1 Friday, 7 November 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.05 a.m.
6 JUDGE AGIUS: Good morning, Madam Registrar, and everybody.
7 Could you call the case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-05-88-T, The Prosecutor versus Vujadin Popovic, et al.
10 JUDGE AGIUS: Okay. Thank you. All the accused here.
11 Prosecution is Mr. McCloskey and Mr. Vanderpuye. The Defence absentees
12 are Mr. Nikolic, Ms. Nikolic, Mr. Krgovic, and Mr. Sarapa. All right.
13 Let us get rid of this from our table. Mr. Lazarevic,
14 Mr. Gosnell, you will recall your motion for admission of documents from
15 the bar table filed on the 16th of October. You will also recall,
16 Mr. McCloskey, that you filed your response on the 31st of October not
17 objecting to such admission. We are, therefore, granting the motion.
18 Mr. Zivanovic, I am sure that although it is Friday, you will
19 still recall your motion of the 20th October, 2008, in which you asked
20 the -- requested the Trial Chamber to grant you leave to file the motion
21 for admission of evidence from the bar table at the end of your case, and
22 that's in view of the decision of the Trial Chamber confirmed by the
23 Appeals Chamber to reopen the Prosecution case and to hear the testimony
24 of the communications expert, Mr. Rodic, during that stage of the
25 proceedings and not during Miletic's case as now scheduled.
1 The Prosecution responded on the 3rd of November and not
2 objecting to your motion. In view of that, we hereby grant the motion.
3 That disposes of two motions.
4 Good morning to you, Professor.
5 THE WITNESS: [Interpretation] Good morning.
6 JUDGE AGIUS: Welcome back. We were discussing, actually,
7 whether there is a way --
8 THE WITNESS: [Interpretation] Thank you.
9 JUDGE AGIUS: -- to try to finish with your testimony today, but
10 I am not that optimistic. We'll try. We'll try. By the way, we'll be
11 sitting as follows; there is a change in the schedule: We'll be sitting
12 90-minute sessions instead of 100-minute sessions, and we'll finish at
13 3.00 instead of half past 3
14 to -- from 12.30 to 1.30.
15 Yes, Mr. Lazarevic.
16 MR. LAZAREVIC: Thank you, Your Honours, and good morning. Good
17 morning, everyone.
18 JUDGE AGIUS: Good morning.
19 WITNESS: BRANISLAV RISTIVOJEVIC [Resumed]
20 [Witness answered through interpretation]
21 Examination by Mr. Lazarevic: [Continued]
22 Q. [Interpretation] Good morning, Dr. Ristivojevic. I would like to
23 continue where we left it off.
24 A. Good morning.
25 MR. LAZAREVIC: May I proceed, Your Honour?
1 JUDGE AGIUS: Yes. I wasn't receiving interpretation, but the
2 reason was I was on the wrong channel.
3 MR. LAZAREVIC: [Interpretation]
4 Q. We already spoke in great detail about the way the criminal
5 matter was regulated, and let's talk about the proceedings and legal
6 matter, and how was that regulated in Republika Srpska from the year 1992
7 to the period that we had in mind, that is 1995?
8 A. We said that at the level of the Socialist Federative Republic
10 legal matter; i.e., there was one law on legal proceedings. It was
11 adopted by Republika Srpska in 1993 to the full with some minor changes,
12 which were not important for my report.
13 Q. Very well. Let's now go to 4D206, which is under your tab 10.
14 And as for the rest, we will just mention them. This is the law
15 on criminal procedure which was published on 30th December in 1993 in the
16 Official Gazette of Republika Srpska. You've already told us that these
17 amendments, the law on criminal procedure is something you did not
18 consider too relevant for your report.
19 A. Just like in the Penal Code, these were the changes that -- and
20 amendments that was due to hyperinflation. The value of the money was
21 devaluated, and that's why periodically amendments were made to make
22 adjustments to the new value of the currency.
23 Q. And now I am going to just mention them. The exhibits that
24 contain certain amendments to the law on criminal procedure, these are
25 4D376 - I don't think that we should call them up on e-court - 4D376 is
1 the first exhibit, and we also have 4D413, which refers to the
2 application of the Law on Criminal Procedure in conditions of an
3 immediate threat of war or state of war.
4 In your expert, in paragraphs 36 and 37 of your report, you dealt
5 with these documents that contained amendments. Did these amendments
6 have any bearing on the topic of your expert report?
7 A. They did not have any specific bearing. One of the matters was
8 the shortening of the deadlines in the criminal procedure given that
9 there was a state of war. Some legal remedies were either added or
10 abolished, but that all was not of any importance for my report.
11 Q. And now, I would like to move on to the regulations that
12 regulated the organisation of courts. And first of all, let's look at a
13 document under your tab 12, which is -- I apologise. Its seems that I
14 have been speaking too fast. The exhibit number is 4D373. This is a
15 decision on the competence of courts in criminal matters, and the date on
16 the document that you will see --
17 MR. LAZAREVIC: [Interpretation] Let me just repeat for the
18 record. This is 20 May 1992
19 look at Article 1 of this law.
20 Q. Could you please tell me what this law regulates in this article?
21 A. It says here that lower courts have subject matter re:
22 jurisdiction to conduct legal proceedings in the first instance. The
23 lower courts would correspond to what is known as municipal courts in the
24 neighbouring states, for example, in the state of Serbia.
25 Q. Very well. Under your tab 3 is the following document.
1 MR. LAZAREVIC: [Interpretation] This is 4D183. This is a
2 Decision on the Establishment, Seat, and Jurisdiction of Military Courts
3 and Military Prosecutor's Offices. Let's look at Article 1 of this
4 decision first.
5 JUDGE KWON: Mr. Lazarevic.
6 MR. LAZAREVIC: It is the wrong document, obviously, in the
8 JUDGE KWON: Speaking for myself, I find it to be much easier for
9 me to follow your question and evidence of the witness if you indicate
10 what part of the report you are dealing with in addition to the exhibit
11 numbers in the future.
12 MR. LAZAREVIC: All right, Your Honour. I'll try to organise
13 this in such a way.
14 Q. [Interpretation] We have the decision before us. First of all,
15 let's look at Article 1 of this decision. What does Article 1 regulate?
16 Which courts are established hereby?
17 A. This article deals primarily with the establishment of first
18 instance military courts in Banja Luka, Sarajevo
19 as the supreme court in Sarajevo
21 MR. LAZAREVIC: Your Honours, just to mention that these are
22 paragraphs starting from 3.9 of the expert report.
23 Q. [Interpretation] And now, let's look at paragraph 2 of this
24 decision. Can you please tell me where were the regional military
25 Prosecutor's offices established?
1 A. They were established with the corps commands in the same cities
2 where the first instance military courts were established, which means in
3 Banja Luka, Sarajevo
4 Prosecutor's Office was established with the Main Staff of the army of
5 the Serbian Republic
6 name was the senior military Prosecutor's office.
7 MR. LAZAREVIC: [Interpretation] The next document I would like us
8 to look at is under your tab 14, and this is exhibit number P420, the law
9 on military Prosecutor's Offices, dated 13 December 1993. Could we
10 please look at Article 1 of that law.
11 MR. LAZAREVIC: I apologise. It appears we don't have
12 translation of this particular document. It was a P document, and we
13 were of the impression that this whole law is translated in English, but
14 it appears that only certain parts were translated, so I will go through
15 relevant articles with the witness by reading portions of this document.
16 Q. [Interpretation] Mr. Ristivojevic, can you now look at Article 1.
17 A. Yes.
18 Q. Since, unfortunately, we don't have a translation of this
19 article, could you please read Article 1 very slowly, and it will be
21 A. "The military Prosecutor's office prosecutes perpetrators of
22 crimes which are under the jurisdiction of military courts. It also
23 undertakes certain measures to protect the interests of the community and
24 uses legal means to protect the constitutionality and legality in the way
25 prescribed by this law or other laws or regulations."
1 Q. Very well. We've just read out from Article 1 of this law. It
2 seems that this regulates the activity of the military Prosecutor's
4 A. Yes. Actually, I would say the jurisdiction of the military
5 Prosecutor's office.
6 Q. Well, I would like to ask you with regard to this law, there is
7 another article that you deemed relevant for your report, and that is
8 Article 7 on the same page under paragraph 2 entitled "Jurisdiction and
9 Authority." Just for the record, could you please read Article 7?
10 A. "The right and duty of the military Prosecutor's office is to
11 prosecute perpetrators of crimes which are subject matter of military
12 courts for which are prosecuted ex officio, and with this regard they are
13 also duty-bound to do the following: Under 1, undertake the necessary
14 measures to detect crimes as well as their perpetrators and to start the
15 initial criminal proceedings; under 2, issues a request for criminal
16 investigation to be carried out; under 3, issues the indictment and
17 represents the state before the competent military court; and under 4,
18 lodges an appeal against court decisions and also files the legal
19 remedies against final court decisions."
20 The next paragraph reads: "The military Prosecutor discharges
21 other duties and exercise the other rights that are within his purview
22 under the law."
23 Q. Thank you very much. What I wanted to ask you with this regard
24 is this: This Article 7, is this the elaboration of the duties and
25 authorities of the military Prosecutor's office?
1 A. Yes, it is a detailed elaboration of Article 1.
2 Q. I would like to move on in this document, P420, which also
3 contains the Law on Military Courts that was issued on the 30th of
4 December, 1993
5 We will be talking about paragraphs 3.11 to 3.14 of your expert
6 report --
7 MR. LAZAREVIC: [Interpretation] And the pages in e-court that I
8 would like to call are 4 in B/C/S and page 1 in the English version of
9 this document. Let's first look at Article 1 of this regulation.
10 Q. In keeping with Article 1 of this regulation, how were military
11 courts defined and regulated?
12 A. Military courts are defined like regular courts as courts that
13 shall try military personnel as well as other individuals for the
14 criminal acts stipulated by this law.
15 Q. Let's now move on to Article 8 of this law. Could you please
16 tell me what this article defines?
17 A. It defines military personnel, and a reference is made here to
18 the Law on the Military.
19 Q. In order to clarify this, let's please look at document 4D372,
20 which is under your tab 15. This is the Law on the Army dated 1st June,
21 1992. I would like us to look at its Article 3, please.
22 In keeping with Article 3 of the Law on the Army, which was
23 referred to by the previous law with regard to the definition of military
24 personnel, could you tell us how "military personnel" is defined
25 according to Article 3 of the Law on the Army?
1 A. According to Article 3 of this law, the military personnel are
2 the following: Soldiers, cadets at military academies, active members of
3 the military, and reserve members of the military while on military duty
4 in the army.
5 The next paragraph of the same article defines active members of
6 the military as officers, non-commissioned officers, and soldiers under
8 Q. Very well. Now, I would like to go back to the Law on Military
9 Courts, which is under your tab 14. This is P420.
10 MR. LAZAREVIC: [Interpretation] I would like to call up page 2 in
11 both B/C/S and English versions of this document, and I would like us to
12 look at Article 13 of this law.
13 Q. I believe we have both documents in e-court. Can you tell me,
14 what does Article 13 of this law stipulate, and can you please give us
15 your interpretation?
16 A. This is one of the exemptions just like Article 1, which speaks
17 about the jurisdiction of military court when it says certain crimes
18 committed by other individuals can be tried by a military court as well.
19 Therefore, Article 13 says that in the event of other individuals -
20 called "civilians" here - act as co-perpetrators or accomplices of the
21 perpetrator, they all fall under the jurisdiction of a military court.
22 Q. Very well. In your report, you also made reference to articles 9
23 and 11, which stipulate the organisation and jurisdiction of military
24 court, but would I would not like dwell on that particular part.
25 However, let us look at Article 10, last paragraph. Can you tell us what
1 Article 10 stipulates in its last paragraph.
2 MR. LAZAREVIC: [Interpretation] That's page 5 in B/C/S and page 2
3 in English in e-court.
4 THE WITNESS: [Interpretation] This paragraph of Article 10 lays
5 down the jurisdiction of military courts to try all crimes committed
6 against prisoners of war and the jurisdiction of military courts in terms
7 of establishing the status of prisoners of war.
8 MR. LAZAREVIC: [Interpretation]
9 Q. And the last that I would like to ask you with regard to this law
10 is Article 56. It's on page 9 in B/C/S and page 8 in English in
11 e-court -- I apologise, in English version. Paragraph 3 and 4 are of
12 particular interest for this case. In what way does Article 56 define
13 the entities that have jurisdiction pursuant to the Law on Criminal
15 A. The Law on Criminal Procedure is applicable to a military court,
16 as well, pursuant to the first paragraph of this article. In paragraph 2
17 of this article, individual jurisdictions are being governed pursuant to
18 the Law on Criminal Procedure which are entrusted to certain procedural
20 According to paragraph 2, the duties and powers exercised in
21 regular courts are -- within the purview of the Ministry of the Interior,
22 when it comes to trials conducted by military courts, shall be afforded
23 to security organs and the military police. The duties and powers of
24 public prosecutors in the trials conducted before regular courts shall be
25 afforded to military Prosecutors in the trials conducted by military
2 Q. And can you tell us whether the MUP organs have any sort of power
3 in the proceedings before military courts?
4 A. No, they do not. And I said this is pursuant to paragraph 2, as
5 I said a minute ago.
6 Q. As for the content of the powers, they are described in more
7 detail in paragraph 3.14 of your report. We are not going to go into
8 that in detail, and it deals with the powers relating to the Law on
9 Criminal Procedure. I would just like to draw the attention to the
10 documents used in your report, which are 4D381 and 4D212, but we shall
11 perhaps deal with that later.
12 Now, let me ask you this: At the request of the Defence, you
13 reviewed the indictment. I'm talking about paragraph 3.24 in your
14 report. I am speaking particularly about the crime relating to the
15 Kravica warehouse. The indictment states that the direct perpetrators of
16 that act were members of the special police brigade, a member of the
17 Bratunac Brigade, and one civilian. That's what the indictment says.
18 Tell me, in this particular instance, which court would have exclusive
19 jurisdiction to conduct a trial, a criminal proceedings?
20 A. In this particular situation, exemptions stipulated by Article 13
21 would be applied, and I'm referring to the Law on the Military Courts.
22 Given that in this group of individuals cited as direct perpetrators of
23 this crime, there were military personnel involved or, rather, one member
24 of the army.
25 Q. So the court that would have jurisdiction would be which?
1 A. Most definitely a military court would have jurisdiction. And,
2 of course, the military Prosecutor's office would be in charge of
3 prosecuting the case.
4 Q. Very well. Can we define the territorial jurisdiction of a
5 military court in this situation?
6 A. In this particular instance, the territorial jurisdiction would
7 be that of the military court in Bijeljina. However, I have to put
8 forward a reservation pursuant to Article 9 of the Law on Military
9 Courts. Territorial jurisdiction of military courts is determined by the
10 president of the republic at the proposal of the Minister of Defence. I
11 have not received this law within the materials that I had reviewed; and
12 therefore, I was unable to establish precisely the territorial
13 jurisdiction of respective military courts.
14 My conclusion in my report was drawn on the basis of the
15 territory covered by the indictment. The closest military court in this
16 case was the military court in Bijeljina.
17 Q. At any rate, would the MUP organs have any powers in preliminary
18 proceedings and criminal proceedings conducted by a military court?
19 A. Regardless of which military court we are talking about, the one
20 in Bijeljina or any other court, members of the MUP would not have any
21 powers or jurisdiction in criminal proceedings. As we said, these powers
22 and this jurisdiction in criminal proceedings conducted by military
23 courts are -- fall within the remit of security organs and the military
25 Q. Right. Let us now move on to a part of your report --
1 JUDGE KWON: Mr. Lazarevic, if you exhausted this issue.
2 Professor Ristivojevic, if there had been no military that participated
3 in Kravica, for example, what court would have had the jurisdiction then,
4 if the crimes were -- had been committed only by this special police?
5 THE WITNESS: [Interpretation] Pursuant to item 38 on the
6 application of the Laws on War --
7 JUDGE KWON: [Previous translation continues]... what page?
8 THE WITNESS: [Interpretation] Please give me a moment to find it.
9 JUDGE KWON: Page 5 in English.
10 MR. LAZAREVIC: No. It's P409, Your Honours.
11 THE WITNESS: [Interpretation] Let me just see. That's P409.
13 MR. LAZAREVIC: [Interpretation]
14 Q. Yes, that's tab 30 in your binder.
15 A. Article 37 speaks only about military personnel by saying that
16 military courts have jurisdiction over them. Article 38 introduces the
17 jurisdiction of military courts for all perpetrators. That's how it
18 reads. It makes no distinction between various statuses of individuals.
19 It further says that the proceedings are going to be conducted according
20 to the law on military procedure, the Law on the Military Prosecutor's
21 Office, and the Law on Military Courts, and finally, the Law on Military
22 Courts during the state of an immediate threat of war or war.
23 In the Law on Military Courts, there is no explicit stipulation
24 of the jurisdiction of military courts relating to non-military
25 personnel, but rather, this jurisdiction is laid down under Article 38 of
1 these regulations.
2 JUDGE KWON: I'm not sure Professor Ristivojevic followed my
3 question, and I don't think P409 is the relevant material. Professor, my
4 question was what court, civil or military court, would have had
5 jurisdiction if these certain crimes are committed only by the police,
6 special police resubordinated or not?
7 THE WITNESS: [Interpretation] No, no. I'm not talking about
8 resubordination. These regulations were drawn in 1978, and they relate
9 to military personnel.
10 JUDGE KWON: So put it simply. You talked about the example of
11 Kravica house. According to the indictment, there were one military
12 personnel who participated. Because of that, you said the military court
13 would have had jurisdiction. If he was not there, what court would have
14 the jurisdiction?
15 THE WITNESS: [Interpretation] I repeat, the Law on Military
16 Courts explicitly introduces this jurisdiction but only when it refers to
17 non-military personnel. We would have to construe these acts. Article
18 38 refers to military personnel. In 1992, the president of the Republika
19 Srpska issued an order on the application of the Rules of Laws of War
20 applicable to members of the police and the military as well. In other
21 words, he introduced in the armed forces of Republika Srpska. Therefore,
22 my conclusion was that all members of the armed forces were under the
23 jurisdiction of military courts in the event of the breach of
24 international law. Therefore --
25 THE INTERPRETER: Interpreter's correction: Laws of war.
1 THE WITNESS: [Interpretation] Therefore, we need interpretation
2 of these regulations because at the time when these regulations were
3 adopted in 1988 [Realtime transcript read in error, "1978"], police was
4 not part of the armed forces [as interpreted]; only the army and the
5 Territorial Defence were part of the armed forces. In 1992, the
6 president of Republika Srpska equalised the police and members of the
7 army and afforded them an equal status of member of armed forces.
8 MR. LAZAREVIC: [Interpretation]
9 Q. I apologise. We have a minor problem with the transcript. It's
10 page 14, lines 5 and 6. You were talking about the year 1988, whereas it
11 says here 1978.
12 A. Yes. That's when the laws on the application of the laws of war
13 were adopted.
14 Q. And you also were talking about members of the armed forces
15 rather than of military personnel, as it is said here. Well, I think
16 we've cleared that up now, and I'd like to move on to another area or,
17 rather, a continuation of what we've been discussing. Paragraphs 325 to
18 327 of your expert report, which is to be found on pages 21 and 22 in the
19 B/C/S version and page 16 of the English. And there, you refer to the
20 decision to proclaim an immediate threat of war and state of war, and
21 documents are mentioned there, 4D527, P425, and 42219 --
22 THE INTERPRETER: Could counsel repeat these numbers more slowly,
23 please. Thank you.
24 JUDGE AGIUS: Mr. Lazarevic, you need to repeat the numbers more
25 slowly please. Thank you.
1 MR. LAZAREVIC: [Interpretation] Yes, very well. I'll repeat
2 that. The documents that we -- or rather, you used in your report are
3 4D527, P425, and 4D219, and we're relating to paragraphs 3.25 to 3.27
4 [Realtime transcript read in error, "325 to 327"] of your expert report.
5 Q. I'd just like us to take a look first of all -- 3.25 and 3.27 are
6 the last numbers of the paragraphs there. Yes. That's how it should be
7 now. It's been recorded properly.
8 MR. LAZAREVIC: [Interpretation] Now, let's just look at P425
9 first on e-court.
10 Q. It's tab 22 in your set of documents. It's a Decision on the
11 Declaration of a State of War
12 July, 1995. This document is self-explicit; it's self-evident, but just
13 to note the time. When on the Srebrenica-Skelani municipality a state of
14 war was in fact proclaimed, can you tell us the date?
15 A. The 14th of July, 1995.
16 Q. Can you tell me by looking at point 6 of this decision what it
17 regulates with respect to the state of immediate threat of war?
18 A. The state of the immediate threat of war ceases to be effective
19 with the passing of this decision.
20 Q. Very well. Thank you. Now, I'd like us to look at a few
21 documents which came before this particular document, the one we've just
22 been looking at, and it is in your -- in tab 24 of your report, and it is
23 a document numbered P10.
24 MR. LAZAREVIC: [Interpretation] So can we have that put up on
25 e-court, please.
1 Q. It is a decision to appoint a civilian commissar for the
2 Srpska-Srebrenica municipality dated the 11th of July, 1995
3 to look at point 4 of this decision, to appoint a civilian commissioner.
4 Does it give authorisation to the civilian commissioner with respect to
5 the treatment of prisoners of war?
6 A. Yes, it does. According to point 4, the commissioner shall
7 ensure that those who fought against the army of Republika Srpska, such
8 persons should have -- should be treated as prisoners of war.
9 Q. And now, if we look at the next point, point 5, which says
10 decisions by the civilian commissioner shall be binding for all civilian
11 authority organs in these Serbian municipality of Srebrenica
12 question in that relationship is this: To whom are these -- to whom is
13 this binding?
14 A. Well, I understand this point in the following way, that the
15 civilian organs of authority, that is to say state administration and
16 similar organs, are duty-bound to follow the decisions of the civilian
18 Q. All right. Thank you. And now purely territorially, let's see
19 what this is all about. What territory does this refer to, what
21 A. Well, the title says it all. It says the decision refers to the
22 Serbian municipality of Srebrenica
23 Q. All right. Fine. Thank you. And while we're on this topic, may
24 we take a look at the next document which you have in your binder. It is
25 number 25, and it is document 4D379, which is a decision on the
1 appointment of the War Presidency for Srebrenica municipality, Skelani,
2 of the 14th of July, 1995
3 in August 1995.
4 Tell me now, please, when the War Presidency was being
5 established for the Srebrenica-Skelani municipality, did that mean that
6 the authorisations of the civilian commissioner ceased to be effective,
7 the civilian commissioner that we talked about a moment ago and his
8 powers and authority?
9 A. Yes. That is how I understand the relationship between these two
10 decisions. When the new appointments were made, they meant that all
11 previous authorisations ceased to be effective.
12 Q. And we are, of course, referring to the territory on which the
13 state of war was proclaimed, and we've already had an opportunity to see
14 this on the basis of document P425; isn't that right?
15 A. It refers to the Srebrenica-Skelani municipality in the heading
16 of this document here.
17 Q. All right, fine. And while we're on the subject of the
18 proclamation of the state of war, I'd like us to look at the next
19 document, which in your documents, in your -- documents, it'll be found
20 in tab 26. And it is document 4D525, the Law on the application of the
21 law of governing military courts and the military Prosecutor's office
22 during a state of war, and perhaps we could look at Article 2 there. Can
23 you tell me what Article 2 of this law stipulates?
24 A. Article 2 of this law stipulates the following: That during a
25 state of war, so-called military courts for special wartime situations
1 may be convened.
2 Q. All right. Fine. Now, let's look at Article 4 and what that
3 article stipulates. Let's look at paragraph 1 first and then paragraph
4 2. Can you tell us what that provides for?
5 A. It provides for the fact that the military Prosecutor during a
6 state of war has the same authorisation.
7 Q. What does paragraph 2 of the article state?
8 A. It stipulates, as was set out in the previous article, that in
9 proceedings before a military court, when there's a state of war, the
10 security organs and the military police shall have the same authority.
11 Q. All right. Fine. Let's now move on to Article 8, para 2 of this
12 law. Who, according to this article, has the authority to set up special
13 military courts? There are two terms used there, "a military court for
14 special situations" and "extraordinary military courts." Are they the
15 same courts?
16 A. I think it is one and the same court in Article 8, and for some
17 reason the legislator used two terms. But it is my opinion that it is
18 one and the same court, which is always an extraordinary court as is
19 stipulated in Article 8.
20 Q. And who is in charge of establishing this extraordinary military
22 A. According to this article, it is established or convened through
23 an order by the commander of the unit of the level of a brigade or
24 regiment along with agreement from the corps commander -- with prior
25 agreement by the corps commander, or that court can be established by the
1 corps commander himself or, rather, the Main Staff of the army of
2 Republika Srpska.
3 Q. Let's move on to Article 10 now of this law and look at paragraph
4 3 of Article 10, which provides for the possibility of the court trying
5 employees of the Ministry of the Interior.
6 Now, where do you see the importance of this particular
8 A. This provision explicitly states or speaks about the authority of
9 the court-martials or extraordinary courts for members of the Ministry of
10 the Interior and determines and stipulates that the trial chamber of such
11 a court-martial shall include on the panel of judges there should be a
12 member of the command of that particular MUP unit to which the policeman
13 being tried belongs.
14 Q. I would just like to say that in paragraphs 3.29 to 3.32 of your
15 expert report deals with this particular topic. Now, let us look at
16 another document, which is related to the court-martials, and it is tab
17 27 of your documents, and it is document 6D166. It is an order by the
18 commander of the Main Staff of the VRS dated the 30th of July, 1995
19 I'd like us to look at page 3, point 17, which is to be found on page 4
20 of the English version.
21 Tell me now, please, what is the importance of point 17 as you
22 see it, the -- with respect to the establishment of court-martials for
23 extraordinary military courts?
24 A. Point 17 in itself is more of a declarative nature rather than
25 stipulating a law to follow, and that means that it lends impetus to the
1 duty -- it reinforces the duty which the officers have with respect to
2 setting up a military court and court-martials, and --
3 Q. Now, with respect to court-martials, these extraordinary courts,
4 you have had an opportunity of analysing quite a number of documents.
5 Did you come across any information according to which a court-martial
6 either at the level of a regiment, brigade, corps or Main Staff was in
7 fact set up? Have you found a document with an example like that which
8 would confirm that?
9 A. In the documents that I reviewed, my answer would be no.
10 Q. Now, let us look at another document, one more document which is
11 linked to this topic. It is in tab 28 of your documents, and it is
12 document 4D357 which is a document of the MUP of Republika Srpska dated
13 the 18th of August, 1995.
14 And I'd like us to look at paragraph 3 of that particular
15 document which begins with the words "pursuant to the provisions of
16 Article 2 of the Law on Implementation of the Law on Defence ..."
17 Tell me now, please, what does this document say in relation to
18 the subject we've been discussing, that is to say the possibility of
19 having court-martials try persons belonging to the Ministry of the
21 A. The Ministry of the Interior pursuant to this document reminds
22 all members of the ministry that they are part of the armed forces. It
23 also reminds them of the possibility of establishing special military
24 courts in special circumstances. Why? Well, because those courts --
25 those court-martials can make only -- can issue only one sentence, and
1 that is the death sentence, and I assume that the minister feels bound to
2 emphasize this to the members of the ministry of the authority of these
3 courts and their right on the panel of judges or Trial Chamber of such a
4 court-martial, that one -- at least one judge -- or rather, one judge
5 should be from the command of the unit to which the person being tried
6 belongs, that is to say, the policeman being tried belongs.
7 Q. Very well. [In English] The translation, that reference was made
8 to this court as extraordinary military court or court-martial, so just
9 to make sure that we are talking about one and the same court, just in
10 order to have this in transcript.
11 [Interpretation] Very well. I would like us to move on to the
12 next chapter of your report, which refers to the responsibilities in
13 respect of the international humanitarian law and treatment of prisoners
14 of war. You already told us that the law of Republika Srpska envisaged
15 all the rights ensuing from the international humanitarian law and law on
16 customs of war.
17 A. Yes, in chapter 16.
18 Q. The next document that I would like us to see is P28, and in your
19 binder it is under tab 29. These are the guidelines to determine
20 criteria for criminal prosecution, which were compiled by the military
21 Prosecutor's Office affiliated with the Main Staff of the VRS in October
22 1992. You've already had an occasion to analyse this document, and you
23 have mentioned it in your expert report.
24 What is the nature of this document in your opinion?
25 A. With regard to its legal nature, I should say that this document,
1 firstly, repeats and reiterates and then additionally elaborates the
2 already-existing law. In other words, its primary intention is to
3 explain to those who will be involved in criminal prosecution, the
4 elements of the crimes that they are supposed to prosecute. The purpose
5 of the document, as it says in its heading, is to -- unification of the
6 policies of criminal prosecution - that's part of the heading - and the
7 introduction of this document.
8 Q. Who is this the document intended for primarily? What was your
9 conclusion when you first saw this act?
10 A. This document is primarily intended for the military judiciary
11 his, as it says in the introduction, and the document goes on to break
12 down and say the officers, the military officers, the officers in charge
13 of units and institutions, the military police, security organs, and so
14 on and so forth.
15 Q. Let's now look at just one portion of this document on page 15
16 and on page 16. First of all, can we please look at the very end of page
17 15 and the beginning of page 16 in your copy, and we're talking about
18 pages 31 and 33 in e-court; and in English, the page numbers are 7 and 8.
19 And now we can see the parts starting with "all commands of the units are
20 duty-bound to ..." So whose obligation was it to implement the procedures
21 to detect crimes against humanity and international laws in keeping with
22 these guidelines? Please focus on pages 15 and 16.
23 A. According to these guidelines, the unit commands are duty-bound
24 to work on the detection of cases that involve crimes against humanity
25 and the international law in their respective zones of responsibility.
1 Q. Who should be informed or conveyed information about any such
2 crimes detected in keeping with these guidelines?
3 A. If a crime is detected and illucidated, according to these
4 guidelines, it is the organs of the military police that should be
5 informed, the security organs, and the military judiciary organs that
6 should be informed.
7 MR. LAZAREVIC: I am going to be moving on to a slightly
8 different topic. If we can have a break right now and then proceed.
9 JUDGE AGIUS: One moment, because we do have a problem.
10 [Trial Chamber confers]
11 JUDGE AGIUS: No. We prefer if you could start with the other
12 topic, and then we stop at 10.30 as scheduled, please. Thank you.
13 MR. LAZAREVIC: Okay.
14 Q. [Interpretation] Very well. And now, I would like us to move on
15 to a new document, which is the regulations on the implementation of the
16 international laws in the SFRY. It's under your tab 30, and it is
17 Exhibit number P409. So the implementation of the law -- war law. Let's
18 look at chapter 2, item 21.
19 MR. LAZAREVIC: [Interpretation] It is on page 16 in B/C/S, and
20 in the English version, it is page 15.
21 Q. And the title of this chapter is "The Responsibility for the Acts
22 Committed by Subordinates." My question to you about this item 21 is
23 this: Does it make the officer of the unit of the Ministry of the
24 Interior responsible if such a unit was resubordinated to a VRS unit in
1 A. Item 21 of this regulation speaks about the military officers as
2 persons who are responsible for the violations of the law on the customs
3 of war. If we were to dwell upon a strict linguistic interpretation, we
4 may find ourselves in a situation which seems to be illogical to a
5 certain extent, at least to me. It would seem that only military
6 officers would be deemed responsible for the acts committed by their
7 subordinates as has been regulated by this item 21. And that at the same
8 time, there are some other types of commanders, for example, police
9 commanders, who would not have the same responsibility for the acts
10 comitted by their subordinates. That would actually introduce two
11 different standards in the war law. It seems to me that the strict
12 linguistic interpretation should not be applicable here because it is
13 wrong. What should be the only criteria -- criterion for the
14 interpretation of this regulation is the fact that -- that a certain
15 commander has subordinates, i.e., men under his command to whom he issues
16 orders or not. It seems to me that the proper way to interpret this
17 provision should be to the -- for this regulation to also make the police
18 unit commander responsible for the acts of his subordinates. In my view,
19 this would be the only logical interpretation of this regulation.
20 By applying pure linguistic interpretation, we would end up with
21 a rather illogical solution. There is one more reason why a pure logical
22 interpretation should not be used here, is the fact that in 1988 when
23 these regulations were passed, the police was not part of the armed
24 forces, and that very fact shows that the legislator was not forced to
25 look at the police commander when drafting this law. It is very
1 difficult for me to believe that the proper interpretation would be only
2 linguistic and that the only persons that would be relevant here would be
3 only military commanders.
4 Q. Obviously, we are talking about the year 1995, and you've already
5 told us that the regulations were passed in 1988?
6 A. Yes.
7 Q. And that the Law on National Defence, i.e., the law on Defence
8 which was passed on the 29 November, 1994, the units of the Ministry of
9 the Interior became part of the armed forces of Republika Srpska, and
10 that was made official at the time?
11 A. Yes, but the validity of the provisions of the international war
12 law was adopted even sooner. The president of Republika Srpska extended
13 those provisions to the members of the police.
14 Q. We are talking about compliance with the provisions of the
15 international war law?
16 A. Yes, we are talking about that, and we are talking about the
17 application of this law on police members as well.
18 Q. And now I would like to analyse Article 21 and break it down into
19 three parts. We are talking about the commander of a police unit
20 resubordinated to the commander of the unit in whose area of
21 responsibility such a unit is engaged in combat. What would be the
22 responsibilities or the obligations of such a commander when they learned
23 that their subordinates are prepared to commit an act that constitutes a
24 violation of the international war law?
25 A. My opinion is that he should undertake measures in order to
1 prevent such violations.
2 Q. Let's now look at a different situation. What would be the
3 responsibility or obligation of a -- the commander of a police unit who
4 were to catch his subordinate red-handed in the commission of an act that
5 constitutes a violation of the war law?
6 A. Item 21 does not specify anything about the very commission of
7 such an act, but the only logical interpretation that arises from the
8 fact that the military officer is duty-bound to prevent any violation of
9 the provisions of the war law which is underway, so obviously it arises
10 from that, that they would be duty-bound to prevent any violation of the
11 war law underway.
12 Q. And now, just one more situation. If the commander of such a
13 unit -- let me first ask you this: Would the commander of such a unit,
14 and we are referring to a unit of the Ministry of the Interior
15 resubordinated to a military unit, would such a commander be in charge of
16 launching the proceedings of instituting an investigation, would such a
17 commander be in charge and responsibile for that in a situation like
19 A. When it comes to the instigation of criminal proceedings, there
20 is no responsibility for that. Such responsibilities are regulated
21 clearly by the Law on Criminal -- on Military Courts, as we have already
22 said it.
23 Q. And what would be the obligation of an officer who is not
24 responsibility for investigating -- instigating an investigation? We're
25 talking about the same situation.
1 A. The last sentence in the first paragraph speaks about that very
2 clearly. He would be a -- responsible and duty-bound to report the
3 perpetrator to the military officer in charge, and I quote from the text
4 of the regulation.
5 JUDGE AGIUS: Okay. I understand you wish to have the break now.
6 MR. LAZAREVIC: Well, now it's time, anyway.
7 JUDGE AGIUS: Yes. Okay, we'll have a 30-minute break. Thank
9 --- Recess taken at 10.29 a.m.
10 --- On resuming at 11.04 a.m.
11 JUDGE AGIUS: Yes, Mr. Lazarevic.
12 MR. LAZAREVIC: Thank you, Your Honour.
13 Q. [Interpretation] Dr. Ristivojevic, while we are still on
14 paragraph 21, I would like to ask you a few more questions regarding
15 this. You already spoke about the linguistic and logical
16 interpretations. Generally speaking, how a commander of a police unit or
17 a commanding officer fits into the definition and provisions contained in
18 paragraph 21?
19 A. In my view, the very fact that a commander has certain men
20 subordinated to him, something that should stem from that fact is his
21 obligation with regard to the procedure and the acts comitted by his
22 subordinates if they are -- indeed, they are subordinates, if he is
23 entitled the issue orders to them. In that case, the interpretation of
24 the provisions of item 21 should, in my opinion, be such that a police
25 unit commander should undertake measures to prevent acts committed by his
1 subordinate which constitute breaches of the laws of war.
2 Q. What is the situation or, rather, the obligations of a commander
3 with regard to those who are not his subordinates? Does he have the same
5 A. In my opinion, concerning the individuals who are not his
6 subordinates and to whom he cannot issue orders, such an obligation would
7 not exist.
8 Q. Very well.
9 JUDGE AGIUS: One moment, Mr. Lazarevic. Mr. Vanderpuye.
10 MR. VANDERPUYE: Thank you, Mr. President. I just wondered if my
11 colleague could clarify just for the record whether or not the answer
12 that was given in relation to his last question related only to this
13 particular document or provision or was a more general question.
14 JUDGE AGIUS: Yes, Mr. Lazarevic.
15 MR. LAZAREVIC: It was a more general question. My colleague
16 can, of course, operate in his cross-examination he wishes to.
17 JUDGE AGIUS: Okay. Thank you. Let's proceed. Thank you.
18 MR. LAZAREVIC: [Interpretation]
19 Q. Just for the record, this subject has been dealt with in
20 paragraph 4.7 to 4.8 in your report.
21 THE INTERPRETER: Interpreter's correction: 4.9.
22 MR. LAZAREVIC: [Interpretation]
23 Q. Now, tell me, who has jurisdiction in this situation to conduct
24 proceedings i.e., the situation in which an officer is not empowered to
25 conduct such proceedings, of course, if faced with the violation of the
1 international laws of war?
2 A. Can you please repeat the question? I am not sure I understood
4 Q. Let's look at item 38 of these regulations. You already spoke
5 about this. Let us just establish who has the jurisdiction to conduct
6 proceedings pursuant to item 38.
7 A. It is military courts who have jurisdiction to conduct
8 proceedings for the violations of the international laws of war.
9 Q. Let's look now at item 51 on page 25 in B/C/S and also page 25 in
10 English in e-court. Can you tell me, pursuant to item 51, what are the
11 duties of members of the armed forces when they capture members of the
12 enemy armed forces?
13 A. In accordance with item 51, they are duty-bound to spare their
14 lives and to treat them humanely. At the same time, this item provides
15 an obligation for members of the armed forces to prevent the prisoner
16 from escaping and to undertake all measures with a view to taking the
17 prisoner to a safe facility as soon as possible and hand it over to a
18 designated officer.
19 Q. What is the situation concerning any other individual taken
20 prisoner in a combat zone?
21 A. Pursuant to item 51, they should be treated in the same fashion.
22 Q. Pursuant to item 51, who has the jurisdiction to establish the
23 identity and the status of prisoners?
24 A. According to paragraph 2 of this item, specially designated
25 military organs have these powers.
1 Q. Do we have an explicit definition of these organs?
2 A. No, not under this item.
3 Q. Let us now move on to item 213 of these regulations. It's on
4 page 57 in B/C/S and page 63 in English. It's entitled "The Initial
5 Capturing," and it's called 2 -- and item 213 is entitled "Capture."
6 Pursuant to this item, what are the obligations of officers with respect
7 to the safety of their own unit when they are in the process of capturing
8 members of the enemy forces?
9 A. In accordance with paragraph 2 of this item, the officer shall
10 take all measures of precaution in order to ensure the safety and
11 security of his unit.
12 Q. How do you understand "...undertakes the measures to ensure the
13 safety and security of his own unit"?
14 A. This item does not elaborate in detail what these measures
15 specifically are, but rather, says "all measures," and I'm quoting, "all
16 measures of precaution."
17 Q. Let me ask you this: The provisions of item 213, are they
18 applicable to MUP members or a commander of a MUP unit in a situation
19 when they are resubordinated to a military unit in which the zone of
20 responsibility they carry out tasks?
21 A. I believe that this item establishes an obligation incumbent on
22 such an officer.
23 Q. Very well. Let us now move on to item 217 of these regulations.
24 MR. LAZAREVIC: [Interpretation] It's on page 58 in B/C/S and on
25 page 64 in English. It governs the issues of evacuation of POWs.
1 Q. Tell me, when POWs are evacuated, in what situations?
2 A. According to this item, immediately upon capture, the POWs - as
3 it says here - must be evacuated from the combat zone.
4 Q. The lists of POWs are to what point regulated according to this
5 item as something that has to be done?
6 A. Either during the evacuation itself or until their arrival in a
7 camp outside the danger zone at the latest. This is when the lists of
8 evacuees, POW evacuees should be compiled.
9 Q. Let us now look at the next document dealing with the same
10 matter. I would just like to mention that this whole subject --
11 THE INTERPRETER: Could the counsel please repeat the numbers of
12 the items again.
13 JUDGE AGIUS: Mr. Lazarevic, the interpreters would like you to
14 repeat the number of the items again. If you look at the transcript, you
15 see exactly where they couldn't follow you, lines 2 and 3 on page 32.
16 MR. LAZAREVIC: [Interpretation]
17 Q. This whole area is covered by items 4.11 to 4.21 in your expert
19 MR. LAZAREVIC: [Interpretation] Can we now look at document 4D184
20 in e-court, and that's an instruction on how to treat POWs dated 13th of
21 July, 1992. It was published in the Official Gazette of the Serbian
22 people in Bosnia-Herzegovina.
23 Q. That's your tab number 31. In your view, what does this document
25 A. This is an order issued by the president of the republic on the
1 application and observance of the Law of War by the Armed Forces. The
2 Minister of Defence is thereby instructed to issue such guidelines, and
3 these are these instructions or the guidelines signed by the Minister of
4 Defence in June 1992; and therefore, he had fulfilled his obligation.
5 Q. I'd now like us to look at point 1 of this set of instructions,
6 and could you tell us what that regulates?
7 A. I regulates the following: That in dealing with captured
8 persons, the treatment of captured persons, the rights and duties
9 pursuant to these instructions incumbent upon members of the army and
10 members of the police force, they apply to them.
11 Q. Let's look at point 4 -- 4.1 of these instructions, or para 1.
12 It says there that: "Captured persons shall be taken to reception
13 centres as determined by a senior officer with the rank of company
14 commander or by a person holding an equal or higher position before the
15 start of combat activities."
16 Tell me now, please, in view of this provision, does it relate to
17 the officer of the MUP unit who is resubordinated to the unit and the
18 area of responsibility of that unit?
19 A. In my opinion, this provision should be interpreted in the
20 following way: It should be understood that it is binding upon the
21 officer with the rank of company commander or by a person holding an
22 equal or higher position in the army and not as applying to the police
23 because the planning and preparation of combat activities is something
24 that comes under the army's remit, not the police.
25 Q. Thank you. I'd like us to go through some more documents
1 referring to prisoners of war, and the first document is in tab 32 in
2 your papers.
3 MR. LAZAREVIC: [Interpretation] And it is P3035, document P3035,
4 a document of the Drina Corps command dating the 15th of July, 1993.
5 Q. And let's just take a look at the bottom half of this document,
6 which is point 2 or para 2, and it starts with the words "With the aim of
7 strengthening responsibility ..." et cetera. What is your interpretation
8 of the importance of this document, please?
9 A. I feel that paragraph 2 of this document, in order to strengthen
10 responsibility, et cetera, is of a declarative nature, just like some of
11 the ones we saw earlier on, the purpose of which is to raise the level of
12 awareness about the need to respect war law. Furthermore, this document
13 instructs the units to elect persons within the units who are going to
14 study the provisions of International War Law and making them the
15 soldiers in the army familiar with those provisions.
16 Q. Right. Thank you. Now, let's look at the next document. It is
17 tab 33 in your set.
18 MR. LAZAREVIC: [Interpretation] And it is document P3034.
19 Q. While we're waiting for the document to come up on e-court, it is
20 another set of instructions to the Bratunac Brigade about conduct with
21 prisoners of war of the 17th of July, 1993. Quite obviously, this is two
22 days after the previous document that we were just looking at, so this is
23 a document issued two days later. Let's look at the bottom half of the
24 document first, and it is the last paragraph beginning with the words:
25 "Each prisoner of war should be isolated and taken to a place of safety
1 and guarded and then inform the command of the brigade and ask the
2 military police to take over the prisoners."
3 Now, let's go on to the second page of this document and look at
4 the first paragraph there, which begins: "During the time that prisoners
5 spend in the military police and come under the jurisdiction of the
6 security organs, humane conditions should be furnished," et cetera, et
8 Tell me now, please, we've just seen this document, so under
9 whose authority do the prisoners of war come as can be deduced from this
10 set of instructions from the Bratunac Brigade?
11 A. These instructions were compiled in order to put into effect the
12 previous one and -- concerning the Drina Corps, as is stated in paragraph
13 1, and on -- in paragraph 1 of page 2 of these instructions, the
14 prisoners, as it says, during their stay in the military police
15 facilities come under the jurisdiction of the security organs.
16 Q. Thank you. Now, the next document is to be found in tab 34 of
17 your set of documents, and it is instructions of the security
18 administration about the arrest and escorting of prisoners of war dated
19 the 15th of April.
20 MR. LAZAREVIC: [Interpretation] It is document P196. I'd like us
21 to look at page 2 of that document, point 2 of page 2.
22 Q. Tell me now, please, in keeping with this document, who
23 determines the locality at which the POWs are to be collected in?
24 A. According to this document, the Drina Corps command, the
25 localities behind the front where POWs are to be collected is determined
1 by the commands from battalion level upwards.
2 Q. Thank you. And who provides their security and interrogates
4 A. Later on in this paragraph, we see that the location where POWs
5 are collected must be such that the prisoners are fully secured as well
6 as the people from the security organ, from the intelligence organ and
7 military police organ, engaging in interrogation and guarding the POWs.
8 Q. All right. Fine. Now the next document I'd like us to look at
9 is tab 36 in your set, and it is P3025. It is an order for active combat
10 activities of the command of the 1st Bratunac Brigade dated the 5th of
11 July, 1995.
12 MR. LAZAREVIC: [Interpretation] May we have page 5 displayed of
13 this document.
14 Q. You can see there that it says the area of collection for POWs,
15 and Pribicevac is mentioned. Is that in keeping with the previous set of
16 instructions issued that we looked at a moment ago?
17 A. I think it is. And according to this order, as it says, The
18 security organs, military police shall determine the location for the
19 collection of POWs and their security.
20 Q. Thank you. Now, bearing in mind all the legal provisions that
21 we've looked at so far as well as these documents, and there are some
22 more documents that you deal with when writing your expert report, on the
23 basis of all that, can you tell us what your position is with respect to
24 the responsibilities of the Ministry of the Interior vis-a-vis prisoners
25 of war, and I mean specifically to the members of the Ministry of the
1 Interior taking part in combat activities and are resubordinated to the
2 military command in whose area of responsibility these combat activities
3 are taking place?
4 A. All members of the armed forces are duty-bound by International
5 War Law and its provisions in the sense of having the responsibility of
6 taking POWs but saving those persons' lives, that they should act in a
7 humane fashion towards the POWs, treat them humanely, and when they
8 provide security for POWs from these documents, it would follow that
9 those duties have been given over to the security organs and the military
10 police, that they are in charge of providing security and all the other
12 Q. In your expert report, you put forward your opinions about that
13 and substantiate them with a number of MUP documents and police documents
14 for the crossing of borders, and they relate to the period of May and
15 August of 1995, from May to August, and I'm referring to paragraph 4.22
16 of your report, and the documents are contained in the footnote, in
17 footnote 37, in fact. Now, I'd just like -- no, footnote 57. I meant --
18 misspoke. Thank you.
19 I'd like us to go through three documents that are
20 characteristic, the first of which is 4D435 [Realtime transcript read in
21 error, "4D35"], and it is in tab 38 of your set. Those are the minutes
22 about the handover and takeover of persons and money between the police
23 station for the border crossing control at Ljubovija -- I'm sorry, the
24 number is 4D435 of the document, 4D435, and the date of the document is
25 the 26th of July, 1995.
1 In your set, as I said, it's to be found in tab 38. I think you
2 have the document in front of you. What can you tell us about this
3 document? What kind of document is this?
4 A. It's the minutes about the transfer of people and money between
5 the Ministry of the Interior of the Republic of Serbia
6 ministry of Republika Srpska. Specifically, it deals with the border
7 control police station at Ljubovija and the border control police station
8 in Bratunac.
9 Q. Tell me now, please, does this refer to individuals who
10 potentially can have the status of POWs?
11 A. Well, to all intents and purposes, judging by what it says here,
12 that would probably be the case.
13 Q. The next document is tab 39, document 4D434. It is an official
14 note of the police station, the border control police station, with the
15 same date, and the same individuals are mentioned as in the previous
17 Tell me, please, what is the link between this document and the
18 previous document in your opinion?
19 A. The official persons who signed the previous minutes on behalf of
20 the border control police station in Bratunac, now, with this official
21 note, they recorded the same event and said that they had executed that
23 Q. All right. Now, let's look at the third document in this set.
24 It is tab 40.
25 MR. LAZAREVIC: [Interpretation] Document 4D433.
1 Q. It is a certificate signed on the one hand by officials from the
2 border control police station in Bratunac, on the one hand, and on the
3 other, the representative of the Bratunac Brigade Momir Nikolic.
4 A. Yes, I see that. It is a certificate certifying that the police
5 station is confirming that it handed over the persons and property to the
6 Bratunac Brigade.
7 Q. According to this and the other documents that you analysed, what
8 were the duties of the Ministry of the Interior vis-a-vis persons who
9 potentially had the status of prisoners of war?
10 A. According to these documents, such persons were handed over to
11 the army of Republika Srpska, persons and property, the persons and
12 belongings found on them.
13 Q. All right. Thank you. Now, I'd like to move on to the fifth
14 chapter of your report, dealing with the procedure for criminal
15 responsibility and disciplinary action for members of the interior in
16 armed conflicts.
17 Let's look at tab 41 of your set and document 4D136, the law
18 governing internal affairs, the consolidated text.
19 MR. LAZAREVIC: We don't have a full translation of this, but
20 relevant of these paragraphs have been translated, and we have hard
21 copies of this for the Court. Oh, we already have it.
22 Q. [Interpretation] It is a law that was in force on basic
23 provisions that were in force in 1995, and it contained all the
24 amendments that had been made to date to the law, and I'd like us to look
25 at articles 103 to 107, which means pages 9 and 10 in the B/C/S, and in
1 English, I think we'll be able to find them on the first page, page 1 of
2 the English.
3 Do you have it before you, Article 103? This is about
4 disciplinary responsibility of the MUP officials. In keeping with
5 Article 103, who is in charge of disciplinary measures instituted against
6 members of the MUP?
7 A. According to Article 103, the person in charge is the minister or
8 an official authorised by the minister.
9 Q. And let's also look at Article 104. What does this article refer
10 to? Could you please be so kind and tell us?
11 A. This article regulates or, rather, prescribes the breaches of
12 discipline for which an employee may be held responsible for, but they
13 are not the only ones. It says in paragraph 1, in addition to the
14 violations of duty, there are some other violations that may be
15 constituted violations of duties, and then he goes on to list 11 of them.
16 Q. Very well. Let us now go back to Article 54 of this law, just
17 for the illustration and to see whether this is the only article of this
18 law which deals with the issue of criminal proceedings.
19 A. Yes. According to Article 54 --
20 Q. I apologise. It is page 6 on B/C/S on e-court. You have in
21 front of you Article 54, don't you? But just for the article to appear
22 on e-court, I had to mention the page number. It is page 6.
23 You had an occasion to look at this law. Is this the only
24 paragraph or, rather, article of this law that deals with the issue of
25 criminal responsibility, the criminal responsibility of the members of
1 the MUP?
2 A. Yes. Article 54 lists or, rather, says that in case criminal
3 proceedings are instituted in addition to other proceedings for the use
4 of firearms or other means of coercion, the ministry shall be duty-bound
5 to provide such an employee with adequate legal assistance or legal aid.
6 Q. Very well. And now I have two somewhat broader questions with
7 regard to the criminal and disciplinary responsibilities. Could you
8 please explain the difference between disciplinary responsibility as
9 opposed to the criminal responsibility?
10 A. The difference arises from the type of crime or transgression
11 that the person is being held responsible for. Criminal responsibility
12 arises from the commission of an act of crime, whereas disciplinary
13 responsibility arises from breaches of discipline. We are talking about
14 two completely different types of transgressions and two completely
15 different types of proceedings to establish somebody's guilt or
17 When it comes to crimes, crimes are punished by sentences or
18 convictions, which is not the case in disciplinary cases. That's why the
19 proceedings in disciplinary cases are more lenient. Disciplinary
20 proceedings are not hardly for courts but, rather, in the ministry itself
21 within the organ of executive power, and there are other differences, but
22 these would be the most important ones.
23 Q. Very well. I believe we've heard enough about that. I would
24 like us to look at Article 5(6) of your expert report, which deals with
25 reporting. Paragraph 5, item 6 of your expert report. I apologise,
1 paragraph 5, item 6.
2 Very well. This item refers to the notion of reporting and
3 commission of a crime. You define this duty and this issue as defined in
4 your report. What -- in other words, what is understood by the term of
5 "reporting of a crime"? Are there any situations when the failure to
6 report a crime constitutes a crime in its own right?
7 A. In criminal -- in the criminal legislation of the former SFRY,
8 this issue was regulated in the same way. We are talking about a
9 classical crime of a failure to report a crime. To this very day, when
10 new laws have been passed in the state that has been created and contains
11 all the elements that are necessary, this provision is very much the same
12 as it was before. This means that that obligation still exists for all
13 the citizens only in terms of the gravest of crimes; and for the
14 authorised officials, that obligation is somewhat further-reaching. The
15 authorised officials, according to the legislation of the former SFRY,
16 were duty-bound to report crimes for which a sentence envisaged by the
17 law was five years imprisonment or longer, which are prosecuted ex
18 officio. The citizens were always duty-bound to report only the gravest
19 of crimes for which the envisaged penalty was death penalty.
20 Q. What are the forms of reporting of a crime?
21 A. The legislation has not envisaged any particular form of
22 reporting of a crime. It can be a verbal complaint or a written
23 complaint. Both would suffice.
24 Q. And just a few more questions to end this part of my
25 examination-in-chief. What conditions have to be met for a report of a
1 crime to be complete and considered to be duly filed?
2 A. A crime is reported, i.e., the report thereof has been duly filed
3 if that report, irrespective of its form, is filed with either the
4 authorised or non-authorised state body.
5 Q. Can this also be applied to the officer in the Ministry of the
6 Interior of a unit engaged in combat and resubordinated to the unit in
7 whose zone of responsibility they are deployed?
8 A. This may be applied to all authorised officials, for example, the
9 provision of Article 199 of the Penal Code of the former Socialist
10 Federative Republic of Yugoslavia
11 report a crime, truth be told, only in terms of authorised officials. At
12 the same time, the provision of the republican law - and I'm referring to
13 the law of the socialist republic of Bosnia and Herzegovina in its
14 Article 185 - spoke about citizens in its first paragraph and about
15 authorised officials in its second paragraph.
16 I repeat, these were typified provisions in the criminal case of
17 all the republics and autonomous provinces, and they could be found more
18 or less in the same form with some possible linguistic and style -- and
19 differences in style. The elements were the same, however.
20 MR. LAZAREVIC: [Interpretation] Thank you, Dr. Ristivojevic. I
21 have no further questions for you in this examination-in-chief.
22 JUDGE AGIUS: Thank you, Mr. Lazarevic. Mr. Zivanovic.
23 MR. ZIVANOVIC: Thank you, Your Honours.
24 Cross-examination by Mr. Zivanovic:
25 Q. Good afternoon, Dr. Ristivojevic.
1 A. Good afternoon.
2 Q. My name is Zoran Zivanovic, and I appear on behalf of Vujadin
3 Popovic in this case. I will kindly ask you to answer some questions
4 with regard to your report and with regard to your testimony that we
5 heard the day before yesterday and earlier today.
6 I will start with last things first, and that is the Law on
7 Military Courts; to be more precise, it's Article 56. This is P420, page
8 9 in the B/C/S version and page 8 in the English version.
9 A. Yes.
10 Q. If I understood you properly, you said that this provision of the
11 law, the powers and authorities that the MUP had in accordance with the
12 Law on Criminal Procedures have been transferred to the security organs
13 and the military police. Did I understand you properly?
14 A. According to the Law on Criminal Proceedings, MUP organs had some
15 duties and authorities, and they exercised those in the -- and it is the
16 military police organs and the security organs who exercise the same
17 duties before the military courts or the organs of military judiciary.
18 Q. When you say that they exercised these duties before military
19 courts, are you referring to the pre-trial stage or the trial stage?
20 A. My interpretation is that all these duties and rights that the
21 MUP organs have, according to the Law on Criminal Proceedings, are
22 transferred on to the security organs and the organs of the military
24 Q. And now I would kindly ask you to read, i.e., to help us read the
25 provision. I would skip bullet points 1 and 2. For a better
1 understanding, I am talking about Article 56, paragraph 2, bullet point
2 3, which reads: "The duties and authorisations of the organs of the
3 Ministry of Internal Affairs by security organs of the army of Republika
4 Srpska and the military police within the prescribed -- the main
6 A. Yes.
7 Q. Now, could you please tell me whether this means that they
8 discharge these duties and authorities that would normally belong to the
9 MUP only within the their own purview or, as you've told us, i.e., as
10 I've understood it, that all the authorities are transferred on to the
11 organs of security and military police?
12 A. Within their remit, which is defined by the rules [Realtime
13 transcript read in error, "roles"] of service of both of these organs,
14 and I've looked at both of these, and I've established that in principle
15 they covered the authorities, the Ministry of the Interior, in criminal
16 proceedings. I did notice some minor differences; for example, the Rules
17 of Service of the Military Police do not provide for the authority of the
18 military police to order a 72-hour custody, but I can see that in the
19 Rules of Service of the Security Organs.
20 Q. Just for a better understanding, it seems that we have a minor
21 error in the transcript. On page 44 line 24, it says "roles of service"
22 whereas I believe that you said "rules of service"?
23 A. Yes. Let me just see. Yes, it is rules of service. Yes.
24 Q. Does it imply that the organs of the interior still maintain the
25 powers that go with -- without the scope of the responsibility of
1 military police?
2 A. I think that that could be construed in that way.
3 Q. Could you please now tell me, how did you establish the scope of
4 responsibility - and I'm going to ask you now only about security organs;
5 we are not talking about military police at the moment - how did you
6 establish what their scope of responsibility was within which these
7 powers were deferred under this law?
8 A. According to the Rules of Service of Security Organs, that is how
9 I established the scope of responsibility.
10 Q. I believe that you have quoted a provision that relates to the
11 fact that security organs participate in preliminary criminal
12 proceedings, if you'll recall that, or if you can define for us this
13 scope? It could be more convenient for us rather than reading the whole
15 MR. LAZAREVIC: Maybe we can have some assistance from my learned
16 colleague. If he's referring to certain provisions, I believe it would
17 be fair just for all of us to follow what particular -- what particular
18 provision he's referring to.
19 JUDGE AGIUS: Yes, Mr. Zivanovic.
20 MR. ZIVANOVIC: [Interpretation] I am not referring to any
21 particular provision at this moment. I am just asking the expert witness
22 to tell us briefly what is the scope of responsibility of security
24 JUDGE AGIUS: Okay.
25 THE WITNESS: [Interpretation] As item 7 of the rules --
1 MR. ZIVANOVIC: [Interpretation]
2 Q. Thank you. Can we now look at this document?
3 JUDGE AGIUS: One moment.
4 JUDGE PROST: Mr. Zivanovic, you said you were asking a general
5 question, and then the witness responded with a specific reference to
6 item 7 of the rules, and I'm just wondering if we could at least identify
7 what rules that he is referring to. Thank you.
8 THE WITNESS: [Interpretation] The Rules of Service of Security
10 MR. ZIVANOVIC: [Interpretation] Let us look at this rule. That's
11 Prosecution exhibit P407. I think it's on page 7 or 8 in B/C/S and on
12 page 8 in English, if I am not wrong.
13 Q. Were you referring to this item? In English, it's on the
14 previous page. It starts on page 7 and then continues on page 8. Can I
15 now ask you to look at page 5 of these rules in B/C/S and page 6 in
17 MR. ZIVANOVIC: [Interpretation] I'm sorry. I don't see we have
18 -- I think we're going to have it shortly. It's page 6 in English.
19 Q. You would agree with me that Chapter 1 of the Rules on the
20 Service of Security Organs refers to their competence and that it defines
21 their scope of responsibility?
22 A. Yes. It's entitled "The Competence and Task of Security Organs."
23 Q. The first part speaks about the competence. Would you agree?
24 A. Yes, I would.
25 MR. ZIVANOVIC: [Interpretation] Can we now look at the next page
1 in both versions, please.
2 Q. Now we can see the B/C/S version, and it says here that the tasks
3 of security organs are defined herein below. Do you agree with me that
4 the competence of security organs is one thing and the tasks of security
5 organs is something different?
6 A. I would agree with you that -- that these two notions differ in
7 the name. One is called "The Tasks," and the other is called "The
8 Competences." However, by interpreting the task, I am not part of the
9 competence or, in other words, that the tasks are, strictly speaking,
10 divided from the competences or separated from the competences. I do not
11 share that opinion, and I would like to refer you to the title of this
12 chapter, which puts both competences and the duties in one sentence. By
13 a systemic interpretation of this law and its contents, my conclusion
14 would be that such strict division cannot exist and that one cannot say
15 that the tasks do not stem from the competences. I couldn't accept that.
16 I would, rather, say that we are dealing here with two notions of
17 different levels or degree of generality. The second one is more
18 specific and is incorporated in the first one, which in my view is at a
19 higher of level of generality.
20 Q. In view of your answer, can we now look again at the competences
21 of security organs and to see to what extent the competences differ from
22 the tasks and to what extent this is just an elaboration of some general
23 principles? Therefore, let us look at the previous page in both versions
24 of the documents.
25 You see that under item 1, and you can read it out loud if you
1 prefer that, it says here that -- under item 1: "The competences
2 encompass the duties of state security issues that are placed within
3 their competence and which are aimed at undermining and toppling the
4 constitution of the Socialist Republic of Yugoslavia and threaten the
5 country's security. If such an activity is carried out in the armed
6 forces or against the armed forces from within the country or from
7 abroad, and also for the purposes of detecting and preventing activities
8 aimed at breaching the secrecy of the plans in preparation of the armed
9 forces the country's Defence..."
10 A. You are reading item 1 of the competences?
11 Q. Yes, I am.
12 A. Excellent. Now, if you look at item 6 of the task, you will read
13 more or less the same, detecting and finding the activities aimed at
14 undermining, et cetera, and it ends, in other words, what I said
15 previously by a systemic interpretation of this document. I understand
16 the task to be an elaboration of competence. We are dealing with two
17 notions of different degrees of generality. For that reason, they are in
18 the same chapter because the latter is the elaboration of the former.
19 That is my opinion.
20 Q. Since you mentioned item 6, can you please look at the sentence
21 that -- the very beginning of item 6 --
22 MR. ZIVANOVIC: [Interpretation] And can we please now go back
23 again one page. That is B/C/S, page 6, and English, page 7.
24 Q. It says here: "Security organs are responsible for..."
25 A. Yes.
1 Q. How do you understand this in view of the tasks listed below
2 including the one that you have just quoted?
3 A. Well, we've been responsible for, if you make a linguistic
4 analysis, is that means that somebody is responsible for the execution of
5 these tasks. It is their duty and obligation. Let's say that would be
6 the interpretation of the language used in the document.
7 Q. I'm sorry. Can we now move to the next page and look at item 7
8 that you mentioned and see if we can make certain distinctions in the way
9 that you interpret it.
10 A. Yes, in the way I interpret it.
11 Q. Item 7, I think that on the previous page in English, it says:
12 "The security organs take part..." First of all, we had item 6
13 stipulating their responsibilities, and now item 7 says: "The security
14 organs take part in the following..." Do you see any substantive
15 difference between the two? If you do, can you explain to us how you
16 understand that?
17 A. Let us start from the purely linguistical meaning of the word
18 "taking part in." That means that they participate or take part in the
19 tasks listed herein below from (a) to (f).
20 Q. If we go back to the competences of security organs, can you
21 identify any of these tasks in which security organs participate within
22 their competence?
23 A. It says, "... explicitly that they take part in the protection
24 and prevention of serious crimes ..." For example, proposing measures of
25 security and self-protection. Let me just find where the
1 "self-protection" is. 6 -- 3, item 2 says that within law they have the
2 duty, item 2, within their competence they are obliged to provide
3 assistance to self-protection, subject 7(d) --
4 THE INTERPRETER: The interpreters kindly ask the witness to slow
5 down, please.
6 THE WITNESS: [Interpretation] If we are to embark on a detailed
7 analysis, and we might draw a number of conclusions --
8 JUDGE AGIUS: Either I or you draw the attention of the witness
9 to slow down, please.
10 THE WITNESS: [Interpretation] I apologise. I'm sorry.
11 MR. ZIVANOVIC: [Interpretation]
12 Q. You have quoted these provisions within the competences, and you
13 mentioned that they provide certain assistance in self-protection, et
14 cetera. Under item 1, their scope of responsibility and competences is
15 stipulated; however, I am interested in something else. You have given
16 us a linguistic interpretation of the word "responsible for." Are you
17 aware that that has a certain meaning in military terms? Does it have
18 any significance where the security organs are responsible or where they
20 A. Are you referring to the question whether there is any military
21 document stipulating and defining these two terms?
22 Q. No. I am asking you whether you are aware that these two terms
23 have military indications and, hence, military consequences. If
24 something is stipulated for a subject or an entity to be responsible for
25 or on the other hand just to participate in, is there any difference?
1 A. You mean between being responsible for and taking part in. I
2 believe that there could be a difference between the two, but can you
3 please tell me more closely what you're asking me about. If I understood
4 you correctly, you're asking me whether there was any military law
5 defining these two terms, if I understand you correctly.
6 Q. I didn't want to -- if you don't know about any such documents, I
8 A. I don't know.
9 Q. Let me ask you something else. Do you know whether these tasks
10 that we have seen under item 7, are these tasks carried out by security
11 organs above by somebody's orders, or do they do that on their own
12 initiative and independently? If you don't know, please say so. I am
13 not going to insist on this.
14 A. If you are referring to some internal relations in the army, who
15 is issuing order to whom, and whether there are any military rules
16 defining this matter; did I understand you correctly?
17 Q. You know, I am interested to hear how you understand this
18 provision and how it was reflected in your expert report. However, I'm
19 not insisting on going into specific regulations governing this matter.
20 A. I included it in my report in the way I understand it.
21 Q. One more thing. Do you believe that those who drafted these
22 laws, i.e., the military courts, when you look at Article 56 where it
23 says that the MUP tasks are to be carried out by the military police and
24 army of Republika Srpska within the prescribed competence, if we omit the
25 word "tasks" and if they are, according to this definition, separate from
1 the competence --
2 A. I understand your question.
3 JUDGE AGIUS: One moment.
4 MR. LAZAREVIC: Can we just briefly make sure about Article 56
5 that my learned colleague is referring at. Of what particular law or
6 rules or whatever is he talking about?
7 JUDGE AGIUS: Yes, Mr. Zivanovic.
8 MR. ZIVANOVIC: [Interpretation] Yes, I do apologise. I forgot to
9 state that it is Article 56 of the Law Governing Military Courts that I'm
10 referring to, para 2.3.
11 THE WITNESS: [Interpretation] Yes, I have understood your
12 question, and my answer is this: I think that the legislator here in
13 this particular case had no need to mention both concepts for the reasons
14 I've already stated, and that is that I think that we are dealing with
15 two terms, different levels of generality of which one is contained in
16 the other, subsumed in the other, and the second one is an elaboration of
17 the first one.
18 In other words, it is my opinion that the word "tasks," as you
19 put it, has not been omitted for any particular purpose, that the
20 military organs, organs of the military police, do not have the tasks
21 that are provided for in the Rules of Service in Criminal Proceedings.
22 JUDGE AGIUS: Yes, Mr. Haynes.
23 MR. HAYNES: Can we just have a 65 ter number. A lot of these
24 regulations have very similar titles, and to save us all running through
25 several regulations looking for Article 56.
1 JUDGE AGIUS: Yes, I thank you for that.
2 MR. HAYNES: And could they just slow down a bit.
3 JUDGE AGIUS: Law is a very complicated matter. So let's slow
4 down a little bit, and I think the point made by Mr. Haynes is a very
5 valid one. Of course, the 65 ter number is there, but in order to be
6 able to follow better during the testimony itself, I think it's better if
7 you refer to the 65 ter number, too, and that applies across the board to
8 everyone, please. Thank you.
9 MR. ZIVANOVIC: The 65 ter number for this particular document is
11 Q. [Interpretation] Mr. Ristivojevic, we're going to dwell on this
12 Law Governing Military Courts for a while longer, and in order to do
13 that, let's look at another provision of the law, which is Article 65.
14 What I'm interested in is this: In light of your expert report and your
15 analysis and findings --
16 MR. ZIVANOVIC: [Interpretation] Well, I'd like us to look at page
17 10 of the B/C/S and page 9 of the English version going on to page 10
19 Q. You've read Article 65, have you?
20 A. Yes.
21 Q. Well, could you then please tell me, what role does the organ of
22 security have in the tasks set out as being every superior officer's duty
23 to carry out?
24 A. I think that in Article 65, the superior officer is duty-bound to
25 take certain steps, to take on certain obligations and duties, which
1 naturally come before a criminal act is reported, once he learns of such
2 a criminal act having been committed. In my opinion, they are similar to
3 a certain extent to the duties and obligations governing criminal
4 proceedings. But in this case, they do not emanate strictly from a
5 criminal procedure but are based on logic, I think. So if a superior
6 officer has the duty of reporting a crime that has taken place, that it's
7 quite natural and normal that he would seek as much information about
8 that crime before he reports it.
9 Now, the superior officer won't always have a clear-cut situation
10 in front of him, that is to say, a crime and all the pertinent elements
11 so that he can hand them over to the military prosecutor in a complete
12 set, so to speak. So I suppose or I interpret Article 65 as applying to
13 a situation in which the superior officer has suspicions of a crime and
14 doesn't know everything -- all the details of it. So I think he does
15 have the responsibility to inform himself about the crime as Article 65
16 stipulates and then to go on and fulfill his duty of reporting the crime.
17 But I do not think that these are duties and obligations which are
18 strictly enumerated in the Law Governing Criminal Procedure or, rather,
19 let me put it this way: I do not think that Article 65 expressly
20 introduces the duty of each superior officer to conduct an investigation
21 in the sense of the provisions of the Law on Criminal Procedure. I think
22 that that is set out in Article 64. That task is given to the
23 investigating judge of a military court as Article 64 stipulates.
24 Q. Yes, I think that's quite clear because here it just says that he
25 should take steps to, not to conduct an investigation. So it says the --
1 every superior officer is obliged to take steps to, et cetera.
2 Now, tell me, what is the situation like or does this law in
3 article -- have you found an article in the law which in fact states that
4 the superior officer is duty-bound to take into custody anybody looking
5 at this Law Governing Military Courts? If a person is found in the act
6 of committing a crime, is the superior officer duty-bound to arrest that
7 person, or if that person holds other people's lives in jeopardy, et
9 A. In Article 65, I do see that it allows for that possibility
10 because it says to take action to prevent the perpetrator from going into
11 hiding or fleeing.
12 Q. Let us now look at Article 68 in that regard.
13 A. Yes.
14 Q. Does Article 68 define this in more precise terms?
15 A. Yes, because it takes on the measures stipulated in Article 65
16 and goes on to define them more precisely.
17 Q. I'd now like us to look at another document. It is the Law on
18 the application of the Law Governing Military Courts or the Law Governing
19 the Military Prosecutor's Offices During a State Of War, 4D525.
20 JUDGE AGIUS: Judge Prost is drawing my attention that it's time
21 for the break.
22 MR. ZIVANOVIC: Sorry.
23 JUDGE AGIUS: And this time, this will be the lunch break, so
24 we'll have one hour restarting at 1.30. Thank you.
25 --- Luncheon recess taken at 12.30 p.m.
1 --- On resuming at 1.35 p.m.
2 JUDGE AGIUS: Yes, I recognise Mr. McCloskey.
3 MR. McCLOSKEY: Yes, Mr. President. Good afternoon. Good
4 afternoon, everyone. Just a couple of short preliminaries that
5 Mr. Gosnell and I have on some matters. If the Prosecution could seek
6 your permission to reply to the Borovcanin motion on SDS minutes on -- by
7 November 18th, which is the due date for the large joint motion on a
8 similar topic. The SDS
9 joint motion is due November 18th, and they are very closely related, I
10 think, and so it would be helpful if we could just respond one time.
11 JUDGE AGIUS: Any objection to that, Mr. Gosnell?
12 MR. GOSNELL: No objection from our side.
13 JUDGE AGIUS: All right. Yes.
14 MR. JOSSE: We'd ask for exactly the same leave as the
15 Prosecution. We will respond to the motion -- the joint motion on the
16 18th -- by the 18th of November if given permission.
17 JUDGE AGIUS: Is that fine with everybody? Okay. Judge Kwon?
18 You have no problem. No, no, permission granted.
19 MR. JOSSE: Thank you.
20 JUDGE AGIUS: Yes, Mr. Gosnell.
21 MR. GOSNELL: Just one additional preliminary, Mr. President.
22 This is to advise the Chamber that we are withdrawing two witnesses.
23 JUDGE AGIUS: Just let me follow you because I have the -- okay.
24 We have Josipovic --
25 MR. GOSNELL: That's correct, Mr. President --
1 JUDGE AGIUS: -- Jovic -- and Jovic.
2 MR. GOSNELL: And -- Professor Jovic.
3 JUDGE AGIUS: [Overlapping speakers]
4 MR. GOSNELL: We are in discussions with the Prosecution as to
5 how to deal with the Jovic report. We believe we can deal with it in a
6 fashion that won't involve calling him as a witness. In fact, we're
7 committing to that now, so we are withdrawing those two witnesses. So
8 Professor Ristivojevic is our last oral witness.
9 JUDGE AGIUS: Thank you. Yes.
10 MR. ZIVANOVIC: [Interpretation]
11 Q. Mr. Ristivojevic, we stopped off discussing the law and
12 application of the law governing military courts and the Law on the
13 Military Prosecutor's Office During a State of War, and that was exhibit
15 MR. ZIVANOVIC: [Interpretation] So may we look at the second page
16 of that document -- well, we can see the first page, too, but go on to
17 the second. In fact, what I am interested in is Article 2 -- or, rather,
18 para 2 of that article and you've already discussed that.
19 Q. I think you said, if I understood you correctly and please
20 correct me if I'm wrong --
21 MR. ZIVANOVIC: [Interpretation] That -- Article 2, please. We're
22 dealing with Article 2, so may we have that pulled up on e-court on the
23 previous page, I believe. Article 2. Yes, it's there in the English.
24 We've got that, and we now have it in the B/C/S. No? I don't -- no,
25 that's not the right one. Here we have it in Serbian. Article 4, para
1 2, and it's on the second page in the B/C/S. That's fine, thank you.
2 Q. If I understood you correctly, you said that this provision
3 excludes the authority of the Ministry of the Interior and the
4 authorisations that they usually have under the Law on Criminal
5 Proceedings when it comes to crimes that come under the jurisdiction of
6 the military courts, but the others are exempt, right?
7 A. Are you talking about the Law on the implementation of the Law on
8 Military Courts and the Law on the Military Prosecutor's Office during a
9 state of war? This is a new one. We haven't discussed that yet.
10 Q. I think we did bring it up on page 18 and 19.
11 A. I see. So you're not referring to our discussion; you're
12 referring my statement, my report? Well, if you're referring to Article
14 Q. Yes, I am.
15 A. So the first and second paras of Article 4 state that the
16 military prosecutor shall have the authority vested in -- by law in the
17 public Prosecutor, and in criminal proceedings for criminal acts falling
18 under the jurisdiction of the military Court, the security organs have
19 that. And in my opinion, it repeats what the Law Governing Military
20 Courts states; that is to say, it establishes their relationship within
21 the frameworks of the Law on Criminal Proceedings.
22 Q. Let's try and make this clearer. Can you tell us whether that
23 means in your opinion that the organs of the interior retain their
24 authority and competences and that the security organs of the military
25 police are just given some of their -- passed on some of their
2 A. No. Article 4 states what the military prosecutor has a right
3 to, there is a military prosecutor given the Law on Criminal Proceedings,
4 and on the other hand the military police and its jurisdictions. So they
5 are given those authorisations. So the law in fact repeats what it's
6 already said but deals with a state of war, and the previous article,
7 Article 56, refers to regular situations, peacetime, and this one
8 addresses a state of war, in my opinion, that is.
9 THE INTERPRETER: Microphone, please.
10 MR. ZIVANOVIC: [Interpretation]
11 Q. Could you speak a little slower because we seem to be
13 A. Would you like me to repeat?
14 Q. Yes, and speak slower, please.
15 A. Article 4 of this law states the following: That in proceedings
16 before military courts during a state of war and the duties that the
17 public Prosecutor would be performing is now performed by the military
18 prosecutor, and those duties that would fall to the organs of the
19 Ministry of the Interior are now -- now fall to the military police
20 organs and security organs. In other words, what holds true before
21 military courts when there's no war on will hold true for military courts
22 when there is a state of war. The same would apply.
23 Q. Let's read out para 2 now. Let's leave the first paragraph
24 relating to the military prosecutor out for the moment. As far as I can
25 see, it says the following: "In criminal proceedings for criminal acts
1 falling under the jurisdiction of the military courts, the security
2 organs of the army of Republika Srpska and the military police shall have
3 all the authority vested by" -- I'm afraid I can't see the rest of the
4 text there.
5 MR. ZIVANOVIC: [Interpretation] Next paragraph [In English]
6 B/C/S. [Interpretation] We have it now. Thank you.
7 Q. Let me repeat. "In criminal proceedings for criminal acts
8 falling under the jurisdiction of the military courts, the security
9 organs of the army of Republika Srpska and the military police shall have
10 all the authority vested by law in the organs of the interior during a
11 state of war."
12 A. Yes.
13 Q. I understand that by this provision the security organs are given
14 the authorities that the organs of the interior normally have during a
15 state of war. Am I right?
16 A. Yes. And the Law on Criminal Procedure in a state of war, you
17 remember that we talked about that, the application of this law during a
18 state of war narrowing down some deadlines and eliminating right to some
19 legal remedies. You remember that we have spoken about that. Here, the
20 legislator talks about the authorities of the regular courts in a state
21 of war and draws a parallel between the crimes for which the military
22 courts are authorised and the duties of organs in a state of war. There
23 is a logic there, and I don't see a problem.
24 Q. Do you agree with me that the organs of the interior have certain
25 authorities, not only under the Law on Criminal Procedure but also under
1 the Law on Internal Affairs?
2 A. I believe that you will find this in Articles 41 to 52 of the Law
3 on Internal Affairs. What I'm trying to say is this: Regular courts
4 don't cease to exist or operate during a state of war; hence, this
5 provision and that's why he speaks about the authorities of the Ministry
6 of the Interior during the war, because all the courts operated during
7 the war. This does not exclude the existence of regular courts or their
8 work during a state of war.
9 Q. This is the application of the Law on Military Courts?
10 A. Yes, but there is no particular criminal procedure that is
11 applied by military courts, and that's why by Article 4, the legislator
12 drew a parallel with this because there is just one criminal procedure
13 that is valid before regular courts and military courts in the state of
14 war. This is my interpretation. I am not saying that you do not have a
15 different interpretation. Don't get me wrong. I am not trying to
16 deprive anybody of their right to a different opinion, but this is my
18 THE INTERPRETER: Could the witness please slow down.
19 JUDGE AGIUS: Yes. Please slow down.
20 MR. ZIVANOVIC: [Interpretation]
21 Q. In other words, do you draw a conclude from this provision that
22 the security organs are being given even those competences and
23 authorities that the organs of the interior have even outside the state
24 of war?
25 A. Outside of the state of war? How shall I put it? Given -- just
1 bear with me. I need to think. I believe that the organs of the
2 interior under the Law on Criminal Procedures have powers outside a state
3 of war when there is no war. These powers arise from this Law on
4 Military Courts, and I'm talking about the military police and the organs
5 of security. This Article 4 speaks about the same courts only
6 functioning under the state of war. That's the way I understand this
7 provision. That's how I understand this law.
8 In my view, this speaks about the Law on Criminal Procedure under
9 the state of war, and this law differs slightly from the Law on Criminal
10 Procedure. There are very slight differences there.
11 Q. And the powers as they are provided for herein during the state
12 of war also apply to the powers that are prescribed by the law on the
13 application of the Law on the Interior during a state of war. We have
14 already spoken about that law.
15 MR. ZIVANOVIC: [Interpretation] I apologise. This is 1D -- this
16 is 1 -- 413. I apologise.
17 THE WITNESS: [Interpretation] I don't think that these two laws
18 speak about same powers at all. In the Law on the Application of the Law
19 on Internal Affairs Under the State of War, a possibility is given for
20 the police units to be used in combat, and the Law on Criminal Procedure
21 is something different. These are two different things.
22 As I was reading, the Law on Internal Affairs Under the State of
23 War, I did not notice any special powers of the police in the criminal
24 proceedings in a state of war. This law speaks only about the
25 application, i.e., the use of the police units in combat.
1 MR. ZIVANOVIC: [Interpretation]
2 Q. Very well. Maybe it would be good if we could clarify the term
3 "criminal proceedings." Could you please explain, under our laws and
4 regulations, what is the meaning of criminal proceedings; i.e., could you
5 please explain or give us the precise moment when the criminal
6 proceedings begin, i.e., from which moment on would this provision be
8 A. From which moment?
9 Q. It says in the criminal proceedings?
10 MR. LAZAREVIC: Can my colleague be more specific about which
11 particular rule he's talking about, which particular article he's talking
12 about. I am having problem following what my colleague is referring at.
13 JUDGE AGIUS: I am sure Mr. Zivanovic will comply.
14 MR. ZIVANOVIC: It is the same article 4, paragraph, second.
15 JUDGE AGIUS: Is that sufficient?
16 MR. ZIVANOVIC: [Interpretation] It's on this page.
17 JUDGE AGIUS: Thank you.
18 THE WITNESS: [Interpretation] In my view, this applies to all the
19 powers that in criminal proceedings belong to the Ministry of the
20 Interior. So we are talking about Article 148 dealing with pre-trial
21 proceedings as well as with the articles applying to trial stage. The
22 organs of the interior and the military police organs can be compared to
23 see what powers belong to whom. I did it only superficially, and I
24 notice that the military police organs did not have the right to military
25 custody of 72 hours arising from Article 96, but both can deprive from
1 freedom a person who is suspected of having committed a crime. I don't
2 see any difference in Article 4 between the two, so whatever exists under
3 the law on criminal proceedings, in criminal proceedings before military
4 courts under -- in a state of war is -- are powers that belong to the
5 security organs and the military police. This is my interpretation.
6 THE REGISTRAR: Could the witness please slow down.
7 THE WITNESS: [Interpretation] I apologise.
8 MR. ZIVANOVIC: [Interpretation]
9 Q. In other words, you believe that this provision does not apply
10 only to criminal proceedings but also pre-trial proceedings?
11 A. Yes.
12 Q. I would now kindly ask you to look at the law which you have
13 already mentioned --
14 MR. ZIVANOVIC: [Interpretation] The exhibit number is 4D413.
15 This is the Law on the Application of the Law on Internal Affairs During
16 a State of War.
17 page -- I apologise, if you could just bear with me. I believe it's page
18 6, but I'm not sure. Page 4 in e-court. [In English] English version,
19 fourth page. Previous page, third. That's page 8, English page 8 --
20 7 -- 9, 9. Sorry.
21 Q. [Interpretation] Mr. Ristivojevic, looking at Article 2, may we
22 conclude that the provisions of the Law on Internal Affairs and
23 provisions of other laws and regulations that regulate internal affairs
24 are also applied during a state of war unless provided for differently by
25 this law?
1 A. Yes.
2 Q. Could you please look at Article 5.
3 A. Yes.
4 Q. There are some measures here, which the ministry may take.
5 A. Yes.
6 Q. Tell me, please, are these some powers that might be applied in
7 preliminary proceedings?
8 A. Some of these measures?
9 Q. Yes.
10 A. Limiting or banning movement of assemblies of people in certain
11 public areas, limiting or banning public gatherings, limiting or banning
12 crossing at certain localities, introducing different regimes of traffic
13 for certain vehicles. I am reading. Just a moment. Yes. Some may be
15 Q. Let's look at bullet point 10, for example, banning of movement
16 of persons liable for military service without the appropriate permit
17 issued by the military command. This looks like one measure that the
18 Ministry of the Interior applies. Does this belong to the scope of
19 powers that we have just discussed, that the organs of the interior do
20 exercise during a state of war?
21 A. Yes. This is something that a member of the Ministry of the
22 Interior may apply, a ban on movement and similar things. These are some
23 limitations or restrictions of the rights and freedoms that apply to
24 people, and they are applied by the Ministry of the Interior. At least,
25 that's how I understand this article.
1 Q. Very well. I am now going to move on to another article that you
2 have already spoken about, which is Article 14 of this same law.
3 A. Yes.
4 Q. And this article applies to the use of police units in combat.
5 First of all, I wanted to ask you whether you think that this provision
6 of Article 14 excludes the possibility for police units to be used
7 independently, i.e., not to be resubordinated to the VRS while
8 participating in combat?
9 A. In my opinion, those police units which are used in combat may be
10 used only as units resubordinated to the army of Republika Srpska, and
11 they are resubordinated to them in order to be engaged in combat.
12 Q. Could you please tell me, what is the significance of paragraph 2
13 of this article where it says that these police units shall be under the
14 direct command of a commander who is a member of the MUP?
15 A. This means - in my opinion, at least - that -- the interpretation
16 of the wording is very clear. The word "direct command" means that they
17 should be commanded by a commander who is a member of the police, of the
18 MUP. I don't see any need for me to provide any other interpretation. I
19 believe that the wording is clear enough. The words "direct command"
20 speak for themselves. This is their first in-charge who is a member of
21 the Ministry of the Interior.
22 Q. Do you understand it as something that should be done or must be
24 A. It must be done.
25 Q. In continuation, it reads that: "For the period of
1 resubordination to the army, they maintain their formation and cannot be
2 disintegrated or separated."
3 A. Yes.
4 Q. Can you explain this? What is the significance that you see in
5 this provision?
6 A. In my view, that means that members of a specific police unit
7 cannot be separated and attached to other units - for example, military
8 units - but rather, the unit should be used in combat area in its, what
9 we call, initial formation. That is how I read this. That is to say,
10 you cannot take a police unit and assign two members to one unit, three
11 members to another unit, et cetera. Instead, the unit must be used in
12 its original form.
13 Q. This paragraph also says that this refers only during the period
14 of their resubordination to the VRS. Do you understand this as something
15 that necessitates a definition of the duration of resubordination of MUP
16 units to the VRS?
17 A. Do you mean that an order must precisely specify the period of
19 Q. I suppose so. You can define a period of time in different ways.
20 A. As I read it, I would say, pursuant to Article 3, that these
21 units will take part in combat activities. So I understand it that they
22 are resubordinated for as long as combat activities are in progress, and
23 that is in compliance with the task that they had been given of taking
24 part in combat. Once there are no combat activities and their engagement
25 is terminated or fulfilled - I don't know what the proper military term
1 is - I understand it that they would go back to their home base, so to
2 speak, and that is to the Ministry of the Interior.
3 But please do not take my word for granted. When I am using
4 these military terms, I am not sure how you say and you would term the
5 end of combat operations in proper military wording.
6 Q. I would just like to remind you once again to keep it slow,
7 please, because I think we are having problems with the transcript.
8 Can we now look at paragraph 3 of this article, which reads that:
9 "Police units resubordinated to the army of Republika Srpska in a certain
10 zone shall be used only for combat tasks established in advance by the
11 commander-in-chief or the Minister of the Interior."
12 Do you understand this to mean that this provision explicitly
13 directs a limited use of these units, i.e., that they may only be used
14 within combat tasks that had been pre-set?
15 A. Yes, I believe that one could construe it in that way. Yes.
16 MR. ZIVANOVIC: [Interpretation] Can we please now look at Exhibit
17 57. That's Prosecution Exhibit 57. It's an order dated the 10th of
18 July, 1995.
19 Q. If I understood you properly, you believe that this order
20 suggests that this unit has been resubordinated to the Drina Corps of the
22 A. Yes.
23 Q. Could you please tell me now, do you see anywhere in this order
24 that it has been resubordinated to anyone?
25 A. Yes, I understand what you're asking me. I do not see this
1 specific word "resubordinate" after reading this order, as you did.
2 Q. Can you tell me, please, under item 5 of this order, it states
3 that the unit commander is "obliged upon their arrival at the destination
4 to make contact with the Corps Chief of Staff General Krstic." Would you
5 understand this part as an order to effect resubordination?
6 A. Yes, that's how I would interpret this.
7 Q. Do you see a definition in this order of a specific combat task?
8 A. Yes. I see it in the preamble of the order, and that's a combat
10 Q. But you overrule -- rule out the possibility for this unit to be
11 used independently concerning that we are talking here about combat
13 A. Will you please repeat the question.
14 Q. Do you rule out the possibility, although I think you already
15 answered this, for this unit to be used in combat operation only by being
17 A. Yes, this is how I understand the law.
18 Q. I am going to ask -- show you an order 1D316 --
19 MR. LAZAREVIC: [Interpretation] I am not sure whether it's in
20 e-court already. If it's not, I would like this -- to show the document
21 to the witness. It's 1D316.
22 JUDGE AGIUS: Yes, Mr. Lazarevic.
23 MR. LAZAREVIC: Your Honours, maybe we can clarify the
24 transcript. I believe that there is some ambiguity in the question and
25 the answer that the witness gave. So can my colleague, please, go again
1 through question which was on page 69, line 11. Because the answer was
2 "Yes, this is how I understand the law," and line 15 -- right here on
3 line 15 to line 17, this -- the way the question is posed, and the answer
4 could cause some confusion.
5 MR. ZIVANOVIC: [Interpretation]
6 Q. I can put the same question to you, but I think you did
7 understand it.
8 A. Yes. Please ask the question again.
9 Q. Do you rule out the possibility for a police unit to be used in
10 combat operations without being resubordinated to the VRS?
11 A. According to the Law on Internal Affairs in a State of War, only
12 two kinds of units are being established for combat operations and are
13 being used in such a way that they become resubordinated to a military
14 unit in which the zone of responsibility they execute a combat task.
15 Q. Thank you. I am going to show you a very short order. It hasn't
16 been translated, and it's not in e-court, so you're going to see it on
18 MR. ZIVANOVIC: There is no translation --
19 Q. [Interpretation] Now, I hear that this is in e-court, 1D316.
20 THE REGISTRAR: For that number, we have the transcripts.
21 MR. ZIVANOVIC: 1316, 1D1316.
22 Q. [Interpretation] I think you will be able to see it on your
23 screen as well. This is an order dated the 30th of March, 1995. It's
24 addressed to the special police brigade command, and it says that the
25 first detachment of the special police of Jahorina be dispatched to carry
1 out a combat task in Konjevic Polje, i.e., to fight the infiltrative,
2 subversive, and terrorist groups. In paragraph 2, it is stated that the
3 police forces staff of the public security centre Zvornik shall control
4 and run the entire MUP forces in the course of carrying out a combat task
5 on the Zvornik-Vlasenica road in order to cut off this road, and --
6 A. Yes.
7 Q. I'm going to repeat. In order to cut off the road and preclude a
8 possible passage of Muslim units from Srebrenica. And in paragraph 3, it
9 says, The centre for training of service dogs will give two -- two guide
10 dogs and two service dogs to the 1st detachment of the special police. I
11 understand that this police unit was sent to take part in combat
12 activities without it being resubordinated to the VRS. Do you understand
13 it in the same way?
14 A. Well, let me tell you how I understand it. I see that the police
15 forces staff is going to run the forces during the execution of the task.
16 The order does not specify who is in command of these units. They
17 received this order from the Minister of the Interior. I do not see
18 which army unit they are subordinated to, and I don't see who is
19 commanding this unit. It's not written in this order.
20 Q. How do you read this term "managing" or "running the entire MUP
21 forces during the combat task"? Can this be done without a command
23 A. I am not an expert in expert terminology and expert rules. All I
24 know is what an ordinary and average person who served in the army knows,
25 but I cannot make the distinction between command and control. But it is
1 a fact that the unit to which this police unit is subordinated is not
2 identified -- or, rather, resubordinated.
3 MR. LAZAREVIC: Your Honours, I believe it would be fair towards
4 the witness to show him Article 13 of the Law on Implementation of the
5 Law on Internal Affairs. It's 4D413, Article 13, second section.
6 JUDGE AGIUS: Thank you. Are you going to do that,
7 Mr. Zivanovic, yourself?
8 MR. ZIVANOVIC: Sorry.
9 THE WITNESS: [Interpretation] That's what it says in Article 13.
10 That's what it says. Control.
11 MR. ZIVANOVIC: [Interpretation]
12 Q. Now, tell me, some police units, when they are sent on
13 assignment, do they have their commander?
14 A. When speaking of police units sent out for combat activities,
15 they have a commander who is a member of the MUP. So I can't speak in
16 general terms for the whole of the police force. I am addressing this
17 particular situation.
18 Q. Thank you. Let me ask you something else now. We have had
19 opportunity to see here in this courtroom - whether you've seen it or not
20 and there's no need for us to bring it up on our screens - but we saw
21 that all the units that were within the framework of the Drina Corps -
22 that is to say who were subordinated to the Drina Corps - on a daily
23 basis sent out regular combat reports and reported to the superior
24 command - that is the Drina Corps - about what was going on that day with
25 respect to combat and combat activities.
1 Now, my question to is this: Have you ever seen a combat report
2 of the special police brigade which was sent to the command of the Drina
3 Corps with contents like that or similar contents?
4 A. I can't --
5 MR. LAZAREVIC: Before -- I believe it's far outside from the
6 scope of his expert report. And furthermore, regarding combat report of
7 the special police to Drina Corps's command, I don't know whether there
8 is this proposition that any sort of report was sent to Drina Corps from
9 the special police brigade.
10 JUDGE AGIUS: All right.
11 MR. LAZAREVIC: There is no basis for this question.
12 JUDGE AGIUS: All right. Thank you. Let's take them one by one.
13 Do you wish to comment --
14 MR. ZIVANOVIC: Yes, Your Honour.
15 JUDGE AGIUS: -- or shall we refer it straightaway to the witness
16 and he will tell us whether it's within or without the parameters of his
18 MR. ZIVANOVIC: Yes. The witness testified about the
19 resubordination of special brigade of police to the Drina Corps command,
20 and one of the acts of subordination is reporting to higher command or
21 superior command, and I would just like to have information whether the
22 witness ever seen such a record or not.
23 [Trial Chamber confers]
24 JUDGE AGIUS: Well, you would know whether you have seen one such
25 report or not, so if you could provide us with your answer, please?
1 THE WITNESS: [Interpretation] Yes. Now, in the documents that I
2 reviewed for my expert report, I don't remember having seen anything like
4 JUDGE AGIUS: All right.
5 MR. ZIVANOVIC: [Interpretation]
6 Q. Tell me, please, did you ever see that this unit or some other
7 unit, MUP unit, during this operation - that is to say, during this time
8 period, which was the subject of your expertise - did it submit any
9 reports to the Ministry of the Interior or the staff of the police forces
10 or anything like that?
11 A. No, no. I don't think so. I don't think I came across anything
12 like that.
13 Q. I am now going to show you another document.
14 MR. ZIVANOVIC: [Interpretation] Exhibit P62.
15 Q. As you can see, this is a report that the centre for public
16 security for the centre of Zvornik on the 13th of July, 1995, addressed
17 to the MUP of Republika Srpska and the police headquarters in Bijeljina,
18 and you can see that the person is reporting on the combat activities on
19 that particular day.
20 A. Yes.
21 Q. Now, would you focus your attention on paragraph 2 of the
22 document where it says: "We have no cooperation or assistance from the
23 army of Republika Srpska in sealing off and destroying a large number of
24 enemy soldiers, so that a lot of problems can be expected until the
25 operation is completed, because the MUP is working alone in this
1 operation, and both the area and the number of Muslim soldiers are
3 Tell me now, please, do you gain the impression from that
4 paragraph that this particular MUP unit that took part on the 13th of
5 July in those actions was subordinated to the army of Republika Srpska?
6 MR. LAZAREVIC: Your Honours --
7 JUDGE AGIUS: Yes.
8 MR. LAZAREVIC: Can we be more -- can my colleague be more
9 specific about which MUP unit he's referring at? Can this be seen from
10 this document?
11 JUDGE AGIUS: Okay. Thank you. Yes, Mr. Zivanovic.
12 MR. ZIVANOVIC: It is -- it reads in the second line of the first
13 paragraph: 1st Company of special PJP -- CJB Zvornik.
14 JUDGE AGIUS: Okay.
15 THE WITNESS: [Interpretation] And your question was whether I
16 conclude what from this report? That the unit --
17 MR. ZIVANOVIC: [Interpretation]
18 Q. That the unit was resubordinated to the police of Republika
19 Srpska in view of the second paragraph where it says that they are acting
20 alone in this operation and that they are receiving no assistance or
21 cooperation, et cetera.
22 A. What I can conclude from this report - if I've understood this
23 correctly, that it is a report - is that the police unit in question
24 mentioned in the second sentence, that they have a combat task and that
25 they are alone in carrying it out. Now, whether it was resubordinated or
1 not cannot be seen from this order. All we can see is that they have
2 suffered losses, that they are working alone, that they are receiving no
3 assistance, but not whether they are subordinated or not. Perhaps they
4 received a combat assignment to work on their own. I can't know that.
5 All I can see is what it says in this report here. So I can't really
6 answer your question as to whether or whether they were not
7 resubordinated on the basis of what it says here in this report. This is
8 a report, right? You said it was a report.
9 Q. In your opinion, a letter of this kind -- is this the kind of
10 letter you would send to your superior? Because these are very real
11 problems on the ground that the unit is confronting or confronted on that
12 particular day.
13 MR. LAZAREVIC: [Previous translation continues]... of the expert
14 report and the expertise of this witness.
15 JUDGE AGIUS: Yes, Mr. Zivanovic.
16 MR. ZIVANOVIC: I withdraw this question.
17 JUDGE AGIUS: Thank you. [Microphone not activated]
18 MR. ZIVANOVIC: [Interpretation]
19 Q. I am going to ask you just one more thing, and it has to do with
20 the prisoners. You have read a lot of provisions, both military and
21 civilian, and I wanted to ask you in view of the fact that you read the
22 Rules of Service of the Security Organs, as well, and other rules and
23 provisions, whether you can or whether in reading through the Rules of
24 Service of the Security Organs within their remit or within the scope of
25 their tasks, did you find any provision which addresses conduct towards
1 prisoners of war?
2 A. In the Rules for Security Organs, I found no such provision.
3 There is one in the Rules Governing the Military Police, but not in the
4 security organ rules and regulations.
5 Q. But you say you found it there. Did you find it any other legal
6 provision that you read while preparing your expert report?
7 A. To be quite frank, I don't think that I found the mention of
8 security organs in any of the laws. Perhaps the Law on Defence has this
9 term, refers to that, but I don't think so.
10 MR. LAZAREVIC: [Interpretation] Thank you. I have no further
12 JUDGE AGIUS: Thank you Mr. Zivanovic. Mr. Ostojic.
13 MR. OSTOJIC: Thank you, Mr. President.
14 Cross-examination by Mr. Ostojic:
15 Q. Good afternoon, sir. My name is John Ostojic, and I represent
16 Ljubisa Beara in this case. I have several questions for you.
17 Unfortunately, I don't believe I'll be able to finish today, and thank
18 you for your patience.
19 Sir, first, I want to know if you have a distinction in the term
20 "combat action" or "task" versus "combat operation"?
21 A. Whether there is a distinction between combat action and combat
22 operation, is that what you're asking?
23 Q. No, not really. Actually, in your report you use, if you look on
24 22 -- on Section 21, actually, you use the term "both combat tasks" and
25 "combat activities," and I just don't know if you make a distinction
1 between the two.
2 A. I don't make a distinction. And I read -- I'm reading Article
3 12, which talks about combat tasks, and Article 13 refers to combat
4 activities. So I am not well-versed in military terminology, so -- and
5 I'm not sure whether the two concepts have different meanings in military
6 terminology. I don't distinguish between that myself.
7 Q. So you're not a military expert, correct?
8 A. Well, no. I couldn't actually refer to myself as a military
10 Q. Help me understand. What expertise do you have, sir, other than
11 reading the statutes and giving you us your view on what the law or
12 statutes might be?
13 A. You mean what the subject of my expertise was, whether it was the
14 legal order, provisions, laws, that kind of thing, handbooks, manuals,
15 and individual legal documents, that kind of thing.
16 Q. Now, in looking at the introduction section of your report, which
17 is on page 1, you talk about how you're going to discuss the issues and
18 relationships between the VRS and the MUP, and you state that you looked
19 -- reviewed some documents. I don't have the list of the documents, but
20 I did locate your report --
21 THE INTERPRETER: Could you slow down, please.
22 MR. OSTOJIC: I will. Thank you. And I apologise.
23 Q. And are all the documents that you reviewed those that are
24 reflected either in the body or in the footnote of your report, or were
25 there other documents that you reviewed as well?
1 A. You mean whether I mention -- refer to a document in my report
2 without mentioning it in the footnote? I don't think so. I think all
3 the documents I used are mentioned in my footnotes.
4 Q. Let me try it this way. Were there any other documents that you
5 reviewed that you did not include or cite in your report?
6 A. Ah, I see. Yes. For example, I saw the Law on the Gathering of
7 Information About War Crimes from Republika Srpska, but I didn't consider
8 it to be relevant, for example, for the topic of my expert report because
9 it provides for the obligation that all information on war crimes be
10 handed over to state organs, but that is covered by the criminal code,
11 which states that if you do not inform about crimes, you will be held
12 responsible, so there is an example.
13 And there were documents that I wasn't able to find; for example,
14 there is an order which mentions the rules governing the state security
15 department [as interpreted], which I haven't had a chance to see, which
16 says that the president of the republic enacts a set of rules governing
17 the security organs, but I wasn't able to find that document myself.
18 Q. Okay. Well, in looking at your task or in the introduction part
19 at the very least, you talk about issues of relationships between the VRS
20 and MUP, as I said. Did you ask for and did you receive documents from
21 the MUP on or about June and July of 1995 to actually be able to see what
22 the situation was and to apply those facts to the law that we can all
23 basically read ourselves, as you have done for us today. Have you done
25 JUDGE AGIUS: Yes. One moment before you answer the question.
1 Mr. Lazarevic.
2 MR. LAZAREVIC: I'm sorry. One small correction for the
3 transcript. It's on page 79, line 11 [sic], "governing the state
4 security organs." This is what the witness said, and I cannot see this
5 in the transcript.
6 JUDGE AGIUS: All right. We'll attend to that in due course.
7 Do you still remember the question?
8 THE WITNESS: [Interpretation] Could you ask that again but be
9 briefer. What did you say? Did I from the ministry what?
10 MR. OSTOJIC:
11 Q. I'll ask the question. Thank you. Did you look at the documents
12 from the MUP sources from June and July of 1995 in order to make an
13 application to your interpretation of the law?
14 A. Not from the police. I didn't ask the police for anything. I
15 received it from the Defence team. I received documents that I was
16 supposed to study and analyse. Is that what you're asking me?
17 Q. Yes. I didn't expect you to go directly to the police, but did
18 you get documents relating to the MUP activities in June and July of 1995
19 to review from any source?
20 A. I do have some few documents. Perhaps you could specify which
21 you mean. If you mean reports, I didn't see any reports, neither did I
22 receive any reports. Now, if you mean a set of some other documents
23 which relate to the activities of the police or conduct of the police, I
24 didn't receive anything specially along those lines if that's what you
25 have in mind. Nobody provided me with a set of documents from the police
1 station or something like that for me to review and analyse, no.
2 Q. Okay. We'll go some of the reports a little bit later, but let
3 me ask you this. You mention on 2.2 of your report, and you use the word
4 "independently" and "as an independent unit," and it references,
5 obviously, the 10th of July, 1995, order from Tomo Kovac that you just
6 recently discussed, and I think it's P57.
7 MR. OSTOJIC: So if we can just bring that up on the e-court, it
8 might assist.
9 Q. Do you have that document, sir?
10 A. Yes. This is it here.
11 Q. Now, if you look at this document, you see where it uses the word
12 "independent unit," correct?
13 A. Yes, yes, in point 1.
14 Q. And we know from your report that you have an interpretation of
15 that. Would that have been an appropriate place, if you know, if there
16 was going to be an actual resubordination by the various MUP units to use
17 the word "that they will be resubordinated" as opposed to saying that
18 they're going to be an independent unit as it plainly states?
19 A. I can't arrive at that conclusion on the basis of my
20 interpretation of this order. I said what the word "samostalan" or
21 "independent" meant, independent in relation to the other units of the
22 Ministry of the Interior, and I am reading item 5 as an order to
23 resubordinate to this officer -- that the police unit should be
24 resubordinated to this particular officer. That's how I understand it.
25 Q. And we'll get into resubordination a little later. But now
1 looking at this document, can you tell us if anyone in the VRS was
2 advised of this order and decision to send out MUP units? Do you see on
3 the top left-hand corner to whom this order was addressed, or in the
4 centre page, I think, with the B/C/S.
5 A. According to the addressees I don't see that. I just see - 1, 2,
6 3, 4, 5 - 7 instances to whom these was addressed. The command of the
7 special police brigade, staff of -- et cetera, staff of the Vogosca,
8 staff of the -- no, there's is no military unit listed there.
9 Q. Now, does that surprise you at all?
10 A. Well, I cannot say whether I am surprised or not. I don't know
11 how to answer that question.
12 Q. Okay. In 2.2 of your report, you also use the word "temporary"
13 as you do often, actually. At 4.21, you use it again, and then you use
14 it basically in your conclusion at 6.3 when you discuss these combat
15 activities, if you will, and I'll let you catch up there.
16 A. Yes.
17 Q. I think in 6.3 you use the word "finished." Now, this assignment
18 is always, in nature, temporary, correct, if a MUP unit was to be
19 resubordinated to a VRS corps or unit?
20 A. That's how I understand the Law on the Implementation of the Law
21 on Internal Affair During a State of War. For as long as the combat task
22 is in progress, the unit is resubordinated.
23 Q. And because you tell us that it's -- the MUP unit is independent
24 from all the other MUP units, would it be fair, then, that no one from
25 MUP would be able to during these combat activities be involved or order
1 this special MUP unit that was purportedly resubordinated, no one from
2 the MUP can command or give orders to them?
3 MR. LAZAREVIC: It's a compound question. It should be split in
4 at least two.
5 JUDGE AGIUS: Yes, Mr. Ostojic.
6 MR. OSTOJIC: No comment, Mr. President. I think he can
7 understand it, but if the Court wants me to --
8 JUDGE AGIUS: Let's see --
9 MR. OSTOJIC: -- break it down, I will.
10 JUDGE AGIUS: Let's see if it is compound for him or compound --
11 MR. LAZAREVIC: "Involved" or "order" are two different concepts.
12 JUDGE AGIUS: Yes, but I think the witness -- we have got an
13 intelligent guy here who can answer the question.
14 THE WITNESS: [Interpretation] I am going to repeat again or make
15 reference to the Law on Internal Affairs During a State of War. A police
16 unit is to be resubordinated to a military unit in whose zone of
17 responsibility it is carrying out a combat task. And I understand it, it
18 is being commanded by the unit in whose zone of responsibility it is
19 being engaged in a combat activity. This is how I understand the law.
20 MR. OSTOJIC:
21 Q. Well, you know, you've used a lots of logic in your report and
22 you have in your testimony. The logical extension, sir, would it not be,
23 that someone from -- let's hypothetically say from the Zvornik public
24 security station, a fellow by the name of Dragomir Vasic, he would not be
25 able to intervene in any of the combat activities, correct?
1 A. What do you mean by the word "intervene," please?
2 Q. Can be involved in --
3 A. That's what you said.
4 Q. I know I said it. Can he be involved in any way, since we've
5 assigned this special unit and there's is a deputy commander, it's been
6 clearly defined which units will be participating in these combat
7 activities. Could someone from a public security station or centre of
8 public security, can they order or send any orders to that special MUP
9 unit that's purportedly subordinated to the VRS?
10 A. As I read the law, the resubordinated unit is commanded by the
11 military unit, and I'm repeating this for a third time, in whose zone of
12 responsibility it is carrying out a combat task. So I understand this to
13 mean that this military unit to whom the police unit is being
14 resubordinated is giving it commands in terms of how it's going to carry
15 out its combat task.
16 Q. If we look at 2.7 of your report, and we're kind of moving along,
17 you state: "Such a situation lasts as long as it is required by the
18 combat task for the purpose which the MUP unit has been sent." Then you
19 go on to say: "This MUP unit is practically outside the regular system of
20 command of the MUP." Do you see that?
21 A. Yes.
22 Q. Now -- and I know you talk about in another section in your
23 report about specificity and precision. Is the specificity and precision
24 as to both time and place of the combat activity?
25 A. Do you mean that it is necessary for a combat activity to be
1 precisely defined? Yes. And.
2 Q. Just [overlapping speakers] --
3 A. Let me just find the order. Here it is. An order issued by the
4 president of the Republic in terms that henceforth the main MUP staff
5 should give more precise definition of the engagement of MUP units in
6 combat. It says there had been some problems with regard to the
7 engagement to the engagement of some MUP units. I don't know what
8 problems and difficulties they are referring to. I can only make an
9 assumption, but it's not up to me to do so. However, he is ordering this
10 to be defined more precisely and accurately, and it probably means what
11 specific tasks this unit is going to be engaged in. According to what I
12 saw in this order --
13 Q. We'll get into that order especially when it comes to -- wait --
14 I know, but --
15 MR. LAZAREVIC: The witness has just referred to certain
16 document. I believe that for the clarity of the record, we should have
17 the number of this document at least.
18 MR. OSTOJIC: And that's exactly why I was trying to cut him off
19 so we could at least get the date of the document if nothing else.
20 Q. Sir, you were referencing -- you said you found an order, and it
21 was an order issued by the president of the republic, and then you go on
22 to give your opinion on it. Just give us the date of that document or if
23 you have an exhibit number in the top right-hand corner, that might help
24 us all follow.
25 A. The 20 -- P8, P8.
1 Q. Okay. Now, in a situation where the goal of the combat activity
2 ceases, is it that point in time that the special MUP unit is no longer
3 resubordinated to the VRS?
4 A. My interpretation of the law is that resubordination lasts as
5 long as the combat task lasts. In my view, at that point resubordination
6 should cease, and the unit should return to its regular police duties.
7 Q. And that's the way I read it, as well, sir. Well, the task here
8 that you testified about as reflected on the 10th of July, 1995, order,
9 which is I think is P57, is clearly defined, is it not? That's in the
10 introductory paragraph before the words "I hereby order".
11 A. Yes, yes.
12 Q. And the task that's clearly defined there is to "crush the enemy
13 offensive." Do you see that?
14 A. Yes, yes.
15 Q. Okay. Well, sir, do you know that as of July 11th and 12th of
16 1995, there was no enemy offensive in the Srebrenica sector?
17 A. Let me tell you, sir, about the events in Srebrenica. If you'll
18 allow me, maybe I can give you an answer. As for the events taking place
19 in Srebrenica in 1995, I only have the knowledge that every average
20 person following the media has. I really don't know when an enemy
21 offensive started or ended. It should be up to military experts to
22 explain to you and give an answer to you about when an offensive starts
23 and when it ends. As I say, I have the knowledge of an ordinary news
25 Q. I appreciate that, but, sir, you're giving expert evidence here
1 telling us that a unit was resubordinated to the VRS. You're relying on
2 a document, P57, dated the 10th of July, 1995, and you've read the law,
3 and it's pretty clear that the resubordination, if any, ceases
4 immediately upon the completion of a combat task or assignment, correct?
5 A. That is how I understand the law, i.e., that while a unit is
6 engaging a combat task and was subordinated to a military unit in whose
7 zone of responsibility it is carrying out the task, it is for that period
8 outside of the command system of MUP, and it receives orders from the
9 army. Once the task is completed, the unit returns to the MUP.
10 I honestly cannot tell you in military terms when an enemy
11 offensive starts and when it ends. If that is your question, I believe
12 that you have to put it to a military expert, but please don't take it on
14 Q. Okay. Now, looking at this P57, there were five specific
15 identified parts of the MUP that were going to participate in this combat
16 activity that was well-defined; and I could read through them, but I
17 think we see them: (a), the 2nd special police detachment from Sekovici;
18 (b), or 2, the 1st company of the PJP special police unit of the Zvornik
19 SJB, but it may be CJB; 3, the mixed company of RSK, which is Republika
20 Srpska Krajina; the fourth one is the RS MUP forces, but those were, were
21 they not, from the Trnovo battlefield, just so we can define it a little
22 clearer, correct?
23 A. Allow me just to read it, please. In paragraph fourth, it says,
24 The withdrawal from the Trnovo battlefield shall be done during the
25 night, et cetera, et cetera. So are you asking me whether all these
1 units mentioned under item 2 were in Trnovo?
2 Q. Let me just try to get a couple of questions out, and then
3 obviously the last one is the training -- or the company from the
4 training camp on Jahorina, right? Those are the ones listed, and we can
5 read them even though we may not agree to it. What would the 5th company
6 of the Zvornik CJB -- they weren't listed in this order, and they would
7 have no involvement whatsoever in any combat task or assignment, correct?
8 A. I can only tell you what's written in this order. However, as to
9 who took part in the execution of the combat task, I really cannot tell
10 you. You are asking me about facts. I don't know the facts. I reviewed
11 this order, and that's all I can tell you about. Any facts not contained
12 in this order are beyond my scope. According to this order, these units
13 were assigned to take part in a combat task.
14 Q. Okay. And we'll get to the 5th company of the Zvornik CJB
15 probably next week, sir, but thank you for that.
16 MR. OSTOJIC: Can we have P58 on e-court, please. And as it's
17 being brought up, just for the record, it's a document dated the 22nd of
18 April, 1995.
19 Q. And you have that document, sir, correct?
20 A. Yes, P8.
21 Q. In the first paragraph, it talks about Main Staff on the -- with
22 respect to the army. Do you see that?
23 A. Yes. It's addressed to the Main Staff and the MUP.
24 Q. Well, here in this order dated the 22nd April, 1995, it says that
25 "the Main Staff of the army shall define precisely and concisely that
1 which they may need from the MUP, if at all." Does it not?
2 A. That's how I read item 2, that in the future they're going define
3 their requests more precisely.
4 Q. [Previous translation continues]... 1995 order, which is P57.
5 Now, this was not done by any request of the Main Staff or any army unit,
6 the request to have this special MUP unit come on board and help, if they
8 MR. LAZAREVIC: It's a call for speculation. I'm sorry.
9 JUDGE AGIUS: Mr. Ostojic.
10 THE WITNESS: [Interpretation] This is pure guesswork.
11 JUDGE AGIUS: Exactly. I think you can move to your next --
12 MR. OSTOJIC:
13 Q. Well, have you seen --
14 JUDGE AGIUS: I think you can move to your next question.
15 MR. OSTOJIC:
16 Q. Have you, sir -- when you reviewed the documents, sir, have you
17 seen anything prior to this July 10th, 1995
18 analysed and gave evidence on which would suggest that the Main Staff of
19 the VRS requested this MUP unit or any MUP units, for that matter?
20 A. So, have I seen an order asking the police to give them any unit,
21 and that is the order from the VRS Main Staff.
22 Q. [Previous translation continues]... touch on a couple of topics
23 that I'm sure we are going to plush out next week. Do you know if the
24 MUP units ever had collection centres or detention centres in the summer
25 of 1995? And this goes in relation to your testimony on POWs.
1 A. Do I know if the police --
2 Q. Do you know if they held or had control of any collection centres
3 or detention facilities in June of 1995 or at any time in that summer?
4 A. In the documents that I reviewed, I haven't come across any such
5 thing, no.
6 Q. Well, you interpreted the law -- thank you. You interpreted the
7 law a little bit for us on who has the right and who should maintain --
8 maintain the POWs. I want to show you a document, which is 4D245. No,
9 I'm sorry. I want to take that back. It's 4D119. Thank you. It's a
10 document dated the 23rd of June, 1995, sir.
11 And just because we only have a couple of minutes left, sir, but
12 I think you could really glance at it. It's about 2 paragraphs long.
13 This is a letter from the deputy minister Tomislav Kovac from the MUP,
15 JUDGE AGIUS: Yes. One moment.
16 MR. LAZAREVIC: I would really like to know how this document
17 relates to prisoners of war.
18 JUDGE AGIUS: Yes, Mr. Ostojic.
19 MR. OSTOJIC: I mean, they're dealing specifically in that
20 paragraph with collection centres, and I think if we simply read the
21 third and fourth line, they're turning over certain people in the
22 hundreds and thousands, for that matter, but I don't understand the
23 objection, and I think that it's unfounded.
24 JUDGE AGIUS: [Microphone not activated]
25 MR. LAZAREVIC: This deals with military conscripts, which were
1 sent from republic of -- well, at that time, Federal Republic of Serbia
2 and Montenegro
3 Republika Srpska. This has nothing to do with prisoners of war.
4 JUDGE AGIUS: I think I will give you the weekend and even after
5 that to mull about this very difficult and complex question. Maybe you
6 will go straight to your next question when we reconvene on Wednesday.
7 In the meantime, just so that Ms. Fauveau knows exactly where she
8 stands, how much longer do you think you have?
9 MR. OSTOJIC: About an hour, Mr. President.
10 JUDGE AGIUS: Okay. Mr. Bourgon.
11 MR. BOURGON: About 30 minutes, Mr. President.
12 JUDGE AGIUS: Okay. That's one session. Ms. Fauveau, nothing?
13 MS. FAUVEAU: [Interpretation] No questions.
14 JUDGE AGIUS: Okay. Thank you. Mr. Josse.
15 MR. JOSSE: Very unlikely to have any questions.
16 JUDGE AGIUS: Thank you. And Mr. Haynes.
17 MR. HAYNES: 30 minutes to an hour.
18 JUDGE AGIUS: So we are talking of maximum two hours and a half.
19 And you, Mr. Vanderpuye?
20 MR. VANDERPUYE: Thank you, Mr. President. I don't expect to
21 exceed half an hour -- 15 minutes to half an hour.
22 JUDGE AGIUS: All right. So Tuesday -- Thursday, I suppose, you
23 should be in a position to start. Okay? Thank you. Wednesday,
24 Wednesday we are going to dedicate the whole day -- yes, would you like
25 to go home over the weekend and come back?
1 THE WITNESS: [Interpretation] [In English] Yes, yes.
2 JUDGE AGIUS: You see how I read minds?
3 THE WITNESS: [Interpretation] With your permission, I would like
4 to go home over the weekend. I already have a flight scheduled at 5.00,
5 and I'll be back.
6 JUDGE AGIUS: All right. Thank you. And the important thing is
7 that you do not communicate with anyone on the subject matter of your
8 testimony. Thank you.
9 THE WITNESS: [Interpretation] I understand.
10 --- Whereupon the hearing adjourned at 3.00 p.m.
11 to be reconvened on Wednesday, the 12th day of
12 November, 2008, at 2.15 p.m.