would, please, comment to the Trial Chamber on
23 the first and the second sentences of this Article 5.
24 A. We are talking about commanders in the units. A commanding
25 officer can be exclusively a military person, which excludes civilians
1 from commanding posts. Civilians cannot command a unit. An exception to
2 the rule is prescribed by paragraph 2 of the same article, where it says
3 that exceptionally, the -- civilians who do not hold any rank can command
4 a unit, and that is just an exception to the rule above.
5 Q. Thank you. I would now like to draw your attention -- in the
6 English it's page 38 of the document, the ERN number is 03091741, and it's
7 the rules of service in the army of Republic of Bosnia-Herzegovina that
8 you testified about earlier. Mr. Brkic, could you just briefly comment on
9 what this legal document, the rules of service in the army, contain and
10 the reason for their existence?
11 A. The rules of service is the code of conduct in the barracks or
12 conditions similar to the barracks conditions, starting with the moment
13 the soldiers get up in the morning to the moment when they go to bed in
14 the evening. This regulates the service, the duties service, the sentry
15 duty, honouring persons, and everything else that may take place in the
16 course of one day in a military unit, in the course of the 24 hours that
17 are in a day. This is the basic rule for regulating the life and work of
18 a military unit in its barracks or in conditions similar to the life in
19 its barracks. Some provisions also apply to the use of this unit during
21 Q. Thank you. And could I ask you now to look at number 6, under the
22 rules of service?
23 A. The same?
24 Q. Yes. And if I might be permitted to just read that out into the
25 record: "During combat operations, members of armed forces must adhere to
1 the rules of international military law, to act humanely towards the
2 wounded and the prisoners from the enemy ranks and protect the civilian
3 population in accordance with international regulations and the
4 constitution of the republic."
5 Would you please tell the Trial Chamber what was meant or intended
6 by international military law?
7 A. Since all the international conventions pertaining to the
8 humanitarian law were at that time ratified by the government of
9 Bosnia-Herzegovina, and in keeping with the rule on the application of the
10 international humanitarian law, what was meant by this was to regulate the
11 life of a soldier who found himself in combat. We wanted such a soldier
12 to bear in mind at all times the application of international conventions
13 and standards applicable during combat. And this implies at least four
14 Geneva Conventions and two supplementary protocols.
15 Q. And the phrase "international regulations," would you please tell
16 the Trial Chamber what was intended by that phrase?
17 A. In the classification of law, there are international standards
18 and internal laws, and as far as I remember, one of the main provisions of
19 the four Geneva Conventions, amongst other things, it says that from the
20 moment the conventions are ratified by a state, they become legally
21 binding in that state, and that the legislators of these countries have to
22 incorporate within their internal laws the provisions of the conventions
23 which in more specific terms regulate the areas that are regulated by
24 these conventions, be it the prisoners of war, the treatment of civilians,
25 of ill persons, of those who are wounded and every other provision that is
1 regulated by the supplementary protocols. Obviously, we could not go into
2 detail of all of that here. We just in very general terms said that our
3 soldiers had to protect the international laws or the international
4 humanitarian law. This is what this law was referred to even at our law
5 schools. This is just a general duty binding upon all the servicemen and
6 soldiers in accordance with the decision of the government of
8 Q. Thank you. I'd now ask you to turn to the last section, which is
9 actually section 14, and underneath we have the name of the president and
10 a date. Would you just confirm -- I'm sorry, in the English version, it's
11 page 48. Just the date of the signing. That's what I'd like you to
12 actually confirm.
13 A. Could you please just bear with me for a moment?
14 Q. Certainly.
15 A. Okay. I didn't quite understand what you wanted me to confirm for
16 you, the date when this was signed or...
17 Q. Yes. Just the date when this was signed as evidenced by the
19 A. The date is 1st of August, 1992, and this document was signed by
20 the president of the Presidency of the Republic of Bosnia-Herzegovina as
21 the legislative body at the time.
22 Q. Thank you very much.
23 MS. SELLERS: We can remove the document. I would like to ask if
24 the document --
25 JUDGE AGIUS: One moment, because since the very last article or
1 section stated that these rules shall come into force on the day they are
2 published in the Official Gazette of the Republic, do I take it that these
3 rules that you've been testifying upon were published in the government
4 gazette, in the Official Gazette of the Republic of Bosnia-Herzegovina
5 army in its issue number 2 of the 5th of December, 1992?
6 THE WITNESS: [Interpretation] Mr. President, this was published in
7 Official Gazette 11/92, the Official Gazette of the government, that is.
8 And I'm afraid I don't know the exact date when this was Official Gazette
9 was actually published. However, judging by the exhibit that was given to
10 me in its footnote it says that it was published in the Official Gazette
11 of the government, issue number 11/92.
12 JUDGE AGIUS: Yes. And when was that? Can we establish the date?
13 MS. SELLERS: Yes, Your Honour, I'll have to get back to you on
14 the exact date of that.
15 JUDGE AGIUS: Okay. Then we can proceed with your next question.
16 But please do come back to us on this.
17 MS. SELLERS: Certainly, I will, Your Honour.
18 Q. Mr. Brkic, in your capacity during that time period, did you ever
19 participate, either drafting or supervising, any rules or the manual on
20 military discipline?
21 JUDGE AGIUS: We need to give it a P number. That will be P544.
22 Thank you, Judge Brydensholt.
23 MS. SELLERS: I'm grateful, Your Honours.
24 Q. Mr. Brkic, I'll repeat my question. Did you ever participate
25 either drafting or supervising any rules or a manual on military
2 A. I participated in the coordination and supervision of the drafting
3 of this rule on military discipline.
4 Q. Would you please explain to the Trial Chamber the reason for the
5 drafting of such manual on military discipline and any sources that might
6 have been used during the drafting period?
7 A. In order to regulate military discipline in the units, we embarked
8 on drafting a manual that would regulate the procedure and provisions that
9 would regulate military discipline and the procedure to punish any
10 breaches of military discipline. In addition to the penal code which
11 regulated penal responsibility for serious breaches of law, and in order
12 to protect military units from the breaches of discipline on the part of
13 their members, it was necessary to establish the so-called disciplinary
14 commissions and to regulate the issue of responsibility of military
15 servicemen and conscripts who broke the law or breached the discipline.
16 That is why it was prescribed that for serious breaches of military
17 discipline, by non-commissioned officers and officers, there would be a
18 military disciplinary court that would try the perpetrators, that is
19 officers and non-commissioned officers, and that would be able to
20 pronounce disciplinary measures, the gravest of which was the
21 dishonourable discharge from the service or the loss of ranks. Unlike
22 officers and non-commissioned officers, military officers were authorised
23 to pronounce disciplinary measures against their soldiers, starting with a
24 reprimand, warning or similar disciplinary measures. If the breach of
25 discipline was somewhat more serious, then officers could punish their
1 soldiers by a prison sentence up to 60 days. If the perpetrator who
2 breached the discipline or committed a crime did not exculpate the
3 perpetrator, however the perpetrator who came from the ranks of officers
4 and non-commissioned officers, in parallel with the criminal procedure,
5 there could also be a procedure before the military disciplinary court.
6 Therefore, it was possible for a military court or a regular court to
7 pronounce a certain punishment or a sentence - for example, up to one year
8 imprisonment - and this wasn't something for which he would have been
9 discharged dishonourably from the army. However, if the committed crime
10 or breach of discipline was -- went against the moral or humanitarian
11 principles, then the disciplinary court could have pronounced even the
12 gravest measure and such an officer would have lost his rank, which meant
13 that he would have been dishonourably discharged from the BiH army.
14 The only possibility that remained was if the military
15 disciplinary court sentenced the perpetrator to a prison sentence for up
16 to 60 days and if the military court also pronounced a prison sentence,
17 then these -- the disciplinary measure would be counted as part of the
18 sentence pronounced by the military court.
19 Q. Thank you, Mr. Brkic.
20 MS. SELLERS: I would ask that the witness be shown Prosecution
21 Exhibit 325, please. This is the exhibit I said -- I spoke with Defence
22 counsel earlier today that we would hand out these copies since we had
23 added them to our list this morning. So for -- courtesy copies for
25 Q. Mr. Brkic, I would ask you to look at the manual on military
1 discipline and in particular Article 5 and 6. On the English version, I
2 believe that is on page 53.
3 A. Which Article?
4 Q. Article 5 and Article 6, please.
5 A. All right.
6 Q. When you look over Article 5, I might read it: "For perpetrated
7 criminal actions or misdemeanours, military persons are responsible,
8 according to the rules defining criminal actions or misdemeanours in the
9 Republic of Bosnia-Herzegovina, hereafter the republic."
10 And Article 6 reads: "The responsibility of a military person for
11 a perpetrated criminal action or misdemeanour does not exclude the
12 possibility of being responsible on the basis of violation of military
13 discipline, in the case these actions in accordance with the present
14 manual represent a violation of military discipline.
15 Now, Mr. Brkic, you've just testified concerning the
16 interrelationship of a criminal act or action and military discipline. Is
17 that what Article 5 and Article 6 go to within the manual on military
19 You have to speak and say yes or no. Indicating with your head
20 doesn't register on our transcript.
21 A. The answer would be yes, but the interpretation I'm receiving
22 right now is not consistent with what I have in front of me. The essence
23 is perfect, but what this says is that regulations will be applied against
24 those persons that govern situations where misdemeanours have occurred in
25 the Republic of Bosnia-Herzegovina. Therefore, general laws such as
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Criminal Code and the law on criminal procedure will be applied to members
2 of the armed forces guilty of committing criminal offences. These may
3 have been crimes, criminal offences, or these may have been misdemeanours
4 as prescribed by Article 5.
5 If we go back to Article 6, as I said a while ago, if a certain
6 misdemeanour or criminal action, which usually has an element of
7 misdemeanour too, this would not preclude prosecution or disciplinary
8 measures being taken, but if there is only a breach of discipline, if
9 there are only disciplinary measures being taken against a person, this
10 person cannot be prosecuted.
11 Q. Can you give an example of what types of activities Article 6 was
12 trying to cover?
13 A. Take, for example, the criminal offence of rape. Under certain
14 circumstances, it is not necessary for a maximum sentence to be imposed.
15 There can be a more lenient prison sentence, for example. But if you look
16 at the way military discipline is organised, and if this does not
17 constitute a breach of military discipline but does place in jeopardy the
18 authority of the armed forces or its code of behaviour, the legal
19 qualification of this criminal offence, which might have been punished by
20 a more lenient sentence, might result in the loss of rank.
21 I have cited an example which is not a military criminal offence
22 but a civilian one. But the principle of personal jurisdiction was
23 applied so the -- these military courts also tried these normally civilian
25 Q. Thank you. I would ask you now to turn to Article 18 of the
1 document, and it is page number 56 in the English version. Can you just
2 comment on the last sentence where it talks about the procedure at the
3 disciplinary court is independent of the course and outcome of the
4 criminal or disciplinary procedure.
5 A. I'll repeat what I said a while ago. There is no interdependence
6 between the two. These are entirely mutually independent and not mutually
7 exclusive. You can have both done at the same time, charges being pressed
8 for a crime and disciplinary measures being taken for the same criminal
9 offence or misdemeanour as the case may be.
10 Q. Thank you.
11 MS. SELLERS: I would now ask if this exhibit would be removed
12 from Mr. Brkic.
13 JUDGE AGIUS: Yes. I think it will simplify matters for us if we
14 returned them back to you so that you can return them back to the
15 Prosecution in case they are needed later on at some later point in time.
16 We have them already. And we don't need more papers.
17 MS. SELLERS:
18 Q. Mr. Brkic, I would ask you, did there come a time that you either
19 drafted or supervised or were involved in or participated in any way in a
20 law, decree or regulation that concerned the ratification of international
21 conventions for the government of Bosnia-Herzegovina?
22 A. I personally was not involved in drafting the decree law on the
23 ratification of international conventions, especially in relation to
24 humanitarian law, and international laws. This was done by a colleague of
25 mine, a lady colleague of mine, along side with experts from the then
1 justice ministry of the Republic of Bosnia-Herzegovina.
2 Q. Did you have the opportunity to review that draft and the final
4 A. Yes. I did have the opportunity. This lady colleague whose
5 supervisor I happened to be reported to me on the sort of problems they
6 were facing in terms of finding adequate documents on which they would
7 base their decree on ratification. We didn't our own provisions at the
8 time. Bosnia-Herzegovina did not have any common ground with the former
9 laws. She was facing problems and the whole justice ministry was facing a
10 great deal of difficulty in finding these legal texts, the Geneva
11 Conventions specifically. I was aware at the time what the justice --
12 Ministry of Justice was involved in, to the extent that she reported to
13 me, but I had no bearing on the substance or the form that the final
14 document was given.
15 Q. Are you familiar with the final document? Meaning having you read
16 it previously and used it in any of your work?
17 A. Certainly. As I've already said, I was familiar with the Geneva
18 Conventions and international rules of war. I had written the
19 Presidency's order on the application of international law of war as it
20 concerned the armed forces, and I used this decree law ratifying the four
21 Geneva Conventions and two protocols as well as the other conventions
22 cited in this decree which bears the date 1992.
23 Q. Thank you.
24 MS. SELLERS: I would like to have Mr. Brkic be given Prosecution
25 Exhibit 271, please.
1 Q. Now, Mr. Brkic, if you would look through the document entitled
2 decree law on the ratification of international conventions on the law of
3 war and the judicial practice, would you confirm for the Trial Chamber the
4 international legal basis that was included within this decree law?
5 A. Given the fact that a few copies of the Geneva Conventions were
6 somehow obtained from Zagreb at the time, we read at the time that it was
7 incumbent upon all those ratifying these conventions to transform them
8 into their domestic jurisdiction. It was in compliance with these
9 provisions that we immediately took into account the provisions that we
10 had drafted ourselves as well as this whole collection of provisions
11 governing international humanitarian law and the judicial practice, and we
12 began to apply these by translating them into our domestic provisions.
13 The first document that we drafted, or rather that I myself
14 drafted, was an order for all the armed forces in Bosnia-Herzegovina to
15 apply the provisions of the international law of war in all combat
16 operations throughout the country. I will not go into further into this
17 now but this imposed an obligation on all the members of the armed forces
18 from top to bottom to strictly comply with the provisions of international
19 humanitarian law. This stems clearly from the Geneva Conventions where
20 the position of civilians, wounded or even particular features in
21 buildings is clearly defined.
22 Q. Now, Mr. Brkic, if you would look closely at this decree, I note
23 that there are certain references to reservations. Would you please
24 comment to the Trial Chamber the nature of reservations that were included
25 within the decree?
1 A. Given the fact that I was not the one who drafted this decree, I
2 can only make certain assumptions, but I can't vouch for their accuracy.
3 The Geneva Conventions, as well as all other international provisions,
4 provide for the possibility that a country adopt the original provisions
5 in their entirety or perhaps introduce certain caveats in relation
6 thereto. In accordance with these authorisations, the government of the
7 Republic of Bosnia and Herzegovina took apart the convention for the
8 amelioration of the condition of the wounded and sick in armed forces,
9 Article 10, and placed a caveat there.
10 When I go through these reservations what they appear to mean is
11 that there was a need to create a possibility for certain protected
12 persons, in this case the prisoners of war, wounded or civilians, should
13 not be jeopardised even further, or that it should be made possible for
14 humanitarian organisations and other international organisations such as
15 the Red Cross and all other organisations involved in humanitarian work,
16 that the force holding them captive - and I'm talking about prisoners or
17 wounded - shouldn't make life any more difficult for them and should
18 ensure safe passage for all humanitarian aid, and that this aid should be
19 administered to persons facing situations of hardship. That's my
20 position. I'm not sure if I'm right or not.
21 Q. Did the incorporation of these reservations into the decree on the
22 ratification of international conventions increase the protection of the
23 Geneva Conventions for prisoners of war or civilians or did it decrease
24 the protection that they would be afforded?
25 A. Well, based on what I've just said, in order to make it impossible
1 for a force or forces holding certain people -- certain prisoners who may
2 be civilians or who may be wounded, in order to keep these people from
3 getting into an even more difficult position, if humanitarian aid convoys
4 were passing through, in terms of water, electricity and everything else,
5 so that's the meaning of these reservations at the point in time when
6 these conventions were adopted. These were to offer further guarantees
7 that all these persons that fall under the provisions of these conventions
8 would enjoy an even greater degree of protection.
9 Q. Thank you.
10 MS. SELLERS: We can have the document removed from Mr. Brkic at
11 this point.
12 Q. Now, Mr. Brkic, you testified that although you did not draft the
13 decree law on the ratification of international conventions on the law of
14 war and the judicial practice but that subsequent to it, you were involved
15 in drafting other documents that would refer to it, or that would be based
16 upon it. I'd like to ask you, are you familiar with the order on
17 enforcement of the rules of the international military law in the armed
18 forces of the Republic of Bosnia-Herzegovina?
19 JUDGE AGIUS: Why don't you show it to him straight away?
20 MS. SELLERS: Okay. Your Honour, I was trying to lay the
21 foundation. Then we would ask that he be shown document, Prosecution
22 Exhibit 319.
23 JUDGE AGIUS: Because the document speaks for itself and he will
24 only need to confirm whether he was involved in it or not. If you're
25 interested in further questions, of course you will be allowed to
1 formulate and put those, but otherwise we can move, because time is
2 running -- you're running short of time.
3 MS. SELLERS: Yes.
4 Q. Mr. Brkic, please look at this document and tell us whether you
5 participated in its drafting or whether you supervised its drafting or any
6 participation whatsoever?
7 A. I personally drafted this document.
8 Q. Would you please confirm to the Trial Chamber, in paragraph 1, the
9 second sentence, where it talks about the rules of international military
10 law are that the international military laws -- could you tell which
11 international treaties they include within the meaning of this document?
12 A. At the time when this order was written, no specific treaty was
13 envisaged, no matter whether bilateral or multilateral. There was a very
14 general provision that the sides in conflict, specifically
15 Bosnia-Herzegovina and a third state, neutral state, could have a
16 bilateral or multilateral agreement concluded which would make sure that
17 international humanitarian law would be applied in compliance with this
18 order, but there was no specific treaty that was envisaged at the time.
19 But that was the understanding, because all these conventions were signed
20 by a number of different states. These were international conventions and
21 this was stated in a way, and these international conventions were
22 ratified by Bosnia and Herzegovina. The date that this order bears is the
23 23rd of August, which is the same date as the order on the ratification of
24 these conventions that we saw a while ago. So everything tallies because
25 on the same day, you had one document drafted and the other and yet
1 further documents on the same day all the documents relating to
2 international law of war were signed on the same day by the relevant
4 Q. I would ask you to look at the last phrase, what appears to be the
5 second paragraph of number 1 and refers to the rules of the international
6 customary military law and generally accepted principles of the
7 international military law. Were those the bases -- were those rules that
8 are being referred to, or laws, are they the basis of bilateral treaties
9 or are they the basis of some other type of legal adherence?
10 A. As I'm sure you know, I actually teach this subject at a
11 university, international military law. These four conventions do not
12 comprise all the possible situations. There is another international
13 treaty prior to the Geneva Conventions plus the amendments to these
14 conventions. So that there are other provisions of customary law
15 governing the behaviour of the sides in conflict, and that is also
16 comprised by this order. I'm talking about the customs of war.
17 Q. And would this customary law acceded to by Bosnia-Herzegovina in
18 the prior decree on ratification?
19 MR. JONES: I'm not sure if one can accede to customary law.
20 MS. SELLERS: Your Honour, I accept that. Let me reword that.
21 JUDGE AGIUS: Yes. Yes, please
22 Q. Was Bosnia-Herzegovina also bound by the customary law that are
23 referred to, that you've just described to us, as a result of the second
25 JUDGE AGIUS: I think we can skip to the next because we all know
1 what is the binding nature of international customary law.
2 MS. SELLERS: Could he put it on the record for us, please.
3 JUDGE AGIUS: Yeah, let's --
4 MS. SELLERS:
5 Q. I'm sorry, you will have to say a verbal response for the
7 A. There are no sanctions involved in sanctions that are of a moral
9 Q. Is that a --
10 A. Customs as agreed forms of behaviour do not entail any criminal
11 sanctions, but moral condemnation and other sanctions of that nature are
12 involved. Therefore, if there is someone violating one of the agreed
13 norms of behaviour, not regulated by international conventions, will be
14 isolated or condemned in some other manner by the UN or bilaterally, as it
15 happens, whereas the specific case may be. I don't think I can specify
16 what the consequence would have been but could have been applied to a
17 given case of violating the rules of war, the customs of war.
18 Q. Thank you, Mr. Brkic. I would like to draw your attention now to
19 paragraph 2, and it refers to the commanders of the units and each member
20 of the armed forces individually is responsible for the enforcement of the
21 rules of the international military law and the competent commander is
22 obligated -- is obliged to start procedure to pronounce legal sanctions
23 against persons it would violate the rules of the international military
25 Is paragraph 2 or number 2 drafted in order to implement
1 paragraph 1?
2 A. Paragraph 1 or item 1 of this document constitutes a legal basis
3 for the application of humanitarian law throughout the armed forces of
4 Bosnia-Herzegovina. What stems from this is, if you look at the preamble,
5 this is the legal basis to adopt this legal document and the legal basis
6 for the application is enshrined in Article 1. This is a general
7 provision to make sure that the customary law or rather the international
8 conventions will be applied in Bosnia-Herzegovina as well as any treaties,
9 bilateral treaties, as well as the customs and rules of war, and that is
10 the basis for all the other items and articles enshrined in this order.
11 And if you go to item 2, 3, and 4, we no longer specify which regulations
12 it is that active military officers should be applying.
13 Q. So paragraph 2 would be the implementation of paragraph 1. Is
14 that your testimony, Mr. Brkic?
15 A. Yes, yes. Item 1, paragraph 1, the armed forces of
16 Bosnia-Herzegovina, in a state of armed conflict, must apply the rules of
17 international law of war, the armed forces. And then if you read further
18 down it says who is in charge of the implementation of these rules within
19 the armed forces.
20 Q. Yes. Thank you very much. Now, will you just confirm for the
21 Trial Chamber - I believe you might have already - the date that this was
22 signed? Could you just confirm for the Trial Chamber that it was signed
23 on August 23rd, 1992?
24 A. That's what I see on the face of the document, the 23rd, but there
25 is no way I can know whether it was signed on the 23rd. I wasn't the one
1 who signed it, nor was I a member of this group of people who signed it.
2 But I assume it was on the 23rd because it was published in the Official
3 Gazette as having been signed on the 23rd and there is a protocol number
4 assigned to it.
5 Q. Thank you very much.
6 MS. SELLERS: Could we remove the document from the witness at
7 this point, please?
8 Your Honour, I do not know whether you intend to take a break now.
9 I'm going to another document so it would be an appropriate time for a
10 break, but I would also like to assure Your Honours
11 that I will still be able to finish today.
12 JUDGE AGIUS: I was actually going to ask you what is the
13 situation like in your mind, because if you need a shorter break, we'll
14 try and organise a shorter break.
15 MS. SELLERS: Your Honour, I believe that even with the normal
16 break I should be able to conclude.
17 JUDGE AGIUS: All right. So we'll have a 25-minute break. Thank
19 --- Recess taken at 12.28 p.m.
20 --- On resuming at 1.02 p.m.
21 JUDGE AGIUS: One moment, Ms. Sellers, because the accused is not
22 yet present.
23 [The accused entered court]
24 JUDGE AGIUS: Yes, Ms. Sellers.
25 MS. SELLERS: Your Honour, I was going to ask that we briefly show
1 Prosecution Exhibit 319 again to Mr. Brkic or, if you prefer, I would just
2 read out one passage from there which leads into my next question.
3 JUDGE AGIUS: I think we -- Mr. Jones or Madam Vidovic, can we
4 proceed the way that Ms. Sellers is suggesting?
5 MS. VIDOVIC: [Interpretation] Yes, Your Honour.
6 JUDGE AGIUS: Okay. I would prefer the latter, please.
7 MS. SELLERS: In the order on enforcement of the rules on
8 international military law in the armed forces of the Republic of
9 Bosnia-Herzegovina what we've referred to as P319, under section 5, it
10 says: "The Minister of Defence shall pronounce instructions on the
11 enforcement of the rules of the international military law and the
12 instructions on the procedure before military, judicial and other organs
13 during the criminal proceedings against a prisoner of war.
14 Q. And, Mr. Brkic, I just want to ask you were you familiar with that
15 section of the order?
16 A. Yes.
17 Q. And as a result of that section, did you participate in the
18 drafting or supervising of the writing of such rules or instructions for
19 the implementation of the international laws of war?
20 A. I personally drafted -- I personally drafted the instruction on
21 the application of the international rules of law in the Republic of
22 Bosnia-Herzegovina and this was signed by the Minister of Defence.
23 Q. Thank you.
24 MS. SELLERS: I'd like to show Mr. Brkic now document with ERN
25 number 00136468 and, Your Honour, I will cite that these are the documents
1 that I spoke with Defence counsel about earlier. We have been able to
2 provide a translation and copies of the document.
3 Q. Mr. Brkic, I would ask you to please glance through the document.
4 And would you tell the Trial Chamber the purpose of these instructions?
5 MS. SELLERS: For the record, I would say the document is entitled
6 instructions for the implementation of the international laws of war
7 within the army of the Republic of Bosnia-Herzegovina.
8 A. This is the order of the Presidency which was the legislative body
9 at the time. This was a general rule tasking the Minister of Defence to
10 issue his own instructions in order to work out all the elements of the
11 application of the rules of war. The Minister of Defence did that and
12 prescribed the ways the international laws of war would be applied in the
13 armed forces of Bosnia-Herzegovina and the document that you are just
14 showing to me is that particular document.
15 Q. Could I please ask you to go to item number 10 of the document?
16 MS. SELLERS: Your Honours, I do want to state while Mr. Brkic is
17 looking at item 10 it has been brought to our attention by the Defence,
18 and for that we are grateful, to note that in the English translation
19 there doesn't appear to be a number 15, that it jumps between 14 and 16.
20 Right now I'm referring to item number 10, so that omission will not incur
21 upon our discussion at the present.
22 Q. Mr. Brkic, in item number 10 --
23 A. This is nothing else but a copy of the Geneva Conventions. This
24 item forbids looting and destruction of the enemy's property save for the
25 military object. The armed forces of Bosnia-Herzegovina could confiscate
1 everything that was found in the zone of combat, and this was considered
2 war booty, in brackets, it says, arms, ammunitions, vehicles. It is
3 stipulated what the war booty -- what was considered war -- considered war
4 booty and the provisions of this article.
5 Q. Thank you. Could you please turn to section 18 and 19?
6 JUDGE AGIUS: 15 is there. It's simply not numbered.
7 MS. SELLERS: Yes, Your Honour, the question is which paragraph
8 that we should place 15 next to.
9 JUDGE AGIUS: Yeah, okay.
10 THE WITNESS: [Interpretation] The permanent medical units?
11 JUDGE AGIUS: No.
12 MS. SELLERS: Yes. And that would have 14 consisting of
13 approximately three paragraphs and then 15 would start with permanent --
14 JUDGE AGIUS: Yes, but I think still there is something missing.
15 I think there is still something missing. We'll see anyway. I mean, you
16 have time to rectify this.
17 MS. SELLERS:
18 Q. Mr. Brkic, could I ask you to look at section numbered 18 and 19
19 and please comment to the Trial Chamber as to their meaning as contained
20 in these rules and instructions?
21 A. I don't know whether there has been a confusion in the numbers or
22 whether I should refer to the original. In the original, it says that
23 every member of the armed forces is duty-bound to do everything possible
24 not to become a prisoner of war. Those who become prisoners of war are to
25 be considered absent from the unit and will be responsible to the
1 government of the Republic of Bosnia-Herzegovina for his actions, even
2 during the period of time while they are in prison. They are still
3 duty-bound to take all the measures as prisoners of war to alleviate their
4 difficult positions. They are duty-bound to fight the enemy, to try and
5 escape, to refuse any privileges that would be imposed on them by the
6 force that has detained him and that is keeping them prisoner. Any
7 privilege that would give him privileges over other detainees.
8 Q. Excuse me, Mr. Brkic. I'm looking at paragraph 18 and 19 and in
9 particular paragraph 19, just to make sure we are on the same paragraph,
10 that in the English version, which is at ERN number 00136472, paragraph 19
11 states: "The detaining power and individuals are bound to bear
12 responsibility for their actions toward the detained prisoners of war."
13 Are you able to locate that paragraph, sir?
14 A. This is number 19 in the original.
15 Q. Yes, sir. And if I would just conclude, I've read the first part
16 of the paragraph, the second part of paragraph 19 is: "War prisoners,
17 including women, are entitled, under all circumstances, to respect for
18 their personality and honour. It is forbidden to wound or kill a
19 combatant of the enemy after he surrenders."
20 Could you just comment on this portion of the instructions,
22 A. In a nutshell, these are the main provisions of the Geneva
23 Conventions regulating the treatment of prisoners of war, civilians and
24 all those who happen to find themselves in detention. And it says here
25 that there should be humane treatment, that no force should be used
1 against the detainees, no intimidation, and that their personality, honour
2 and reputation have to be respected at all cost, and there is a special
3 emphasis given to female prisoners.
4 Q. I'd like to ask you now to number 4, please. Would you look at
5 the paragraph? I believe number 4 consists of two paragraphs. And please
6 comment to the Trial Chamber whether paragraph 4 is consistent or
7 inconsistent with the other rules, decrees, laws and regulations that you
8 have testified about this morning.
9 A. Given the fact that the conventions pertaining to the humanitarian
10 law were ratified and the fact that the Presidency of Bosnia-Herzegovina
11 issued an order on the application of the humanitarian law, this is just
12 an elaboration of those basic documents.
13 Q. And it's the second paragraph that says parties to the armed
14 conflict are bound to bring criminal charges against the members of their
15 own armed forces and those of the enemy that have given orders or
16 participated in execution of war crimes, is this also consistent in terms
17 of implementation with the rules, decrees, instructions and laws that
18 you've been testifying about today?
19 A. Most probably it is. The wording itself is such that the
20 legislature did not have the right to regulate the behaviour of the enemy
21 sides. So this should read, this side, the side of the BiH army, has to
22 take to task members of its own army, or the enemy should they be
23 captured, who had either ordered or committed war crimes or other grave
24 breaches of the Geneva Conventions.
25 What I'm saying is that the regulations of the Republic of
1 Bosnia-Herzegovina could not regulate the behaviour of the other side.
2 This is just a wrong wording. However, the meaning of this instruction is
3 to regulate the behaviour of the members of the armed forces of the
4 Republic of Bosnia-Herzegovina and to give them the duty and the task to
5 behave in a certain way against the members of their own forces and those
6 who might have been captured and are proven to have participated in war
8 Q. All right. Thank you.
9 MS. SELLERS: Now, I would ask that this document be taken from
10 Mr. Brkic at this time. And we need a P number if Your Honours would
11 permit us, please?
12 JUDGE AGIUS: Yes, that will become Prosecution Exhibit P545,
13 Ms. Sellers.
14 MS. SELLERS: Thank you.
15 Q. Now, Mr. Brkic, again in accordance with number 5 that I read out
16 earlier on the order of enforcement of the rules of the international
17 military law on the armed forces of the Republic of Bosnia-Herzegovina,
18 were you ever asked to draw up rules and regulations of judicial
19 facilities within the army of Bosnia-Herzegovina?
20 A. At the very beginning of my testimony, I said that the first
21 regulation I drafted was between the 13 and 15 April, 1992 and that this
22 was the law on military courts, military prosecutors' offices and court
24 Q. If Your Honours -- I'm sorry, please continue.
25 A. And this was something that was asked from me at the moment when I
1 offered my services to the Ministry of Defence of the Republic of Bosnia
2 and Herzegovina. However, because of the concept of the existence of
3 special military regular courts which the Croatian component opposed to
4 through their minister, these regulations that I drafted at the time were
5 never adopted, nor were they ever -- did they ever become effective. The
6 chief of the Main Staff of the then Territorial Defence insisted and even
7 threatened me with physical liquidation. I was appointed together with
8 two other persons from the Ministry of Justice. One of them was a judge
9 of the Supreme Court, I believe. He is now dead. And we were given the
10 task to draft a law on military courts within three days, on military
11 courts, military prosecutors' offices and court martials. We were locked,
12 the three of us, in a room. There was need to do that. There was a
13 requirement to do that because a lot of irregularities had been
14 encountered on the ground, and breaches of discipline committed by members
15 of the armed forces, and the -- there was an intention to punish such
17 At the beginning of August 1992, the three of us together were
18 isolated, we -- and we drafted these three sets of regulations, and those
19 were later on published in the Official Gazette with the remark that the
20 original version of the law entitled the law on court martials, which was
21 an exception to the rule, its title was the law on court martials, it was
22 supposed to regulate only the specific and extreme behaviour of military
23 personnel, and the specific circumstances in which the military units
24 could find themselves were discussed during a debate by the Presidency,
25 and the title of the law was changed into the law on special military
1 courts. And also a provision was changed, the provision which was
2 supposed to regulate the issue of death penalty. If there was a
3 disagreement by the panel of judges on the death penalty, then the case
4 would have to be referred to the authorised military prosecutor's office
5 for referral to the so-called regular military courts.
6 Q. Thank you.
7 MS. SELLERS: Might I ask that Mr. Brkic be shown Prosecution
8 Exhibit 322, please.
9 Q. Mr. Brkic, I would just ask to you look through the document and
10 tell the Trial Chamber, are these the rules and regulations that you have
11 just testified about as they relate to the district military court and its
13 A. Yes.
14 Q. Now, were there any statutory orders on the district military
15 courts that you participated in either the drafting or supervision or
16 coordination of?
17 MS. SELLERS: Your Honour, might I show him also the document so
18 we can --
19 JUDGE AGIUS: Please go ahead.
20 MS. SELLERS: We can take back 322 and if you can show Mr. Brkic
21 Prosecution Exhibit 320.
22 THE WITNESS: [Interpretation] This is the same law. However, this
23 is the civilian Official Gazette, and when the compilation of all the
24 rules governing the army was compiled, we just copied what was published
25 in the civilian gazette into the military gazette, so these two exhibits
1 contain the same document.
2 MS. SELLERS:
3 Q. And in the second exhibit, what I refer to as P320, entitled
4 statutory order on district military courts, did that mean that this was
5 to be implemented by the army of Bosnia-Herzegovina?
6 A. To be honest, I don't understand your question. But there is no
7 doubt about the fact that given the order on the application of the
8 humanitarian law and the decree law on the adoption of the penal code of
9 the Federal Republic of Yugoslavia as a law of Bosnia-Herzegovina, all the
10 laws applied also to the armed forces, i.e., to the army of
11 Bosnia-Herzegovina. The subsequent provisions of this law specify the
12 crimes for which the district military court is authorised and has
13 competencies over.
14 Q. And would you look at Article 4 in Prosecution Exhibit P322 and
15 Article 5 under P320, and confirm to the Trial Chamber that a district
16 military court was to be implemented in Tuzla, for the territory of the
17 district of Tuzla, under the rules -- under the laws?
18 A. The answer is yes, with the proviso that according to the Charter
19 of civilian government which was done by the Ministry of Justice, the
20 Republic of Bosnia-Herzegovina was divided into ten counties. Each county
21 had an assembly to act as a civilian body. In parallel to the civilian
22 bodies, the territorial division was carried out for units throughout
23 Bosnia and Herzegovina. There was an attempt to adapt the organisational
24 model of the unit to the organisational model of the -- of civilian bodies
25 of government, civilian authorities, throughout Bosnia-Herzegovina. At
1 the time when we wrote this decree, as you can see, only seven such
2 counties were envisaged, but there was subsequently an amendment defining
3 three other counties, Livno, Gorazde, and a third one which I can't
4 remember now. This means that in accordance with the organisation of the
5 civilian bodies of government, there was supposed to be a district
6 military court in Tuzla municipality, and it was established in Tuzla
7 pursuant to this order.
8 Q. Thank you, Mr. Brkic. I can have these documents removed.
9 MS. SELLERS: For the Trial Chamber's benefit, I think we have
10 been able to locate where number 15 in document P4 -- 545 is located in
11 the English version, and, yes, it would be where it says permanent and
12 auxiliary hospitals. And, Your Honours, we just need for the sake of the
13 record instead of sending it officially to translation again.
14 JUDGE AGIUS: Yes. I don't think you need to send it back to
15 translation. I mean, we just put 15 against the paragraph which starts
16 with the word "permanent" and the following three paragraphs. That's the
17 entire four paragraphs would constitute paragraph 15.
18 MS. SELLERS: Yes. And now I would just like to have Mr. Brkic
19 shown Prosecution Exhibit 323.
20 Q. Mr. Brkic, please briefly look at this and confirm to the Trial
21 Chamber your participation, if any, in the drafting of this law.
22 A. Yes.
23 Q. And is this what your testimony concerning the special military
24 court encompassed, the rules and regulation that is we see here?
25 A. Certainly.
1 MS. SELLERS: Your Honour, I will not be asking any further
2 questions about the document. I want to confirm its origin. And,
3 Mr. Brkic, I've completed my direct examination, Your Honour.
4 JUDGE AGIUS: I thank you.
5 Madam Vidovic, do you want to start now or do you prefer to start
6 tomorrow? It's up to you.
7 MS. VIDOVIC: [Interpretation] Your Honour, I'd prefer to start
9 JUDGE AGIUS: Perfect. So Professor, we are going to adjourn for
10 the day. You will return again tomorrow morning. We'll have the
11 cross-examination tomorrow. Then you are free to go.
12 Thank you. The sitting is adjourned.
13 --- Whereupon the hearing adjourned at 1.30 p.m.,
14 to be reconvened on Wednesday, 18 May 2005, at 9.00