1 Tuesday, 9 March 2010
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE MOLOTO: Good morning to everybody in and around the
7 courtroom. Mr. Registrar, will you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in and around the courtroom. This is case number IT-04-81-T,
10 the Prosecutor versus Momcilo Perisic. Thank you.
11 JUDGE MOLOTO: Thank you so much. Could we have appearances
12 starting with the Prosecution.
13 MR. THOMAS: Good morning, Your Honours. Good morning, General.
14 Good morning, everybody in and around the courtroom. Barney Thomas,
15 Carmela Javier, and Dan Saxon.
16 JUDGE MOLOTO: And for the Defence.
17 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good
18 morning to all. On behalf of Mr. Perisic, Novak Lukic, Gregor Guy-Smith,
19 Tina Drolec and Boris Zorko.
20 JUDGE MOLOTO: Thank you very much, Mr. Lukic. Good morning,
21 Mr. Nikolic.
22 THE WITNESS: [Interpretation] Good morning, Your Honours.
23 JUDGE MOLOTO: Once again, and I know you know it, but I just
24 want to remind you that you are still bound by the declaration that you
25 made at the beginning of your testimony to tell the truth, the whole
1 truth and nothing else but the truth.
2 THE WITNESS: [Interpretation] I do know that, Your Honours.
3 JUDGE MOLOTO: Yes, Mr. Lukic, you were on an objection
5 MR. LUKIC: [Interpretation] I think as far as my objection is
6 concerned, Mr. Thomas might probably be in a position to provide a better
7 reply than myself.
8 JUDGE MOLOTO: Mr. Thomas.
9 MR. THOMAS: Sir, I have's discussed the matter my learned friend
10 after with closed yesterday. I withdraw the question that was on the
11 table as at the moment the objection was made. I will return to the
12 document but do so in a different fashion.
13 JUDGE MOLOTO: Thank you very much, Mr. Thomas.
14 WITNESS: STAMENKO NIKOLIC [Resumed]
15 Cross-examination by Mr. Thomas: [Continued]
16 Q. General, good morning. We will continue with our questions again
17 regarding your testimony. Can I please just repeat what I suggested to
18 you at the start of our questions yesterday, which is please listen very
19 closely to the question that I'm asking you, please answer only that
20 question otherwise I will need to interrupt you and we will need to start
21 again. Also if you need a break at any stage, of course, please just let
22 us know. If there are any questions or if there's anything about my
23 questioning that you do not understand, please say so, and I will put it
24 a different way for you. Once again, are we clear?
25 A. Yes, that is very clear. Thank you very much.
1 Q. Thank you, General.
2 MR. THOMAS: Mr. Registrar, could we please have document D246 on
3 the screen.
4 Q. Now, General, you looked at this document on Friday from memory,
5 and you described it as a schedule that depicted -- well, as the title
6 says, The numerical strength in May 1995 of the 30th Personnel Centre.
7 And you pointed to a total, I think, of 2.276 officers who you described
8 as officers receiving their salaries through the 30th Personnel Centre.
9 And you made a comment at that point which was however to that number you
10 also need to add the contract soldiers. And what I want to ask you, sir,
11 is how are the figures affected by the addition of contract soldiers
12 associated with the 30th Personnel Centre?
13 A. Yes. I'm looking at this table, and it was my administration
14 that produced it. I was its head, and I believe this happened back in
15 1995. The only time I stepped in was about this figure 2.276 and then
16 146 was added to that, totalling 2.421. The discrepancy here, you talked
17 about contract soldiers. The contract soldiers are part of this group of
18 persons whose salaries are paid through the 30th Personnel Centre.
19 Q. And just briefly, General, for Their Honours, can you explain the
20 difference between a contract soldier and an officer?
21 A. Yes. May I?
22 Q. Yes, please.
23 A. The professional officer in NCO is taken on with no fixed term,
24 once they are out of secondary school and military academy. The contract
25 soldier, on the other hand, is a soldier who served his regular military
1 term, and then in keeping with the regulations at some later date, is he
2 admitted or taken on by the army on a professional basis, but only for a
3 fixed term depending on what the regulations stipulate, three, five more
5 Q. We see at least in May 1995 there's only a small number of
6 contract soldiers. Do you know whether contract soldiers were sent
7 regularly through the 30th Personnel Centre to the VRS?
8 A. Perhaps on an individual basis, but I wouldn't call that regular.
9 I'm not exactly sure what you mean by that.
10 Q. Well, let me ask you the question another way. At any given time
11 did the number of officers assigned through the 30th Personnel Centre
12 greatly exceed the number of contract soldiers; is that a fair comment?
13 A. No. May I provide an explanation, please?
14 Q. General, let me ask you the question another way. The 30th
15 Personnel Centre --
16 A. The figure was always within that range, 150, 160, depending on
17 the point in time we are talking about.
18 Q. Thank you, that's what I was trying to ask. Thank you for your
20 MR. THOMAS: Can we go again, please, Mr. Registrar, to P851.
21 Q. And, General, you will recognise this document when it comes on
22 the screen as one we were looking at last evening. First, can you
23 confirm for us that it is signed by General Perisic?
24 A. Before I answer this one, you say I saw this one yesterday,
25 whereas I don't think I did. I don't think I've ever seen this one
2 Q. All right. General, you may be correct, this may be the document
3 that we were just about to place on the screen when we adjourned last
5 A. As far as the question is concerned, whether General Perisic
6 signed this, you can look at his signature and that confirms it, yes.
7 But may I just be given a chance to read through it?
8 Q. Of course.
9 A. Yes, I'm done. Thank you.
10 Q. You'll see that the document records the transfer of 500.000
11 dinar from the General Staff through the General Staff's accounting
12 centre to the VRS Main Staff for salaries of 30th Personnel Centre
13 officers during the period of the sanctions imposed by the FRY on the RS.
14 Do you see that? Or do you agree?
15 JUDGE MOLOTO: Yes, Mr. Lukic.
16 MR. LUKIC: [Interpretation] I'm not quite sure that Mr. Thomas's
17 question reflects the substance of the document. Perhaps if he tries to
18 take a slightly more specific approach in interpreting what the document
19 says. Or perhaps his theory is different from what the document actually
20 says, in which case he should clearly state that.
21 JUDGE MOLOTO: Yes, Mr. Thomas.
22 MR. THOMAS: Your Honour, with all due respect to my learned
23 friend, I was asking the general for his response to that proposition,
24 not my learned friend. I have a document, I've suggested to him what I
25 say the document says. It's for the general to accept or reject that
1 proposition. If the general doesn't think this is what the letter
2 records, that's exactly what I've asked him, sir, do you agree that this
3 is what the letter tells us.
4 JUDGE MOLOTO: Objection overruled.
5 MR. THOMAS: Thank you, sir.
6 Q. General, do you agree with my interpretation of this document?
7 A. Esteemed Mr. Prosecutor, it's not about interpretation here, it's
8 about the wording. As for the wording of the document, I'm reading it.
9 As far as that is concerned, yes. As far as an explanation is concerned,
10 I'll try to take the following approach in answering: May I answer the
11 question in two parts?
12 Q. Go ahead, please.
13 A. Mr. Prosecutor, while I was being examined by Mr. Lukic he was
14 adamant that you I should explain the general purposes and tasks of
15 certain organisational units of the defence ministry. Under the rules on
16 their respective areas of competence, I briefly explained that the --
17 Q. General, I'm sorry, please pause. I understand what you feel you
18 need to do, but we need to stick to the question. Let me rephrase this
19 so we can take this slowly. Let's look at the first line. In
20 mid-September 1994, this is the period during the period under which the
21 Republika Srpska was under sanctions imposed by the FRY; is that correct?
22 A. Correct.
23 Q. The Supreme Defence Council made a decision to suspend payment of
24 salaries to your people, and in the context of this letter, given that
25 it's General Perisic writing to General Mladic or writing to the -- yes,
1 writing to General Mladic, would you agree that refers to salaries to
2 members of the 30th Personnel Centre fighting in the VRS?
3 A. Yes.
4 Q. The next line says that there has been an agreement between
5 General Mladic and General Perisic to send 500.000 dinar, which was done
6 on the 21st of September. The money was collected by General Tomic, and
7 it's recorded in the General Staff, VJ General Staff accounting centre as
8 a temporary payment. I'm reading from the document, so no doubt you
9 don't have any dispute with what I've just read, correct?
10 A. What you just read out is exactly what it says, yes.
11 MR. THOMAS: Can we go to document P2770, please.
12 THE WITNESS: [Interpretation] Your Honours, may I be allowed to
13 ask a question. I don't think I actually finished my sentence.
14 MR. THOMAS:
15 Q. If you didn't finish your answer, sir, please finish your answer.
16 A. You stopped my in midstream. I was trying to --
17 Q. General, pause, please. I'm not trying to prevent you from
18 saying anything, but I need you to stick to the questions that I asked
19 and that's why I had to stop you midstream, all right. I was looking for
20 you to focus on a particular subject and that is why I point stopped and
21 I re-asked the questioned again. All right. We need to get through your
22 testimony, sir. I don't want you here all week. None of us want you
23 here all week. All right. Please, you will have the opportunity under
24 re-examination to answer any questions that Mr. Lukic feels should be put
25 to you. While I'm asking you questions, sir, just answer my questions.
1 MR. THOMAS: Can we please have document P2770. Thank you.
2 THE WITNESS: [Interpretation] I understand.
3 JUDGE MOLOTO: Mr. Thomas, I'm told that's partly a confidential
4 document. We need to go into private session.
5 MR. THOMAS: Thank you, Your Honours. If we could do that,
7 JUDGE MOLOTO: May the Chamber please move into private session.
8 [Private session]
9 THE REGISTRAR: We are in private session, Your Honours.
10 JUDGE MOLOTO: Thank you so much. Yes, Mr. Thomas.
11 MR. THOMAS:
12 Q. General, have you had the opportunity to read this document? I
13 see the original is difficult to read.
14 A. No.
15 MR. THOMAS: Okay. I wonder, Mr. Registrar, it is a difficult
16 copy to read on the screen as it is.
17 Q. Do you need it any larger, General?
18 A. I can't read this, I'm sorry.
19 Q. All right. Thank you. We'll take that off the screen. I won't
20 ask you questions about it, General.
21 Last week when you were talking about the 30th Personnel --
22 JUDGE MOLOTO: Do you still want to stay in private session?
23 MR. THOMAS: I'm sorry, Your Honours, we can go back into open
25 JUDGE MOLOTO: May the Chamber please move into open session
1 [Open session]
2 THE REGISTRAR: We are back in open session, Your Honours.
3 JUDGE MOLOTO: Thank you so much. Yes, Mr. Thomas, you may
5 MR. THOMAS:
6 Q. General, do I understand your position on the 30th Personnel
7 Centre members to be that once they are appointed to the 30th Personnel
8 Centre and once they are then within the VRS chain of command that all of
9 the regulation of their status or issues was performed by the VRS?
10 A. That was certainly the case.
11 MR. THOMAS: All right. I want to look, please, at Exhibit
12 P2417, please.
13 Q. General, what we see on the screen is a decision of the VRS Main
14 Staff disciplinary military court or the disciplinary military court
15 attached to the air force and PVO command of the VRS, involving a number
16 of individuals, but one of those you will see in the middle of the first
17 paragraph is a Captain Antic. You see that?
18 A. Yes.
19 MR. THOMAS: If we go, please, to -- stay on that page in the
20 B/C/S, Your Honours, but if -- thank you, go to page 2, we have that.
21 Q. You will see that in the first paragraph under "Are Guilty" you
22 will find they were found guilty of abandoning their unit. You see that?
23 A. Yes.
24 Q. And if we go to the number 2 at the very bottom of the page that
25 you are looking at.
1 MR. THOMAS: And, Your Honours, we'll need to go to the next page
2 in the English.
3 Q. You will see that the sentence imposed for accused number 2,
4 which is Mr. Antic, is the loss of service status as an active
5 serviceman. Do you see that?
6 A. Yes.
7 MR. THOMAS: The next document I want to go to, please, is P2418.
8 Q. Now, on the basis of that decision, in other words, the decision
9 finding Mr. Antic guilty of desertion, there is a recommendation to end
10 professional military service. And this is what we are looking at on the
11 screen. Can you tell me the purpose of this document, please?
12 A. This is a serious disciplinary infraction. The person who left
13 his unit and his duty without proper authorisation, the military
14 disciplinary court imposed a disciplinary measure by removing this person
15 from active service, the person you named a minute ago. In cases such as
16 that, the appropriate officer from the personnel centre must start
17 termination proceedings, and that is precisely what the document shows.
18 Q. All right.
19 MR. THOMAS: Can we go, please, to document 2419, please.
20 Q. Sir, based on the recommendation issued by the 30th Personnel
21 Centre, itself based on the VRS Main Staff disciplinary court decision,
22 we have this order issued by the chief of the personnel administration,
23 the General Staff of the VJ, terminating the service of Zoran Antic, and
24 the reason for the end of service is recorded in the middle of the page
25 we are looking at, "absent without leave for five consecutive days."
1 So is this the net result of his being found guilty in the VRS
2 disciplinary court?
3 A. Yes, a correction I'll have to make though. He did not just
4 leave his position, he left the entire unit, not having been authorised
5 to do that. Under Article 7, paragraph 1 of the Law on the Armed Forces,
6 this constitutes a reason for termination of service.
7 Q. And because he was a member of the VJ transferred to the 30th
8 Personnel Centre, if the VRS wanted him terminated, that had to happen in
9 the VJ; is that correct?
10 A. Yes, it was the VJ, but please allow me to complete my answer.
11 Q. Yes. Please do.
12 A. Yesterday we discussed this. With a decision of this kind on the
13 termination of the professional military service, he ceased to enjoy any
14 of the status-related issues, and this is why this particular body had to
15 issue such a decision. So this only related to the status-related issues
16 or entitlements.
17 Q. Effectively you are saying that the VJ had to do what the VRS
18 said in this particular circumstance, namely terminate him; is that
20 A. Yes. It confirmed the decision of the military disciplinary
22 MR. THOMAS: Can we have document P2765 on the screen, please.
23 Sorry, Your Honours, wrong document. P2420.
24 Q. We have another VRS military disciplinary court decision, this
25 time of the court attached to the air force and PVO. You will see from
1 the document in front of you that a number of personnel including Major
2 Vujic are again found guilty of absconding from their unit.
3 MR. THOMAS: And, Your Honours, we will need to go to page 2 in
4 the English to see the finding that they have been found guilty of
5 absconding from their unit, and that is found on the final paragraph of
6 that page.
7 Q. Once again, General, we have a familiar sentence, if you look at
8 number 3 -- sorry, number 2, at the bottom of your page in the B/C/S.
9 MR. THOMAS: And, Mr. Registrar, if we could please go to the
10 next page in the English.
11 Q. We will see that under number 2, Major Vujic, in fact all of
12 them, but the person I'm interested for the moment is Major Vujic, is
13 sentenced to the disciplinary punishment of loss of service status as an
14 active serviceman. You see that?
15 A. Yes.
16 Q. So if what you said about the previous person we were look at,
17 Captain Antic is correct, Major Vujic would have had his service
18 terminated both in the VRS and in the VJ as a result of this decision; is
19 that right?
20 A. This is a judgement. The judgement must be respected and this is
21 true of both of them, but you have to read the entire statement of
22 reasons of this judgement.
23 MR. THOMAS: Can we go, please, to P2421, please.
24 Q. Now, General, as you see this letter, you will see that it comes
25 from --
1 A. Could you please enlarge this a little bit. It is rather
2 difficult to read this.
3 MR. LUKIC: [Interpretation] Just for the witness to know and
4 possibly Mr. Thomas also wanted to explain this, who issued this
5 document, because the way in which this is placed on the screen now in
6 B/C/S it is unclear who signed this document or where it came from.
7 JUDGE MOLOTO: Mr. Thomas.
8 MR. THOMAS: Thank you, sir. Is that the top of the document,
9 Mr. Registrar, in B/C/S? All right.
10 Q. Sir, take a moment to read the document and then we will put the
11 English version on the screen as well.
12 A. I apologise, could we see the text further down. Thank you. I
13 have read this.
14 Q. All right.
15 JUDGE MOLOTO: Could perhaps the witness --
16 THE WITNESS: [Interpretation] I apologise, I haven't seen the
17 second page. I have read it.
18 MR. THOMAS:
19 Q. Thank you, General. Can we please -- thank you. Can you confirm
20 for us what we are looking at is a letter from VJ air force and PVO
21 command to the personnel administration of the General Staff of the VJ?
22 A. Yes, that's what the text says.
23 Q. And what they are talking about is the decision that we have just
24 been looking at, the judgement entered by the military disciplinary court
25 against Vujic and others, with a sentence as termination of service,
2 A. Yes.
3 MR. THOMAS: Can we go to page 2 in the English, please,
4 Mr. Registrar.
5 Q. Now, you've told us that this should result in their termination
6 in the VJ, but we don't need to -- we don't need to take you through each
7 paragraph in this letter, but the balance -- does the balance of the
8 letter comprise a request from the commander to retain these men in the
9 VJ because they are still valuable to the VJ? In other words, to ignore
10 the VRS disciplinary court decision?
11 A. This documents of the commander of the air force and PVO is in my
12 belief just a letter sent to the General Staff of the Yugoslav Army.
13 When we are talking about military disciplinary courts, we need to know
14 that they are independent, and in my mind he was supposed to address a
15 higher military disciplinary court, rather than the General Staff of the
17 So in this letter, he is simply asking for the court decisions to
18 be revised. This was addressed to the personnel administration which is
19 not competent to decide on such matters.
20 Q. Well, the commander of the -- or the commander of the air force
21 who read the decision makes the comment, does he not, and we can see it,
22 Your Honours, the first full paragraph in the English that is on the
23 screen at the moment. He makes -- and I appreciate this is his own
24 observation, the observation:
25 "That the proceedings of the trial and the rendering of the
1 judgements were not conducted in accordance with the regulations on
2 military discipline in the VJ. Namely, the persons involved are members
3 of the RV and PVO who had been sent temporarily to work in the units of
4 the 30th Personnel Centre. And, therefore, in our opinion, the
5 conducting of proceedings for the violation of military discipline by the
6 above members of the RV and PVO is in the jurisdiction of the military
7 disciplinary court attached to the command of the air force."
8 That is part of this argument, is it not? Yes or no, sir?
9 A. Yes, this is his argument, but once again, I would like to point
10 out that the commander of the air force --
11 Q. Pause, sir.
12 A. All right.
13 Q. I understand this is only a letter from him to the Main Staff.
14 That is why I'm limiting my questions to the matters that I have limited
15 them to. All right.
16 JUDGE MOLOTO: I would like to read this letter to the end.
17 MR. THOMAS: Certainly.
18 JUDGE MOLOTO: Thank you.
19 MR. THOMAS:
20 Q. All right. So this letter is dated the 29th of January, 1996
21 The officers concerned including Lieutenant-Colonel Vujic have been found
22 guilty and sentenced to termination.
23 MR. THOMAS: So what I want to go now to, please, is P2422.
24 Q. Which is coming. Now, General, what we see here is the order
25 terminating service for Mr. Vujic, but it is not dated 1996. He remained
1 in service until 12 October 2005
2 had reached 30 years of pensionable service. So my question to you is,
3 does not that show that he remained in service in the VJ notwithstanding
4 the documents that we have just been reviewing?
5 A. I would kindly ask this order to be enlarged because I have
6 difficulties reading this statement of reasons. Thank you. Could we
7 scroll this down, please. Could I now answer to your question,
8 Mr. Prosecutor.
9 Q. My question, sir, is notwithstanding the documents that we have
10 just been reviewing, clearly Mr. Vujic remained in the service of the VJ
11 until this order was issued, whereupon he was terminated because he had
12 reached 30 pensionable years of service?
13 A. Yes, this document says until that it should be submitted to him
14 until the 31st of October, 2005. However -- but this is my speculation.
15 Probably during the procedure of the termination of his service he got
16 ill. In the statement of reasons in paragraph 2, if you can see this,
17 please allow me to read this out. Yes, this is the portion I'm talking
18 about. Here it says that the above-mentioned person was pursuant to the
19 finding of the medical commission of the 29th of September, was found to
20 be permanently incapacitated to carry out his service. And in line with
21 the decision of the minister of defence and then have the reference
22 number of 28th of May, 2005, item 1, subparagraph (2), his professional
23 military service shall be terminated to professional military serviceman
24 who have been partially incapacitated and who have reached 30 serviceable
25 years, well, for benefit, regardless of their rank or age. Given that I
1 do not have any other documents here before me from which I could
2 conclude what it is that actually happened, I can only conclude that
3 during the procedure of his termination, this particular person got ill,
4 that he was, therefore, treated and that he was finally found to be
5 incapacitated for his military service.
6 Q. All right. General, let me ask you the question a slightly
7 different way. Go, please, to the first paragraph under the statement of
9 MR. THOMAS: And that's on the previous page, Mr. Registrar, in
10 the English.
11 Q. We know from that first paragraph it was established that he was
12 in service without break since 22 July 1977 and has earned over 30
13 serviceable years for welfare benefit.
14 A. And your question is?
15 Q. Well, that's what we know from the document, correct?
16 A. This is what the document states, but this is linked to Article
17 107, paragraph 1, item 1 of the Law on the Army of Yugoslavia, so the
18 person that is found by the relevant military medical review board as
19 unfit will be permanently terminated and such a finding is obligatory for
20 his superior to adopt appropriate decision terminating his service.
21 Q. All right. Thank you, General.
22 MR. THOMAS: Your Honours, could we please go quickly into
23 private session.
24 JUDGE MOLOTO: May the Chamber please move into private session.
1 THE REGISTRAR: We are in private session, Your Honours.
2 JUDGE MOLOTO: Thank you so much. Yes, Mr. Thomas.
3 MR. THOMAS: Thank you. Could we please have Exhibit P2765 on
4 the screen.
5 Q. General, you can see that this is a document sent from the Main
6 Staff of the Army of the Republika Srpska to the General Staff of the
7 Yugoslav Army.
8 MR. THOMAS: If we could go to the last -- sorry, the --
9 THE WITNESS: [Interpretation] Yes.
10 MR. THOMAS: Page 4 in the English, and the signature page in the
11 B/C/S. I'm not sure what page that is, Mr. Registrar. It's probably
12 page 3.
13 Q. Do you recognise the signature of General Mladic at the bottom of
14 that document, sir?
15 A. I do not recognise his signature. I'm not aware of what his
16 signature looked like, but I see that this document was signed.
17 Q. Thank you.
18 MR. THOMAS: If we could go back to page 1 in each version,
20 THE WITNESS: [Interpretation] And once again, if we could enlarge
21 this document, please.
22 MR. THOMAS: We can do this paragraph by paragraph,
23 Mr. Registrar, if we start with paragraph 1, please, the first paragraph
24 of the document. And if we can have the English on the screen as well.
25 THE WITNESS: [Interpretation] I can't read this. It is just too
1 small. If we could enlarge this. Or if you have this document in a hard
2 copy version possibly I could read it then. This way I can't read it.
3 MR. THOMAS: Your Honours, I do. I have a single copy. It's
4 marked, I need to show it to my learned friends first. I understand that
5 this can be done. Thank you.
6 Q. General, I can tell you that we don't need to read the entire
7 letter. I can -- the answer to my question -- to answer the question
8 that follows, you really only need to read the first paragraph and then
9 the paragraph -- or the first half of the paragraph numbered 1 that
11 My question, General, is this: Does General Mladic's complaint
12 to the General Staff not suggest that the VRS were not as free to
13 regulate the status of -- or to regulate the status and issues relating
14 to 30th Personnel Centre members as you have said?
15 A. No.
16 Q. What is he complaining about?
17 A. From what I could read in this brief time, he complains that the
18 requested men are not being regularly sent from the command chain of the
19 Army of Yugoslavia
20 Srpska. And he is also saying that he shouldn't be continuously asked to
21 send requests for this to the Supreme Defence Council or Chief of the
22 General Staff. So he is simply asking for the administrative burden to
23 be decreased since he is saying all the regulations have been harmonised
24 with the relevant criteria, and he says that all the documents concerning
25 their status-related issues have already been submitted.
1 Q. He complains also, does he not, about the need to have personnel
2 transferred with the approval of the competent officer in the General
3 Staff of the VJ? He complains about the problems that having to go
4 through that step causes, doesn't he?
5 A. Yes, but he says that these transfers are made through the 30th
6 Personnel Centre in line with the regulations and orders stipulating the
7 way in which these personnel centres operate.
8 Q. All right.
9 MR. THOMAS: Thank you. Your Honours, if we could have that
10 document off the screen, and we can go back into public session.
11 JUDGE MOLOTO: May the Chamber please move into open session.
12 [Open session]
13 THE REGISTRAR: We are back in open session, Your Honours.
14 JUDGE MOLOTO: Thank you so much. Yes, Mr. Thomas.
15 MR. THOMAS:
16 Q. General, sometime last week you discussed the agreement on
17 special parallel relations.
18 MR. THOMAS: Thank you, Mr. Registrar, could we please retrieve
19 the document, or madam usher, thank you.
20 Q. You discussed the agreement on special parallel relations between
21 the FRY and the RS, part of which covered the assumption of full
22 responsibility, if I can call it that, of soldiers previously
23 administered by the 30th Personnel Centre. These were now to be, or
24 those records and the payment of them were to be taken over by the VRS as
25 a result of the annex to the special parallel relations agreement; is
1 that correct?
2 JUDGE MOLOTO: Yes, Mr. Lukic. Yes, Mr. Thomas.
3 MR. THOMAS:
4 Q. Have I stated the position correctly, sir? General, you may
5 answer this.
6 A. The question is slightly confusing. It's complicated. I don't
7 think I even understood fully. Can you please repeat.
8 Q. Certainly.
9 JUDGE MOLOTO: Yes, Mr. Lukic.
10 MR. LUKIC: [Interpretation] That was precisely the reason I
11 sprang to my feet, I think it was about the interpretation. The
12 interpreter got it right, but there were some ambiguities left. It is a
13 complex question, after all. I think it might be a good idea if
14 Mr. Thomas could just break it down.
15 JUDGE MOLOTO: Yes, Mr. Thomas.
16 MR. THOMAS:
17 Q. You spoke of the negotiations and discussions that took place in
18 2001 regarding the drafting and implementation of the agreement on
19 special parallel relations between the FRY and the RS. Do you recall
20 that testimony?
21 A. Yes.
22 Q. Part of the special parallel relations agreement contained an
23 annex which governed how the VRS was to take over the records and payment
24 of salaries of service of officers previously administered through the
25 30th Personnel Centre, didn't it?
1 A. No. That's not what the agreement says.
2 Q. Well, was there not an agreement between the FRY and the RS over
3 the VRS receiving aid from the FRY, financial aid from the FRY for the
4 purpose of paying VRS salaries?
5 A. Well, that calls for a different answer, an altogether different
6 answer. Certain financial aid will be exchanged between the countries,
7 but it won't be the VJ paying it, rather the VRS alone. That is the
8 substance of the agreement. This is an agreement between the two
9 governments. Up to a certain point in time aid will be provided. When
10 that aid will stop is a different issue altogether, but it's not the VJ
11 making any payments, especially not along the same principle that had
12 been applied up to that point.
13 JUDGE MOLOTO: Can we just make sure that we've got the record
14 correct. Page 22, line 5, did you say but it won't be the VJ paying it
15 rather the VRS alone, or did you say something else?
16 THE WITNESS: [Interpretation] Your Honour, I can't remember what
17 exactly that paragraph of the agreement says. If I had it in front of
18 me, I could quote it for you. What I do remember, however, and what I
19 know --
20 JUDGE MOLOTO: Just a minute. I'm not asking you whether you
21 remember the paragraph. I'm asking you what you just said. You said
22 here, I'm trying to make sure that you have been correctly interpreted,
23 sir. You have been interpreted as, or transcribed rather --
24 THE WITNESS: [Interpretation] No, it was not the correct
25 interpretation. May I repeat, please?
1 JUDGE MOLOTO: Yes, please, just that sentence.
2 THE WITNESS: [Interpretation] The VJ would stop making any
3 payments to members of the VRS and the Serbian Krajina, but here
4 specifically the VRS, who had been paid through the 30th Personnel Centre
5 up until that point in time. Nevertheless, a financial aid package was
6 agreed between the two governments or the relevant ministries for certain
7 aid to be awarded, administered, and certain financial amounts. However,
8 the salaries would only be paid and calculated by the VRS and no one
10 JUDGE MOLOTO: Mr. Nikolic, you talk of financial aid. I don't
11 know what form this financial aid takes. I'm asking you, can you just
12 listen to my question. You have said in answer to a question by
13 Mr. Thomas:
14 "Well, that calls for a different answer, an altogether different
15 answer. Certain financial aid will be exchanged between the countries,
16 but it won't be the VJ paying it, rather the VRS alone." Now, I want to
17 find out whether that's what you said, or did you say something slightly
18 different? Did you say the VRS alone --
19 THE WITNESS: [Interpretation] Yes, yes. Yes.
20 JUDGE MOLOTO: Thank you. You may proceed, Mr. Thomas.
21 MR. THOMAS:
22 Q. Perhaps just to clarify that, General. As a result of this
23 agreement, the VRS and the VRS alone were responsible for paying the
24 salaries of all VRS officers; is that right?
25 A. No, and I'll answer why. You didn't ask me about the specific
1 time-period. You said all members of the army. From what point in time
3 Q. General, pause, think about my question. I'm not talking about
4 time-periods. As a result of this agreement that we have just been
5 discussing, that you have spent the last ten minutes discussing, as a
6 result of this agreement, it was the VRS now who were to be responsible
7 for paying the salaries of officers within the VRS, including those
8 previously administered by the 30th Personnel Centre; is that right?
9 A. Yes.
10 Q. To assist them in doing so, the FRY government would provide
11 financial aid to the RS government; is that right?
12 A. Yes.
13 Q. Is it true that the continued provision of this aid, no longer in
14 the form of salaries but in the form of aid from one government to
15 another, still caused the international community some concern, and I'm
16 talking particularly about the United States?
17 A. No. I never heard that sort of information. Nothing indicating
18 that. At least not about the results of this agreement. There was a
19 meeting, though, that occurred later on following the conclusion of the
20 agreement. It wasn't about interventions on anyone's part. Rather, we
21 were provided additional information. It's about Warren Montgomery who
22 asked for a meeting with the federal Defence ministry of the FRY to see
23 what sort of aid was at stake here. The meeting was held at the
24 Federation palace, what used to be call the Federation palace back then.
25 I saw the document and I know what Montgomery's position was. He was
1 particularly at pains to point out as follows: Croatia's army --
2 Q. Pause, General. Pause, General. General, we recall your
3 testimony on this document, and in that meeting Ambassador Montgomery
4 referred to concern, at least back in the United States, among
5 influential quarters that aid was continued to be paid from the FRY to
6 the RS, didn't he?
7 A. I never learned of that.
8 MR. THOMAS: Well, let's have a look, please, at document -- let
9 me check, Your Honours. I'm sorry. 251. D251. And the paragraph I
10 want to look at, please, is on page 2 of both documents, I think. Sorry,
11 Mr. Registrar, we have two B/C/S versions on our screen. Thank you.
12 Q. All right. Do you see the paragraph, General, which refers to
13 the ambassador being informed by a senior official that assistance in all
14 forms of funding of the VRS will end this year? First of all, just tell
15 me if you've found that paragraph in the document.
16 A. Can you please specify which paragraph to avoid going through the
17 entire text. Do you mean the last one?
18 Q. This is a document you are familiar with. We went through it
19 yesterday. What I will do is I will read you the paragraph that I'm
20 interested in. All right. This is how it reads:
21 The ambassador has allegedly been informed by a senior
22 official -- sorry, has allegedly been informed by a -- I'll try it again,
23 I'm sorry, Your Honours.
24 "The ambassador has allegedly been informed by 'a senior
25 official' in our government that assistance and all forms of funding of
1 the VRS will end this year. This has been conveyed to relevant US
2 authorities. The secretary of state has informed congress. However, it
3 follows from the agreement with the Republika Srpska Ministry of Defence
4 that the funding will continue next year, so 'the highest state organs of
5 the US
6 the government) who are doubtful about changes in the FRY; they are
7 influential and are mainly present and non-governmental organisations and
8 in congress."
9 Now, let's not mince words about this, General. There was
10 concern that money was still going to the VRS, wasn't there?
11 A. No.
12 JUDGE MOLOTO: [Microphone not activated] ... take a break.
13 We'll come back at quarter to. Court adjourned.
14 --- Recess taken at 10.16 a.m.
15 --- On resuming at 10.47 a.m.
16 JUDGE MOLOTO: Yes, Mr. Thomas.
17 MR. THOMAS:
18 Q. General, I want to move on to a different topic now. In the
19 course of your testimony you referred to this concept of unity of
20 command, and I just want to make sure that I understand the concept of
21 unity of command as distinct, for example, from the chain of command. Am
22 I right in saying that when you talk about unity of command, you are
23 talking about the fact that a soldier has a single superior from whom he
24 is taking orders?
25 A. Yes.
1 THE INTERPRETER: Interpreter's note: Microphone for the
2 witness, please.
3 JUDGE MOLOTO: Can you please answer again, sir, into the
5 THE WITNESS: [Interpretation] Yes. But I have to answer the
6 other question too.
7 MR. THOMAS:
8 Q. Just pause, General, we'll get to that. And the principle of
9 unity of command is so that any given officer knows exactly who he is
10 supposed to receive orders from; is that right?
11 A. Yes.
12 Q. Depending on where that soldier or officer is in the chain of
13 command, however, there may be more officers in the chain of command
14 above that soldier's commanding officer, can't there?
15 A. No, but allow me to explain why.
16 Q. Please do.
17 A. Each officer appointed to certain duty has a superior officer
18 above him, only one. But there is also another who is the superior of
19 his direct superior. This ultimately superior officer may issue an order
20 to the first officer. Nevertheless, the first officer is under an
21 obligation to immediately report this to his direct superior.
22 Q. I understand.
23 JUDGE MOLOTO: I don't.
24 MR. THOMAS:
25 Q. Could you explain that for Their Honours.
1 A. Of course. In a military hierarchy, there are certain relations
2 between servicemen. This depends on the persons or the soldier's duty.
3 We are talking about subordinates and superiors. A superior officer
4 is --
5 JUDGE MOLOTO: Sorry, just wait. What I do want to understand is
6 you have an officer or a soldier with a direct superior above him, and
7 this superior has his own superior, okay?
8 THE WITNESS: [Interpretation] Yes, that's right.
9 JUDGE MOLOTO: Now, what I don't understand is what you mean by
10 "this ultimately superior" I guess you wanted to say this ultimate
11 superior officer may issue an order to the first officer, nevertheless
12 the first officer is under an obligation to immediately report to his
13 direct superior. Now, the direct superior to whom he must report is the
14 same one who has just given the instruction. If you say to me a superior
15 who wants to give instructions to a person who is not his direct
16 subordinate, would give instructions to his immediate subordinate who in
17 turn would pass the instructions to the next subordinate; is that what
18 you meant to say?
19 THE WITNESS: [Interpretation] Yes, Your Honour, but if I may,
20 just a brief explanation to put this in the most graphic terms possible.
21 May I?
22 JUDGE MOLOTO: Mr. Lukic is on his feet so he takes precedent
23 over you.
24 MR. LUKIC: [Interpretation] I think we have a certain amount of
25 confusion because of inaccurate interpreting, and also I was listening to
1 the interpretation of your question in the Serbian, Your Honour, and also
2 the witness's previous answer. I think the problem is "ultimately
3 superior" and the witness was using the term the "second superior."
4 THE WITNESS: [Interpretation] Your Honours, in order to --
5 JUDGE MOLOTO: [Overlapping speakers] ... do you have a
6 suggestion as to -- can you tell us what was intended to be the message?
7 MR. LUKIC: [Interpretation] Maybe if the witness used an example
8 to illustrate this, that would be convenient.
9 JUDGE MOLOTO: Okay.
10 THE WITNESS: [Interpretation] Your Honour, just by way of an
11 example, I am a brigade commander. The corps commander is my direct
12 superior. My second superior is the army commander, and my third
13 superior is the chief, the General Staff of the VJ. So I talked about
14 the second superior, in this case the army commander. And the situation
15 is this, he gives me an order to carry out a certain assignment. I will
16 carry out the assignment, nevertheless, I'm under an obligation to report
17 this to my direct superior, who in this case is the corps commander.
18 JUDGE MOLOTO: Thank you. I understand.
19 MR. THOMAS:
20 Q. And if we stay with the same example, General, let's say the
21 Chief of the General Staff of the VJ wished to order you as brigade
22 commander to do something, he would issue an order to the army commander,
23 who would pass on the order to the corps commander, who would pass on the
24 order to you; is that right?
25 A. Yes, that's right, that would be the regular procedure. But
1 there is also a different parallel procedure applied in exceptional
3 Q. Now can you tell us about that, sir.
4 A. If the needs of service allow or require a special interest and
5 one cannot afford to wait, at that point in time in that unit one tracks
6 down the Chief of the General Staff, and I have a brigade in mind, and he
7 cannot wait for the corps commander to come and issue an order, that has
8 to do with the organisation of life and work in that brigade, rather, he
9 will be issuing a direct order, and I will be carrying it out.
10 Nevertheless, I'm under an obligation once I've carried out the order to
11 inform my direct superior, that being the corps commander.
12 Q. All right. General, you spoke last week about your particular
13 situation, namely that you were a VJ officer, but you were assigned to
14 work for a period of time in the MOD. You told us that you were assigned
15 within the MOD to various positions by order of the minister of defence
16 or his appropriate delegate. Do I understand your testimony correctly?
17 A. Certainly, yes.
18 Q. Okay. You told us that after your time -- first of all, let me
19 just so that we are clear, while you were serving in the MOD you retained
20 your status as a VJ officer; is that right?
21 A. No, I was assigned as an officer to the MOD, and my status in the
22 service was regulated by the Ministry of Defence. At that moment I
23 entered the chain of command of the Ministry of Defence and I was out
24 from the chain of command of the General Staff of the VJ.
25 Q. I'm not talking about chain of command for the moment, General.
1 Did you remain a VJ officer while you were in the MOD? Was your status
2 that of a VJ officer?
3 A. Yes.
4 Q. So, for example, when you retired your years of pensionable
5 service in the VJ included not just your time spent within the VJ, but
6 also your time spent in the MOD; is that right?
7 A. Yes.
8 Q. Okay. The order transferring you from the MOD to the VJ was
9 issued by General Perisic, wasn't it?
10 A. No. I was transferred in 1984 on the order of the chief of
11 personnel administration of the SSNO who was in charge of this.
12 Q. Just pause, General. I think we have a miscommunication. After
13 your time in the MOD, you were transferred, I think in 1995, to the
14 General Staff of the VJ; is that right?
15 A. I apologise, but you first of all said from the General Staff to
16 the ministry, and I said upon whose order that was. And this is the
17 second issue when I was transferred from the ministry to the General
18 Staff. So which of these two situations would you like me to describe?
19 Q. General, we had a translation error. The question I want you
20 to -- the situation I want you to look at is that when you were
21 transferred from the MOD to the General Staff of the VJ in 1995. This is
22 the situation we are talking about. The operative document effecting
23 that transfer was an order issued by General Perisic, wasn't it?
24 A. No. But I can provide an answer in order to explain this. The
25 Chief of General Staff of the VJ, General Perisic, requested an approval
1 of the minister of defence for me to be assigned to the General Staff of
2 the VJ. The minister issued a written approval for me to be transferred
3 from the ministry to the General Staff. Pursuant to that approval, the
4 chief of general took me over, entered me into his chain of command, and
5 thus I became an officer of the VJ in the General Staff of the VJ.
6 Q. General, what you have not told us in that answer is by what
7 formal document was this transfer effected?
8 A. This was a document issued by the minister of defence stating his
9 approval for my assignment at the General Staff. So it was the document
10 issued by the minister followed by the document issued by the Chief of
11 General Staff with which he regulated my position in the service.
12 Q. All right. So if we looked at your personnel file, in the time
13 that you were working at the MOD, your personnel file would show that
14 assignments to various positions were made by order of the minister; is
15 that right?
16 A. Yes.
17 Q. Are you saying that if we looked at your personnel file, your
18 assignment from the MOD to the General Staff of the VJ would be
19 attributed in your personnel file to an order of the minister of defence,
20 or would it be attributed to the order of General Perisic?
21 A. No, without an order of the minister of defence, the Chief of the
22 General Staff could not have done it.
23 Q. General, I understand that. Listen to my question. I understand
24 that approval of the minister was required. Was the document formalising
25 the transfer the order issued by General Perisic? Is that the formal
1 order required for recognition of your transfer to the General Staff from
2 the MOD? Yes or no, sir?
3 A. I don't know whether it is the interpretation that is causing
4 this misunderstanding, but as I said, without the document issued by the
5 minister, General Perisic could not assign me to the General Staff. I'm
6 not sure if I'm making myself clear.
7 JUDGE MOLOTO: Let me ask a question here. Sir --
8 THE WITNESS: [Interpretation] Certainly, Your Honour.
9 JUDGE MOLOTO: You gave an answer, and I would like you to look
10 at the transcript on the -- if you can read it, page 32 --
11 THE WITNESS: [Interpretation] I can't read English.
12 JUDGE MOLOTO: All right. Page 32, line 4, you said:
13 "This was a document issued by the minister of defence stating
14 his approval for my assignment at the General Staff. So it was the
15 document issued by the minister followed by the document issued by the
16 Chief of the General Staff with which he regulated my position in the
17 service." My question to you is: What is the nature of this document by
18 the Chief of the General Staff that followed the minister's document, the
19 minister's approval?
20 THE WITNESS: [Interpretation] The document of the Chief of the
21 General Staff, Your Honour, has the form of an order; whereas, the
22 document issued by the minister of defence could be an order or a
23 decision, so these were the documents regulating assignments and statuses
24 in the service.
25 JUDGE MOLOTO: And what did the Chief of the General Staff order?
1 THE WITNESS: [Interpretation] The Chief of the General Staff
2 wrote an order, or rather, that order was prepared by the personnel
3 administration in order to determine my establishment --
4 JUDGE MOLOTO: Mr. Nikolic, we want to finish. We know somebody
5 prepares it, it's the order of the Chief of General Staff. What did it
7 THE WITNESS: [Interpretation] This was the order on assignment at
8 the duty of the chief of administration for housing issues.
9 JUDGE MOLOTO: Sorry, this order is supposed to be dealing with
10 your transfer from the minister of defence to the VJ. What did it order
11 you to do, sir?
12 THE WITNESS: [Interpretation] As soon as I received the order on
13 assignment from the Chief of the General Staff, I had to report to the
14 duty at the General Staff.
15 JUDGE MOLOTO: That is the document that triggered your move from
16 the Ministry of Defence to the VJ General Staff?
17 THE WITNESS: [Interpretation] Your Honour, it wasn't triggered
18 because my situation in the service was already regulated.
19 JUDGE MOLOTO: It was the last document that you had to get
20 before you left the Ministry of Defence?
21 THE WITNESS: [Interpretation] Yes.
22 JUDGE MOLOTO: Yes, Mr. Thomas.
23 MR. THOMAS: Thank you, Your Honours. I wonder, please, if we
24 could have P197 on the screen. And particularly, Your Honours, I'm
25 looking at -- if I could just have a moment, sir. Page 38 in the English
1 and page 13 in the B/C/S.
2 Q. And, General, you will be familiar with this document. It is the
3 Law on the VJ.
4 A. Yes. But I can't read this, the font is too small.
5 Q. All right. General, I will read you the relevant provision. I'm
6 looking at Article 152, and subparagraph (5). So it reads as follows:
7 "The Chief of General Staff and the commanding officers of units
8 or institutions designated by him shall: Decide on the assignment of
9 professional members of the army to duties outside the army, while
10 assignment to the Federal Ministry of Defence shall be carried out at the
11 request or with the approval of the federal minister of defence or a
12 commanding officer authorised by him."
13 You are familiar with this article?
14 A. Yes.
15 Q. And does this cover the situation that you have been -- that you
16 found yourself in? In other words, that the transfers to and from the VJ
17 General Staff to the MOD were governed by this article?
18 A. No, this is a reverse case. In this case people were moved from
19 the General Staff to the MOD, and it discusses the authorities of the
20 Chief of General Staff and the commanding officers authorised by him.
21 Previously we discussed the contrary situation. For example, if you
22 allow me --
23 Q. Just pause, General. No, I understand. So there are two
24 situations contemplated here where there is assignment to the MOD, that
25 is with the approval of the minister of defence, and any other assignment
1 outside the army does not require obviously the approval of the federal
2 minister of defence, it is just done by the Chief of the General Staff or
3 his delegates. Am I right in my interpretation?
4 A. This was an exception made if somebody had to be assigned to the
5 Federal Ministry of Defence.
6 MR. THOMAS: I want to move, please, to another article. Article
7 181 which is on page 45 of the English and page 16 of the B/C/S, please,
8 Your Honours.
9 Q. I want to discuss, General, the situation as it relates to
10 discipline or the disciplining of individuals assigned outside the army.
11 You as someone who was assigned to the MOD was assigned outside the army
12 in accordance with Article 152 as we have just seen. And your testimony
13 yesterday -- my apologies, last week, was that those assigned to the 30th
14 Personnel Centre and the 40th Personnel Centre were to be likened to
15 those transferred outside the army.
16 I want to begin, please, with Article 181. If you had committed
17 a disciplinary offence while you were serving in the MOD, you told us
18 last week that it would be the federal minister of defence who was
19 responsible for disciplining you. Do you I understand your evidence
21 A. Yes.
22 Q. And that is on the basis of Article 181?
23 A. Yes.
24 Q. In respect of all other situations, it's the army commander or a
25 senior officer holding an equal or higher position under paragraph 2. Am
1 I reading the section correctly?
2 A. Yes, that's correct.
3 Q. I want to move, General, please to Article 177.
4 MR. THOMAS: Which is page 15 in the B/C/S, the same page in
6 Q. And as that's coming, General, we don't need to look at them, but
7 the Law on the VJ sets out a number of things which would constitute a
8 disciplinary offence, doesn't it?
9 A. I apologise, but in the Law on the Army, there is a particular
10 provision dealing with offences. Previously you spoke about disciplinary
11 responsibility though.
12 Q. All right. I will rephrase my question. In the Law of the VJ
13 there are provisions which set out what constitutes disciplinary
15 A. Yes.
16 Q. All right. We have Article 177 I think on the screen for you
17 now. So if you could cast your eye over that. This confirms that we
18 have within the VJ military disciplinary courts who are authorised to try
19 individuals for disciplinary offences. And under Article 178, we see
20 where these military disciplinary courts are. We have courts of first
21 instance established at the General Staff and at the commands of the
22 army, air force, and anti-defence and at the navy, and there is a higher
23 military disciplinary court at the General Staff.
24 MR. THOMAS: I want to move, please, to Article 53 which is on
25 page 5 of the B/C/S, Your Honours, and on page 13 of the English.
1 Q. Before I ask you any questions about Article 53, General, was
2 General Perisic required to discipline members or soldiers, officers
3 assigned to the 30th Personnel Centre if they had committed any
4 disciplinary offences while serving in the VRS?
5 A. No.
6 Q. All right. I just want to explore that with you for a moment.
7 Under Article 53, the second paragraph reads:
8 "A professional officer or non-commissioned officer assigned
9 outside the army shall have the same rights and duties of professional
10 officers and non-commissioned officers assigned to the army, unless
11 otherwise stipulated by this law."
12 Now, you are familiar with this provision. I think in your
13 testimony you referred to the need to have soldiers assigned to the 30th
14 and 40th Personnel Centres acting in a professional way. So Article 53
15 doesn't merely confer them the same rights, it also imposes upon them the
16 same duties. Am I correct in my interpretation?
17 A. The second paragraph, as you interpreted it, is not correct. May
18 I provide an explanation?
19 Q. No, I will ask you the question in another way, General.
20 Does a professional officer or non-commissioned officer assigned
21 outside the army have the same rights as a professional officer assigned
22 to the army? Yes or no?
23 A. Yes.
24 Q. Does he also have the same duty? Yes or no?
25 A. Which duties are you referring to?
1 Q. Well, let's get to that. My question is, looking at Article 53,
2 sir, does he have the same duties as an officer in the army?
3 A. In this second paragraph of Article 53 when it says that they
4 shall have the same rights and duties, the rights refers to the
5 entitlements issuing from the service in the army, and duties refers to
6 duties of professional officers, which they have as professionals. So in
7 relation to other citizens, they have different duties regarding their
8 behaviour, military discipline, their attitude towards people and
9 everything else, so they have to protect the honour of a military
10 officer. So it is not the duty of, say, commanding over a certain unit.
11 Q. I understand that, General. The point is, those assigned outside
12 the army have the same duties as those in the army under Article 53,
13 don't they?
14 A. No. I just said what this duties refers to.
15 Q. Just pause, General. Just pause. Article 53, second paragraph
16 contains one sentence. This is what I'm talking about. I'm not talking
17 about anything else except what this one article says, this one sentence
18 says. You follow me?
19 A. Yes, I do follow you. Absolutely.
20 Q. Do you agree with me that the sentence says that officers
21 assigned outside the army shall have the same duties as officers assigned
22 to the army?
23 A. Yes, but the duties that I listed before.
24 Q. General, it says the same duties as officers in the army. You
25 must accept this, do you not?
1 A. No.
2 MR. THOMAS: All right. Let's move, please, to Article 159,
3 which is on page 39, Your Honours, of the English.
4 THE WITNESS: [Interpretation] I can't see that.
5 MR. THOMAS:
6 Q. All right. So we know from the provisions that there are
7 disciplinary courts, that with the exception of the MOD the army
8 commander or senior officer holding the same or equal or higher position
9 is responsible for discipline in the army. I want to go now to Article
10 159, which reads:
11 "A service member who violates military discipline, a service
12 member who violates military discipline in the performance of his service
13 or in connection with the performance of his service shall be held
14 responsible for disciplinary infractions or disciplinary offences."
15 Now, General, before I ask you any questions about this, let me
16 check that we agree on the interpretation of this provision. Does this
17 provision mean that any service member, in other words anyone in service
18 in the VJ who violates military discipline, shall be held responsible; am
19 I right in my interpretation?
20 A. Here we are talking about military service members who violate
21 military discipline in the performance of their service or in connection
22 with the performance of their service. They shall be held responsible
23 for disciplinary infractions or disciplinary offences, so we are talking
24 about members of the military service.
25 Q. So was the answer to my question yes, you agree with my
2 A. With the explanation that I provided, yes.
3 Q. All right. Well, I want to look finally then, please, at what
4 constitutes service in the VJ, or members in service.
5 MR. THOMAS: And for that, please, we will go to Article 8, which
6 is page 2 of the B/C/S and page 3, Your Honours, of the English.
7 Q. Now, the first line, let's look at Article 8, the first line is
8 straightforward enough. What I'm interested in is the second sentence of
9 Article 8:
10 "Service in the army shall also include military and other duties
11 in the Federal Ministry of Defence." Now, this was your situation,
12 wasn't it?
13 A. Yes.
14 Q. It shall also include military and other duties in any "other
15 state organ, company, or organisation performed by professional members
16 of the army assigned there by an order of an authorised officer
17 (hereinafter assignments outside the army)."
18 Am I correct in my interpretation that those assigned outside the
19 army in this way fall within the category of those who are performing
20 service in the army under Article 8?
21 A. Esteemed Mr. Prosecutor, your question was couched in the
22 following terms: Am I correct if my interpretation. You merely read the
23 text contained in Article 8, but I'm yet to hear an interpretation.
24 Which article are you interpreting and in what sense?
25 Q. All right. Let me be more direct, General. Under Article 8,
1 somebody assigned outside the army nevertheless is to be considered as
2 performing service in the army?
3 A. I'm yet to hear your question. I didn't get a question, I'm
4 sorry. I do apologise.
5 Q. Apology accepted, sir. Do you agree that officers assigned
6 outside the army are considered under Article 8 to be performing service
7 in the army of the VJ, yes or no?
8 A. No.
9 Q. Why does Article 8 not say that, sir?
10 A. As far as I understand and as far as the interpretation that I
11 got --
12 Q. Pause, pause.
13 A. You said that --
14 Q. Pause. I'm asking you to confine your answer to what is written
15 in Article 8. Under Article 8, service in the army includes military and
16 other duties performed by professional officers signed outside the army,
17 doesn't it?
18 A. Yes.
19 Q. All right. Thank you, General.
20 MR. THOMAS: Can we have Exhibit P2413 on the screen, please.
21 THE WITNESS: [Interpretation] But not as an officer.
22 MR. THOMAS:
23 Q. Sorry, General, just before we move on, what do you mean by "but
24 not as an officer"?
25 A. Esteemed Mr. Prosecutor, the interpretation I got was you saying
1 is that an officer of the army in a different army, or perhaps I
2 misheard. I may have -- well, perhaps a little, so when what we said
3 comes out, when he is sent to another unit, to the VRS, he is a member of
4 the VRS, a member of that force, yet he performs his function, his duty
5 as an officer. That is what the status of an officer means. You get the
6 status of an officer as soon as you are promoted to the rank of second
7 lieutenant, so the meaning is that.
8 Q. General, nowhere in my question did I mention the VRS. We will
9 do this for as long as it takes, sir. My question is this, please answer
10 it this time. Service in the army also includes military and other
11 duties performed by professional members of the army assigned outside the
12 army? Yes or no?
13 A. Yes.
14 Q. All right.
15 MR. THOMAS: Can we move, please, to Exhibit P24 -- sorry, my
16 learned friend is on his feet, sir.
17 JUDGE MOLOTO: Yes, Mr. Lukic.
18 MR. LUKIC: [Interpretation] I'm objecting because when Mr. Thomas
19 phrased this previous question and quoted Article 8, paragraph 2, he did
20 not finish reading what it says. He has repeated several times outside
21 the army, yet he never quoted the entire article which says in the
22 federal Defence ministry and other federal organs and then a list of
24 JUDGE MOLOTO: Mr. Thomas.
25 MR. THOMAS: Your Honour, I'm entitled to put to the witness
1 whichever propositions I consider are necessary. If my learned friend
2 wishes to add anything else, he is perfectly entitled to in
4 JUDGE MOLOTO: Objection overruled.
5 MR. THOMAS: Can we have, exhibit, please, 2413. And let me just
6 check, Your Honours, that can be done in open session.
7 Q. General, this is an order issued by General Perisic on the 9th of
8 November --
9 A. May we please zoom in --
10 MR. THOMAS: Excuse me, Your Honours.
11 THE WITNESS: [Interpretation] -- I can't see it properly. I see
12 it. I don't see the signature though.
13 MR. THOMAS: Can we scroll down, please, Mr. Registrar. Can we
14 please also have the English on the screen for Their Honours.
15 Q. General, what we see is an order from General Perisic dated the
16 9th of November, 1995, following the fall of the Krajina and Operation
17 Storm, which occurred in August 1995. You will see that the order is
18 issued with the aim of establishing responsibility and solving status and
19 service for professional soldiers of the Yugoslav Army who served in the
20 40th Personnel Centre. Now, in this context, General, are we talking
21 about the soldiers who went and fought in the SVK?
22 A. Yes.
23 Q. All right. You will see that the order is for assistant chiefs
24 of the General Staff to study official assessments, statements, and other
25 material regarding all officers of the 40th Personnel Centre that fall
1 within their responsibility, and it sets out a number of proposals
2 dealing with those individuals. My question again, sir, is that in this
3 context we are talking about the officers who went and fought in the SVK,
4 aren't we?
5 JUDGE MOLOTO: How many times do you want to ask that question
6 before you are satisfied, sir?
7 MR. THOMAS: Well, sir, it's mentioned twice in the document. I
8 just wanted to make sure that we are reading it the right way both times.
9 THE WITNESS: [Interpretation] Mr. Prosecutor, you asked if this
10 was in relation to the members of the 40th Personnel Centre or persons
11 who were handled by the 40th Personnel Centre and were in the SVK, so the
12 answer to your question would be yes.
13 MR. THOMAS:
14 Q. Thank you, General.
15 MR. THOMAS: Your Honours, at this point if I could just have a
16 moment, Your Honours.
17 Q. You will see, General, a number of measures that are set out in
18 this document, but do you agree that these are effectively the
19 commencement of disciplinary measures against certain individuals?
20 A. Before I answer the question, may I ask an additional one myself?
21 Q. Just pause, General.
22 A. I --
23 Q. Unfortunately, you cannot. My question is a straightforward one,
24 sir. Are the measures set out in this order effectively the precursor to
25 or commencement of disciplinary action being taken against certain
1 individuals? Yes or no?
2 A. Yes, but, if you don't mind, I would like to provide an
3 additional answer.
4 Q. Please do, sir.
5 A. I'm looking at the date here, specifically the date this document
6 was produced. The 40th Personnel Centre is, in practical terms,
7 abolished following Operation Storm and Operation Flash. The members of
8 the SVK who were handled by the 40th Personnel Centre had nowhere to go.
9 They were displaced and arrived as refugees in the FRY. If you put
10 things into that kind of perspective, the chief of General Staff must
11 have had something in mind to the effect that those persons have
12 committed infractions on military discipline and who on earth would try
13 them there unless they were now back home to their place of origin, to
14 gain their livelihood again. But that was after the fall of the Republic
15 of Serbian Krajina and the abolishment of the 40th Personnel Centre.
16 Q. I understand, General, and so do we agree that these actions set
17 out in this order are being taken in respect of possible disciplinary
18 offences which occurred while they were fighting in the SVK?
19 A. Yes, again with the following proviso.
20 Q. Carry on.
21 A. These persons asked to gain entry to the chain of command of the
22 VJ. In that case, the General Staff was supposed to take appropriate
23 measures if there was any information indicating that there had been
24 infractions of military discipline. These people had nowhere to go.
25 They asked for appointments to that army. My personal opinion, and
1 that's all it is, an interpretation of this article would be that. I was
2 not myself involved in actually producing this document because I was at
3 the time head of the system and status-related issues administration.
4 Q. All right, thank you, General.
5 MR. THOMAS: Your Honours, there a number of documents which fall
6 into category which require some discussion before I can use them or not
7 use them with General Nikolic. Can I suggest that the general leave the
8 courtroom so that we can discuss those documents.
9 JUDGE MOLOTO: Mr. Nikolic, would you please just excuse us.
10 Apparently there's something that the lawyers want to talk about but in
11 your absence. We'll call you once we are ready.
12 [The witness stands down]
13 MR. THOMAS: Thank you, Your Honour. I have a number of
14 documents, not many, but several documents which I would like to use with
15 General Nikolic for the purpose of establishing bias. They fall into
16 three categories. The first two documents relate to proceedings and an
17 indictment issued against General Nikolic in Serbia for favourable
18 treatment of a general in the allocation of housing. The documents
19 concern an indictment and a ruling on appeal brought against the bringing
20 of indictment by General Nikolic. So these are two documents which would
21 establish that he faces charges for abuse of official position which
22 resulted in another general receiving housing to which he was not
23 entitled. Those proceedings have not been determined because General
24 Pavkovic is also a co-accused, and the proceedings have been suspended
25 until the resolution of General Pavkovic's trial here.
1 The second group of documents concerns General Nikolic's
2 membership of an organisation known as the Serbian General and Admiral's
3 Club. The documents concern, first of all, demonstrate his membership of
4 that club. They express -- there is a page that is essentially a motto
5 or a declaration about the importance of officers to an army. There is a
6 work-plan which includes a clause to say that the club shall continue to
7 provide --
8 JUDGE MOLOTO: Don't read it yet.
9 MR. THOMAS: There's a work-plan. There is a code of ethics of
10 which I want -- wish to cite one article, and there are two press
11 releases relating to the decision of this Court in the Haradinaj case,
12 which in the Prosecution's submission may contain statements showing a
13 particular attitude towards the Tribunal and a particular attitude
14 towards the activities or the position the Serb generals find themselves
16 The third -- effectively, sir, those documents show, in the
17 Prosecution's submission, a bias against the Tribunal and a bias towards
18 Serb officers who fought in the Bosnian conflict.
19 The final document, sir, is a record of a meeting.
20 JUDGE MOLOTO: When you say "a bias towards Serb officers who
21 fought in the Bosnian conflict," you mean a favourable bias in favour of
23 MR. THOMAS: Yes, sir. I won't go into the documents because you
24 haven't asked me to, but I can do so if Your Honours require more
25 particular expression.
1 JUDGE MOLOTO: I don't think you should do so until such time as
2 a ruling is made because otherwise then you are putting them on evidence.
3 MR. THOMAS: Yes, I understand. The third document, sir, the
4 third category is a single document, it's a record of the collegium, a
5 meeting between members of the General Staff of the VJ and generals of
6 the 30th Personnel Centre in September 2000. The purpose of the meeting
7 was to discuss ongoing training for VRS officers but in the context of
8 that meeting, various -- at which General Nikolic was present, various
9 statements are made regarding or relevant to the harbouring of fugitives
10 by the VRS and by the VJ. And the relevance of that document would be to
11 establish General Nikolic's at least awareness that this was a -- that
12 this activity was occurring.
13 JUDGE MOLOTO: Are you done?
14 MR. THOMAS: Yes, sir, thank you.
15 JUDGE MOLOTO: Mr. Lukic.
16 MR. GUY-SMITH: Yes, with regard to a response as it relates to
17 the first set of documents, could we go into private session.
18 JUDGE MOLOTO: May the Chamber please move into private session.
19 [Private session]
19 [Open session]
20 THE REGISTRAR: We are back in open session, Your Honours.
21 JUDGE MOLOTO: Thank you. Yes.
22 MR. GUY-SMITH: Above and beyond the representations that were
23 made in private session as regards to this particular issue, I believe
24 that the threshold has been established for purposes of the issue of
25 impeachment should the Chamber make a determination that such evidence
1 should be pursued. So I'm dealing with the threshold issue because I
2 think that's one of the issues we need to deal with.
3 With regard to the second sets of documents, I think that there's
4 an underlying problem with the manner in which Mr. Thomas has suggested
5 that the impeachment occur in the event that he asks those direct
6 questions from the witness with regard to the witness's bias or lack
7 thereof concerning the Tribunal either for or against, and concerning
8 Serb generals either for or against, and he receives an answer which is
9 contradictory to that which he finds to be contained in these document,
10 then he may well be in a position to use those documents for impeachment
11 purposes. But the issue of that particular issue of bias has not yet
12 been tested. There is an underlying problem here which is in the absence
13 of there being some adoption by the witness concerning the informations
14 contained in these documents, there's an associational travelling problem
15 which we would normally call an associational guilt problem, but it
16 wouldn't be a guilt situation since obviously we are not dealing with the
17 issue of guilt, but rather, it's as if one is a part of an organisation
18 or part of a group each and everything in that group publishes is adopted
19 by all in the group. I suggest to the Chamber that a more appropriate
20 way of dealing with this particular issue, as it relates to the issue of
21 bias, and I have a secondary problem with that, but as it relates to the
22 issue of bias be directly dealt with between question and answer by
23 Mr. Thomas and the witness. He can ask the witness direct questions with
24 regard to the witness's feel about the Tribunal. He can ask direct
25 questions with regard to the witness's feelings about how the Tribunal
1 has treated previous individuals who have appeared before this Tribunal
2 who happen to be Serb generals.
3 JUDGE MOLOTO: I have a problem with that problem that you have,
4 Mr. Guy-Smith. My problem is that I don't think it is for the Chamber to
5 define or even for the Defence to define the limits within which the
6 Prosecution may ask its questions. We must agree, either the Defence
7 objects to the use of those documents because they don't meet the
8 requirements or if you say they may be used, then --
9 MR. GUY-SMITH: I understand your thinking, Your Honour. And
10 with your thinking in mind, the Defence objects to the use of these
12 JUDGE MOLOTO: Then you must address the question of threshold,
13 how it has not been met.
14 MR. GUY-SMITH: The issue of threshold has not been met because
15 he has failed to establish that these documents are documents that would,
16 in fact, achieve the purpose for which they are sought to be introduced.
17 JUDGE MOLOTO: But you don't know that until they have been put
18 to the test.
19 MR. GUY-SMITH: Well, this is one of those unfortunate
20 tautological situations that one finds themselves in. It occurs
21 periodically in a trial, and I find myself in one of those now.
22 JUDGE MOLOTO: Does that argument address the question of
23 requirements of a threshold?
24 MR. GUY-SMITH: Well, you know I'm not one to avoid a direct
1 JUDGE MOLOTO: Don't avoid this one.
2 MR. GUY-SMITH: And I don't intend to, which is why I'm saying
3 you know that I'm not one to avoid a direct question. I believe that the
4 manner in which Mr. Thomas has made the presentation, he does meet the
5 threshold. Although, I have difficulties, I have difficulties, as I've
6 articulated, with --
7 JUDGE MOLOTO: Those are the difficulties outside the threshold.
8 MR. GUY-SMITH: Understood. Understood.
9 JUDGE MOLOTO: Do you have any comments on the fact category?
10 MR. GUY-SMITH: I'm getting to the third category right now. If
11 I could have a moment again.
12 [Defence counsel confer]
13 MR. GUY-SMITH: The third set -- I apologise.
14 JUDGE MOLOTO: No, go ahead.
15 MR. GUY-SMITH: The third set of documents poses a somewhat of a
16 slightly different legal analysis than that which is contained in the
17 first two, because part of the legal analysis falls into some of the
18 matters that are actually charged within the indictment itself. I notice
19 we are very close to the break. If we could take the break now so I can
20 formulate a short pithy response as regards to the third set, I would
21 appreciate that.
22 JUDGE MOLOTO: We'll take a break and come back at half past
23 12.00. Court adjourned.
24 --- Recess taken at 12.01 p.m.
25 --- On resuming at 12.32 p.m.
1 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
2 MR. GUY-SMITH: At page 49 from lines 1 through 7, Mr. Thomas has
3 indicated -- actually it starts at the page before, has indicated the
4 reason why he wishes to use this particular information and he says, and
5 I quote:
6 "And the relevance of that document would be to establish General
7 Nikolic's at least awareness that this was, that this activity was
9 Looking at the standards that are to be applied here, first of
10 all, even as a threshold matter independent of the issues that are
11 normally discussed with regard to fresh evidence and understanding the
12 Chamber may well be more lenient as it relates to impeachment evidence,
13 the offer made by Mr. Thomas with regard to the issue of why he wishes to
14 use this evidence does not give rise to an issue of impeachment in the
15 first instance.
16 So with regard to the Defence position our first position is that
17 he has failed to make any threshold with regard to the issue of
18 impeachment. He also has failed to, at this point in time by virtue of
19 the fact where we stand in the case, that being it's after the close of
20 the Prosecution's case, he has failed to meet the requirements of 89 --
21 Rule 89 with regard to this issue being probative on the issue of, and
22 that's what we are referring to here, probative on the issue of
24 In addition, the document that I believe he wishes to rely upon
25 is XN 59, and I want to make sure that I'm correct in that regard before
1 I go any further, so just a quick nod would be appreciated. Thank you.
2 The document, at least the translation that I have, indicates on the
3 front page that it is unauthorised and not language edited audio
4 recording of discussions. So there is another issue with regard to
5 reliance on this document as it relates to what, assuming for purpose of
6 discussion that there's any probative value whatsoever, as to what was
7 said, who said what, and whether or not we have any basis to be able to
8 deal with its authenticity. Once again a question under Rule 89.
9 And finally, I think that in the manner in which Mr. Thomas
10 suggests he wishes to use the document, that being relevance of the
11 witness's awareness that something was afoot, he fails to take into
12 account and he fails to make the representation, and I doubt he seriously
13 would be questioning the witness with regard to the state of the law at
14 that time, the law that the witness would necessarily have to follow with
15 regard to the general issue. We would object on all of those grounds.
16 JUDGE MOLOTO: Mr. Thomas.
17 MR. THOMAS: Sir, in my submissions I said that this goes to show
18 at least that General Nikolic was aware that fugitives and potential
19 fugitives, we are talking about more than one, were being harboured.
20 Implicit in that is that any inaction on the part of General Nikolic when
21 faced with this knowledge or when provided with this knowledge is
22 relevant to any reasons that he might have for taking no action. For
23 example, his bias, his sympathies towards those who are being hidden.
24 JUDGE MOLOTO: Did he have any duty to take any action?
25 MR. THOMAS: He may have as a human being, his country is a party
1 to the genocide convention. His party is a statute to the statute of the
3 JUDGE MOLOTO: Yeah, but --
4 MR. THOMAS: The sympathies that he may have, Your Honour,
5 demonstrate a lack of interest in assisting the Tribunal. This was
6 something that was aired freely at a meeting between the highest officers
7 in the VRS and the highest officers of the VJ of which he was a part.
8 And this goes to his -- its relevant to the sensibilities of those who
9 were present.
10 JUDGE MOLOTO: Is he not a retired person now?
11 MR. THOMAS: This was at a time when he was not retired, sir,
12 this meeting.
13 JUDGE MOLOTO: You characterise his duty as more of a civic duty
14 rather than his duty by virtue of his position in the army, sir.
15 MR. THOMAS: The difficulty, sir, is that we don't know what
16 steps, he took, if any. I need to confront him with the fact that he is
17 aware of this.
18 JUDGE MOLOTO: The question is I am a step behind you, you are a
19 Step ahead.
20 MR. THOMAS: Yes.
21 JUDGE MOLOTO: My question is whether he did have a duty to take
22 any step, because you sound like you characterise his duty as more of a
23 civic duty, and are you saying that by virtue of being a general in the
24 army, he had a duty to act?
25 MR. THOMAS: Yes, he did, sir, because the army as an organ of
1 the state of the Federal Republic of Yugoslavia was required to turn over
2 criminals who had been, or alleged criminals indicted by the Tribunal.
3 They are required to comply.
4 JUDGE MOLOTO: Yeah, but is that the army or the police?
5 MR. THOMAS: Well, it's anybody who is responsible for
6 complying -- maybe I should put it another way.
7 JUDGE MOLOTO: That's not my question. Whether he bore that duty
8 to comply.
9 MR. THOMAS: The army was hiding people. The bottom line, sir,
10 is that this document shows that the army, the VRS.
11 JUDGE MOLOTO: The VRS.
12 MR. THOMAS: The VRS was hiding people with the knowledge of the
13 General Staff of the VJ.
14 JUDGE MOLOTO: Right.
15 MR. THOMAS: The -- and this demonstrates, Your Honours, that
16 everyone is aware of the situation that exists. Everyone is aware that
17 there is a requirement to turn these people over because these people are
18 being hidden.
19 JUDGE MOLOTO: Now, your argument is going a little further away
20 from the point, in fact. When you are still giving me the impression
21 that it was the VJ which did it, I thought you were closer to it. Now if
22 it is the VRS that does it and the VJ is aware of it, who is not aware of
23 it? We are all aware of it, but what have we done about it?
24 MR. THOMAS: Part of the difficulty, sir, is that we are
25 discussing the contents of the document without being allowed to discuss
1 the contents of the document.
2 JUDGE MOLOTO: Well, we are discussing your submissions. Your
3 submissions are that at the time he attended this meeting, the VRS was
4 hiding fugitives.
5 MR. THOMAS: Yes.
6 JUDGE MOLOTO: The VJ was aware that the VRS is hiding fugitives,
7 and you are saying that he had a duty. My question is under those
8 circumstances, what duty lay on him?
9 MR. THOMAS: I should add one more dimension, sir, and that is
10 that the discussion also involves Mladic which means that the -- it's not
11 just the VRS who are hiding. It may be that the document itself is not
12 clear in terms of Mladic, whether we are talking about the VJ hiding him
13 or the VRS hiding him, we are talking about co-operation between the VRS
14 and the VJ with his security detail.
15 JUDGE MOLOTO: Now, I have serious problems with your
16 submissions, Mr. Thomas. You are shifting the goal-posts. It's no
17 longer knowledge, now it's co-operation between the VJ, and it is also no
18 longer the VRS, it could be the VRS and the VJ. I'm not quite sure where
19 your argument is going now.
20 MR. THOMAS: That's the difficulty, sir, with not being able to
21 refer to the document.
22 JUDGE MOLOTO: You may not refer to the document until it is
23 admitted, but you've got to make your argument outside the document, and
24 stay with your argument. Don't shift around.
25 MR. THOMAS: I understand. First of all, the General Nikolic is
1 a professional officer in the Yugoslav Army.
2 JUDGE MOLOTO: Right.
3 MR. THOMAS: The Federal Republic of Yugoslavia was under an
4 obligation to turn over alleged fugitives, certainly under an obligation
5 to turn over indicted individuals, which Mladic was one. He would have
6 been aware that steps taken by the General Staff of the VJ or the General
7 Staff of the VRS --
8 JUDGE MOLOTO: No, but it is the General Staff of the VJ, or is
9 it the General Staff of the VRS?
10 MR. THOMAS: On Mladic, it's co-operation between the two, it's
11 intelligence share, it's information sharing. That is the reference to
12 Mladic in this document. It is information sharing. In relation to the
13 others, sir, it is the problem of housing being provided for members of
14 the 30th Personnel Centre, and you will recall that General Nikolic was
15 responsible for housing.
16 JUDGE MOLOTO: Those first two categories, if I understood
17 Mr. Guy-Smith, he has considered those two. It is the third category,
18 sir, that we are talking about. So the question of housing doesn't seem
19 to come in here. It's the question of being at the least aware of
20 fugitives being hidden away.
21 MR. THOMAS: The problem with the fugitives being hidden away is
22 that they needed housing. That was the problem. This is the context in
23 which the discussion takes place in this document, so the VRS are asking
24 the VJ to resolve the housing problem for all of their officers including
25 those who they are hiding.
1 JUDGE MOLOTO: You see again, now there's another shift of the
2 goal-post. Now you are implying that he actively participated in the
3 hiding of the fugitives by providing them with housing.
4 MR. THOMAS: I don't know if he did that.
5 JUDGE MOLOTO: I am not sure why do you link housing now, which
6 was in the first category, why do you link it with the third category
8 MR. THOMAS: Because, Your Honour, that's the context in which --
9 JUDGE MOLOTO: That was not the context of your first -- if you
10 are --
11 MR. THOMAS: I was trying not to disclose the contents of the
12 document, Your Honour. I was trying to be very general about what the
13 essential points of the document are which was that it dealt with the
14 harbouring of fugitives. This was something that he was necessarily --
15 JUDGE MOLOTO: But, sir, but, sir, even if you were not -- you
16 are trying not to disclose the contents, where you say -- let me quote
17 you. What line was that, Guy-Smith, at page 49?
18 MR. GUY-SMITH: Yes, Your Honour. Page 49. The specific line is
19 line 5 -- and the relevance of that document would be to establish
20 General Nikolic's at least awareness that this was, this was the activity
21 that was occurring.
22 JUDGE MOLOTO: What line is it?
23 MR. GUY-SMITH: It starts on line 5 is what I just read to you.
24 JUDGE MOLOTO: Okay. Right, now, when you made that statement if
25 you then have been able to say that demonstrates that, in fact, he
1 assisted in providing housing for these people, or he assisted in the
2 hiding of the fugitives, not just awareness.
3 MR. THOMAS: But I understand Your Honours's point, but the
4 difficulty, sir, is that at the moment I know nothing about what General
5 Nikolic did or did not do.
6 JUDGE MOLOTO: Then you are going on a fishing expedition.
7 MR. THOMAS: I want to put to him, sir, that at the very least
8 this was an open topic of discussion in the General Staff.
9 JUDGE MOLOTO: I'm sure it must be an open topic of discussion
10 everywhere, all over Serbia
11 that these guys are fugitives, that they're being hidden by some people,
12 and that nobody seems to be getting hold of them.
13 MR. THOMAS: Well, in my submission it's relevant that the
14 General Staff knows that they are not being hidden by anybody. They are
15 being hidden by the VRS. They are being hidden by members of the 30th
16 Personnel Centre.
17 JUDGE MOLOTO: Indeed. So they may know who is hiding them, what
18 must they do? Go over to the Republika Srpska and grab them from the
19 VRS? I'm not quite sure what your argument is on this point.
20 MR. THOMAS: My argument is no more, sir, then it demonstrates a
21 preparedness to go along with not assisting the Tribunal and that that
22 demonstrates a particular bias of this witness. So when Your Honours
23 have to determine whether the witness is being truthful with you on a
24 particular point, you are entitled to take into account the fact that he
25 is pretty ambivalent about whether or not fugitives, for example, are
1 turned over.
2 JUDGE MOLOTO: Sure, but my problem is that an individual officer
3 in the army, I fail to see how an individual officer in the army has a
4 duty to do something about fugitives who are at large.
5 MR. THOMAS: Well, his -- under the Law of the Army, he is
6 required to -- he is required to observe international conventions. He
7 is required to observe International Humanitarian Law. His nation is
8 required as a party to this statute to turn over individuals.
9 JUDGE MOLOTO: Right.
10 MR. THOMAS: He knows that there is a positive obligation to --
11 JUDGE MOLOTO: Of the institution.
12 MR. THOMAS: Yes, but also as an army officer, if he takes steps
13 or fails to take steps which allow his country to breach its
14 international obligations or result in the army breaching some obligation
15 then that has to be at the very least conduct unbecoming an officer in
16 some respect.
17 JUDGE MOLOTO: And what do we expect him to do, if I may just
19 MR. THOMAS: He may have done something, he may have done
21 JUDGE MOLOTO: I'm asking you what would you expect a reasonable
22 officer of the army to do under those circumstances where he doesn't bear
23 the duty within, he is within the structure, but you are saying he is
24 expected to observe International Humanitarian Law. He happens to be
25 aware that another army in the next-door country is harbouring a
1 fugitive, what do you expect him to do?
2 MR. THOMAS: This army is at a meeting with him and others from
3 the General Staff asking for assistance with housing, regulating
4 personnel with training. He could say, look, this is bad for us to be
5 doing this for you when you are harbouring people. We are not going to
6 do it. That's one thing.
7 JUDGE MOLOTO: I've told you my problem with that argument
8 because that came as an extension later, as a shifting of the goal-posts,
9 so I'm not quite sure, you know.
10 MR. THOMAS: I understand, Your Honour's point.
11 JUDGE MOLOTO: That's my problem, it was not part of your
12 original argument.
13 MR. THOMAS: Well, I thought it was implicit, sir. He knew at
14 least what I want to ask him is, you know, what he did with this
15 knowledge. I can't say until I put to him what he can say in relation to
16 that. But I can't take the matter any further, Your Honours.
17 JUDGE MOLOTO: Thank you. I'm not quite sure whether you have
18 addressed all the other requirements.
19 MR. THOMAS: I can do that, Your Honour. On the question of, I
20 think my learned friend suggested that it needs to be probative on the
21 issue of credibility, my answer to that, sir, is that essentially it's
22 demonstrating a bias either against the Tribunal or in favour of Serb
23 soldiers or Serb officers who may have been considered by this Tribunal
24 to become --
25 JUDGE MOLOTO: I've heard you on that one. I just wanted to --
1 there are a whole lot of requirements that must be addressed before fresh
2 evidence can be tendered.
3 MR. THOMAS: Yes, sir.
4 JUDGE MOLOTO: And I'm now talking generally about all three
5 categories, time when you got it, all those.
6 MR. THOMAS: Yes, sir. I think indicate that the disclosure
7 information I have in relation to the charges and information relating to
8 the housing charges against General Nikolic were disclosed to the Defence
9 on the 2nd of February.
10 JUDGE MOLOTO: Which year?
11 MR. THOMAS: This year. As soon as we became aware that General
12 Nikolic was going to be called as a witness, the necessary searches were
13 undertaken, sir. That revealed this information, and that was disclosed
14 on the 2nd of February of this year.
15 The material from the general and admiral's club again was
16 translated as soon as it was obtained in response to General Nikolic
17 being on the list. And this was on the 19th of February with the
18 exception of one document, which was the list of officers of the club,
19 which was disclosed to the Defence on the 26th of February.
20 And the document that we are currently talking about, sir, the
21 minutes of the -- or the record of the meeting between the General Staff
22 and the VRS Main Staff was disclosed on the 11th of February this year.
23 Thank you.
24 JUDGE MOLOTO: I hate to be leading you, and I don't believe you
25 have exhausted your argument -- the requirements.
1 MR. THOMAS: I've been passed a note, sir, that the disclosure
2 material was sent on e-court and CD-ROM. It was all on CD-ROM on the
3 dates that I've referred to, sir, and subsequently uploaded into e-court.
4 JUDGE MOLOTO: Okay. Thank you.
5 Any response, Mr. Guy-Smith?
6 MR. GUY-SMITH: Only one very brief response. Mr. Thomas said in
7 relationship to this discussion, "I can't say until I put it to him what
8 he can say in relation to that," that's what we classically know as a
9 fishing expedition. That's not impeachment. Submitted.
10 [Trial Chamber confers]
11 JUDGE MOLOTO: Mr. Thomas, you may use the first two documents
12 referring to the first two categories and not the third one.
13 MR. THOMAS: Thank you, Your Honours.
14 JUDGE MOLOTO: The witness might be brought in. Sorry.
15 [The witness takes the stand]
16 JUDGE MOLOTO: Mr. Nikolic, the Chamber apologises for keeping
17 you outside for so long. Unfortunately it's one of those things that do
18 happen in this kind of work. I hope you don't take it on us.
19 THE WITNESS: [Interpretation] I fully understand the need for
20 that, Your Honour.
21 JUDGE MOLOTO: Thank you so much. Thank you for understanding.
7 [Private session]
11 Pages 10742-10749 redacted. Private session.
12 [Open session]
13 THE REGISTRAR: We are back in open session, Your Honours.
14 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
15 Yes, Mr. Thomas.
16 MR. THOMAS: Thank you, Your Honours.
17 Q. General, just one other topic that I wanted to deal with you
18 briefly. What is the general and admiral's club of the army of Serbia
19 A. As in most countries across the world, we in Serbia our decision
20 of the defence minister Davinic established a general and admiral's club.
21 This is a non-party association. It is an association of citizens with
22 no political affiliations whatsoever or indeed any interference in the
23 members officials lives. It is, as I said, a non-party association.
24 JUDGE MOLOTO: Sorry, Mr. Nikolic. You say it's an association
25 of citizens. Any citizen can become a member, or is it only generals and
2 THE WITNESS: [Interpretation] Your Honour, this is an association
3 of citizens but in a restricted professional field.
4 JUDGE MOLOTO: Thank you.
5 Mr. Thomas.
6 MR. THOMAS:
7 Q. And in this case, we are talking about officers in the army and
8 navy of the VJ; is that right?
9 A. No. The generals and admirals of the VJ and navy too, because
10 that is part of the army. It is a special branch.
11 Q. Okay. And the work-plan of the club includes that it shall, that
12 is the club, shall continue to provide necessary assistance to
13 individuals on request related to their status, and their obligations
14 with respect to international organisations and institutions, and with
15 respect to the institutions in the country starting out from the state
16 interests of the Republic of Serbia
17 Have I understood that section of the work-plan correctly?
18 A. Given the fact that I don't have the statute in front of me, I
19 can hardly be expected to interpret what you are saying. If you can
20 provide a hard copy, I'd be glad to discuss it. For the time being I
21 just don't have it. The statute was adopted by the Assembly as the
22 supreme body of that association.
23 Q. General, are you a member of the executive board of that club?
24 A. Used to be the executive council and now it's the executive
25 board, yes.
1 Q. Can I ask you if you agree with the following statement: The
2 Hague Tribunal is not a Tribunal but a skillfully packed incrimination of
3 justice that decides who is to be sentenced and how the justice is to be
4 served. Do you agree with that statement, sir?
5 A. No. If I agreed with that statement, I certainly wouldn't be
6 sitting here today.
7 Q. Do you agree with the statement that the Tribunal is controlled
8 from within through expert insiders that are used as instruments for
9 keeping the scope of investigations under control?
10 A. No.
11 Q. Do you agree with the following statement: By acting in this
12 way, the Court got rid of the war criminal and terrorist Ramush Haradinaj
13 due to insufficient evidence because the truth was not supposed to be
15 A. I have no right to comment on any convictions and sentences
16 before this Tribunal. Therefore, I simply don't do that.
17 Q. Do you agree with the following statement: The Federal Republic
18 of Yugoslavia
19 The Federal Republic of Yugoslavia extradited to the International
20 Criminal Tribunal for the Former Yugoslavia the following persons: Its
21 president, the president of the Republic of Serbia
22 of the federal government, minister of defence, two chiefs of the General
23 Staff of the Army of Yugoslavia, one army commander, and deputy minister
24 of the interior. They were extradited only because they had carried out
25 their duty in a professional manner pursuant to a constitution of a
1 sovereign state. The Federal Republic of Yugoslavia then defended their
2 country from terrorism/separatism and from the NATO aggression. Do you
3 agree with that statement?
4 A. Mr. Prosecutor, there were too many sentences in this for me to
5 answer. Can we take it one step at a time? Who said it, whose statement
6 is it?
7 Q. All right. This is a press release that appeared on your
8 website, that is the club of which you are on the executive board, the
9 general and admiral's club of the Republic of Serbia
10 decision in the Haradinaj case. First of all, that answers your first
11 question. That is the source of these statements.
12 A. Your Honours, never was I president of the executive board of the
13 club. Never.
14 JUDGE MOLOTO: Yes, Mr. Lukic.
15 MR. LUKIC: [Interpretation] [No interpretation]
16 JUDGE MOLOTO: I got no translation. I don't know whether
17 anybody has.
18 MR. LUKIC: [Interpretation] I heard the interpretation into
19 Serbian of the question posed by Mr. Thomas that he was president of the
20 executive board, and this is what prompted this answer by Mr. Lukic.
21 Although, the issue that he was president was actually never raised by
22 Mr. Thomas.
23 JUDGE MOLOTO: And the entire speech that you made now as you
24 stood up a second time you made while the interpreter was talking, so I
25 was hearing two people at the same time, so I missed out on the first
1 part of that statement. Of course I can read what the -- I don't know
2 who was being transcribed, whether you or her. I see it's the
3 interpreter who was being transcribed.
4 What were you saying, Mr. Lukic, when you stood up now the second
6 MR. LUKIC: Your Honour, Mr. Thomas mentioned like in the
7 transcript that Mr. Nikolic was in executive board, page 77, and we heard
8 in B/C/S and Mr. Nikolic too that he was the president of executive
9 board. And that's why he made that kind of answer.
10 JUDGE MOLOTO: Thank you so much. Can we just get that
11 interpretation corrected to the witness so that he can give you an
12 appropriate answer, Mr. Thomas?
13 MR. THOMAS: I can do that, sir.
14 Q. General, you asked me the source of these statements that I've
15 been putting to you. The source of these statements is the website for
16 the general and admiral's club of the Republic of Serbia
18 A. Thank you for this source. Could you please tell me who signed
19 this text?
20 Q. No, I cannot, sir. It appears on your website. But let me ask
21 you this question: Do you agree with the statement that I've read out?
22 A. No, not entirely.
23 Q. With which parts do you disagree?
24 A. Since I can't read English, could you please repeat what you
1 Q. Okay. FRY Yugoslavia did something not a single other country
2 has ever done. FRY -- Federal Republic of Yugoslavia extradited to the
3 International Criminal Tribunal for the Former Yugoslavia the following
4 persons: Its president, the president of the Republic of Serbia
5 prime minister of the federal government, minister of defence, two chiefs
6 of the General Staff of the Army of Yugoslavia, one army commander, and
7 deputy minister of the interior. They were extradited only because they
8 had carried out their duty in a professional manner pursuant to the
9 constitution of a sovereign state, Federal Republic of Yugoslavia, and
10 defended their country from terrorism/separatism, and from the NATO
12 A. Mr. Prosecutor, this is a combination of a sort. This entire
13 passage is something that no general can ever utter, and I'm not sure,
14 maybe a part of this was taken from an e-mail or something. I was never
15 on a meeting where this was discussed. In the continuation here, it is
16 mentioned that they defended their homeland pursuant to the relevant
17 legislation of their county, and this is why they had to be provided with
18 all the necessary support.
19 JUDGE MOLOTO: Mr. Nikolic, the question to you is not whether
20 you were present when those were written or whether you were the author.
21 The question to you is, do you agree with the statement or not? If you
22 agree you say yes, I do agree; if you do not agree, you say I don't
24 THE WITNESS: [Interpretation] Your Honours, the Prosecutor asked
25 me which parts of this statement I can agree with, and I said, I disagree
1 with the part prior to a full stop, to where -- I'm not sure I can read
2 this correctly. The second part is the part that I do agree with, and I
3 can't agree with the first part.
4 JUDGE MOLOTO: Thank you. I'm sorry, my mistake.
5 MR. THOMAS:
6 Q. So, I'm sorry, General. Can I just check the transcript for a
7 moment. So we are clear, you said you agreed with the second part of the
8 statement. That's what the transcript says; is that correct?
9 A. That's correct. I think it starts with "they were" and from
10 there on.
11 JUDGE MOLOTO: Yes, Mr. Lukic.
12 MR. LUKIC: [Interpretation] I do not want to suggest anything to
13 Mr. Thomas, but Mr. Thomas gave me in Serbian those words that he is now
14 reading, so shouldn't we provide the witness with the Serbian version
15 rather than have him read the transcript in English which he can't
17 JUDGE MOLOTO: Mr. Thomas.
18 MR. THOMAS: I understand my friend's suggestion, Your Honour. I
19 chose to put the proposition first before using the document if
20 necessary. The general has adopted the proposition and responded to it
21 so I don't feel the need to do that, and, in fact, Your Honours, that at
22 this point concludes my cross-examination. I don't intend to revisit the
23 matter in respect of which General Nikolic was to seek legal advice.
24 JUDGE MOLOTO: You don't -- oh.
25 MR. THOMAS: I don't intend to revisit the matter.
1 JUDGE MOLOTO: Thank you very much. Any re-examination,
2 Mr. Lukic? To finish by quarter to?
3 MR. LUKIC: [Interpretation] Yes, but I certainly won't be able to
4 finish this today. I can start, and I'm prepared to start with some
5 questions for these seven minutes, or we can allow the witness to have
6 some rest because he will certainly have to be here tomorrow again.
7 JUDGE MOLOTO: Okay. If that's what you wish, that's fine.
8 Mr. Nikolic, Mr. Thomas has just indicated that he is not going
9 to follow-up that subject for which we thought you must get a lawyer.
10 I'm not going to mention it because we are in open session. Okay. So
11 there is no need for you to go and look for legal advice.
12 THE WITNESS: [Interpretation] Thank you very much.
13 JUDGE MOLOTO: Thank you, sir.
14 THE WITNESS: [Interpretation] Could I make a proposal myself, as
15 a witness?
16 JUDGE MOLOTO: What proposal do you want to make, sir?
17 THE WITNESS: [Interpretation] I would kindly ask you, if
18 possible, I'm not sure how long this could take because I do have some
19 family issues and I've been here for a long time already, so if it is
20 possible to complete this today, this would be my plea with this court
21 because I have been informed that my wife and child are not well, and I
22 also have some problems concerning the employment of my son. I would
23 like to resolve these problems as soon as possible, so if at all
24 possible, I would kindly ask you to finish this today. Obviously if Your
25 Honours are capable of granting this, I'm able to continue answering any
1 questions today.
2 [Trial Chamber and Registrar confer]
3 JUDGE MOLOTO: Unfortunately before I give you the floor,
4 Mr. Lukic.
5 Unfortunately, Mr. Nikolic, there are many cases taking place in
6 the building here, and there are only a few courtrooms, so there is no
7 courtroom available this afternoon for us to carry on with your case.
8 Other cases are going to be sitting. So it is not possible to finish
9 with you today.
10 However, let me just find out from the lawyers whether they may
11 want you to stand down and go and attend to your problems and then come
12 back later or whether they have any other solution that they can propose
13 to come to your rescue.
14 Mr. Lukic, you are on your feet.
15 MR. LUKIC: [Interpretation] Well, I can inform Your Honours and
16 the witness that I could complete my redirect examination in
17 approximately 40 minutes. Now, I'm not sure whether Your Honours will
18 have any questions for the witness. As far as I know, we were supposed
19 to sit in the afternoon tomorrow, possibly if we are done by 4.00 p.m.
20 tomorrow, the witness might take an evening flight if the witness unit
21 can see to that. So possibly Mr. Nikolic could make his suggestion now
22 and see if this is acceptable to him or not, or if he could come back
23 after the Easter break.
24 JUDGE MOLOTO: Apparently we just need you for under an hour
25 tomorrow, would that be okay, just for an extra day? I know you have
1 been here for a very long time. The alternative is going to be that you
2 go away and then come back for 40 minutes.
3 THE WITNESS: [Interpretation] No, I do not accept to appear here
4 again tomorrow. I do not accept the continuation of this proceedings.
5 MR. LUKIC: [Interpretation] Not even in Serbian could I
6 understand you, General.
7 THE WITNESS: [Interpretation] I agree with these proceedings
8 being continuing tomorrow.
9 JUDGE MOLOTO: Thank you very much, Mr. Nikolic. We'll certainly
10 finish with you tomorrow.
11 THE WITNESS: [Interpretation] Your Honours, thank you very much.
12 [Trial Chamber confers]
13 JUDGE MOLOTO: Judge Picard is just indicating that tomorrow
14 morning there is a courtroom available if that would help, that means
15 that everybody must be in a position to come.
16 MR. LUKIC: [Interpretation] I have no problem with that, sir.
17 And possibly it might be easier for the witness unit to organise the
18 transportation of the witness.
19 JUDGE MOLOTO: How do the interpreters and everybody else feel
20 about it including the stenographer and all the other technical people?
21 THE INTERPRETER: I think for the interpretation, Your Honour,
22 there wouldn't be a problem.
23 JUDGE MOLOTO: Thank you so much for your co-operation. We'll
24 then adjourn to tomorrow morning at 9.00 in the morning in Courtroom II.
25 THE WITNESS: [Interpretation] Your Honour, thank you very much.
1 JUDGE MOLOTO: You are very welcome, sir. Before I forget, you
2 may not discuss with anybody this case until you are excused tomorrow,
3 okay, especially not your lawyers. Okay?
4 THE WITNESS: [Interpretation] I have never seen him anyway, sir.
5 --- Whereupon the hearing adjourned at 1.48 p.m.
6 to be reconvened on Wednesday, the 10th day of
7 March, 2010, at 9.00 a.m.