1 Tuesday, 20 July 2010
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.00 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 for
12 the day, please.
13 MR. THOMAS: Good morning, Your Honours. Good morning to
14 everybody in and around the courtroom. Inger de Ru, April Carter and
15 Barney Thomas for the Prosecution.
16 JUDGE MOLOTO: Thank you so much, Mr. Thomas.
17 And for the Defence.
18 MR. GUY-SMITH: Good morning to all. Tina Drolec,
19 Oonagh O'Connor, Boris Zorko, and Gregor Guy-Smith appearing on behalf of
20 Mr. Perisic.
21 JUDGE MOLOTO: Thank you very much.
22 Morning to you, Mr. Gojovic. Just to remind you that you are
23 still bound by the declaration that you made at the beginning of your
24 testimony to tell the truth, the whole truth, and nothing else but the
1 WITNESS: RADOMIR GOJOVIC [Resumed]
2 [Witness answered through interpreter]
3 JUDGE MOLOTO: Thank you so much. Mr. Thomas.
4 MR. THOMAS: Thank you, Your Honours. And thank you, sir, for
5 the opportunity to adjourn early yesterday, that has resulted, I think in
6 some time savings this morning.
7 JUDGE MOLOTO: Thank you, sir.
8 Cross-examination by Mr. Thomas:
9 Q. Good morning, General. My name is Barney Thomas. I am a member
10 of the Prosecution team. I have the opportunity, sir, as you know, to
11 now ask you some questions about the testimony that you gave yesterday.
12 I ask you, General, please, to listen very carefully to my question, to
13 answer only my question, and if you have any -- if there's anything about
14 my questions that you don't understand or need clarification on, please
15 let me know and I will do that for you. Do we understand each other,
17 A. Yes, we do. Thank you.
18 Q. I'd like to begin, sir, just with a matter of clarification, just
19 to ensure that I understand your position on the obligations of a senior
20 officer and superior officer when that officer becomes aware of a
21 disciplinary offence or a criminal offence having occurred.
22 First of all, every such officer is duty-bound to act in the
23 following way or in one of the following ways: First of all, if the
24 crime is committed on the territory of his unit, he must secure the area,
25 safe-guard the evidence, take measures to uncover the perpetrators, and
1 to prevent them from absconding, and these are effectively the first
2 steps that are required. Am I correct in my description, sir?
3 A. Yes, you are. That's the serious obligations of each officer
4 with regard to members of his unit.
5 Q. Once that step has been taken, the officer is then duty-bound to
6 inform the military prosecution or the military police for them to take
7 further steps to apprehend the perpetrator, if that is necessary; is that
9 A. Yes, that's another of his obligations.
10 Q. Once that step is taken, he is then duty-bound to report the
11 matter to the military courts; is that right?
12 A. He reports or informs the military prosecutor, not the court, but
13 it is up to the prosecutor to liaise with the court.
14 Q. At the point at which he has informed the military prosecutor,
15 effectively the obligations of the officer concerned cease, is that
16 right, or are satisfied is a better term?
17 A. Once he has informed the military prosecutor or the military
18 police, his obligation with respect to this specific crime no longer
19 exists because these are not his priority tasks to remain seised with the
21 Q. So any investigation from that point on for the purpose of
22 substantiating charges or for establishing whether or not there is a case
23 with which to proceed, is the responsibility of the military police or
24 the military prosecutor; is that right?
25 A. Yes.
1 MR. THOMAS: Your Honours, can we please have P197 on the screen.
2 Q. General, insofar as the obligations relating to disciplinary
3 offences are concerned, these covered by Articles 180 and 181 of the Law
4 of the VJ?
5 MR. THOMAS: And if you need some assistance, sir, can we please
6 have page 16 of the B/C/S on the screen and page 45 of the English on the
8 THE WITNESS: [Interpretation] In spite of having my glasses on, I
9 can't read this on the screen.
10 MR. THOMAS: Can we go to Article 180, please, Mr. Registrar, and
11 just enlarge that. Thank you.
12 Q. General, you see Article 180 --
13 A. Yes, I can see it.
14 Q. And in that article it describes how the procedure for
15 consideration for a disciplinary offence is initiated with a decision to
16 investigate issued by a senior officer holding the position of a regiment
17 commander equal or higher position. You will also see, sir, that
18 following a completed investigation, the senior officer who initiated the
19 procedure has a number of options, including forwarding the case to the
20 competent officer who would file charges against the violator before the
21 military disciplinary court.
22 Now, the last line of that article, sir, describes how the
23 authority vested by paragraph 2 of that article is vested in every
24 superior officer of the officer who instigated the proceedings. This
25 will seem an obvious question, sir, but obviously the Chief of the
1 General Staff falls into that category, doesn't he?
2 A. This provision regulates the procedure for consideration of
3 disciplinary offences by officers, not criminal offences. Yesterday we
4 described and said that the disciplinary offence is under the authority
5 of the officer, but only if he, himself, assesses that this specific
6 violation requires such a disciplinary sanction that under the law he is
7 not entitled to impose, then an officer senior to him shall undertake
8 that matter.
9 So upwards from the regiment commander, you can't say that the
10 Chief of General Staff has any higher authority or wider authority to do
11 that. It is pointless to do that if you can finalise the whole procedure
12 at the level of regiment. So we are talking here about disciplinary
13 responsibility not criminal responsibility.
14 Q. That is understood, General, but my question was that the term
15 "every superior officer" means that this could go up the chain of command
16 as high as the Chief of the General Staff, at least in theory, could it
18 A. The point and the purpose of this provision as you construe it is
19 formalistic. The point of this provision is to give authority to each
20 officer and to specify them. If this authority is given to a low-ranking
21 officer, then it goes without saying that any senior officer has the same
22 authority. So instead of giving specific provisions for each specific
23 officer, they just lay down the foundations and that means that the
24 authority applies to all officers, but it does not mean he can exercise
25 this to each member. If you have a 30.000 strong army, you cannot have
1 the Chief of General Staff imposing disciplinary action on each and every
2 member. This is just giving authority to officers. However, how this is
3 going to be applied in practice, that depends on the general principle of
5 Q. Pause, General, and listen, please, to my questions carefully. I
6 didn't ask you about the point or the purpose of the provision. We
7 understand that. My question is, that this provision applies equally to
8 the Chief of the General Staff, doesn't it?
9 A. Yes, all his authorities and powers are precisely laid down here.
10 Q. Article 181 authorises individuals to bring the perpetrator of a
11 disciplinary offence before a military disciplinary court, and we see in
12 paragraph 2 that in the case of the army, the authorised officers are the
13 army commander or a senior officer holding an equal or higher position.
14 And again, sir, my question is that this obviously includes the Chief of
15 the General Staff?
16 A. I don't quite understand your question, but I can guess at the
17 point of your questions --
18 Q. Just pause, General. Just pause. I don't want you guessing,
19 sir. Does paragraph 2 of Article 181 include the Chief of the General
21 A. Yes, it contains some of his authorities as well.
22 MR. THOMAS:
23 Q. I am sorry, Your Honours, I missed the beginning of the
24 translation to that answer.
25 JUDGE MOLOTO: Madam interpreter, the counsel has missed the
1 beginning of your interpretation.
2 THE INTERPRETER: This is what the witness said. We interpreted
3 everything he said.
4 JUDGE MOLOTO: Just repeat the interpretation, please,
5 Madam Interpreter.
6 THE INTERPRETER: Yes, it contains some of his authorities as
8 MR. THOMAS: Thank you, Madam Interpreter.
9 In the case of war crimes these are dealt with in other
11 I would like to have, Your Honours, P2304 on the screen, please.
12 THE INTERPRETER: Microphone, please, for the President.
13 JUDGE MOLOTO: Sorry, you said P2304, didn't you?
14 MR. THOMAS: Yes, sir. Sorry, I see that there's a an error in
15 the transcript. P2304.
16 JUDGE MOLOTO: That's fine.
17 MR. THOMAS: And, Mr. Registrar, could we please have page 14 in
18 the English and page 16 in B/C/S.
19 Q. Now, General, you will recognise these provisions. Can you
20 confirm for us this they came -- or that this version of these
21 regulations, at least, came into effect in 1988 and that they operated
22 throughout the war?
23 A. Yes, these rules pursuant to the order of the president of the
24 Presidency of the SFRY have been incorporated as obligations in 1998 that
25 applied to members of the Yugoslav people's army.
1 Q. Just pause, sir. You said that they came in in 1998. My
2 question was whether they came in in 1988, or your answer --
3 A. 1988.
4 Q. Thank you, sir.
5 A. Yes, they were incorporated in 1988.
6 Q. Can you look at Article 20, please. And This is the article that
7 establishes liability for an individual who commits a violation of the
8 Laws of War; is that right?
9 A. Yes, it says very accurately here that each individual is
10 personally responsible for violation of the Laws of War, whether it be a
11 military or civilian person in terms of either committing it himself or
12 being ordered to commit it by his superior. This is also stipulated by
13 the Criminal Code.
14 Q. General, you testified yesterday about the notion of command
15 responsibility and the FRY law, and I want to read out what you said
16 about that.
17 MR. THOMAS: And, Your Honours, I'm reading from page 12901
18 beginning at line 15.
19 Q. You said this, General:
20 "In the Criminal Code of the Social Federal Republic of
21 Yugoslavia, later on in the criminal judiciary system of the FRY, there
22 is no command responsibility provided as liability with respect to
23 committing a criminal offence, including offences against international
24 criminal law. There is only -- there's not only direct intent, but a
25 qualified intent which means that there should be a clear intent to
1 commit a certain crime. So the only form of liability is direct intent
2 with additional intention to commit a crime. Other than that, there was
3 no mention of the so-called command responsibility, which is based on
4 objective responsibility."
5 I'd like you to look at Article 21, please, General. You will
6 see that it is effectively in two parts. The first part of the paragraph
7 describes that:
8 "An officer, without limiting that term, shall be personally
9 liable for violations of the Laws of War if he knew or could have known
10 that units subordinate to him or other units or individuals were planning
11 the commission of such violations, and, at a time when it was still
12 possible to prevent their commission, failed to take measures to prevent
13 such violations. That officer shall also be held personally liable who,
14 aware that violations of the Laws of War have been committed, fails to
15 institute disciplinary or criminal proceedings against the offender or if
16 the instituting of proceedings does not fall within his jurisdiction,
17 fails to report the violation to his superior officer."
18 This is command responsibility, is it not?
19 A. Yes, this is what is contained in this provision, but it does not
20 exist in the Criminal Code. I was talking about the Criminal Code that
21 applies in such specific cases, but this provision is very accurate and
22 it stipulates very concrete things and I have no objection to that.
23 However, yesterday I was talking about the Criminal Code that was in
24 force in Yugoslavia.
25 Q. And hence my clarification, sir. So you and I are agreed that in
1 respect of war crimes, officers in the Yugoslav Army, that is all
2 officers in the Yugoslav Army, were subject to command responsibility?
3 A. According to this provision if it is applied literally, yes, it
4 encompasses that criteria. However, these provisions were not included
5 in the Criminal Code because the parliament made such a conclusion and
6 hence the law was not adopted.
7 Q. I understand that it did not exist in the Criminal Code, but
8 applied to officers in the VJ throughout the war, didn't it?
9 A. It should have been applied provided it was enshrined in the
10 Criminal Code.
11 Q. The provision includes the Chief of the General Staff, does it
12 not, since it applies to every officer?
13 A. It applies to every officer on condition that he is aware of
14 violations and crimes being committed and provided that he has the
15 capacity to undertake measures to prevent such occurrence, that requires
16 knowledge. If he is not knowledgeable or if he is not aware of these
17 things, you cannot hold him responsible.
18 MR. THOMAS: Article 36, which is on the next -- sorry, page 20
19 in the English and, I apologise, Mr. Registrar, I don't have a B/C/S
21 THE REGISTRAR: It is page 21 for the record.
22 MR. THOMAS: Thank you very much, Mr. Registrar.
23 Q. Now, Article 36, General, details the mandatory obligations of a
24 Yugoslav officer who learns of the violations of the Laws of War, doesn't
1 A. Yes, it does.
2 Q. And you see from the first paragraph that this requires the
3 officer concerned, any officer, to order that the circumstances and facts
4 surrounding the violation be investigated and the necessary evidence
5 collected, doesn't it?
6 A. Yes, that's the regulation and that applies to each and every
7 crime, so there is nothing exceptional about this, including war crimes.
8 Q. Thank you, General.
9 MR. THOMAS: Thank you, Your Honours. We can take that document
10 off the screen, please, Mr. Registrar.
11 Q. Now, in terms of the powers that are available to the Chief of
12 the General Staff, he is perfectly entitled, should he wish to do so, to
13 set up various investigative commissions to investigate whether crimes
14 have occurred, whether crimes had been reported, and so on, can't he?
15 A. Each officer operates within the methodology of his work in a
16 certain way with regards to certain occurrence.
17 Q. Just pause, General. I'm not asking you about each officer. The
18 Chief of the General Staff, should he wish to do so, can set up a
19 commission to investigate crimes or investigate the reporting of crimes,
20 can't he?
21 A. The Chief of General Staff, and I was just about to explain this
22 and I would kindly ask you not to interrupt me, so the Chief of General
23 Staff can set up a commission and request it to submit a report to him
24 about an occurrence. However, you mentioned investigation, the
25 investigation is carried out by the court. The Chief of General Staff
1 can only set up a commission to establish specific circumstances that he
2 deems important to know about. Everything else is within the
3 jurisdiction of the court. The court conducts an investigation, not the
4 Chief of General Staff. That would constitute his stepping over beyond
5 his scope of responsibility. As for commission, as I said, he can
6 establish it to find out certain facts that would be conducive to him
7 taking some of the further steps. As I said, investigations carried out
8 by the court, not by the Chief of the General Staff. That's the essence
9 of this.
10 Q. General, thank you, I accept that distinction. You testified in
11 the Ojdanic trial. General Ojdanic was the successor to General Perisic
12 as Chief of the General Staff, wasn't he?
13 A. Yes, he was.
14 Q. And General Ojdanic established a commission, or at least sent
15 the head of his security administration to the 3rd Army and
16 Pristina Corps during the Kosovo war because he had heard that the 3rd
17 Army and Pristina Corps were not reporting up the chain instances of
18 killings and rapes that were occurring at the hands of those units or
19 units subordinated to that army, and so General Ojdanic sent his head of
20 security administration to establish the reasons for that non-reporting;
21 is that correct?
22 A. As far as I am aware of the fact, this was not a commission.
23 That was within the purview of the security administration and
24 General Vasiljevic was deputy chief of security administration and he
25 could have been sent directly down there to explore why the subordinate
1 organs, the ones subordinate to General Vasiljevic failed to send timely
2 reports, provided such reports indeed never arrived. And that happened
3 within the chain of command and that falls within the jurisdiction of
4 Aleksandar Vasiljevic in his capacity as the deputy chief of security
5 administration. Certain organs failed to send timely reports to him, and
6 for that reason the Chief of General Staff, General Ojdanic, sent him
7 down there personally to check out the system of how the security --
8 administration operated and to restore order in that sense.
9 Q. And that was something that was perfectly within the authority of
10 General Ojdanic to do, wasn't it?
11 A. Yes, it was. He had the authority to do that, to ask that his
12 subordinates send him reports, and Vasiljevic was his subordinate. He
13 was his second superior officer.
14 Q. The Chief of the General Staff -- let me put a suggestion or a
15 situation to you, General. Let's say that there is an incident between
16 two servicemen at the barracks and one serviceman kills another in a
17 dispute among VJ soldiers. Even though this unit -- even though the
18 Chief of the General Staff is not the commanding officer of that
19 particular unit, he is perfectly entitled, upon hearing of such an
20 incident, or he is empowered would be a better word, upon hearing of such
21 an incident to set up a commission to investigate whether such an
22 incident occurred, isn't he?
23 A. Once again I can't agree with the term you are using,
24 "investigation." Investigation is a process conducted by the court.
25 Other organs of the Chief of the General Staff, yes, can establish a
1 commission to determine the circumstances surrounding the event, but the
2 commission of an act is determined by the prosecutor and the court and
3 they can table reports to the Chief of Staff about that, and he can
4 establish a commission to see what the circumstances were which led up to
5 the crime with respect to prevention, not to conduct an investigation
6 into the event which is considered to be a crime -- the event considered
7 to be a crime.
8 Q. All right. General, my mistake. Let me rephrase my question.
9 The Chief of the General Staff can order that a commission be established
10 to ascertain the circumstances of this particular killing, couldn't he?
11 A. Yes.
12 Q. He could set out specific tasks for the commission such as
13 determining the circumstances, establishing individual responsibility,
14 proposing measures to be taken against responsible individuals, and
15 proposing activities to be carry out in order to prevent similar
16 incidents occurring in the army in the future, couldn't he?
17 A. Yes, he could do that. That's perfectly fine.
18 Q. He could order that the commission submits a written report to
19 him of its findings?
20 A. Certainly reports are sent to the person who established the
21 commission in the first place without ordering anything specific to that
23 Q. Well, he can direct the commission to provide the report direct
24 to him, couldn't he, if he wanted to?
25 A. The commission submits the report to the person who established
1 the commission and issued instructions in the first place, so, by the
2 same score, to the Chief of the General Staff, if he established the
3 commission and gave it tasks.
4 Q. Upon receiving the report depending on what the report might say,
5 the Chief of the General Staff has the power to issue orders such as the
6 taking of disciplinary measures against responsible individuals, such as
7 the officers in command of that unit, and the perpetrator of the killing
8 himself, couldn't he?
9 A. In that case, yes, he can. As the superior officer, he can take
10 measures in respect of the senior officer of that unit or somebody who
11 omitted to do something but with respect to the perpetrator or the
12 perpetrators of the act themselves no, because that authority, with
13 respect to them, are minor. So that comes under the court's purview.
14 For a killing, for example, you can't mete out a 20-day sentence of
15 detention, for example, or if you are dealing with a senior officer that
16 in a -- you can take a disciplinary measure and give him 20 days in
17 prison. That's the maximum sentence that the military disciplinary court
18 can issue. Whereas for the crime committed, the minimum sentence is ten
19 years and can be over that period. So there must be a distinction made,
20 and you must determine which level of responsibility has to be invoked
21 when this perpetrator is concerned.
22 Now, as for omissions by other senior officers, omissions which
23 are violations of discipline, then the chief can take measures within the
24 frameworks of his remit and authority or issue orders to his superior
25 officer to take measures, but to mete out disciplinary measures for
1 crimes, that would be highly inefficacious and would be taking advantage
2 of a loop-hole in the law, if I can put it that way, and this is not
3 commensurate to a situation of this kind.
4 Q. So in the case of the perpetrator responsible for the killing,
5 General, the appropriate course and something which the Chief of the
6 General Staff is empowered to do in this case is for him to refer the
7 matter to the military prosecutor's office or the military court for them
8 to conduct the criminal investigation; is that correct?
9 A. The investigation will be launched by the military prosecutor
10 within his purview. It is his right, duty, and obligation to do so.
11 Q. All right. General --
12 MR. THOMAS: I'm sorry, Your Honours, could we please have
13 document number P2413 on the screen.
14 Q. Now, of course, General, the chief of the General Staff has the
15 power to set up a commission or an inquiry into circumstances into the
16 full range of offences, if he wishes to do so, doesn't he?
17 A. I have to give you precise answers and use the terms used in law.
18 Somebody can't express wishes within the frameworks of his duty. He just
19 moves within his purviews. So when it comes to criminal prosecution and
20 the prosecution of perpetrators, that comes under the prosecutor and
21 court, not under individuals and not even the Chief of the General Staff.
22 All he can do is if military discipline has been violated and if it has
23 not moved into the sphere of crime, if it's a violation and not a crime.
24 If it is a crime, then there are the proper organs inform the prosecutor.
25 Now, if those organs are not functioning properly and just the
1 General Staff is functioning properly, then he would have to inform the
2 prosecutor, if the prosecutor remains unaware of the crime committed.
3 JUDGE MOLOTO: Slow down. Will you please speak slowly,
4 Mr. Witness.
5 THE WITNESS: [Interpretation] Yes, thank you.
6 MR. THOMAS:
7 Q. General, if the Chief of the General Staff has reason to know
8 that disciplinary offences or crimes have been committed, he is
9 authorised to set up a commission or otherwise inquire into the
10 circumstances no matter how serious or otherwise those offences or crimes
11 might be, doesn't he?
12 A. We agreed a moment ago that he could do that, so that's not
14 Q. If you look at the document that is on the screen, sir, you will
15 see that it is an order issued by the Chief of the General Staff.
16 MR. THOMAS: If we go to the bottom of the B/C/S and the bottom
17 of page 2, please in the English, Mr. Registrar. Page 2 in the English?
18 Q. You will see, General, that it is signed by General Perisic.
19 MR. THOMAS: And if we go back to the first paragraph of the
21 Q. You will see, sir, that it is an order, from the first paragraph
22 we can see that:
23 "With the aim of establishing responsibility and solving status
24 and service for professional soldiers of the Yugoslav Army who served in
25 the 40th Personnel Centre."
1 A number of orders or this order is issued.
2 And if you look at the preamble to the order or the paragraph
3 that exists under the word "Order," you will see that it says:
4 "The assistant chiefs of the General Staff of the VJ will study
5 official assessment, statements, and other material regarding all the
6 officers of the 40th Personnel Centre that fall within their
7 responsibility and based on that they will propose:"
8 And then it is listed a number of measures. And those measures
9 are related to whether or not the individuals concerned are found to have
10 been involved in any violation of discipline or crime. Do you see that?
11 A. Yes, I do see that.
12 Q. Before we leave this document, please just take a note of the
13 order number, which you see up at the top in the B/C/S.
14 MR. THOMAS: And we will need to scroll up in the English.
15 Q. We will see that it is order number 1022-4. Do you see that?
16 A. Yes.
17 MR. THOMAS: Can we please go to document P2414.
18 Q. Now, this, General, is a decision issued by the deputy Chief of
19 the General Staff of the VJ, and we see that -- you can see that on your
21 MR. THOMAS: We will need to go to page 2 in the English,
22 Mr. Registrar. Thank you, Mr. Registrar. Can we go back to page 1
23 again, please.
24 Q. And you will see that this is a decision, General, to initiate a
25 disciplinary investigation against Mr. Babic. And we see that in the
1 paragraph immediately under the word "Decision." Do you see that, sir?
2 A. Yes.
3 Q. If you go down to the paragraph below that you will see the
4 grounds for suspicion where it is stated that being a commander of the
5 18th Corps which was a unit of the SVK, in the period between 23 March
6 1994 and 2 May 1995, he was involved in criminal activities of charging
7 commission at check-points for the transport of goods in the territory of
8 the Republic of Serbian Krajina by which he committed a violation of
10 Now, first of all, is the document correct when it says that
11 charging a commission in that way is a violation of discipline?
12 A. This can be treated as a disciplinary violation, but this would
13 indicate that it was, in fact, a crime and should be dealt with in
14 criminal proceedings because, well, we can't see from this document how
15 much the commission was, what the actual sum of money was during that
16 period. If it is a disciplinary violation, then there was a statute of
17 limitations on many of these. So this document has a lot of legal
19 Q. Just dealing with the question of it being a disciplinary
20 offence, as oppose today a criminal offence. I think we all understand
21 the distinction, General, but can a crime be both? Can it be both a
22 disciplinary offence and a criminal offence?
23 A. No, it can't. Proceedings can be taken simultaneously for a
24 disciplinary offences and a criminal act in terms of liability, but
25 otherwise not, and when I said that there were legal inconsistencies and
1 shortcomings, the Chief of the General Staff can't deal with military
2 discipline which this person committed when he was in the Army of the
3 Republika Srpska Krajina, as far as I can see here, and this
4 lieutenant-colonel, so that violation can be dealt with by the superior
5 officer in whose unit he was. And possibly criminal proceedings can be
6 taken and the military prosecutor can prosecute if there are elements
7 here of a criminal act. So that would have been the proper road to
8 follow and not doing it this way.
9 Q. In order to make that decision, in other words, whether to deal
10 with the matter as a disciplinary offence or refer it to the military
11 prosecutor for a criminal investigation, isn't a superior officer
12 required to establish the circumstances of the offending so that that
13 decision can be made?
14 A. Yes, he can gather information, check everything out, and collect
15 the evidence. That's true.
16 MR. THOMAS: Can we go to P2415, please.
17 Q. And, General, while this is coming up on the screen, you
18 mentioned that this was a disciplinary or an inquiry into the
19 circumstances of what might be a disciplinary offence of someone serving
20 in the SVK. If you look at -- we'll just wait for the English to come on
21 the screen, sir.
22 If you look at the document that now appears on the screen, you
23 will see that it is signed by the deputy chief of the VJ General Staff
24 for the land army. It is in the form of information submitted to
25 Colonel Stankovic. If you look at the very last paragraph of the
1 document, you will see that it is a direction to Colonel Stankovic that
2 he view a certain statement given by a third party, Colonel Peric, which
3 contains a lot of information on the subject of the investigation
4 Colonel Babic.
5 The paragraph I'm interested is the first paragraph of the
6 document where you will see that this investigation into the a member of
7 the SVK -- sorry, this inquiry that is being conducted into a member of
8 the SVK is being conducted on the basis of the order by the Chief of the
9 General Staff of the Yugoslav Army confidential number 1022-4, which is
10 the order we looked at two documents ago; is that correct?
11 A. Yes, but precisely this document confirms what I said, that the
12 previous document had a series of shortcomings. There the chief of the
13 General Staff without sufficient information launched a disciplinary
14 inquiry, and when information was sought, it turns out that they are
15 contained in some statement by Peric, Slobodan, some information provided
16 by the security organ and Lieutenant Ljubosafljevic.
17 JUDGE MOLOTO: Slow down, slow down.
18 MR. THOMAS:
19 Q. General, don't these documents demonstrate that steps are being
20 taken to ascertain the circumstances, to get the information, and that is
21 being done on the order of the Chief of the General Staff?
22 A. It is true into certain measures are being take and they should
23 be taken, but they should be taken gradually, step by step, and not
24 skipping over certain stages. So prior to this all the information
25 needed to be checked out, documents provided, and then put all those
1 document toss the Chief of the General Staff for him to be able to make
2 the right legal decision, not to make his decision on some
3 semi-information, and we see here that an investigation into what is to
4 support the case is found in this document where it should have been done
5 previously. And finally, it is the senior officer, he says we have no
6 information, that's what he says there's some statement by someone so now
7 you have to look for this statement. So without material evidence and
8 without knowing the facts, firm facts, you can't undertake proceedings.
9 That's what I'm saying. I mean, you can, but the ultimate conclusion
10 must be legal and lawful.
11 Q. Sir, if I understand your position, General, the information
12 gathering exercise that is being undertaken here is proper, but the early
13 classification of this as a disciplinary offence or a disciplinary
14 investigation is premature; is that -- do I understand your position?
15 A. Yes, early classification is premature, not only premature, but
16 wrong. What needed to be established was the elements of a crime,
17 whether elements of a crime existed, so disciplinary responsibility by
18 the Chief of the General Staff of the Army of Yugoslavia cannot deal with
19 matters against and officer committing a disciplinary offence in some
20 other army.
21 Q. Okay.
22 A. In the service of another army. The Army of the Republika Srpska
23 Krajina in this case. That's the crux of the matter. They should have
24 moved to the prosecutor directly so that the whole matter could be dealt
25 with properly.
1 Q. All right. Thank you, General, I think we understand.
2 MR. THOMAS: Can we remove that document from the screen, please,
3 Your Honours.
4 Q. Just moving to a different matter, General. What does it mean to
5 secure the FRY state border? This is a technical term we understand.
6 What is the meaning of that term?
7 A. I didn't deal in matters of security for the state border, but in
8 practice, both as a prosecutor and working in the courts, I did have
9 instance to deal with violations of the border service committed by those
10 providing security at the borders. The state border in previously was
11 secured by the Army of Yugoslavia with other countries, the SFRY and
12 afterwards the Army of Yugoslavia, and it entails a series of actions and
13 procedures which are geared towards securing the border. That is to say,
14 that no unauthorised border crossings take place from one territory into
15 another and vice-versa.
16 Q. In the context of legal proceedings, does the term "securing the
17 state border of the FRY" have any particular meaning, or is it limited to
18 what you have just described effectively?
19 A. To secure the state borders is a complex process and incorporates
20 a series of actions and steps, and this term says it all. Now, within
21 that term you have a series of steps to provide security. You patrol the
22 borders, you have check-points at the borders, you have various ambushes,
23 observation posts, and so on, to secure -- to provide -- to secure the
24 borders, to see that the borders are maintained secure.
25 Q. Were you aware, General, that during the war VJ units, and one
1 example we've heard about is units of the VJ Special Forces, were sent on
2 the orders of superior officers in the VJ to combat operations outside of
3 the FRY, specifically into Bosnia and Herzegovina in the example that I
4 have cited? Were you aware of that occurring during the war?
5 A. I'm not aware of that because my duties during that period of
6 time were -- I was the deputy military prosecutor and president of the
7 court, so that didn't come within the purview of the courts, so
8 information like that is not something that would have reached me.
9 Q. At least not in your official capacity?
10 A. That's right, not in my official capacity.
11 MR. THOMAS: Can we have document P363 on the screen, please.
12 Q. Now, General, this is medical certificate dated June 1994 in
13 respect of a VJ serviceman, Milan Popovic. And if you look at the second
14 paragraph under the word "Certificate" you will see that it refers to his
15 wounding or being wounded rather, on the 2nd of January, 1994, while
16 carrying out combat activities, in other words, securing the FRY state
17 border. Do you see that, sir?
18 A. Yes, I do. This is not a medical certificate. It is a
19 certificate issued by his unit in compliance with the law concerning the
20 circumstances of his wounding describing when and how it happened. So
21 formerly speaking, this is a proper certificate, however, it's not a
22 medical certificate. Every unit is obliged to issue such certificate
23 describing the circumstances under which a serviceman got wounded or
24 injured in the course of performing his duties and this is perfectly all
1 Q. General, thank you, that's understood.
2 MR. THOMAS: For the next document, Your Honours, we'll need to
3 move into private session.
4 JUDGE MOLOTO: May the Chamber please move into private session.
5 [Private session]
11 Pages 12981-12982 redacted.
12 [Open session]
13 THE REGISTRAR: We are back in open session, Your Honours.
14 JUDGE MOLOTO: Thank you so much. We'll take a break and come
15 back at quarter to 11.00. Court adjourned.
16 --- Recess taken at 10.12 a.m.
17 --- On resuming at 10.47 a.m.
18 JUDGE MOLOTO: Mr. Thomas.
19 MR. THOMAS: Thank you, Your Honours.
20 Q. General, we are nearly done. Yesterday at the beginning of your
21 testimony, you were properly asked by my learned friend to let the
22 Trial Chamber know which trials you had previously testified in, and just
23 so the record is complete on that matter, in the Milosevic trial did you
24 testify for the Prosecution or for the Defence?
25 A. For the Defence.
1 Q. And in the trial of Mr. Ojdanic et al, did you appear for the
2 Prosecution or the Defence?
3 A. Defence. In all cases so far I have always appeared on behalf of
5 MR. THOMAS: General thank you. Your Honours, that concludes my
7 JUDGE MOLOTO: Thank you so much, Mr. Thomas.
8 Mr. Zorko.
9 MR. ZORKO: [Interpretation] Thank you, Your Honours. I will just
10 need a couple of moments to organise myself.
11 Re-examination by Mr. Zorko:
12 Q. [Interpretation] Good morning, General. My learned friend asked
13 you today on page 11, line 19, about the commission during the period
14 when General Dragoljub Ojdanic was General of Chief Staff
15 [as interpreted] that was tasked with confirming certain facts. Also on
16 page 12, line 13, the 3rd Army and the Pristina Corps were mentioned.
17 General, the Pristina Corps was part of which entity when this commission
18 was working?
19 A. It was part of the 3rd Army.
20 Q. And the 3rd Army was a constituent part of what?
21 A. Of the Yugoslav Army.
22 Q. Thank you, General. When was the state of war introduced in the
23 Federal Republic of Yugoslavia?
24 A. It was done on the 23rd or 24th of February - I am not quite
25 sure - 1999. Sorry, 23rd or 24th of March, 1999.
1 Q. Speaking about the commission asked of you by my learned friend,
2 was the remit of this commission limited, and if so, can you tell us what
3 restrictions applied to it with regard to territory? Can you tell us
4 something more about it?
5 A. I apologise, there must be some misunderstanding. As I
6 understood the Prosecutor's questions when he discussed the commission,
7 he talked about the departure of General Vasiljevic to the Pristina Corps
8 with the view to checking certain information. I stated that this was
9 not commission work, that he went there within the scope of his
11 Q. I am sorry, General, if I was inaccurate. Speaking about the
12 measures, these measures had to do with the events that took place in
13 Kosovo and Metohija, am I right?
14 A. Yes, particularly relating to that area and that period.
15 Q. General, can you please give us clarification, on page 14,
16 line 11, you said that it was up to commission to establish some kind of
17 responsibility. Can you please explain whether that had to do with
18 gathering information or whether it had to do with establishing
19 responsibility and subsequent measures that were taken?
20 A. Whenever something happens in which army calls extraordinary or
21 unexpected events, most often if it relates to serious injures of
22 servicemen or their death or some other technical disaster, a unit
23 commander may set up a commission in addition to the fact that
24 investigating judge and prosecutor do their part of work, in order to
25 establish the circumstances surrounding this event, meaning broader
1 circumstances that led to it, whether anything was omitted to be done
2 beforehand and whether anyone was responsible within the chain of command
3 and whether a particular officer was responsible. That was the remit of
4 the commission and after it completes its work, it will submit a report
5 to the officer that sets up the commission and it is up to this officer
6 whether he was going to undertake certain measures. So this had a more
7 preventative function and it had do with the responsibility of someone
8 who is not to be criminally responsible because it didn't exist as such.
9 Q. Since my learned friend asked you about the commission, I would
10 like to ask you about the mandate of the commission relating to
11 prosecution and military judiciary. Could they have any influence at all
12 on military judicial or disciplinary organs, and what was the
13 relationship between them?
14 A. The commission set up by an officer cannot and does not have any
15 influence on the work of the military investigative organs, and in that
16 respect they are completely separate. Their procedures are completely
17 separate. There is no interaction. However, this commission is entitled
18 to use the information gathered by the military investigative organs.
19 That can happen.
20 Q. Thank you, General.
21 MR. ZORKO: [Interpretation] Can we please now have in e-court
22 Prosecution Exhibit P2413.
23 Q. General, you have been shown this document by my learned friend.
24 I'm going to ask you to look at the date of this document. Can you see
25 when this document was issued?
1 A. One can see that it was issued on the 9th of November, 1995.
2 Q. General, do you know when the Republic of Serbian Krajina fell?
3 I'm talking about the time-line.
4 A. As far as I can remember, it happened sometime in July 1995. I
5 am not sure but I think that is the case.
6 Q. Thank you, General.
7 MR. ZORKO: [Interpretation] I have no further questions. Thank
8 you, Your Honours.
9 JUDGE MOLOTO: Thank you, Mr. Zorko.
10 Questioned by the Court:
11 JUDGE PICARD: [Interpretation] Mr. Gojovic, I would like to ask
12 you one or maybe two questions. While you were involved in military
13 Tribunals in Belgrade, were there any trials or were there any procedures
14 for war crimes that were -- that took place?
15 A. While I was the president of the military court in Belgrade, no
16 criminal proceedings were conducted for war crimes. But before that, a
17 number of such proceedings had been conducted regarding the areas that
18 happened in the former SFRY because they were initiated while this was
19 still the SFRY and they particularly referred to the territory of
20 Slavonia. Some of these proceedings have been finalised though. I
21 became judge in January 1994 and all these proceedings took place before
22 my time.
23 JUDGE PICARD: [Interpretation] And those procedures were
24 conducted against whom, can you tell us?
25 A. As far as I can remember, they were conducted against two JNA
1 officers, and a number of members of the Croatian Armed Forces.
2 JUDGE PICARD: [Interpretation] And then there were no other
3 procedures that were conducted for crimes that would have been committed
4 during the war in Bosnia, for instance?
5 A. During the war in Bosnia-Herzegovina, no, because the war was
6 outside the territory of the Federal Republic of Yugoslavia so there was
7 no possibility of any military prosecutor or prosecutor, in general, in
8 the Federal Republic of Yugoslavia prosecuting and trying people in that
9 area for those cases.
10 JUDGE PICARD: [Interpretation] Can you please remind me when did
11 the FRY recognise Bosnia and Herzegovina as a state?
12 A. I don't know exactly when it was recognised. I think it was
13 considerably later after the Dayton Accords, in fact. But it did not
14 recognise it when the United Nations recognised it. On the 6th of April
15 Bosnia-Herzegovina was recognised, 1992 that is, at the time when the
16 authorities in Bosnia-Herzegovina did not have effective power over even
17 15 per cent of their territory.
18 JUDGE PICARD: [Interpretation] So this means that throughout the
19 war in Bosnia, for instance, Bosnia was still part and parcel of
20 Yugoslavia in the FRY's view, it remained one in the same territory or
21 not? Legally speaking.
22 A. No, it was not the same territory. With the proclamation of the
23 Federal Republic of Yugoslavia as an independent and autonomous state and
24 the passing of the constitution and that was on the 19th of April, 1992,
25 from that time on, Bosnia-Herzegovina was not a component part of the
1 Federal Republic of Yugoslavia, but an entity, it was an entity which was
2 not registered by the Federal Republic of Yugoslavia but which was
3 recognised by the international community and it became a member of the
4 United Nations on the 6th of April, 1992. And Bosnia-Herzegovina was
5 considered, therefore, a sovereign state regardless of the fact that the
6 Muslim authorities controlled only 15 per cent of the territory. That's
7 another matter. That's another question. It's for theoretical
8 consideration within international law rather than criminal law.
9 JUDGE PICARD: [Interpretation] So in other words in terms of the
10 military jurisdiction of Belgrade, it may have been -- have jurisdiction
11 with regard to crimes that had been committed before April 1992, it was
12 still one in the same territory?
13 A. During the existence of the Socialist Federal Republic of
15 JUDGE PICARD: [Interpretation] I see. Thank you.
16 JUDGE MOLOTO: Mr. Zorko, do you have any questions arising from
17 the questions by the Judge?
18 MR. ZORKO: [Interpretation] No, Your Honour, thank you.
19 JUDGE MOLOTO: Mr. Thomas.
20 MR. THOMAS: No, Your Honours, thank you.
21 JUDGE MOLOTO: Thank you so much. Mr. Gojovic, thank you so
22 much. This brings us to the end of your testimony before the Tribunal.
23 The Chamber wants to thank you for taking the time to come and testify,
24 you are now excused, you may stand down. Please travel well back home.
25 THE WITNESS: [Interpretation] Thank you.
1 [The witness withdrew]
2 JUDGE MOLOTO: Just one little -- yes, Mr. Guy-Smith? No, go
4 MR. GUY-SMITH: I was going to tell you what the status of
5 proceedings were in terms of the Defence having any more witnesses for
6 this week, but I think the Chamber already knows, but I'm happy to sit
7 down because you obviously had some matter the to deal with. We've
8 concluded with all the witnesses for this week, but I didn't know whether
9 or not there was something you wish today attend to prior to that.
10 JUDGE MOLOTO: I was just going to attend to some housekeeping
11 matters. I did hear Mr. Thomas yesterday saying that this was the last
12 witness for the week, and I think on the list that I had that was so too.
13 MR. GUY-SMITH: That's correct.
14 JUDGE MOLOTO: And you confirm.
15 MR. GUY-SMITH: I do.
16 JUDGE MOLOTO: Thank you so much. Just one little administrative
17 point, housekeeping. The Registry has brought the attention of the
18 Trial Chamber that it has placed Exhibit P33 and --
19 [Trial Chamber and Registrar confer]
20 JUDGE MOLOTO: You are very right. May the Chamber please move
21 into private session.
22 [Private session]
21 [Open session]
22 THE REGISTRAR: We are back in open session, Your Honours.
23 JUDGE MOLOTO: Thank you very much. Before we then adjourn, may
24 I just say to everybody, thank you so much for what we have done for this
25 first half of the year. I hope everybody will make -- have a good rest
1 during the recess and come back well refreshed to do hard work when we
2 come back. Court stands adjourned to 23rd of August, 2010, at 9.00 in
3 Courtroom III. Court adjourned.
4 --- Whereupon the hearing adjourned at 11.09 a.m.
5 to be reconvened on Monday, the 23rd day of August,
6 2010, at 9.00 a.m.