1 Thursday, 23 April 2009
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.03 a.m.
6 JUDGE MOLOTO: Good morning to everyone in and around the
8 Madam Registrar, please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in and around the courtroom. This is case number IT-04-81-T,
11 The Prosecutor versus Momcilo Perisic.
12 JUDGE MOLOTO: Thank you so much.
13 May we have the appearances for today, please, starting with the
15 MR. HARMON: Yes, good morning, Your Honours, counsel, everyone
16 in the courtroom. Mark Harmon, Bronagh McKenna, and Carmela Javier
17 appearing for the Prosecution.
18 JUDGE MOLOTO: Thank you very much.
19 And for the Defence.
20 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good
21 morning to all the participants in the proceedings. The Defence of Mr.
22 Perisic is today represented in the courtroom by Tina Drolec,
23 Milos Androvic, Daniela Tasic, Gregor Guy-Smith, and Novak Lukic.
24 JUDGE MOLOTO: Thank you so much, Mr. Lukic.
25 Good morning, sir. Good morning. Just again to warn you that
1 you are still bound by the declaration you made at the beginning of your
2 testimony to tell the truth, the whole truth, and nothing else but the
3 truth. Thank you so much.
4 Mr. Harmon.
5 WITNESS: MIODRAG STARCEVIC [Resumed]
6 [Witness answered through interpreter]
7 Examination by Mr. Harmon: [Continued]
8 Q. Good morning, Mr. Starcevic.
9 MR. HARMON: Can we go into private session briefly, Your Honour.
10 JUDGE MOLOTO: May the Chamber please move into private session.
11 [Private session] [Confidentiality lifted by order of the Chamber]
12 THE REGISTRAR: Your Honours, we're in private session.
13 JUDGE MOLOTO: Thank you so much.
14 MR. HARMON: Could I have Prosecution Exhibit 709 displayed on
15 the monitor. I'm interested in B/C/S page 25 and the English, page 23.
16 Your Honour, I think it should be page 33 in the English.
17 JUDGE MOLOTO: 33, not 23.
18 MR. HARMON: Not 23.
19 Q. Let me direct. Mr. Starcevic, what this is is a document you
20 have seen before. This is a text from the stenographic record of the
21 14th Session of the SDC held on the 11 October 1993. I would like to
22 direct your attention to the first paragraph in your document, and in the
23 English version, the text that is found in the middle of the page, under
24 Mr. Perisic's name, the second paragraph, starting with:
25 "Another thing is of the essence here ..."
1 JUDGE MOLOTO: Is that --
2 MR. HARMON:
3 Q. Now, this text, I just want to refresh your recollection. Can
4 you see it, Mr. Starcevic, the text?
5 A. No, I can't see it.
6 Q. Well, let me --
7 A. I haven't found that piece.
8 Q. It's the top paragraph.
9 A. Yes.
10 Q. Okay. And this text reads:
11 "Another thing is of the essence here. They are asking for
12 specific individuals. If those men refuse to go there, then we need to
13 view them as deserters who don't want to defend their homes."
14 MR. HARMON: Now, if we could go back into public session, Your
16 JUDGE MOLOTO: May the Chamber please move into open session.
17 [Open session]
18 MR. HARMON: Mr. Starcevic, I'm --
19 JUDGE MOLOTO: Please wait.
20 THE REGISTRAR: Your Honours, we're back in open session.
21 JUDGE MOLOTO: Thank you very much.
22 Yes, Mr. Harmon.
23 MR. HARMON: Can I have P875 displayed on the monitor.
24 Could we first look at the -- what this document is, and could we
25 go to the last page, as well, and see who signed it.
1 Q. This is -- this is a document that is signed by the commander of
2 the Main Staff of the SVK, Major-General Milan Celeketic.
3 MR. HARMON: And if we could return again to the first page of
4 each document.
5 Q. Mr. Starcevic, this is a document dated the 14th of May. It is
6 from the Main Staff of the Serbian army of Krajina, and it's addressed to
7 the Yugoslav Army General Staff. And it says:
8 "In order to replenish the Republic of Serb Krajina aviation
9 units, we require the following officers."
10 And it has a long list of names and ranks of particular
11 individuals. Have you seen this document before, Mr. Starcevic?
12 A. Yes, I've seen it.
13 Q. And can you comment on this document?
14 A. I'm not certain in what sense you expect that. But if I may say
15 so, it is rather unusual to ask for specific individuals for
16 replenishment or reinforcements of some units.
17 Q. Now, is there any legal basis for an army of a different country
18 - in this case, the SVK - to request specific officers from the
19 Yugoslav Army for replenishment?
20 A. I think not.
21 Q. All right. Then if we could turn to another document.
22 MR. HARMON: If we could turn to Prosecution Exhibit 741.
23 Could we first go to the last page of the document to see who the
24 author of this document was.
25 Q. Mr. Starcevic, this -- as you can see from the monitor, this is a
1 document that was signed by General Perisic.
2 MR. HARMON: If we could return now to the first part of the
3 document, first page.
4 Q. And I'm interested -- first of all, this is a decision dated the
5 24th of March, 1994, and it's a decision on determining the task --
6 JUDGE MOLOTO: The 24th or 22nd?
7 MR. HARMON: 22nd; I apologise. The 22nd of March.
8 Q. And it's a decision on determining the tasks where service is
9 performed under difficult, special circumstances.
10 Mr. Starcevic, have you seen this document before coming into
11 court today?
12 A. Yes, I have.
13 Q. Okay. Now, first, let's focus on paragraph 1, if we could.
14 Paragraph 1 defines to whom this -- this decision applies, does
15 it not?
16 A. Yes.
17 Q. Okay.
18 MR. HARMON: Now, if we could now look at the second paragraph of
19 the document.
20 Q. What does this paragraph define, Mr. Starcevic?
21 A. This paragraph defines the territory which is considered
22 territory where duties are performed under difficult circumstances.
23 Q. Okay. Now, if we could take a look at these various elements in
24 here, I would like to focus on, particularly, item number 5.
25 Could you tell me, first of all -- actually -- before we go to
1 item number 5, are you familiar with these kinds of documents? Have you
2 seen these kinds of documents before, Mr. Starcevic?
3 A. As far as I can recall, there was always an order, "naredba,"
4 which defined the type of service that is considered service under
5 difficult conditions, and I think this is one such order.
6 Q. What is your understanding -- based on your past experiences,
7 what is your understanding of the meaning of the term "service under
8 difficult circumstances?" What kind of circumstances are mentioned or
9 required to fill within that definition?
10 A. Well, these circumstances can vary significantly, but they would
11 mean that men would have to undergo additional efforts in order to
12 perform their tasks. There could be all sorts of reasons, whether they
13 be natural conditions or other conditions that are not normal conditions
14 that are normal for most people in the Army of Yugoslavia.
15 So these would be conditions either caused by man or some other
16 conditions that simply require extra effort on the part of the troops, or
17 it could entail an increased level of danger or something to that effect.
18 Q. So they would be -- would it be fair to say they would be
19 abnormal circumstances outside the normal realm of service in the army?
20 JUDGE MOLOTO: Yes, Mr. Lukic.
21 MR. LUKIC: [Interpretation] I think this is a leading question.
22 MR. HARMON: I'm trying to characterise, Your Honour, generalise
23 in a very short way to capture what the witness has said. If it is
24 leading, I will withdraw the question if it's objectionable.
25 JUDGE MOLOTO: Now, what do you say? What's your submission? Is
1 it or is it leading?
2 MR. HARMON: It is leading, Your Honour, but I was --
3 JUDGE MOLOTO: Thank you very much.
4 MR. HARMON: Thank you. Okay.
5 Q. Mr. Starcevic, so then let me direct your attention to item
6 number 4, subpart 4 of this document, and subpart 4 in this document
7 identifies the authorised officer from Article 156 issues the decision on
8 entitlement to this compensation for any person who meets the
9 requirements for compensation from this decision.
10 Can you tell us what the term "the authorised officer" means in
11 the context of this decision?
12 A. An authorised officer is an officer who is authorised under
13 Article 156 of the law, and as far as can I recall, if I'm not mistaken,
14 this would be the chief of the General Staff or another officer -- no,
15 no. No, this would be the officer commanding the unit where this service
16 is performed, provided that he was at least at the level of battalion
17 commander or higher. In other words, this should be an officer of a unit
18 of at least a rank of battalion or higher.
19 Q. And your answer says it would be an officer commanding the unit
20 where this service is performed. Can you -- do you know on what
21 territory the members of the 30th and 40th Personnel Centres were in
23 A. No, I don't know that.
24 Q. The duty post for members of the 30th and 40th Personnel Centres
25 was Belgrade, as we have seen from a previous document; is that correct?
1 A. In principle, yes. The seat of the Personnel Centres was at the
2 -- or the headquarters was at the Belgrade garrison.
3 Q. Now, are you aware of any difficult or special conditions in
4 Belgrade that would warrant this -- that would fall within the purview of
5 this decision?
6 A. No, I really wouldn't know that. These are operational issues,
7 and that was not my field. As I said, I didn't even know that these
8 centres existed at the time, so it is not really possible that I should
9 know what territory they covered and what the conditions there were.
10 Q. All right.
11 MR. HARMON: Could we now go to Prosecution Exhibit 1810.
12 Q. Mr. Starcevic, have you seen this document before coming into
14 A. Yes. Yes, I've seen it.
15 Q. And this is a document dated December the 5th, 1994, and it is
16 issued by Military Post 3001, and it is a decision to --
17 JUDGE MOLOTO: Is this December the 5th or the 12th of May?
18 MR. HARMON: I'm back in the American mode, Your Honour. I'm
19 sorry. It is the 12th of May.
20 JUDGE MOLOTO: Thank you.
21 MR. HARMON: All right.
22 JUDGE MOLOTO: Maybe we must outlaw the American mode.
23 MR. HARMON: I won't comment on that, Your Honour.
24 Q. Mr. Starcevic, what is this decision? Can you -- can you tell
25 the Court what this decision is?
1 A. Yes. This is one of the decisions that are required to be issued
2 according to the order so that individuals would be entitled to hardship
4 Q. And what is the authority? What's the basis of issuing this
6 A. Well, in -- in essence, there are two legal bases for this
7 decision. One of them is already the already-mentioned Article 156 of
8 the law, authorising an officer to issue a decision on hardship allowance
9 and special condition service; and the other foundation or basis is the
10 already-mentioned order by the chief of the General Staff, which defines
11 that entitlement in general terms.
12 Q. Could I direct your attention, Mr. Starcevic, to subpart (b) of
13 this document. Now, this decision applies to General Ratko Mladic. In
14 subpart (b) -- can you comment on subpart (b)?
15 A. Well, it is my impression that subpart (b) is not really a
16 decision of any sort because no decision is made to increase
17 compensation, and in my view, this is just a form that was used, but in
18 this particular case the decision wasn't really made because we don't see
19 the figure there indicating what the increase of compensation is.
20 Q. Okay. But there's a reference, is there not, to a decision of
21 the commander of the -- of Military Post 3001, and there's an
22 identification number, 21/32-21, dated the 3rd of February, 1994. Do you
23 see that?
24 A. Yes, I do. I do see that part.
25 JUDGE MOLOTO: Yes, Mr. Lukic.
1 THE WITNESS: [Interpretation] And I don't know what that decision
2 is --
3 MR. LUKIC: [Interpretation] Well, bearing in mind the earlier
4 answer that the witness gave, that there are no figures there indicating
5 what the amounts were, I think this is calling for the witness to
6 speculate because he has already said in his earlier answer that he can't
7 see that there was any decision because there is no figure put in there,
8 so with this additional question, he is being called to speculate.
9 JUDGE MOLOTO: Mr. Harmon.
10 MR. HARMON: I didn't ask him to speculate. I asked him if in
11 fact there was this reference in subpart (b).
12 JUDGE MOLOTO: You mean you didn't see the reference, Mr. Harmon?
13 MR. HARMON: The objection as I understood it was he is called to
14 speculate. I didn't ask him to speculate. My question to him was, there
15 is an reference to a decision, and I cited the decision and that
16 reference number. That's all I did, so I --
17 JUDGE MOLOTO: Objection overruled. Thank you.
18 MR. HARMON: Okay. Now, if we could turn to the next document,
19 which is Prosecution Exhibit 399.
20 Q. We can see, first of all, that this is a document that is dated
21 the 3rd of February, 1994, and it bears the same reference number that
22 was seen on the previous document, 21/32-21, and it is a decision on the
23 compensation for military service in difficult (special) circumstances,
24 and it was issued by the General Staff of the VRS.
25 MR. HARMON: Could we go to the last page of the document to see
1 who issued this document.
2 That is not the last -- I'm sorry, it should be the
3 second-to-last page on the English because those just show who the copies
4 were sent to.
5 If we go to the previous page, page 2. We see at the bottom of
6 the page, there is an indication of who issued this decision.
7 Q. Do you see a signature at the bottom of that page, Mr. Starcevic?
8 A. Yes, I can see it.
9 Q. And whose signature or whose name is that?
10 A. Lieutenant-General Ratko Mladic.
11 Q. So if we go back to the first part of this -- the first page of
12 this document.
13 Now, you have seen this document before, Mr. Starcevic, have you
15 A. Yes.
16 Q. And what is this document?
17 A. Well, obviously, this is a document whereby the Main Staff of the
18 VRS, the Republika Srpska army, indicates what the compensation -- the
19 level of compensation will be for difficult conditions, for military
20 service under difficult conditions, and, of course, that would also
21 depend on the unit where such service is performed.
22 Q. Does this document define to whom this decision applies?
23 A. Yes. Generally, yes.
24 Q. And is that reference found in paragraph 1?
25 A. Yes.
1 Q. So this decision issued by General Mladic applies special
2 compensation, and I will read paragraph 1:
3 "... to all professional soldiers and NCOs, civilians in the
4 army, officers and NCOs and contract soldiers serving in the Yugoslav
5 Army deployed in the army of the Republika Srpska are entitled to
6 compensation for carrying out military service in difficult conditions
9 A. Yes.
10 Q. We have seen from the previous document that General Mladic was
11 awarded compensation for serving under difficult circumstances. Can you
12 -- do you have any observations on -- on that?
13 A. Simply, it is the way you put it. Any kind of compensation to
14 members of the Army of Yugoslavia is issued when they are deployed in the
15 army of Republika Srpska. This is according to paragraph 1 here.
16 Q. Now, let me ask you this question, Mr. Starcevic. This is a
17 reference -- I'm sorry, the previous document had a reference to the
18 document that's now before you, a document issued by the VRS. The
19 previous document was issued by a unit of the VJ by the 30th Personnel
20 Centre. Is there a reason, in your view, or a basis in your view, why a
21 decision which was issued by the 30th Personnel Centre would have a
22 reference to a decision issued by the VRS?
23 A. The only reason that I can see is that the decision does not
24 determine specific amounts of the compensation but only the general right
25 to compensation.
1 Q. Okay. The previous document that we looked at where there was no
2 entry filled in subpart (b) said that the increase of compensation which
3 was mentioned in above and the decision -- and so -- I'm sorry. Let me
4 go back again. I'm sorry.
5 It said --
6 MR. HARMON: If we go back to Prosecution Exhibit 1810; put that
7 on the monitor.
8 Q. Mr. Starcevic, if this is a VJ form, why is there reference in
9 subpart (b) to a decision of the commander of Military Post 3001, the
10 document that was issued by the VRS?
11 A. I didn't say that it was a -- a model of the Army of Yugoslavia,
12 but actually, it's a form that was applied in a specific military post,
13 and then it was prepared for all cases in the future.
14 In this specific case, in the view of the person who made the
15 decision, there are no elements to recognise this increase for
16 Mr. Mladic. So I assume that out of technical or bureaucratic reasons
17 they prepared forms in advance, and then specific parts of the forms
18 would be filled in as per need.
19 JUDGE MOLOTO: I can't resist asking you, Mr. Harmon, about your
20 question at page 13, lines 9 to 11. Your reference to VRS there, where
21 do you pick it up from this document?
22 MR. HARMON: In this document, Your Honour?
23 JUDGE MOLOTO: Mm-hm.
24 MR. HARMON: I picked it up in the previous document because
25 there's a reference, 21/32-21, with a date. That is Prosecution Exhibit
1 399. A caption of that document is General Staff of the army of the
2 Republika Srpska, so that's why I carried -- that's where I make the
4 JUDGE MOLOTO: But you have made us look at this document that is
5 on the screen right now.
6 MR. HARMON: Correct.
7 JUDGE MOLOTO: Your question to the witness is, having put this
9 "Mr. Starcevic, if this is a VJ form ..." and this is what you
10 contend is a VJ form, "... why is there reference in subparagraph (b)
11 ..." here, "... to a decision of the commander of Military Post 3001,
12 the document that was issued by the VRS?"
13 MR. HARMON: Correct.
14 JUDGE MOLOTO: Now, where is --
15 MR. HARMON: The document that was issued by the VRS is 21/32-21,
16 which is dated the 3rd of February, 1994, and it is the same document
17 that I showed earlier, P399.
18 JUDGE MOLOTO: But there are two documents that have this
20 MR. HARMON: Yes.
21 JUDGE MOLOTO: What precedes the one -- which one precedes the
23 MR. HARMON: The VRS document is -- P399 is dated the
24 3rd of February, 1994, and the VJ document that we have on the screen,
25 P1810, is dated 12th of May, 1994. So General Mladic's order or decision
1 precedes the document that is now before you.
2 JUDGE MOLOTO: And haven't we seen this morning a document, I
3 don't know whether it was P741, which is a general decision of the VJ
4 which tells you where the circumstances under which VJ soldiers operating
5 under different circumstances would be generally entitled to
6 compensation, and the very last category mentioned is 30th and 40th
7 Personnel Centres?
8 MR. HARMON: Correct, Your Honour. And I asked the witness if he
9 knew where and on which territory.
10 JUDGE MOLOTO: I understand, but what I'm saying, that document,
11 what is the date of that document?
12 MR. HARMON: This document is the 22nd of March, 1994.
13 JUDGE MOLOTO: Still came after the VRS document.
14 MR. HARMON: Correct.
15 JUDGE MOLOTO: Then there is something I don't understand.
16 Let me not ask the question. Maybe the evidence will explain it.
17 MR. HARMON: Okay.
18 Q. Let me try to approach this a different way, Mr. Starcevic.
19 The word "decision" has a very precise meaning in a military
20 context, does it not?
21 A. Yes, you could say that.
22 Q. And can you tell the Judge what the term "decision" means in the
23 military context?
24 A. With the remark that not only in the military context but also in
25 the legal system, in our country, in Yugoslavia, a decision is usually an
1 administrative document that decides on the right or duty of a specific
3 Q. Okay. And is it unusual or -- I'm sorry.
4 Have you ever seen in a decision issued by the VJ a decision that
5 grants rights, which decision is from a different army?
6 A. I'm not quite sure that I understand, but I think that this is
7 not possible in the legal sense either. It's not possible in the legal
8 sense because authority is determined under two criteria.
9 Q. All right.
10 MR. HARMON: I have no additional questions on this particular
11 set of documents, Your Honour.
12 JUDGE MOLOTO: My question remains unanswered. Anyway, carry on.
13 MR. HARMON: Okay.
14 Could I have the next exhibit, which is Prosecution Exhibit 2625.
15 [Trial Chamber and registrar confer]
16 MR. HARMON: I'm sorry, it should be 65 ter 2625 [Microphone not
17 activated]. I apologise.
18 65 ter 2625.
19 Q. Mr. Starcevic, have you seen this document before?
20 A. Yes. Yes, I think I have.
21 Q. All right. Now, this document is a decision dated the 6th -- 2nd
22 of June, 1994, and is issued by Military Post 7111.
23 My first question is: Do you know where Military Post 7111 is?
24 Are you familiar with that reference?
25 A. Well, not really, but you can see from the decision that it's in
1 Han Pijesak.
2 Q. Okay, and where is Han Pijesak? In which country is Han Pijesak?
3 A. In Bosnia and Herzegovina.
4 Q. This decision relates to Captain Dragan Obrenovic, who is serving
5 in Military Post 7469 in Zvornik; is that correct?
6 A. Yes.
7 Q. Focus on subpart (b) of this document. Is this decision to grant
8 Captain First Class Dragan Obrenovic additional compensation based on the
9 previous document we looked at, which was the decision of General Mladic?
10 A. Yes, yes.
11 Q. Do you have any comments in respect of this document,
12 Mr. Starcevic?
13 A. I think that everything that we said before applies to this
14 document as well. I don't know specifically what you're thinking of, but
15 from this decision, it is evident that Mr. Obrenovic met the required
16 conditions in the order of General Mladic in order to receive an increase
17 of the hardship allowance.
18 Q. Now, we looked at General Mladic's previous order and to whom it
19 applied. It applied to soldiers serving in the Yugoslav Army deployed in
20 the army of the Republika Srpska.
21 Can you make any comments in respect of the status of
22 Captain Obrenovic, based on the two documents that we have looked at?
23 A. Yes. If the condition was for the soldier to be a member of the
24 army of Yugoslavia, then, on the basis of that, it transpires that
25 Mr. Obrenovic is a member of the Army of Yugoslavia.
1 Q. All right.
2 MR. HARMON: If we could now go into private session, please --
3 actually, first of all, I would like to take look at Prosecution
4 Exhibit 363, is the next document.
5 Q. I'm going show you a series of three documents, Mr. Starcevic,
6 and then I'm going to ask you some questions about them because there is
7 a similarity.
8 Could we first go to --
9 JUDGE MOLOTO: Yes, Mr. Lukic.
10 MR. LUKIC: [Interpretation] I don't know if Mr. Harmon is going
11 to tender this document for admission or he might intend to do it later?
12 I don't know.
13 MR. HARMON: I'll do it now, Your Honour.
14 JUDGE MOLOTO: Say that again?
15 MR. HARMON: I will tender the document now for admission.
16 JUDGE MOLOTO: You do?
17 MR. HARMON: Yes.
18 MR. LUKIC: [Interpretation] [No interpretation]
19 JUDGE MOLOTO: The document is admitted into evidence. May it
20 please be given an exhibit number.
21 THE REGISTRAR: Your Honours, that will be Exhibit P2303.
22 MR. HARMON: Okay.
23 Q. I'd like to show you a series of documents, Mr. Starcevic. This
24 first document is a document that is issued by Military Post 4795, and
25 it's a certificate certifying that a particular individual was wounded
1 while serving compulsory service at 4795 Belgrade military post.
2 First of all, do you know what post designation that is?
3 A. I don't have personal knowledge, but I know that it's a military
4 post that is located in Belgrade.
5 Q. Okay. And I want to direct your attention to the second
6 paragraph. It indicates that this individual was wounded on the
7 2nd of January, 1994, while carrying out combat activities, i.e.,
8 securing the SRJ, Socialist Republic of Yugoslavia, state border.
9 This is the first of --
10 A. Federal republic.
11 Q. Yes. This --
12 MR. HARMON: Can we go into private session, Your Honour.
13 JUDGE MOLOTO: May the Chamber please move into private session.
14 [Private session]
11 Pages 5521-5524 redacted. Private session.
10 [Open session]
11 THE REGISTRAR: Your Honours, we're back in open session.
12 JUDGE MOLOTO: Thank you so much.
13 Yes, Mr. Harmon.
14 MR. HARMON:
15 Q. Mr. Starcevic, I want to now discuss with you legal provisions
16 that would apply to General Perisic in his capacity as chief of the
17 General Staff that relate to his capacities, his ability to discipline,
18 punish, or sanction individuals who he has knowledge of committed crimes
19 or breaches of discipline.
20 So, first of all, I'd like to focus on military discipline.
21 MR. HARMON: And if we could return to Prosecution Exhibit 197.
22 I'd like to turn to, first of all -- could we turn to chapter 8 of this
23 document, and particularly Article 159, and that's found at page 14 of
24 the B/C/S. Just a moment.
25 [Prosecution counsel confer]
1 MR. HARMON: Specifically, if we can turn to page 14 of the B/C/S
2 and page 39 of the English.
3 Q. And, Mr. Starcevic, I want to focus, as I say, on Article 159.
4 Can you -- and 159 from the text makes a distinction between a
5 disciplinary infraction which is a minor violation of discipline -- and a
6 disciplinary offense, which is a serious violation of military
7 discipline. Can you enlighten us as to what constitutes a minor
8 violation and a serious violation within the meaning of Article 159?
9 A. As you can see from Article 159, a minor violation of military
10 discipline is defined in general terms, and this includes any type of
11 violation whose consequences are not too serious, or extremely serious,
12 in terms of military service.
13 Serious violation of military discipline may be of different
14 types; for instance, absent -- absence without leave from the place where
15 one is serving, indecent behaviour, or similar. On the other hand, a
16 serious violation of military discipline is such a violation that may
17 lead to significant consequences in terms of the situation within units.
18 In addition to these -- to these provisions that make a distinction in
19 general terms between a disciplinary infraction and a disciplinary
20 offence, a serious violation of military discipline, there are also --
21 there's also an additional regulation or, rather, a book of rules on
22 military discipline which would be of greater assistance in defining what
23 a military infraction or offence is.
24 Q. Now, if we could turn to -- you have it on the screen before you,
25 Article 160, and if we could go to the next page in the English.
1 I direct your attention, Mr. Starcevic, to the first -- the top
2 paragraph. Is this the definition of military -- a violation of military
4 A. Yes, certainly. This is a definition of one of the possible
5 violations of military discipline.
6 Q. Now, if we turn to -- if we look at this particular provision,
7 this article, it lists 11 categories of -- 11 actions; is that correct?
8 A. Yes.
9 Q. And I'd like to direct your attention to subpart (10) of Article
10 160, which is:
11 "An action in service which is contrary to military order or
12 which represents a violation of existing regulations."
13 What -- in this instance, can you just generalise for us what
14 types of regulations there are that might fall under the purview of this
16 A. Well, these would primarily be military regulations that regulate
17 the activity of the army and military units and institutions as well as
18 the responsibilities and duties of individuals.
19 However, it would also encompass violations of some general
20 regulations, not necessarily military regulations, but also civil
21 regulations that are binding for any citizen of a country. And if a
22 member of the army would commit a breach of such a regulation, that would
23 at the same time constitute a breach of military discipline.
24 Q. Okay.
25 MR. HARMON: Could I have Prosecution Exhibit 65 ter --
1 65 ter 1995 on the screen.
2 That doesn't ... perhaps the next page. That doesn't appear to
3 be what I'm looking for. I'm looking for the -- could we go to the next
4 page in B/C/S perhaps. Is there a way to put that in the right order?
6 Q. Sir, what you see here -- can you tell us what you see on your
7 screen? In the English, it appears to the Regulations on the Application
8 of International Laws of War in the Armed Forces of the SFRY.
9 A. Yes, that is the exact translation from the Serbian language.
10 Q. Are you familiar with these regulations, Mr. Starcevic?
11 A. Yes, I am.
12 Q. And how are you familiar with these regulations?
13 A. I was involved in their drafting. As I said, among other things,
14 I was also involved in matters relating to international law within the
15 legal administration, and these are regulations that fall within the
16 ambit of international humanitarian law. So I actually worked on
17 drafting these regulations as a member of a larger team that prepared
18 these regulations as a whole.
19 Q. At the bottom of the page we see before us is the date 1988.
20 These regulations apply -- or were promulgated in 1988, obviously. They
21 apply to the JNA. My question is: Did they also apply to the VJ?
22 A. Yes.
23 Q. Okay.
24 A. Yes. These regulations are still in force now within the army of
25 Serbia because no new regulations have replaced them.
1 Q. Okay.
2 MR. HARMON: This would be a convenient time to break, Your
4 JUDGE MOLOTO: Okay. We'll take a break and come back at quarter
5 to 11.00.
6 Court adjourned.
7 --- Recess taken at 10.15 a.m.
8 --- On resuming at 10.47 a.m.
9 JUDGE MOLOTO: Yes, Mr. Harmon.
10 MR. HARMON:
11 Q. Mr. Starcevic, we left off, we were just -- I had just introduced
12 this subject of these regulations on the Application of the International
13 Laws of War in the Armed Forces within the SFRY.
14 I'd now like to direct your attention to three articles in these
16 MR. HARMON: If we could go first to Article 20, which is found
17 on B/C/S, page 16, and English, page 14.
18 Q. Mr. Starcevic, can you -- actually, I see that Article 20 is only
19 partially reproduced.
20 MR. HARMON: We have to go to the next page, as well, Your
21 Honours, on this. So I would perhaps let Your Honours read Article 20,
22 the first part of it that appears, and let you read the complete article
23 before I ask some questions, so ...
24 When Your Honour --
25 JUDGE MOLOTO: If we can turn the page in the English or scroll
1 down --
2 MR. HARMON: Yes.
3 JUDGE MOLOTO: -- whatever the case is.
4 MR. HARMON:
5 Q. First of all, Mr. Starcevic, can you just explain to us the --
6 Article 20 of these regulations.
7 A. Well, simply said, this article defines the accountability of any
8 individual who commits a crime according to the international law of war
9 under these regulations. So anyone who commits such a crime or orders
10 the commission of such a crime is held -- is to be held accountable, is
11 responsible, and this is personal responsibility. And it also defines
12 that the primary responsibility for determining the accountability is --
13 are the national laws or the -- national courts of law, or the courts of
14 a foreign state, if that person should fall into their hands.
15 Q. And I see from the last paragraph in Article 20 that it applies
16 to people not only who commit crimes but people who organise, incite, or
17 assist in the commission of crimes. Is that correct? Perhaps it is not
18 reproduced in your Article 20. If we go to --
19 A. Yes, it is not reproduced -- not visible in my version.
20 Q. We'll go to the next page in B/C/S.
21 A. Yes, precisely so. So not only those who commit a crime but also
22 accomplices, and persons who aid and abet, they also are accountable.
23 Q. Now, if we take a look at the next article, Article 21, could you
24 focus your attention on that article, please, Mr. Starcevic.
25 A. Yes. In essence --
1 Q. Before I ask you the question, Mr. Starcevic, I want to give the
2 Judges the opportunity to read that particular article, and then I'll ask
3 you to explain the purpose and meaning of Article 21, or Regulation 21.
4 Could you now then, Mr. Starcevic, explain the purpose and
5 meaning in Regulation 21?
6 A. In essence, this defines command responsibility; in other words,
7 the responsibility of officers for acts committed by their subordinates
8 and which constitute violations of humanitarian law.
9 Q. Can you discuss with us for a moment the provision that is found
10 in the second full sentence of the regulation, starting with:
11 "The officer shall also be held personally liable ..."
12 A. Yes. In these instances, an officer who fails to take measures
13 to determine the liability or responsibility of an individual, that
14 officer would be responsible as an accomplice or incite -- as the person
15 inciting or instigating a crime because that is considered to contribute
16 to a renewed or another criminal act being committed.
17 Q. Okay. If we could now turn to the third regulation, Regulation
18 36. It's found on B/C/S, page 21; in the English, on page 20.
19 MR. HARMON: Again, Your Honours, in the English version we find
20 that 36 is only partially reproduced, and we have to go to the next page,
21 so ...
22 JUDGE MOLOTO: Thank you.
23 MR. HARMON: Can we turn to the next page, then, the continuation
24 of the regulation.
25 Q. Mr. Starcevic, could you discuss the purpose and intent of this
1 particular regulation?
2 A. Article 36, in fact, makes it obligatory on military officers
3 to -- once they have learned that a criminal act has been committed, to
4 collect and keep certain evidence and initiate proceedings either before
5 a military prosecutor directly; in other words, by forwarding the
6 evidence to the military prosecutor or via their superior officer. But
7 in any case, they are duty-bound to prevent further violations of the
8 international law of war.
9 Q. What is the consequence, Mr. Starcevic, if a Yugoslav Army
10 officer learns of violations of the laws of war and does not implement
11 any of these regulations we have been discussing, including Article 36,
12 which orders -- which requires the -- an investigation and evidence to be
14 A. The consequences are listed in the earlier article that we've
15 seen, Article 21, whereby an officer who fails to do so is responsible as
16 an accomplice or an instigator.
17 MR. HARMON: Okay. Now, let me turn back to Prosecution
18 Exhibit 197. I would like to go to Article 161 again. We've seen that
20 Q. Now, we looked at this -- I'm sorry, 160 is what I'm interested
21 in, not 161. If we could just go up a little higher in the English.
22 Thank you.
23 We looked at this earlier, Mr. Starcevic, and particularly we
24 focussed on subpart (10). Would a violation of the regulations that we
25 just discussed and we just looked at constitute a violation of military
1 discipline within the ambit of Article 160 of the Law on the Army?
2 A. Yes, in some less serious cases, yes, and that would constitute a
3 violation of military discipline, or, rather, it could be put under the
4 umbrella of Article 10 or subpart (10).
5 Q. Now, if we look at another article in P197.
6 MR. HARMON: If we could turn to B/C/S, page 6; in the English,
7 page 16.
8 Q. And if we could look, Mr. Starcevic, at Article 64.
9 Could you just discuss with us the purpose and intent and meaning
10 of Article 64 found under the chapeau "removal from duty."
11 A. I think that this article has a twofold purpose: On the one
12 hand, to protect the office or the service from persons who are
13 responsible or who are in fact prevented from performing their duty; and,
14 at the same time, to allow some other individual to perform that duty or
15 that office.
16 Q. Mr. Starcevic, in the text of this article, if we look at the
17 paragraph that starts with: "A professional soldier may be removed from
18 duty if he was caught ..."
19 If we look at that text, at the end of that text it -- paragraph,
20 it says --
21 A. Mm-hm.
22 Q. "... and the criminal act or disciplinary offence is of such a
23 nature that it would be damaging to the interests of service that such an
24 individual should remain on duty."
25 Now, would a breach of the regulations that we just looked at a
1 minute ago fall within the ambit of Article 64? In other words, would
2 they be damaging to the interests of the service, and would they -- would
3 they -- could they result in the invocation of Article 64?
4 A. Yes, it could, but in the final analysis, this is left to the
5 discretionary right of the person who is authorised to decide on removal
6 of service. But generally speaking, it can be -- the reason for such an
7 assessment could be the damage done to the service.
8 Q. Now, was General Perisic authorised to decide on the removal of
9 professional officers from the service?
10 A. Yes, I think he was.
11 Q. Okay. And would it be -- strike that.
12 If a war crime was known to a superior officer, chief of the
13 General Staff of the Yugoslav Army, would that person have the discretion
14 to remove the offending officer from service in the army?
15 A. Yes.
16 Q. Okay.
17 MR. HARMON: Your Honour, could we -- I would --
18 THE WITNESS: [Interpretation] Yes, to remove such an individual
19 from service. However, whether that person would also be discharged from
20 the army is something that would be decided in a different type of
22 MR. HARMON:
23 Q. So let's make that distinction very clear. Could you expand on
24 that, what you mean by that, remove from the service versus discharge
25 from the army?
1 A. An individual is removed from duty temporarily until proceedings
2 that were instigated because the person was removed from duty are
3 completed, and only once such proceedings are completed can there also be
4 discussion on whether that individual would also be discharged from
5 service from the army.
6 For instance, if a criminal proceeding -- if criminal proceedings
7 have been instigated against someone for a criminal act, that person may
8 and in some instances should be removed from duty. However, they would
9 still remain as members of the army. Only once a final decision or a
10 final judgement has been handed down in those criminal proceedings would
11 it be determined or could it be determined whether that person would
12 remain in the army or would be discharged.
13 MR. HARMON: Your Honour, could I move to introduce, then, the
15 MR. LUKIC: [Interpretation] No objection.
16 JUDGE MOLOTO: The document is admitted into evidence. May they
17 please be given an exhibit number. That is it P197 -- no, no.
18 MR. HARMON: No, Your Honour. It's the regulations --
19 JUDGE MOLOTO: Just tell us exactly what is the 65 ter number.
20 MR. HARMON: 1995.
21 JUDGE MOLOTO: 1995.
22 THE REGISTRAR: That will be Exhibit P2304, Your Honours.
23 JUDGE MOLOTO: Thank you.
24 MR. HARMON: Just briefly, it we could turn to Article 161.
25 That's found at page 14 of the B/C/S and page 40 of the English.
1 I don't want to dwell too much on this article, but I just want
2 to make sure it's clear what this is. If we could --
3 JUDGE MOLOTO: Just before we do that, can I just get
4 clarification on one little point.
5 MR. HARMON: Yes, of course.
6 JUDGE MOLOTO: You -- sir, you have told us that, you know,
7 Momcilo Perisic would be authorised to remove an officer from duty and
8 then the proceedings would carry on, and whether or not a determination
9 was to be made on his dismissal -- discharge from the army would be made
10 after the proceedings. Who would make the determination whether he
11 should be discharged from the army? Who would be authorised to do so?
12 THE WITNESS: [Interpretation] In some cases, those authorities --
13 that authorisation is also within the purview of General Perisic. In
14 some instances it would be with other officers, but that would primarily
15 depend on the rank and position of the individual involved. In other
16 words, in some instances, General Perisic was the authorised individual.
17 He was authorised for individuals up to the rank of colonel. If I
18 recall, there were such regulations defining this. For instance, if
19 someone was to -- if -- if ranks from the level of general were
20 concerned, I think that the authority was with the president of the
21 republic, but for individuals under that level and under the level of
22 colonel, there would be other officers who would be responsible other
23 than General Perisic.
24 JUDGE MOLOTO: Who are the other officers other than General
25 Perisic who would be authorised to do so? I'm not asking for a name.
1 I'm asking for a position.
2 THE WITNESS: [Interpretation] Yes, I understand. Well, it is
3 difficult to answer that question in this particular -- at this
4 particular time without looking at this other regulation. But I would
5 like to remind you that according to Article 152 of the army, the chief
6 of the General Staff or the officer -- the commanding officer of a unit
7 that he determines, and I assume that in this particular case there was
8 an order adopted at the General Staff regulating the responsibilities of
9 those other officers. For instance, in my earlier experience, this could
10 have been a commander of a corps or perhaps commanding officers at the
11 level of brigade or regiment. They would be responsible for some
12 lower-level officers and so on.
13 JUDGE MOLOTO: And they could discharge an officer from the army
14 once there is proof -- once the process has gone through?
15 THE WITNESS: [Interpretation] Yes, in some cases, yes. Sometimes
16 they would be duty-bound to do so if an officer is sentenced to a prison
17 term of -- I think the cut-off line was six months or a year, but in our
18 earlier laws, it was two years. I think under the new law this cut-off
19 line is somewhat lower. So if someone was sentenced to that certain
20 prison term, then the officer, the superior officer was duty-bound to
21 also issue a decision.
22 JUDGE MOLOTO: Thank you very much.
23 THE WITNESS: [Interpretation] A declaratory decision.
24 MR. HARMON:
25 Q. [Microphone not activated] Mr. Starcevic, I wanted to direct your
1 attention very, very briefly to --
2 THE INTERPRETER: Microphone, please.
3 MR. HARMON:
4 Q. Mr. Starcevic, I wanted to direct your attention very briefly to
5 Article 161. Can you -- first of all, let me give the Judges an
6 opportunity to read 161, and then I'd just like you to distinguish that
7 from the previous article.
8 Mr. Starcevic, what is the intention and purpose of Article 161,
9 and to whom does it apply?
10 A. First of all, it applies to all professional officers as well.
11 What is its purpose? Article 160 regulates violations of military order,
12 military regulations, military duty; that is to say, all proceedings are
13 related -- all acts are related to the army.
14 However, according to Article 161, a violation of military
15 discipline can also be in the form of violation of some other values
16 which are not necessarily linked to the protected military values, which
17 means that a commission of a crime can come under this heading. And
18 other thing that was quite typical for our regulations was any expression
19 of racial, ethnic, or religious intolerance, violation of public morals,
20 and so on. It doesn't need to be necessarily linked to the army. It
21 could be some kind of a social event that can lead to this type of
22 violation, which would be outside of the military.
23 Q. That's what I was going to -- I wanted to clarify that point
24 where it says in the text itself of the first paragraph: "Every action
25 of a service member outside of service ..."
1 Can you define that "outside of service" phrase?
2 A. Private conduct, private conduct of a person as a private
3 individual. That is to say not as a service member, military member, but
4 an ordinary citizen who lives and exists within a normal social
6 Q. Now, just very briefly, as well, if we could take a look at
7 Article 162. And again, in the English it is only partially reproduced
8 there, so we would have to go to the next page. First of all, if I could
9 let the Judges have an opportunity to read Article 162 on this page and
10 the next page, and then we'll just ask you just very briefly to explain
12 Briefly, Mr. Starcevic, what does this article do?
13 A. This article defines all persons that can be held responsible for
14 disciplinary violation. It also specifies time or a particular point in
15 time from which their disciplinary responsibility arises and, also, in
16 some cases, until the point in time where it terminates.
17 Q. Now, if we can now focus on the next two articles. We'll start
18 with Article 163, and it doesn't appear in the B/C/S on the text. I want
19 to look at both 163 and 164 together.
20 Mr. Starcevic, I think you've earlier distinguished between an
21 disciplinary infraction and a disciplinary offence. Obviously, 163 by
22 virtue of the text describes the consequences that can result from the
23 commission of a disciplinary infraction. I want to focus your attention
24 a little bit more on Article 164, which deals with the consequences that
25 can result from conviction, if you will, of a disciplinary offence.
1 Would I'd like to do first of all, Mr. Starcevic, is to direct
2 your attention to subpart (5) of this Article 164; that is, the loss of
3 the right to serve as a professional soldier. Who makes that
5 A. All disciplinary violations are dealt with by military
6 disciplinary courts.
7 Q. Okay. Does anybody else have the authority to address that
8 particular issue?
9 A. No, except in appeals proceedings when this is dealt with by
10 regular courts. At that time, we had a military court, supreme military
11 court, and nowadays we have the supreme administrative court; that is,
12 the court of the state.
13 Q. If you could take a look at subpart (6), which is the loss of
14 rank, and I would be interested if you can explain that to us in
15 conjunction with the last sentence in Article 164.
16 A. Yes. This means that there is a difference between the loss of
17 rank and the loss of the right to serve. When somebody loses the right
18 to right to serve, he maintains the rank that he had at the time of his
19 discharge. However, if somebody is punished with the loss of rank, then
20 the loss of service results from that. It is a legal consequence of the
21 loss of rank.
22 Q. Okay. Thank you very much. Very briefly, if we could turn to
23 just a description of the statute of limitations that relate to
24 disciplinary offences. That's found in Article 166.
25 MR. HARMON: I'm sorry, Your Honour. I thought you were
2 Q. Article 166, then. Let me just direct your attention to some
3 passages in this. First of all, this clearly defines the statute of
4 limitations in respect of disciplinary offences and disciplinary
5 infractions; correct? You have to answer audibly.
6 A. Yes.
7 Q. Now, in part, this -- in the third paragraph, it says:
8 "Starting and conducting proceedings for a disciplinary offence
9 which is also a criminal act has a statute of limitations for the same
10 period as for the prosecution of the criminal act."
11 So -- can you explain that passage?
12 A. Yes. A statute of limitations for crimes is regulated by another
13 law, the Law on Criminal Proceedings. Since in disciplinary proceedings
14 a crime comes up as a condition for instituting disciplinary proceedings,
15 it's a condition to institute them, then it's it quite a logical
16 solution. It cannot run out before the basic act, which was the
17 pre-condition for a disciplinary proceedings runs out.
18 Q. Okay. Now -- so in domestic law, there are statues of
19 limitations for criminal acts; is that correct?
20 A. Yes. I said the Law on Criminal Proceedings, but I was wrong.
21 It should have been the Criminal Code. Yes, such a law exists, and once
22 again, it is a pre-condition for launching disciplinary proceedings.
23 Q. Now, Mr. Starcevic, in the Federal Republic of Yugoslavia, up to
24 1995, was it an offence in the Criminal Code to commit a violation of --
25 a war crime or a violation -- a genocide? Was that embedded in the
1 domestic code as well?
2 A. Yes, certainly. It was in the old Criminal Code of the then
3 SFRY. In that code, there was an entire chapter which was devoted to
4 crimes against international law.
5 Q. Do you know what the statues of limitations was for violations of
6 international humanitarian law in the domestic Criminal Code?
7 A. Crimes against international humanitarian law, that is to say,
8 war crimes and crimes against humanity, the crime of genocide, they do
9 not have a statute of limitations. The statute of limitations never runs
11 Q. So do I understand that for purposes of Article 166, commencement
12 and the conduct of criminal proceedings for a disciplinary offence for
13 the criminal act of genocide or violation of international humanitarian
14 law would be limitless? It never runs out?
15 A. That is correct.
16 JUDGE MOLOTO: May I interject.
17 Sir, you answered at page 40 lines -- starting from line 19 to
18 line 21 you said:
19 "Yes, certainly. It was in the old Criminal Code of the then
20 SFRY. In that code, there was an entire chapter which was devoted to
21 crimes against international law."
22 My question is, what is the position with respect to that
23 question in the constitution of the FRY? Yes, in the Criminal Code of
24 the FRY, not SFRY.
25 THE WITNESS: [Interpretation] Yes. It's the same situation. The
1 statute of limitations doesn't run out when it comes to violations of
2 international humanitarian law. It is also an international obligation,
3 both of the -- both of the Federal Republic of Yugoslavia, who is a
4 signatory to the convention stating that the statute of limitations
5 doesn't run out when it comes to genocide. It also means the application
6 of that convention.
7 JUDGE MOLOTO: That answer did not relate to limitation. It
8 related to something else. Let me tell what you the question was. The
9 question had been:
10 "Now, Mr. Starcevic, in the Federal Republic of Yugoslavia up to
11 1995, was it an offence in the Criminal Code to commit a violation of --
12 a war crime or a violation -- a genocide, was that embedded in the
13 domestic code as well?"
14 And then your answer was:
15 "Yes, but it was in the old code."
16 My question is, is a violation of international humanitarian law
17 currently embedded in the domestic law, as well, in the Criminal Code of
18 the domestic law of the FRY?
19 THE WITNESS: [Interpretation] Yes.
20 JUDGE MOLOTO: Thank you.
21 MR. HARMON:
22 Q. Mr. Starcevic, if we can turn to Article 177 of this Law on the
24 MR. HARMON: It's found at page 15 of the B/C/S and page 45 of
25 the English.
1 Q. Can you distinguish for us the difference between the two types
2 of courts that are described in Article 177?
3 A. Yes. The first-instance military disciplinary courts are those
4 courts which are established within the headquarters of some units,
5 commands of some units. Higher military disciplinary court is a
6 disciplinary court that deals with appeals from the decisions handed down
7 by the first-instance military disciplinary courts.
8 It should be noted that in both cases, the judges are not lawyers
9 in both of these courts. Those are mostly officers of operative military
10 units -- oh, I could call them general military officers; whereas
11 secretaries of those courts, or clerks of those courts, are lawyers.
12 Q. Okay. Sir, can we now turn your attention to Article 180.
13 Could you explain to us, Mr. Starcevic, the meaning and intent of
14 Article 180.
15 A. The purpose here was to regulate the basic elements of the
16 proceedings when it comes to disciplinary violations. This establishes
17 who is responsible for initiating an investigation of a disciplinary
18 breach and also decide whether this was a disciplinary infraction or a
19 disciplinary violation. And then further on, this person has to forward
20 the case to the person who is responsible to place the perpetrator
21 formally under the jurisdiction of a military disciplinary court.
22 Q. Now, would General Perisic fall within the purview of Article
24 A. In exceptional circumstances, yes, but before him, his
25 subordinates who are in charge of units or institutions where perpetrator
1 works, they would be responsible before him. General Perisic would be
2 responsible if, for example, in General Staff there were officers who
3 were directly subordinate to him without there being an intermediary
5 Q. And would he fall within the purview of this article if his
6 subordinates failed to initiate a disciplinary investigation? Should he
7 be aware of a violation?
8 A. Yes.
9 Q. Okay. Now, can you --
10 MR. HARMON: If we could focus next on Article 181. Again, we'll
11 have -- in the English, we'll have to go to the next page.
12 Q. Okay. Sir, can you now explain to us Article 181 and the
13 difference between Article 180 and 181.
14 A. The basic difference is that in Article 180, there is -- there
15 are proceedings for disciplinary investigation, which is to say they're
16 collecting elements in establishing whether there are grounds to initiate
17 proceedings before a disciplinary court, military disciplinary court.
18 However, an officer who orders that a disciplinary investigation
19 be launched is not responsible or is not authorised to formally place the
20 perpetrator under the jurisdiction of a disciplinary military court.
21 Those powers rest with the officers who are defined in Article 182.
22 Those officers are at a rather high position, and there weren't that many
23 of them in the army.
24 Q. Would General Perisic be one of those high-ranking officers
25 within the meaning of Article 181?
1 A. Yes, yes, he would.
2 Q. Now, let me just ask you a variation of Article 181. This deals
3 with the referral of a matter to a military disciplinary court. How was
4 a matter referred to a criminal court? Is that covered by the Law on the
5 Army, or is it outside the Law on the Army?
6 A. In principle, this is not provided under the provisions of this
7 law because there was a Law on Military Courts, too, which then provided
8 for such a procedure. It's true that officers in any kind of position
9 did not have the authority to pass on the case to a criminal court, or
10 perhaps they could submit the charges to the authorised military
11 prosecutor, who would then process the case further.
12 JUDGE MOLOTO: What do you mean by "process the case further"?
13 In other words, are you suggesting, sir, that the determination
14 whether to refer the matter to a domestic criminal court, a non-military
15 criminal court, rests with the prosecutor for the military court?
16 THE WITNESS: [Interpretation] I think perhaps it's a
17 misunderstanding. If we're talking about the responsibility of military
18 personnel, according to the regulations in force at that time, military
19 personnel were criminally prosecuted before military courts, not before
20 other types of courts, and because of that, the case would be referred to
21 the military prosecutor who would then play the role that he has under
22 the law to assess if there are grounds for reasonable suspicion to
23 initiate further proceedings and to go before the investigative judge,
24 but these are matters that I'm not actually all that knowledgeable about.
25 JUDGE MOLOTO: You may proceed, Mr. Harmon.
1 MR. HARMON:
2 Q. Thank you, Mr. Starcevic, for clarifying that point for us.
3 MR. HARMON: I'd like to turn now to Article 107. That's found
4 at page 9 of the B/C/S and page 25 of the English.
5 This is also a rather long article, and on the English we need to
6 go to the second -- another page.
7 [Prosecution counsel confer]
8 MR. HARMON:
9 Q. Mr. Starcevic, can you explain the purpose and intent of this
10 particular provision.
11 A. Article 107 regulates all the possible ways that a professional
12 or a non-commissioned officer's service in the army can cease or be
13 suspended either if it should be or has to be suspended, according to
14 these regulations.
15 Q. Now, are these -- do these regulations -- first of all, they set
16 forth a number of elements. We can see, for example, items 1 through 6,
17 and then beneath item 6, we can see a reference to 30 pensionable years
18 of service, et cetera.
19 Are these -- is termination under one of these sub-elements
20 mandatory, or is it discretionary? So, for example, if a person receives
21 a negative evaluation two times in a row, does that automatically result
22 in the termination of an officer, or is it discretionary with, for
23 example, a superior officer?
24 A. The law is formulated in such a way that in such a case it would
25 be mandatory for service to be suspended. The officer does not have a
1 discretionary right to assess in such a case whether his service in the
2 army should be suspended or ceased or not.
3 Q. So is it correct, Mr. Starcevic, to say that -- just looking at
4 the numbered items, items 1 through 6, that if any of those elements are
5 met, it's required that service be terminated?
6 A. Yes, that is correct.
7 Q. I'd like to refer you to the first paragraph under item 6.
8 MR. HARMON: We -- I'm sorry. I just ...
9 JUDGE MOLOTO: Mr. Harmon, are we dealing with 107 or 108?
10 MR. HARMON: We're dealing with 107, and I'm just looking for the
11 text on the monitor.
12 JUDGE MOLOTO: I'm looking for item 6 on 107.
13 MR. HARMON: Yes. We now have it. We will now have it. Okay.
14 Q. Now, Mr. Starcevic, let me refer you, then, to the paragraph that
15 starts: "Military service of the professional officers ..." under item
16 6. If he has acquired 30 years of pensionable years of service. And
17 then it says: "If the needs of the service so require."
18 We see that term repeated in the next paragraph, as well, and I'd
19 kindly ask you to tell us the meaning of that term "if the needs of the
20 service so require."
21 A. This whole article, actually, is an expression of the specificity
22 of the military service in general. It can be the case that for some
23 reasons, either objective or subjective ones, in the view of the
24 authorised officer, a person's service needs to be terminated even if he
25 does not fulfil any of these conditions in paragraphs 1 to 6. At the
1 same time, some of his rights also need to be protected. The person
2 cannot be dismissed from service, let's say, after 30 years without
3 getting the -- a pension. You cannot leave such a person without means
4 of livelihood at a time-period in their life when it is difficult to
5 change professions.
6 So these reasons can be different. They can be objective reasons
7 or subjective reasons because of circumstances of the person, but he is
8 not someone who has received negative evaluations two times in a row or
9 not a bad person or bad officer but simply for some reason they failed to
10 meet some requirements. Perhaps I can give you a hypothetical reason.
11 If you have a parachutist who weighs 130 kilograms, he can no longer be a
12 parachutist, but there is nothing else that he is trained to do. You
13 cannot replace him. He is occupying that post and is no longer actually
14 able to perform those duties. So then for reasons of needs of the
15 service, he is going to be pensioned off and given a pension that fits
16 his years of service, and you can employ someone else in his place.
17 Perhaps he will be awarded an apartment if he hasn't been awarded one
18 before, but in any case, his livelihood and means of living would be
19 taken into consideration.
20 Q. Mr. Starcevic, who is it who makes that determination, what's in
21 the needs of the service?
22 A. An officer, according to Article 152 of the law, is authorised to
23 decide about the termination of service.
24 Q. So I'm just looking at Article 152. I don't know if the Court
25 would like to see that again on the monitor. Perhaps we could go back to
1 that, since you've referred to it. I believe that is on page 38 of the
2 English. And, Mr. Starcevic, you have a hard copy in front of you, so if
3 you just cast your eye on Article 152 again.
4 So, Mr. Starcevic, the first sentence reads:
5 "The chief of the General Staff and the commanding officers of
6 units or institutions designated by him shall ..."
7 And then I take it that subpart (6) of this article is what you
8 were referring to?
9 A. Yes, yes.
10 Q. Okay.
11 A. But when we're talking about generals, then we need to apply the
12 previous article, 151, paragraph (3).
13 Q. Yes. Thank you for that clarification.
14 Now, in terms of defining the term we've been talking about, are
15 there any standards or criteria that are in regulations or elsewhere,
16 memorandum, that define the needs of the service, or is it totally
18 A. If I remember correctly, this is a separate procedure for
19 implementing these articles of the law. I'm not sure, though, but I
20 think there is such a procedure, and that, in these provisions, there are
21 examples given of needs of service, but I think ultimately that is
22 something that is in the discretion of the officer who is making that
24 Q. And does a person who is affected by a decision where he or she
25 has been retired because of the needs of the service, have any
1 administrative recourse or legal recourse to challenge a finding that the
2 needs of the service require his or her termination?
3 A. Yes. There is the right to appeal such a decision, and it can be
4 submitted to the higher superior officer, and there's also a right of
5 complaint or submitting of an appeal before the higher military
6 administrative court. Therefore, there is -- there are legal means to
7 appeal such a decision.
8 Q. All right. Thank you very much, Mr. Starcevic.
9 MR. HARMON: Your Honour, this would be an appropriate time to
10 break. I'm going to be going into private session very quickly.
11 JUDGE MOLOTO: We will take a break and come back at half past
13 Court adjourned.
14 --- Recess taken at 11.58 a.m.
15 --- On resuming at 12.34 p.m.
16 JUDGE MOLOTO: Mr. Harmon.
17 MR. HARMON: Thank you, Your Honour.
18 Q. Mr. Starcevic, I just want to clarify a couple of points in your
19 earlier examination. They deal with the process.
20 How was a matter referred to criminal proceedings? How was it
21 referred -- how -- yeah. I think that's ... was it referred to a
22 military prosecutor? Was it referred to somebody else?
23 JUDGE MOLOTO: I thought the witness -- we have seen in one of
24 the exhibits something that regulates that.
25 MR. HARMON: We saw, Your Honour -- I think what we saw was how
1 disciplinary matters are referred, and my question is how are criminal
2 matters referred.
3 THE WITNESS: [Interpretation] Yes. This is always something that
4 is processed by the prosecutor. The prosecutor, as a kind of informal
5 act, is presented with the criminal charges. Then the prosecutor reviews
6 that and decides whether, on the basis of evidence that he would compile,
7 would propose the initiation of a criminal investigation. The decision
8 on initiating an investigation is made by the court, the investigative
9 judge conducting the investigation, returns it to the prosecutor, and
10 decides whether the gathered evidence is sufficient to issue an
11 indictment, and at that point, it becomes part of the court jurisdiction.
12 Q. One question I have, Mr. Starcevic, is you say: "The Prosecutor,
13 as a kind of an informal act, is presented with the criminal charges."
14 Who presents the prosecutor with the criminal charges? Let me
15 give you a hypothetical. Let's say a criminal act has been committed by
16 a VJ soldier. How does the matter get to the prosecutor in order to
17 prosecute the matter?
18 A. I think that in our Criminal Code, we still have - and my
19 colleagues probably know that better - the provision that the Prosecutor
20 is obliged to act as soon as he receives any kind of information about
21 the commission of a criminal act in whatever way can he find out about it
22 in the media or in any other way he can find out that there are grounds
23 for suspicion that a criminal act was committed. But a military officer
24 is obliged, according to military recreations, when he finds something
25 like that out, to in turn inform the Prosecutor about it, and this is why
1 I say it's an informal act. It's not required to be submitted in a
2 specific form or format. Of course, it depends on the general
3 preparedness and legal mastery of the person who actually writes this
5 Q. So General Perisic would be obliged to inform the prosecutor if
6 he found out about a criminal act.
7 A. Yes.
8 Q. Thank you. Now, two other brief questions. Were there
9 functioning military disciplinary courts in the Federal Republic of
10 Yugoslavia during the period from 1992 through 1998?
11 A. Yes, in 1992 they were functioning, but I didn't really follow
12 that kind of thing anymore in the military judiciary, so I don't know
13 what time they stopped. But, in any case, they were functioning at the
14 time when I left the army and for a while after that, but I don't know
15 for how long after that.
16 Q. Okay. Let me go back to the Law on the Army.
17 MR. HARMON: That's Prosecution Exhibit 197.
18 Q. And I want to turn very briefly to Article 178.
19 Mr. Starcevic, focussing on Article 178, it indicates that there
20 are military disciplinary courts in the first instance established in the
21 General Staff, the commands of the army, the air force, anti-aircraft
22 defence, and the navy.
23 Can you enlighten us as to what kinds of cases and -- fall within
24 the various courts that are described in Article 178? How does it work?
25 A. I think that we already dealt with that to an extent. But these
1 are all cases when the officer does have grounds to assume that there is
2 a basis for disciplinary proceedings. The way in which they are treated
3 in the system of responsibility is that the unit officer would initiate
4 disciplinary investigations, and then the result of that investigation,
5 if it is evaluated that there are grounds or justified suspicion that a
6 disciplinary violation was committed, then all the documents in the case
7 file compiled during the investigation would be sent to that officer who
8 is -- whose duty it is to bring the perpetrator before the military
9 disciplinary court.
10 The senior officer who -- or the officer who received the case
11 file with the results of the investigation would then reach a formal
12 decision and issue a formal written decision bringing somebody before the
13 military disciplinary court, and that decision, together with the entire
14 case file, would be forwarded to the prosecutor at the military
15 disciplinary court.
16 Q. I don't think I made myself very clear, Mr. Starcevic. What I'm
17 talking about is, for example, if a VJ soldier who was in the navy
18 commits a violation, is that case tried in the first instance in the
19 military disciplinary court that's described here in Article 178, it
20 being established in the navy?
21 A. Yes.
22 Q. Okay. So in terms of the General Staff, then I take it
23 subordinate units where there's a -- a disciplinary violation, that would
24 be tried before the military disciplinary court of the General Staff.
25 A. Yes.
1 Q. Okay. Thank you very much. And, finally, one last question: I
2 take it all appeals from all of these previous military -- oh, forget --
3 MR. HARMON: I'll withdraw the question, Your Honour. I think it
4 is self-evident. Let me return if I can to -- we were looking at Article
5 107 before the break. If I could go into private session, Your Honour.
6 JUDGE MOLOTO: May the Chamber please move into private session.
7 [Private session] [Confidentiality lifted by order of the Chamber]
8 THE REGISTRAR: Your Honours, we're in private session.
9 JUDGE MOLOTO: Thank you very much.
10 Yes, Mr. Harmon.
11 MR. HARMON: Could I have Prosecution Exhibit 709 on the monitor,
12 please. And I would like to, first of all, turn to B/C/S, page 24;
13 English, page 33.
14 Q. I want to refresh your memory from yesterday, Mr. Starcevic, with
15 this passage, and then we'll will explore further this session.
16 Mr. Starcevic, this is the 14th session of the Supreme Defence
17 Council that was held on the 11th of October, 1993, and we looked at a
18 passage --
19 MR. HARMON: I'm referring the Court to the first -- the top of
20 the page, Momcilo Perisic.
21 Q. And I'm also referring you to the top of the page. There's a --
22 it reads:
23 "In our orders, for instance we write them, the commander in
24 such-and-such a unit will be deployed in a training corps which is
25 supposed to be here, but in fact, he is going over there."
1 Now if we could turn to B/C/S, page 25; English, page 33. And
2 the English, I'm -- I would like to refer the Court to -- and counsel to
3 the passage with Mr. Bulatovic at the bottom. In the English, it carries
4 over to the next page.
5 Q. Mr. Starcevic, now, I can't read the text, but I would like you
6 to key in on the portion that begins:
7 "I think it's a very sensitive question ..."
8 MR. HARMON: Could we go to page 35 of the English and page 26 of
9 the B/C/S.
10 Q. Mr. Starcevic, I want to direct your attention to that passage
11 that is in the middle of the page: Momcilo Perisic ...
12 MR. HARMON: And, Your Honours, to the passage that is at the --
13 under Momcilo Perisic, that first paragraph, that only paragraph.
14 And, finally, if we could turn to the next page, page 36 in
15 English, and page 27.
16 Q. I would like to direct your attention to the passage with
17 Mr. Bulatovic in the middle of the page, Mr. Starcevic.
18 MR. HARMON: And, Your Honours, it's the only passage identified
19 with Mr. Bulatovic.
20 Q. Mr. Starcevic, the passage that we looked at, just -- we've been
21 looking at, there's a reference on the previous passage that -- that --
22 and I quote, this is General Perisic, it says:
23 "I have already issued an internal order that they all are
24 supposed to go there. Whoever doesn't want to go has to find a mode."
25 It goes on to say:
1 "If someone doesn't want to go and has over 30 years' of
2 pensionable employment, we can give him early retirement so that we're
3 not accepting this. We will tell him he is not performing his duties in
4 a satisfactory manner and other things, but we won't write that he did
5 not want to go there."
6 It goes on to say:
7 "We will find another way of getting rid of them."
8 Now, can you comment on that text and the implications that that
9 has for Article 107 of the Law on the Army?
10 JUDGE MOLOTO: Yes, Mr. Lukic.
11 MR. LUKIC: [Interpretation] I think this way of putting questions
12 leads to a situation where one is asking the witness to speculate.
13 First of all, parts of a discussion that we know about have been
14 taken out of context. One topic that is discussed on over 20 pages, a
15 sentence is being pulled out and the witness is being asked to interpret
16 it pursuant to the provisions of the law. And, of course, Your Honours
17 know there is a difference between somebody commenting on text like this
18 and having the comments of the person who participated in the actual
19 discussion. The witness is not able to really comment here, and
20 Mr. Harmon here is trying to get the witness to comment on matters that
21 are not directly in his experience. So, in a way, we're getting into a
22 collision with what Mr. Starcevic said before in terms of the time when
23 this conference -- when this session was held.
24 I think that there must be a difference in the comments that
25 Mr. Starcevic is making regarding this type of document and regarding a
1 law that you have in front of you and are able to also look at
3 I don't want to be -- well, perhaps it seems as if I'm
4 complicating things. I do not wish to be suggesting anything in my
5 objection, but we know when the law was adopted and when this Session was
6 held, and now the witness is being asked to comment. So even though this
7 is a factual witness, he is not able to talk about things that he
8 personally doesn't know. I mean, he was able to comment and give some
9 explanations of the law.
10 MR. HARMON: May I reframe the question then, Your Honour?
11 JUDGE MOLOTO: Please do.
12 MR. HARMON:
13 Q. Mr. Starcevic, the text that I recited to you dealing with a
14 person who has over 30 years' of pensionable employment, does that
15 implicate Article 107 of the Law on the Army?
16 [Trial Chamber confers]
17 JUDGE MOLOTO: Yes, Mr. Lukic.
18 MR. LUKIC: [Interpretation] In that case, I would like to ask
19 Mr. Harmon to say when these words were spoken. Again, we're talking
20 about something, a sentence that was spoken before the law went into
21 effect, and then we need to also specify the law.
22 JUDGE MOLOTO: Mr. Harmon.
23 MR. HARMON: Your Honour, I stated that the 14th Session was held
24 on the 11th of October, 1993.
25 JUDGE MOLOTO: You're right. And when did the law come in?
1 MR. HARMON: The witness testified yesterday - I have to -- let
2 me just ask him. He testified that the Law on the Army was initially
3 promulgated, and then there was a year period of time during which time
4 they had to reconcile one provision, but the law was in effect.
5 Q. Mr. Starcevic, let me just ask you, when did the Law on the Army
6 come into effect? Let me ask you again.
7 A. Based on the copy that I have in front of me, I'm not able to
8 really determine the exact date. Actually, it's clear to me from the
9 copy that I have that the time when the Chamber or the council adopted
10 the draft law, but in order to know when the law went into effect, I
11 would need to know the date it was published in the Official Gazette
12 because a law goes into effect on the eighth day following its
13 publication in the Official Gazette. And I'm sorry, but I'm unable to
14 see that from the copy that I have in front of me. I can just say when
15 this final version of the law was adopted.
16 JUDGE MOLOTO: That document you are holding in your hands, sir,
17 is that not an Official Gazette?
18 THE WITNESS: [Interpretation] It is. But I have to point out
19 that this law, in keeping with the constitutional practice of sorts,
20 actually came into effect twice, the first time when it was adopted at
21 the Chamber of Citizens, but the Chamber of republics did not adopt an
22 identical text, so that it was in effect from that day.
23 JUDGE MOLOTO: After it was adopted by the Chamber of Citizens,
24 was it published in the Gazette?
25 THE WITNESS: [Interpretation] I think so, yes. But that Official
1 Gazette --
2 JUDGE MOLOTO: Was it --
3 THE WITNESS: [Interpretation] Because the constitution provides
4 that the text shall be applicable until it is finally reconciled in both
5 Chambers, or before both Chambers, within no later than a year's time.
6 So, in fact, it was in effect as of then, and then the newer
7 version, the reconciled version, was published in this Official Gazette,
8 so that as a consequence, because it was published in the Official
9 Gazette on the 27th of May, 1994, this would mean that it came into
10 effect on the 5th or 6th of June, 1994. But this relates to this
11 version, the reconciled version. As for when the first version came into
12 effect, I would need to see that Official Gazette where that version was
13 actually published.
14 JUDGE MOLOTO: Does this mean, then, we can only go by the date
15 of the document you have in your hands, which is dated the 27th of May,
16 1994? That's the document we have before Court.
17 MR. HARMON: Your Honour, I may be able to assist the Chamber on
18 this because yesterday when I asked Mr. Starcevic this question, he gave
19 an answer. It's found at page 5437 at line 7, and I can read the answer,
20 if you care.
21 JUDGE ROBINSON: Please do.
22 [Trial Chamber confers]
23 MR. HARMON: Your Honour, at 5436, line 14, I asked
24 Mr. Starcevic:
25 "When did the Law on the Army become effective? What date?"
1 And then, thereupon, Mr. Starcevic explained that the problem
2 that he has explained again today, that there was a difficulty between
3 the two texts and they had to be reconciled. He then answered at 5437,
4 starting at line 5, he said:
5 "So in other words, this law came into effect in the form that it
6 was adopted in the Chamber of Citizens at the end of May, I believe --
7 no, I apologise, in October 1993."
8 JUDGE MOLOTO: I'm aware of that. I'm aware of that.
9 I thought the concern, that we have him here in court, he has got
10 a document in his hand.
11 MR. HARMON: Yes.
12 JUDGE MOLOTO: It's dated 27th of May, 1994. It takes effect on
13 the 6th of June, 1994, according to what he tells us, and that is the --
14 seems to me to be that the version that has been ratified by both
15 Chambers of parliament.
16 MR. HARMON: Your Honour, what the witness answered, as I
17 understood his evidence - I'm trying to find it precisely - but I
18 understood his evidence was when there is a discrepancy in the text, the
19 law goes into effect. There is a one-year period during which time there
20 is efforts between the two Chambers, the two Houses to reconcile that
21 language, and thereafter, the -- that happened within the one-year period
22 of time, and thereafter, the text was officially adopted. But it had
23 been in effect, according to Mr. Starcevic's answer, since October.
24 JUDGE MOLOTO: And if an issue arises within the year that
25 requires the unresolved provision to be applied, what then happens?
1 MR. HARMON: Your Honour, I would have to defer to Mr. Starcevic
2 on that one provision. But ...
3 JUDGE MOLOTO: Mr. Starcevic.
4 THE WITNESS: [Interpretation] In that case, the version that was
5 adopted in the Chamber of Citizens is applicable until the final
6 reconciliation of versions, and, of course, I'm not denying that this
7 text actually took effect in October, but I just don't know the exact
8 date in October, and if I understood this whole discussion well, what is
9 contested here, or, rather, what is a matter of contest between the two
10 parties is the date and not the month. And when looking at this text, it
11 would seem to me that that could not have been before the 20th of
12 October, but I'm not certain and can't be until I see the actual version.
13 JUDGE MOLOTO: Mr. Lukic is on his feet. Let's give him -- yes,
14 Mr. Lukic.
15 MR. LUKIC: [Interpretation] I have before me a page of the
16 military gazette. Perhaps we can put it on the ELMO, and perhaps the
17 witness can read from it. This is an official military gazette which
18 speaks of when this Law on the Army of Yugoslavia was adopted.
19 THE INTERPRETER: The interpreter kindly asks that the counsel
20 repeat the date when this was published in the military gazette.
21 JUDGE MOLOTO: The counsel didn't mention the date because that's
22 precisely what he wants us to see on the ELMO, and he doesn't want to
23 testify. I'm answering the interpreter.
24 You want to show it to your colleagues before you put it on the
25 ELMO, if you so wish?
1 MR. LUKIC: [Interpretation] I think that would be proper.
2 MR. HARMON: Unfortunately, I can't read it. Unfortunately, I
3 can't read it. It's very kind of you, Mr. Novak [sic].
4 JUDGE MOLOTO: [Microphone not activated] If you can't read it --
5 MR. HARMON: It is in Cyrillic, Your Honour.
6 JUDGE MOLOTO: You can't approve it. You can't approve that it
7 goes on the --
8 MR. HARMON: I don't have an interpreter here, Your Honour, and I
9 can't. But I'm willing to accept what -- perhaps Mr. Lukic can read the
10 text into the record, and I would be satisfied with that.
11 JUDGE MOLOTO: Mr. Lukic.
12 MR. LUKIC: [Interpretation] I think it would probably be best if
13 the witness were to read this portion of the text and also to interpret
14 what date this would be and when it was published. Of course, I can
15 read, but I think it would be the most objective approach if the witness
16 were to read this, just the portion that relates to when this provisional
17 text was actually published in the military Official Gazette.
18 JUDGE MOLOTO: Just hold on, Mr. ...
19 Mr. Harmon must still grant his permission before anything is
20 shown to the witness. That's why it went to him in the first place, and
21 he suggested that you read it, and he will accept what you say.
22 So if you still say it must go to the witness, Mr. Harmon must
23 still say: Even though I'm illiterate in this language, I still agree
24 that it be given to the witness.
25 MR. HARMON: I'm satisfied that Mr. Starcevic can read it as
2 JUDGE MOLOTO: Thank you so much.
3 MR. HARMON: Thank you very much.
4 JUDGE MOLOTO: You can give it to him.
5 THE WITNESS: [Interpretation] The law was published on the
6 4th of November, 1993, in the Official Gazette, number 31.
7 JUDGE MOLOTO: Thank you so much.
8 MR. HARMON:
9 Q. Mr. Starcevic, then let me just explore this a bit further with
10 you. Prior to the promulgation of the Law on the Army, was there a law
11 that was replaced, and what was the name of that law?
12 A. Yes, there was a law, the name of which was the Law on Service in
13 the Armed Forces; and in fact, it was superceded by this law.
14 Q. Did the Law on Service in the Armed Forces have a provision that
15 related to the reasons for termination of professional military service?
16 A. Yes, it did.
17 Q. Did that previous law have an article that was similar to
18 Article 107 in the Law on the Army?
19 A. Yes, there was a similar article.
20 Q. Did the law on the -- the previous law have a provision that
21 dealt with the termination from professional military service of a
22 professional officer who had acquired at least 30 years' of pensionable
23 service, if the needs of the service so required?
24 A. Yes, I think there was such a provision, but also some other
25 provisions. In other words, this article, 107, is not identical to the
1 one that existed in the earlier law, but I think there was a provision to
2 that effect.
3 Q. Mr. Starcevic, we have an exhibit, or 65 ter number. We have the
4 Law on Service in the Armed Forces.
5 MR. HARMON: With counsel's permission, and since I didn't notify
6 counsel of the -- that I would be using this with Mr. Starcevic, we can
7 resolve the issue very quickly if I could call up the Law on the Service
8 of Armed Forces. It is it 65 ter 5839.
9 JUDGE MOLOTO: Mr. Lukic.
10 MR. LUKIC: [Interpretation] I don't have a problem with this.
11 JUDGE MOLOTO: Thank you.
12 Mr. Harmon, and I know you absolutely prepared for e-court and
13 not otherwise, but do you have any extra copies of these laws that we
14 have been working on this morning? I mean, we're going backwards and
15 forwards through many of these articles, at times without having to put
16 the article back on the monitor. Maybe it might help if we just have it
17 and can flip through -- if you don't have, that's fine.
18 MR. HARMON: I may, Your Honour.
19 Your Honour, we have one set.
20 JUDGE MOLOTO: Okay. We can share.
21 MR. HARMON: Okay.
22 JUDGE MOLOTO: Thank you.
23 MR. HARMON: So what I --
24 JUDGE MOLOTO: You can put on the monitor the old law.
25 MR. HARMON: It's 65 ter 5839.
1 JUDGE MOLOTO: Yes.
2 MR. HARMON: Oh, I'm sorry, 5830.
3 Q. And, Mr. Starcevic, while the old law comes up on the monitor, do
4 you by chance -- oh, I'm sorry.
5 MR. LUKIC: [Interpretation] I think it would be feasible for the
6 needs of the transcript to show this document that we placed on the ELMO
7 to actually admit it into evidence.
8 MR. HARMON: I have no objection to that, Your Honour.
9 JUDGE MOLOTO: [Microphone not activated] Is that the one?
10 MR. HARMON: You mean the -- the earlier document that Mr. Lukic
11 showed to the parties, that's the document.
12 JUDGE MOLOTO: The hard copy?
13 MR. HARMON: Yes. I have no objection to it being --
14 JUDGE MOLOTO: Can we give it a 65 ter number, then?
15 MR. HARMON: It's a Defence exhibit.
16 MR. LUKIC: [Interpretation] Yes, we don't have a 65 ter number
17 for that document because we just pulled it out in hard copy right now.
18 Perhaps we can forward it to the registrar later on. I don't know what
19 the easiest way to do this would be. Perhaps we can just assign the next
20 number in the 65 ter series.
21 [Trial Chamber and registrar confer]
22 JUDGE MOLOTO: Okay, okay, okay. Okay, Mr. Lukic. Okay, the
23 registrar has a way you can tender it.
24 MR. HARMON: Now --
25 JUDGE MOLOTO: She knows how to work it out. Just tender it now.
1 MR. LUKIC: [Interpretation] Yes. I move to tender it into
3 JUDGE MOLOTO: The document is admitted into evidence. May it
4 please be given an exhibit number, please.
5 THE REGISTRAR: That will be Exhibit D81, Your Honours.
6 JUDGE MOLOTO: Okay.
7 Yes, Mr. Harmon.
8 MR. HARMON: I have a proposal. I think rather than trying to
9 search through the monitor and trying to find the exact provision that I
10 -- Mr. Starcevic referred to, the parallel provision in the previous law,
11 I have a hard copy in the Serbian language. If I could present that to
12 Mr. Starcevic after showing it to counsel, then he can find it for us a
13 lot faster than we can do on the monitor.
14 JUDGE MOLOTO: You can do so.
15 MR. HARMON: If this could first be shown to counsel.
16 JUDGE MOLOTO: Indeed.
17 [Trial Chamber confers]
18 MR. HARMON:
19 Q. Mr. Starcevic, it may be Article 392.
20 A. That's correct, Article 392.
21 Q. Can you identify the passage that may be similar to the article
22 in the Law on the Army?
23 A. If we mean the hard copy pages, that would be on page 290,
24 following item -- or Article 4. There is an paragraph that makes a
25 reference to the special needs of the service and the interests of the
1 armed forces, and only upon a decision by the Presidency of the SFRY and
2 in such a -- such an event, a professional soldier did not enjoy the
3 guaranteed rights that were actually recognised in the provision in the
4 new law.
5 JUDGE MOLOTO: I'm a bit lost. I'm not quite sure where we are.
6 MR. HARMON: I'm sorry, Your Honour. I was looking at an English
8 Q. Mr. Starcevic, what I'm trying to find and if you can direct us
9 to a provision that is similar in the old law that relates to termination
10 from service for a person who has served at least 30 pensionable years of
11 service if the needs of the service so require. Is there such a
12 provision in the old law that is before -- that is in your hand?
13 A. Well, that's exactly what I tried to do. Under the old law, the
14 criterion was not the years of service but the special needs of the
15 service and interests of the armed forces, regardless of the years of
17 JUDGE MOLOTO: If I might ask you, sir.
18 THE WITNESS: Yes.
19 JUDGE MOLOTO: What about -- if you look at Article 392, you have
20 Roman numerals I to VI, and then the next paragraph of Roman numerals I
21 to V, and then the next one says: The service of an active duty service
22 men may terminate, column 1, when he completes 40 (men) or 35 (women)
23 years of pensionable service if the needs of the service so require.
24 Isn't that it? Just the difference of time of service.
25 THE WITNESS: [Interpretation] This provision, in effect, provides
1 for the regular retirement of professional soldiers because the condition
2 for retirement under the system which existed in the armed forces was
3 40 years of service for men and 35 years of service for women, and this
4 was one of the regular ways for termination of service for an individual
5 who has met the requirements.
6 JUDGE MOLOTO: I understand --
7 THE WITNESS: [English] Yes.
8 JUDGE MOLOTO: I understand that. But Mr. Harmon's question had
9 been, and at page 66, line 14:
10 "Mr. Starcevic, what I'm trying to find and if can you direct to
11 us to a provision that is similar in the old law that relates to
12 termination from service for a person who has served at least 30
13 pensionable years if the needs of service so require."
14 Isn't that also just a regular termination after a specified
15 number of years?
16 THE WITNESS: [Interpretation] Such a provision did not exist in
17 the old law, but the similarities between the old and the new law were in
18 the reasons provided for termination of service when required by the
19 needs of the service, and such a provision as the needs require did exist
20 in the old law following number 4, after number 4.
21 However --
22 JUDGE MOLOTO: Which number 4? There are many number 4s here.
23 THE WITNESS: [Interpretation] In the first paragraph, we have
24 numbers 1 to 6. In the second paragraph, we have 1 to 5. And then we
25 have numbers from 1 to 4. Following that number 4, the reason for
1 termination of service that is given is the needs of the service.
2 However, at that time, this did not -- was not limited by that criterion
3 of 30 years of service, so that any individual could be terminated
4 because of the needs of the service, regardless of the number of years
5 that they had spent in the army, the number of years of service, and that
6 is where it differs from the new law.
7 JUDGE MOLOTO: We don't see the entire text of the law in the
8 English version on the screen, so yeah, we accept -- I'll accept what you
10 THE WITNESS: [Interpretation] I apologise. That is what I had
11 earlier described as the specific aspect of military service, the
12 reflection of that.
13 JUDGE MOLOTO: I understand that. But I don't -- I don't know
14 whether you are saying this is the counterpart of the new law. I think
15 the counterpart that Mr. Harmon was looking for is what I'd referred you
17 I don't know. What do you say, Mr. Harmon?
18 MR. HARMON: Let me try to --
19 Q. Mr. Starcevic, there is the new text in Article 107 in the Law on
20 the Army, and as I understand your evidence, there are similarities but
21 not mirror images of the new law in the older version of the article have
22 you read us; is that correct?
23 A. Correct.
24 Q. Okay. So the principle of the needs of the service, one of the
25 factors that was considered under the old law was how many years you had
1 been in the army; is that correct?
2 A. No.
3 Q. Okay.
4 A. The specific aspect of the service is based on the criterion that
5 there should be the needs and interests of the service. They should be
6 in existence, and that was the basic criterion in both of these texts we
7 are discussing.
8 When we were drafting the new proposal, we as lawyers considered
9 it unfair as well as legally untenable that a man may be terminated based
10 on the needs of the service, a man at the end of his career, without
11 protecting that man's rights, and that is why this article was amended in
12 the sense that the new text provides that this is possible only if that
13 worker or that serviceman has already had 30 years of service.
14 Q. Okay. Finally, did the concept of the needs of the service
15 change between the old law and the new law?
16 A. I'm not sure. I don't think that it changed much. It still
17 remained as the criterion for the termination of service. But it changed
18 to the extent that the basic rights of the personnel were preserved in
19 the event that there were such needs of the service.
20 Q. Okay.
21 MR. HARMON: Now, can we go back to the exhibit, the previous
22 exhibit, which is 709, and I would like to go to B/C/S, page 26, and
23 English, page 35, and re-visit that particular text.
24 Q. Now, Mr. Starcevic, under the Law of the Army, if an active
25 military officer received an order to go to a particular duty post and he
1 refused, would that be a -- what consequences would flow from that
2 refusal under the Law on the Army?
3 A. In principle, he would have to carry out the order and then
4 appeal against it, but the appeal itself would not postpone the execution
5 of the order. If he would definitely refuse, then that could serve as a
6 grounds for disciplinary responsibility of the person, and if I remember
7 correctly, in some cases there would be also criminal charges involved,
8 because according to the criminal law at the time, among the violations
9 of military discipline would be a refusal to execute an order.
10 Q. Okay. Now, I'd like you to examine the text that's before you,
11 where General Perisic is -- it's on the middle of the page.
12 MR. HARMON: And, Your Honours, it has been highlighted for you.
13 Q. It says:
14 "I have already issued an internal order that they're all
15 supposed to go there; whoever doesn't go has to find a mode; we, too,
16 have found the appropriate criteria."
17 And then it goes on to say:
18 "If someone doesn't want to go and has over 30 years experience
19 [sic], years of pensionable employment ..." We will give him early
20 retirement, essentially, and they discuss -- it goes on:
21 "We'll tell him that is he not performing his duties in a
22 satisfactory manner ... but we won't write that he did not want to go
24 Now, not wanting to go to a duty assignment was an actionable
25 offence under the VJ. You've just said that, correct, under the law on
1 the VJ. Not accepting an assignment had consequences.
2 A. Yes, yes.
3 Q. Now, when a -- when an officer refuses to accept an assignment,
4 is it the practice in the Yugoslav Army to find a -- another basis by
5 which to terminate a -- an officer, as opposed to utilising the refusal
6 to go and accept an order?
7 JUDGE MOLOTO: Mr. Lukic.
8 MR. LUKIC: [Interpretation] I think that if we're talking about a
9 fact witness and things that are known to the witness as facts, but
10 Mr. Harmon is now asking the witness about things that he generally
11 knows, so then he is being asked to provide an expert opinion. Perhaps
12 the witness can be asked if he specifically knows and has some experience
13 about that but not to be asked for a general assessment about some
14 matters because then that would mean that he would be giving an expert
15 witness reply.
16 JUDGE MOLOTO: Mr. Harmon.
17 MR. HARMON: Your Honour, I asked the witness the question on the
18 basis that he has a long-standing and serving -- he was a career military
19 officer. That's the basis for the question, and I think he can give an
20 opinion on that.
21 JUDGE MOLOTO: I'm not quite sure whether this question is
22 calling for an opinion, or is it calling for knowledge on the part of the
23 witness whether there was any legal provision in the laws that he drafted
24 that covers the issue.
25 MR. HARMON: Your Honour, I did not ask him that -- the question
1 with that intention. I asked him the question on the -- on the basis
2 that he had 30 -- or many years in military service and in his
3 experience, and perhaps I need to frame it that way, but in his
4 experience, has he seen a situation where there are efforts to conceal
5 the basis of the termination?
6 JUDGE MOLOTO: Okay. Then I think I will overrule the objection.
7 THE WITNESS: [Interpretation] I cannot remember encountering such
8 cases during my work. I don't think that I encountered anything like
9 that in practice.
10 MR. HARMON:
11 Q. Okay. Thank you. Okay.
12 MR. HARMON: Now, Your Honour, could I tender the document, the
13 Law on The service of the Armed Forces as an exhibit that was referred to
14 and we discussed for a number of minutes. It's 65 ter number 5830. And
15 if -- Your Honour, it's a long document. We're satisfied to have the
16 article that was referred to at this point in time be the Prosecution
17 Exhibit and not the whole exhibit, unless counsel has a desire to do it
19 MR. LUKIC: [Interpretation] I would rather have the entire law
20 admitted because the law was in effect formally until March 1994, and
21 it's important for this case, so if I am being asked, then I would
22 propose that the whole law be tendered for admission. I'm also probably
23 going to be asking the witness questions on it during my
24 cross-examination later. And the problem is that the version in e-court
25 actually is not the translation of the complete law, so perhaps we can
1 then at least have the whole law in the B/C/S loaded onto the e-court --
2 JUDGE MOLOTO: Exhibit --
3 MR. LUKIC: [Interpretation] -- and marked for identification.
4 JUDGE MOLOTO: Why do you want it marked for identification?
5 MR. LUKIC: [Interpretation] Because the entire text is not
6 translated into English. I have been informed that only ten pages of it
7 have been translated, so marked for identification until the entire law
8 is translated into English.
9 MR. HARMON: That imposes -- I think there was a reason why the
10 entire law wasn't translated into English, because it's a massive text.
11 If the admission now of the whole document requires the translation of
12 the whole text, then I would be perfectly satisfied to keep the portions
13 of the text that are translated admitted, and then I will go back and
14 examine the feasibility of translating the remaining portions of the
15 text. I think a large number of the portion of the text is irrelevant,
17 JUDGE MOLOTO: Okay. I think the Chamber is going to admit the
18 pages that you have used today, and if the Defence uses other pages
19 later, the pages that they use will be admitted.
20 So pages -- the relevant pages of Exhibit 5830 or 65 ter 5830 are
21 admitted into evidence. May they please be given an exhibit number.
22 THE REGISTRAR: Your Honours, those pages would be Exhibit P2305.
23 JUDGE MOLOTO: Thank you very much.
24 MR. HARMON: Your Honour, I'm about to embark on a rather lengthy
1 JUDGE MOLOTO: Before you embark on the lengthy topic, Judge
2 Picard would like to ask a question.
3 MR. HARMON: Yes.
4 [Trial Chamber and registrar confer]
5 JUDGE MOLOTO: Mr. Harmon, do you still need the documents that
6 are on the screen? Oh, you do. Can we stay in private session. Don't
7 answer, Mr. Harmon.
8 JUDGE PICARD: [Interpretation] Mr. Starcevic, I am asking a
9 question that has to do with these two laws, the old and the new laws on
10 the army. It seems at the point in time when this meeting was held, the
11 text that is in front of us -- actually, at the time of the meeting the
12 new law had not yet gone into effect.
13 THE WITNESS: [Interpretation] Yes, yes, it seems to be like that.
14 That's how I understood it.
15 JUDGE PICARD: [Interpretation] So I don't understand anymore why
16 at this meeting Mr. Perisic quite clearly referred to Article 107 that
17 still was not in effect because nowhere in the old law was the
18 possibility mentioned of termination of service in the army after
19 30 years' of pensionable service. This is not quite clear to me why
20 General Perisic, in this part here, refers to these 30 years. Does that
21 have anything to do with some kind of provision that was in the old law,
22 or is this new law -- was it already existing, was it already drafted,
23 and was it possible that he is referring here to some future new law?
24 THE WITNESS: [Interpretation] Well, I think that everything that
25 you said is really quite possible. I don't know why he refers to it, but
1 it is a fact that at that time the law was completed, and it was already
2 being discussed in the parliament. It's a fact that in the preparation
3 of the law, the General Staff of the Army of Yugoslavia also took part,
4 so that was an expected resolution or a manner to deal with that
5 particular problem.
6 JUDGE PICARD: [Interpretation] So in order to have everything
7 quite clear, when you refer to 30 years of service, or 30 years of
8 pensionable service - I'm not quite sure what the term is - is that
9 something that was also in the old law? We saw that it was 40 years for
10 men and 35 years for women. Was that something that was part of the old
12 THE WITNESS: [Interpretation] In the old Law on The Armed
13 Services, this was not there. I could maybe make a comparison, but this
14 is already compared between termination of service and one's right to
15 pension. A special law laid down the conditions under which one secures
16 the right to a pension, and in that law, this right to pension, depended
17 on the years of service and -- and age, as well, so I can just give you
18 an example. For example, a man who is 65 years old can have over 20
19 years of service and have the right to a pension. Perhaps this is some
20 kind of link there, but I'm not really able to tell you definitely.
21 JUDGE PICARD: [Interpretation] Very well. But when we're talking
22 about 30 years of pensionable service, there is no basis for that in the
23 old law?
24 THE WITNESS: [Interpretation] Well, I don't see it.
25 JUDGE PICARD: [Interpretation] Yes. All right. Thank you.
1 JUDGE MOLOTO: Thank you, judge.
2 Yes, Mr. Harmon.
3 MR. HARMON: Your Honour, noting the time, I have no additional
5 Can we go back into public session.
6 JUDGE MOLOTO: Okay. May the Chamber please move into open
7 session, and may we remove the exhibits from the screen before we go into
8 open session.
9 [Open session]
10 THE REGISTRAR: Your Honours, we're back in open session.
11 JUDGE MOLOTO: Thank you so much.
12 Yes. You say you have got no questions for the day.
13 MR. HARMON: No questions for the day, Your Honour. I'd ask that
14 Mr. Starcevic return, and I need to resolve with Mr. Starcevic a set of
15 dates with him when he can return. We had discussed it earlier, but now
16 I'm not able to talk to him, and I have been informed of an element that
17 has changed my previous planning by one day, and I need to be able to
18 talk through an intermediary or have an intermediary discuss with
19 Mr. Starcevic a convenient date when he can return.
20 May I make -- what I had initially planned and suggested to
21 counsel and to Mr. Starcevic was that he return on the 11th and 12th of
22 May, but I was informed just before this session began that -- through
23 the court officer that Mr. Starcevic is unable to fly on the 10th, which
24 would eliminate the possibility of his testifying on the 11th.
25 JUDGE MOLOTO: Okay.
1 MR. HARMON: And I would -- I know my schedule, but I need to
2 talk some details with -- through an intermediary with Mr. Starcevic so I
3 can finally resolve the date.
4 JUDGE MOLOTO: May I suggest that after the break you talk with
5 Mr. Starcevic in the presence of Mr. Lukic.
6 MR. HARMON: That is satisfactory, Your Honour.
7 JUDGE MOLOTO: And sort out the problems.
8 MR. HARMON: That's fine. Thank you.
9 JUDGE MOLOTO: Thank you so much.
10 But the court can still adjourn to a specific date on Monday.
11 MR. HARMON: Oh, yes. Absolutely, Your Honour.
12 JUDGE MOLOTO: Okay. Thank you.
13 Mr. Starcevic, it does look like we're not able to finish with
14 your testimony. You'll have to come back someday. You will have to talk
15 to counsel and other counsel and sort out whatever is convenient for you,
16 and they will let us know when you come.
17 Other than that discussion for the postponement of the date, as
18 you know, are you not supposed to talk to anybody, in particular with
19 your counsel, until you are excused from testifying. We'll see you when
20 you next come.
21 The Court stands adjourned until Monday, the 27th of April, at
22 9.00 in the morning, Courtroom I. Court adjourned.
23 --- Whereupon the hearing adjourned at 1.49 p.m.,
24 to be reconvened on Monday, the 27th day of April,
25 2009, at 9.00 a.m.