Tribunal Criminal Tribunal for the Former Yugoslavia

Page 35543

 1                           Monday, 19 January 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.17 p.m.

 5             JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you please

 6     call the case.

 7             THE REGISTRAR:  Good afternoon everyone in and around the

 8     courtroom.  This is case number IT-04-74-T, the Prosecutor versus

 9     Prlic et al.

10             Thank you, Your Honours.

11             JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.

12             This is Monday, January the 19th.  I'd like to greet the accused,

13     the counsels, and particularly Mr. Khan, whom I'm pleased to see back.  I

14     would also like to greet the representatives of the Prosecution, as well

15     as all those present in the courtroom.

16             I know that Mr. Registrar has a few IC numbers to provide me

17     with, so I give him the floor.

18             THE REGISTRAR:  Thank you, Your Honour.

19             Some parties have submitted lists of documents to be tendered

20     through witness Milan Cvikl.  The list submitted by 1D shall be given

21     Exhibit IC 00897.  The list submitted by 2D shall be given Exhibit

22     IC 00898.  The list submitted by 3D shall be given Exhibit IC 00899.  And

23     the list submitted by the Prosecution shall be given Exhibit IC 00900.

24             Thank you, Your Honours.

25             JUDGE ANTONETTI: [Interpretation] Thank you, Registrar, for these

Page 35544

 1     IC numbers.

 2             First of all, I'd like to go to private session for a few

 3     moments -- to closed session for a few moments.

 4                           [Closed session]

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  Your Honours, we're back in open session.

22                      [The witness entered court]

23             JUDGE ANTONETTI: [Interpretation] Good afternoon, Witness.  I

24     hope you can hear me in your headphones.

25             THE WITNESS: [Interpretation] Yes, I can.

Page 35545

 1             JUDGE ANTONETTI: [Interpretation] I'll ask you to stand to

 2     pronounce the solemn declaration.

 3             Could you state your name, surname, and date of birth.

 4             THE WITNESS: [Interpretation] October the 30th, 1966.

 5             JUDGE ANTONETTI: [Interpretation] Do you have a job currently,

 6     and what is your current occupation?

 7             THE WITNESS: [Interpretation] I'm a historian, and I work at the

 8     Croatian Institute for History.

 9             JUDGE ANTONETTI: [Interpretation] Already a witness before a

10     court, whether national or international, on Yugoslavia or the former

11     Yugoslavia, is this the first time?

12             THE WITNESS: [Interpretation] I witnessed before this Court.

13             JUDGE ANTONETTI: [Interpretation] Which case?

14             THE WITNESS: [Interpretation] I was a witness in the case

15     Martinovic and Naletilic.

16             JUDGE ANTONETTI: [Interpretation] And were you a Prosecution or

17     Defence witness?

18             THE WITNESS: [Interpretation] I was a witness for the Defence,

19     Your Honour.

20             JUDGE ANTONETTI: [Interpretation] Please read the solemn

21     declaration.

22             THE WITNESS: [Interpretation] I solemnly declare that I will

23     speak the truth, the whole truth, and nothing but the truth.

24                           WITNESS: DAVOR MARIJAN

25                           [The witness answered through interpreter]

Page 35546

 1             JUDGE ANTONETTI: [Interpretation] Thank you very much.  You may

 2     sit down.

 3             THE WITNESS: [Interpretation] Thank you.

 4             JUDGE ANTONETTI: [Interpretation] A few brief pieces of

 5     information.  Since you've already come to this Tribunal, you know how

 6     our proceedings take place.  You'll have to answer questions which will

 7     be put to you by Mr. Stojic's counsels.  I think Ms. Nozica will be doing

 8     the questioning, after which the other accused's counsels will

 9     cross-examine you.  And after this, the Prosecution, who is on your

10     right-hand side, may also cross-examine you.  This is the procedure under

11     our Rules.  The four Judges before you at any time, and you will soon

12     realise that, will be likely to ask questions to clarify aspects which

13     may require so, so please be accurate in your answers.

14             If you do not understand a question, do not hesitate to ask the

15     one who posed it to rephrase it or to ask it again.

16             For your information, today we shall bring the proceedings to an

17     end at 1820, but for the coming days, the hearings will begin in the

18     morning at 9.00.  It is possible that in the light of the time used by

19     Mr. Stojic's Defence and the other counsels' Defence, and on account of

20     the time required by the Prosecution, we may not finish by Thursday, in

21     which case you will have to stay at least until Monday, but let's be

22     hopeful, and perhaps things will turn out better than expected.  This is

23     what I tell you, and I hope that if you have to stay, this will not cause

24     you any serious inconvenience.

25             Would there be a problem if you had to stay until Monday, sir?

Page 35547

 1             THE WITNESS: [Interpretation] Well, I do have some family issues,

 2     but I do hope everything will be okay.

 3             JUDGE ANTONETTI: [Interpretation] I also hope everything will be

 4     okay.  And as I hope that everything will be okay, I give the floor,

 5     without further adieu, to Ms. Nozica.

 6             MS. NOZICA: [Interpretation] Good afternoon, Your Honours.  Good

 7     afternoon to everybody in the courtroom.  Good afternoon, Mr. Marijan.

 8             I would just like to provide you with several introductory

 9     technical remarks before I begin, but before that I would like to say

10     that this is an expert witness, the first witness presented by the

11     Defence of Mr. Stojic.

12             As for my technical remarks, Your Honours, and the witness, you

13     received four binders.  There is a blue binder marked as binder X.  In

14     that binder, we have important organisational acts which we shall refer

15     to on several occasions, and that's why they've been put into a separate

16     binder.  Moreover, there is a red binder containing this expert witness

17     statement or report, rather, and there are also two binders containing

18     different documents.

19             We've provided you also with the expert witness's report that he

20     gave in the previous case, so that the Chambers may, if they wish, check

21     whether both of these reports touch upon the same issues and whether he's

22     testifying in the same manner.

23             With Your Honours' indulgence, and obviously with the indulgence

24     of my learned friends from the Prosecution, before we start with the

25     topic of this report, I would like to very quickly go through the

Page 35548

 1     curriculum vitae and the expertise of this witness, and his scientific

 2     work.  I believe that this might be very important so that we'll learn

 3     what is the extent of knowledge of the witness before he started -- what

 4     it was before he started working on his report.

 5                           Examination by Ms. Nozica:

 6        Q.   [Interpretation] Mr. Marijan, I will kindly ask you, as I'm often

 7     asked in this courtroom, if I start speaking too quickly when asking

 8     questions, and you should also be mindful of this when you are answering,

 9     we have to speak rather slowly in order for the Judges to be able to

10     understand us.  That's a very important reason.  But there's also the

11     second reason, and this is the gentleman taking minutes, the transcript,

12     should be able to record everything, and the interpreters should also be

13     able to do their job.

14             Just a few questions regarding your work experience.

15             In your CV, we can see that you participated in the war in Bosnia

16     and Herzegovina in the period between 1992 and 1995 as a member of the

17     HVO; is that correct?

18        A.   Yes, that is correct.  I participated as a volunteer on three

19     occasions in HVO units in the period between 1992 and 1995.

20        Q.   It is also stated here that you were a member of the

21     Petar Kresimir 4th Brigade in Livno.  Could you tell me where you were

22     based and what were your tasks?  Where was this brigade based, and who

23     HVO was in conflict with at that time?

24        A.   I was a member of this brigade in 1992.  This brigade was

25     continuously based an in the territory of the Municipality of Livno.  I

Page 35549

 1     was a member of the Students' Company of this brigade, and I was an

 2     infantry soldier.

 3             MS. NOZICA: [Interpretation] I've been warned that in line 1 of

 4     the transcript, a year is missing.  That was my question.  So in my

 5     question, I referred to the year 1992, and I would like to thank my

 6     colleague for this warning.

 7             THE WITNESS: [Interpretation] In my answer, I did refer to the

 8     year 1992, and I can only add that at that time we were at war with the

 9     Serbs.

10             MS. NOZICA: [Interpretation]

11        Q.   In your CV, we can also see that you were a member of the 1st

12     Brigade, Petar Kresimir the 4th in Livno between July 1992 [as

13     interpreted] and April 1994.  Could you please tell me where you were

14     stationed at the time and what were your tasks?

15        A.   If you allow me, in line 12 it says "July 1992."  Well, that was

16     actually July 1993.  I was a member of the same brigade.  I was the

17     commander of the Students' Company.  That was the time of the war with

18     Muslims.  Most of the time I spent in this brigade, I was at positions

19     facing the Bosnian Serbs, and I believe that on three occasions I was in

20     another place for periods of ten days each time.  This was in the area of

21     Gornji Vakuf.

22        Q.   The fourth time you came to Livno, the fourth time you came,

23     where were you then?

24        A.   This was the third time.  Then I was a member of a professional

25     unit of the 1st Guards Brigade of the HVO.  I was a member of this

Page 35550

 1     brigade between September 1994 and the end of July or August 1995.  At

 2     that time, I was in charge of the political activity in the department of

 3     the Guards Brigade.

 4        Q.   Mr. Marijan, you said you were a volunteer and you came to Livno.

 5     Could you please explain to this Court, what does this mean?  So at the

 6     time of your first coming in April 1992, where was your permanent

 7     residence, what is your origin, when and why you came to Livno on the

 8     three occasions mentioned?

 9        A.   At the time, I was a student.  I studied in Zagreb.  I lived then

10     and I still live in a small town in the vicinity of Zagreb called

11     Velika Gorica.  Just before I began my studies, my father built a house

12     there, and this is where I've lived.  I went to Livno on three occasions,

13     frankly speaking, because of my parents.

14        Q.   What does that mean, because of your parents?

15        A.   It was war.  The war was on, and my feeling was that had I not

16     gone down there when my family was endangered, I could have never faced

17     coming there again.

18        Q.   You said that you went because you could not have faced going

19     down there again in the future had you not gone on that occasion.  Did I

20     understand this well?

21        A.   Yes, you did.

22        Q.   So we are talking about April 1992.  Who was endangering your

23     family at the time in Livno?

24        A.   My family was in danger because of the army at the time.  It was

25     still called Yugoslav People's Army.  Later, it was renamed into the

Page 35551

 1     Army of the Republika Srpska.  My village was at the very front-line

 2     facing this army, and the attack started just a few days after I came

 3     there.

 4        Q.   I will try to go very quickly through your scientific expertise

 5     and your work experience, which is very significant, also significant for

 6     your report.

 7             You said that you completed your studies of history and

 8     archaeology at the Faculty of Philosophy in 1994; that you gained

 9     Master's of Arts degree at the same faculty in January 2005, with a

10     thesis:  Ustasha military units, 1941 to 1945; is this correct?

11        A.   Yes.

12        Q.   You got your Doctoral degree on May 11th, 2006, with the thesis

13     entitled:  "Yugoslav People's Army and the dissolution of the Socialist

14     Federal Republic of Yugoslavia, 1987 to 1992"; is this also correct?

15        A.   Yes.

16        Q.   Between December 1992 and September 2001, you worked at the

17     Central Military Archives and the Military Museum of the Ministry of

18     Defence of the Republic of Croatia; is this correct?

19        A.   Yes, it is correct, although they had me officially working at

20     the Military Museum for a year, although I actually worked at the

21     Central Military Archives at the time.

22        Q.   You also mentioned that you worked at the scientific project

23     "Creation of the Republic of Croatia and Croatian War of Independence,

24     1991 to 1995 to 1998," in the period between 2001 and 2007; is that

25     correct?

Page 35552

 1        A.   Yes.

 2        Q.   Your CV says that since 2007, you've been working as a researcher

 3     and head of the scientific project:  "The Republic of Croatia and the

 4     Homeland War, 1991 to 1995"; is that correct?

 5        A.   Yes.

 6        Q.   Furthermore, it says that in the summer of 2000, you participated

 7     in drafting of the complaint of the Republic of Croatia against the

 8     Federal State of Yugoslavia; is that correct?

 9        A.   Yes.

10        Q.   Furthermore, it says that following a request of the

11     Government of the Republic of Croatia's Office for Cooperation with the

12     ICTY, you were in The Hague, you informed the Prosecution teams with the

13     significance of the war activities against the Republic of Croatia?

14        A.   Yes, that is correct.  I don't remember the name of the person

15     for -- working for the investigative teams.  I was offered at the time to

16     work for them as an expert, but at the time I believed that my knowledge

17     was not satisfactory.

18        Q.   I hope that today you believe your knowledge is satisfactory to

19     testify as a witness.

20        A.   Yes, but I need to mention that I've been interested in the

21     Yugoslav People's Army for a long time.  I had information coming from

22     the media, the documents, and as we compiled the complaint against

23     Yugoslavia, I had an opportunity to come across a huge amount of

24     documents that were created by that army and which were before kept by

25     the security services.  I need to say that as -- that I found reading

Page 35553

 1     these documents very hard, and the picture that I used to have about the

 2     Yugoslav People's Army changed pretty drastically.  So after 2005, I

 3     gained sufficient expertise to witness about this subject.

 4        Q.   Thank you.  Furthermore, it says that ever since 2002, you've

 5     been an editor of the "Polemos" publication?

 6        A.   Yes, this is the only publication in Croatia that deals with this

 7     subject matter.

 8             JUDGE PRANDLER:  [Previous translation continues] ... do many

 9     times already before, and let me ask you, Madam Nozica, to be really

10     slowing down and making a pause between your question, and we ask the

11     witness, Mr. Davor Marijan, to wait a bit when you receive the question

12     and then answer it slowly.

13             Thank you.

14             MS. NOZICA: [Interpretation] Thank you, Your Honour.

15        Q.   I have also noticed that you are starting with your answers too

16     soon.  Please do wait for the interpretation of the question before you

17     start with your answer.

18             Furthermore, it is stated here that after spring 2003, you've

19     been an adviser on the archive in the Council for Military Property of

20     the MOD of the Republic of Croatia; is that correct?

21        A.   Yes.

22        Q.   It is also stated here that you published seven books.  Six of

23     them are monographies.  Could you, Mr. Marijan, please mention the titles

24     of these books so if anybody is interested -- if anybody is interested in

25     further details, they might ask that later on.

Page 35554

 1        A.   Maybe it might be better if I said that these books regard the

 2     period of the Second World War and of the war between 1991 and 1995.  I

 3     focused in particular on one of the battles, the Battle for Vukovar.

 4             I also focused on two brigades, on one army, one particular

 5     military operation, the Storm, in 1995, one battle from the Second World

 6     War.  And in one of the last books, there are some articles I wrote

 7     regarding the last war, the war between 1991 and 1995.

 8        Q.   You did not list the titles, but did you write the book titled:

 9     "The Collapse of Tito's Army and the Breakdown of Yugoslavia from 1992

10     through 1995"?  And as far as I see, the book was published by the

11     Croatian History Institute in Zagreb in 2008; is that correct?

12        A.   This is, in fact, my amended Doctoral thesis.  It was published

13     by two publishers.  One of them was my institute.

14        Q.   Mr. Marijan, can you say a few words about your scholarly work?

15     I have a list of 24 papers of yours, but as we must proceed rather

16     slowly, I'm afraid that we will -- this will take much time, although

17     this is very important.  So could you please summarise what is most

18     important with regard to the subject matter of this expertise?  What were

19     your papers about?

20        A.   Your Honours, the subject matter of my papers is the same as that

21     of my books.  Some are about the Second World War, most of them about

22     this war.  They deal with military issues, organisational issues, combat.

23     In brief, they all deal with war and the military.  And let me just add

24     that they are all original scholarly works or papers that I worked at

25     myself.

Page 35555

 1        Q.   All right.  Let us now go into the topic that has directly to do

 2     with your expertise and your work.

 3             Let me first ask you about the documentation that you took into

 4     consideration.  How did you come by the documentation, which was the

 5     foundation for your work?  Who gave it to you and --

 6             JUDGE ANTONETTI: [Interpretation] I have a follow-up question.

 7             I have listened carefully to the answers that you've given to

 8     Madam Nozica's questions regarding your curriculum vitae, and what I can

 9     say at this point is that you were a member of a fighting brigade in

10     Livno, and therefore you have experience, first-hand experience of the

11     war.  I also notice that you've studied history, which enabled you to

12     write a number of articles, and also you were fortunate to work in the

13     Military Archives, which enabled you to have access to documentation.

14             Myself and the other Judges have read through your report that

15     will be discussed during the questioning phases, but the question that

16     comes to mind, which I would like to put forward at this point so that

17     you understand exactly what the Chamber expects from you, is as follows:

18             At the time, that is, 1992-1993, there was a Department of

19     Defence with a minister of defence, and on-site there were a number of

20     military leaders like Mr. Petkovic, Mr. Praljak, Mr. Coric and others,

21     and unfortunately there were a number -- there were persons who were the

22     victims of military actions.  This Court, this Chamber, must examine the

23     responsibility of the minister of defence at that time in order to

24     determine how the minister of defence or whether the minister of defence

25     had authority over the military personnel, whether he had any power to

Page 35556

 1     sanction under Article 7.3 of the present Tribunal, what his relationship

 2     was with Mr. Boban and Mr. Prlic, and how the command structure

 3     functioned.  Those are the issues.  Those are the main questions that we

 4     must deal with.  Perhaps in your responses, you can contribute to

 5     clarifying these matters, in particular the points that I have just

 6     mentioned, and I wanted to let you know what we're expecting in advance

 7     because perhaps you can answer the questions I have just put forward in

 8     your responses.

 9             Would you be able to confirm that you, as an expert, are able to

10     answer these various questions that I have just put forward?

11             THE WITNESS: [Interpretation] Your Honours, I don't want to

12     question my own expertise.

13             JUDGE ANTONETTI: [Interpretation] Well, fine, thank you.  We are

14     all expecting what's coming up.

15             Go ahead, Madam Nozica.

16             THE INTERPRETER:  Microphone for the Defence counsel, please,

17     microphone.

18             MS. NOZICA: [Interpretation] Thank you, Your Honours.  Thank you

19     for your instructions and remarks, and it is the very same issues that

20     you mentioned that we will also devote time to.

21             Let me just technically pass through what I consider rather

22     important; namely, to see which documents this expert witness had in

23     front of him and that were the foundation for the conclusions of his

24     work.

25        Q.   And, Witness, please do allow a little time to elapse after I

Page 35557

 1     finish my question and before you answer.

 2        A.   Your Honours, I tend to speak fast, but I'll try to keep that in

 3     mind.

 4             My work is based on the documents that are received from the

 5     Defence, the documents that are received from the Defence and are on the

 6     list from the Prosecution.  And let me say that research into the war in

 7     Bosnia-Herzegovina is part of my job description, as it were, so that

 8     even earlier in my previous testimony a few years ago, I did have access

 9     to documents in the HVO archives which are in the Croatian National

10     Archive, and in most of the documents I was shown had been known to me

11     from previous times.  And of course all my work is based strictly on

12     documents.

13        Q.   Mr. Marijan, did you have a chance to read the works of other

14     experts in military matters or experts in other subject matter that I

15     will ask you about and who have testified before this Court?  More

16     specifically, are you familiar with the work or the paper and all the

17     documents mentioned by Expert Witness Pringle in this case?

18        A.   I saw Mr. Pringle's expert opinion.  I received it from you.  And

19     I also read some expert opinions by witnesses who testified here.  These

20     are expert opinions from witnesses in Belgrade, from the

21     Helsinki Human Rights Committee of Serbia, and some of those opinions I

22     took great interest in.

23        Q.   You did not reply to my question, whether you read every single

24     document mentioned by Expert Witness Pringle before this Court.

25        A.   I apologise for not replying precisely.

Page 35558

 1             Yes, I did, I did read all the documents from the list that was

 2     attached.

 3        Q.   Who did you contact while working on your expert opinion, talking

 4     about the Defence team of Mr. Stojic?

 5        A.   I contacted you and a member of your team, an investigator.

 6        Q.   Did anybody influence you regarding the conclusions of your

 7     expert opinion?  Did anybody suggest to you that you should draw up

 8     conclusions that are contrary to your conviction?

 9        A.   Your Honours, the conclusions are exclusively mine, and nobody

10     tried to influence me.

11        Q.   All right.  Can you now tell the Court, and now we are going

12     on -- or now we are about to deal with your expert opinion.  I'll proceed

13     in a chronological manner, and we'll try to deal with things in the same

14     way that you laid them out in your opinion.  We have singled out a

15     smaller number of documents than can be found in your footnotes, and now

16     I would like to ask you whether the documents mentioned in your

17     footnotes, and that we will not show here, whether those documents are

18     those documents that -- upon which your expert opinion is entirely based.

19        A.   Yes, those are the documents upon which my opinion is based.

20        Q.   Mr. Marijan, what was the topic of your expert opinion,

21     specifically?

22        A.   The topic of my opinion was the position of the Department of

23     Defence in the framework of the Croatian Community of Herceg-Bosna, as

24     well as the position of the head of the Department of Defence.

25        Q.   Is that limited to a certain period?

Page 35559

 1        A.   It is limited by the role of the head of the department, so there

 2     was a time-frame.

 3        Q.   Let me now ask you to take a binder.  I believe it's the red

 4     binder that contains your expert opinion.  Please open it.

 5             Can you now say precisely which period we are talking about?  Do

 6     mention dates.

 7        A.   We're talking about the period from the 3rd of July, 1992, until

 8     about the 15th of November, 1993.

 9             JUDGE ANTONETTI: [Interpretation] Witness, we have a semantic

10     problem here.  You have just mentioned the head of the department.  When

11     you refer to the head of the department, what is the difference between

12     the head of the Department of Defence and the minister of defence?  Is

13     there a difference, in your mind?  And if so, what is the difference,

14     please?

15        A.   Your Honours, there is a difference between these two.  "Head of

16     department" means that the body in question is a provisional body, which

17     is not at the level of a ministry.  So it's a lower-level body and a body

18     whose name suggests that it is provisional.  That can be also concluded

19     from some basic acts passed by the Herceg-Bosna when it was established.

20             JUDGE ANTONETTI: [Interpretation] When the individual who carries

21     out the same functions as the head of the Department of Defence, but it's

22     not a temporary structure, is it then the minister of defence, is that

23     person the minister of defence?

24             THE WITNESS: [Interpretation] Well, I think in that case the

25     individual would be called the minister of defence.

Page 35560

 1             JUDGE ANTONETTI: [Interpretation] Thank you.

 2             JUDGE TRECHSEL:  If I could just ask one question.

 3             I take it to be the result of your answers that the practical

 4     functions were the same of a chief of department or ministries; it was

 5     just the general framework, the structure, that changed, but he did the

 6     same thing, same office, same binders, same people he worked with, same

 7     competencies.

 8             THE WITNESS: [Interpretation] The Department of Defence is a

 9     similar function, but as I said, it is provisional or temporary.  I was

10     able to hear some interpretations that the department is considered like

11     an outpost of a ministry.

12             JUDGE TRECHSEL:  Thank you.

13             JUDGE ANTONETTI: [Interpretation] May I ask you one more

14     question, Witness.

15             When a Judge asks a question, we have a very open approach.

16     There is no trap.  You must keep that in mind.  These are questions that

17     which aimed at obtaining information.  So we have a very open, neutral

18     approach, and the only purpose is to find the truth and understand

19     exactly what occurs, and there is no trap and we're not taking sides.  So

20     when I or one of the other Judges ask you a question, please understand

21     that we are simply trying to find the truth.  That is our approach;

22     whereas obviously the Defence has its opinion, and the Prosecution has

23     its opinion.

24             THE WITNESS: [Interpretation] Your Honours, I apologise.  My

25     hesitation may have been interpreted as an attempt to contrive something,

Page 35561

 1     but although I try to be slow, I may still be faster than the official

 2     court reporter.

 3             JUDGE ANTONETTI: [Interpretation] Don't worry.  I am able to

 4     follow in realtime.  It's my colleague who prefers that there be breaks

 5     in between the questions and answers.

 6             MS. NOZICA: [Interpretation]

 7        Q.   Mr. Marijan, I can see that this technical issue of the

 8     transcript is becoming very important to you.  It may distract you, so

 9     let me just say relax, just make a break, allow some time to elapse

10     between question and answer.

11             And you did reply to many of the questions just asked by the

12     Judges in your expert opinion, but nonetheless we will make a leap

13     forward, because there's something you deal with later.

14             Did you, sir, have a chance to see the documents, any documents,

15     and whether according to those documents that you saw, Mr. Stojic was

16     minister and the Ministry of the Republic of Herceg-Bosna when it was

17     established?  So did you see any mention in documents that he was

18     appointed to that function?  I'm asking this because Judge Trechsel asked

19     you whether those were the -- whether the secretary of defence did the

20     same business as a minister.  And dealing with this topic, did you -- was

21     that an issue that you dealt with at all?

22        A.   Your Honours, I did not research into the period after Mr. Stojic

23     left his position.  I have never seen a document appointing him minister

24     of defence, but I did see some documents signed by him with the title of

25     minister, but I never saw an appointment.

Page 35562

 1        Q.   That is a correct answer.  Mr. Marijan, you are saying that you

 2     have not seen the appointment of Mr. Stojic as a cabinet member of the

 3     Republic of Bosnia-Herzegovina; is that correct?

 4        A.   Yes.

 5        Q.   Let us go back to your expert opinion.

 6             In the introductory remarks, you state something very

 7     significant; namely, that you have not seen log-books -- the log-books of

 8     Mr. Stojic.  Is this important information that should have been

 9     mentioned in such an expert opinion?

10        A.   Your Honours, I think that this is important information.  I do

11     not doubt that the approach of the Tribunal, the legal approach, and the

12     approach of a historian differ.

13             I, as a researcher, know that especially young researchers, when

14     they first go to archives, their first encounter with the documents there

15     starts with the log-book or ledger, so that the servers that run the

16     archives, that is, the staff working there, first offer you the log-book.

17             It's a book containing all the entries, everything that was done

18     in that context.  I must say that I never look for that in the archives

19     in which I work, because it is my habit of going through all the

20     documents because my experience shows that if you look at the documents

21     without previous bias, you will get additional impulses for further work,

22     and that is fruitful.  And -- but when you take a log-book, then you will

23     see a reliable list of documents which the person who compiled that, the

24     entirety of the documentation received.

25             In other words, it's a summary of all the work done on those

Page 35563

 1     documents, on that documentation.

 2        Q.   But what you have just said is something of a definition of a

 3     log-book, or should we add some more information to this definition?

 4        A.   The log-book, Your Honours, is something like an inventory of the

 5     creator of a collection, which includes all the mail received, all

 6     documents received.  Talking about military cases, there are usually

 7     several log-books.  It is customary that these log-books are kept

 8     separate because the documentation contained has different levels of

 9     secrecy.  It starts with the first day of a year and ends with the last

10     day of that same year.  Those would be official log-books.

11        Q.   Can we then immediately establish -- please take a look at the

12     first binder.  It should be down there someplace.  Document 2D 1399.

13             Your Honours, this is the first binder on your desk, 2D 1399.

14             This is a letter from the assistant minister of justice of

15     Croatia.  Does it follow from this letter that the Defence of Mr. Stojic

16     requested the log-book and that it wasn't found?  Are you familiar with

17     this?

18        A.   Yes, I'm familiar with this letter, and that is indeed what

19     follows from it.

20        Q.   Does it follow from it that the log-book was searched for in

21     several archives or, rather, only those archives where it could possibly

22     be?

23        A.   Well, they searched for it in the Military Archive of the

24     Ministry of Defence of the Republic of Croatia, although it couldn't have

25     possibly been there.  The only archive it could have been in is the

Page 35564

 1     Croatian National Archive, because that's where the archives of the HVO

 2     are -- the HVO are kept.

 3        Q.   Thank you.  This now reads:  "The Department of Defence in the

 4     System of the Croatian Community of Herceg-Bosna."  This is the first

 5     chapter of your expert opinion.

 6             So the Presidency of the HZ-HB as a legislative body in 1992

 7     passed two decisions that are very important for your expert opinion and

 8     important for determining the position of the Department of Defence and

 9     its head in that system.  Could you please tell the Court which two

10     decrees these are?

11        A.   Your Honours, these are two decrees with the same title; namely,

12     "The Decree on the Armed Forces of the Croatian Community of

13     Herceg-Bosna."  One was passed on the 3rd of July, 1992, and the second

14     one on the 17th of October, 1992.

15        Q.   I will ask you very briefly about the second one.  It was, in

16     fact, an amendment to the first one?

17        A.   Yes, it is an amendment and a supplement to the first one.

18        Q.   Can you answer me, Mr. Marijan, what were the responsibilities,

19     duties and obligations of the head of Defence Department of the

20     Croatian Community of Herceg-Bosna?

21        A.   Your Honours, the duties and responsibilities of the head of the

22     Defence Department of the Croatian Community of Herceg-Bosna are grouped

23     into three categories.

24        Q.   Excuse me, Mr. Marijan.  We're talking about the armed forces

25     here.

Page 35565

 1        A.   Right, the armed forces.  So the first was leading and commanding

 2     the armed forces.  The second group of his responsibilities and duties

 3     related to the staffing policy and the manning of the armed forces.  And

 4     the third group related to the mobilisation.

 5             MR. BOS:  Your Honours, I think we should clarify whether we're

 6     talking about the minister of defence or if we're talking about somebody

 7     else here, because I think the record doesn't make it very clear.

 8             MS. NOZICA: [Interpretation] I am sorry.  I thought I was rather

 9     clear.  I can't follow the transcript at the same time, but we are

10     talking about the responsibilities and duties of the president of the

11     Croatian Community of Herceg-Bosna.  If you want the name to be quite

12     clear, it was Mr. Boban.  Those are the duties and responsibilities of

13     the president of the Croatian Community of Herceg-Bosna.

14        Q.   Correct, Mr. Marijan?

15        A.   Yes.  I understood you very well.  I understood you as asking

16     about the president.

17        Q.   Don't worry about the transcript.  I will ask for a correction.

18     Do not be distracted.

19             So let's emphasise once again, we are talking about the powers of

20     the president of the Croatian Community of Herceg-Bosna, according to the

21     provisions of the decree of the 3rd of July, 1992?

22             JUDGE ANTONETTI: [Interpretation] Ms. Nozica, could you tell us

23     which number we can find this decree under, because I'd like to have a

24     look at the actual text.

25             MS. NOZICA: [Interpretation] Certainly, Your Honour.  I will show

Page 35566

 1     all these decrees later.  It is P2000289 [as interpreted].  It's in the X

 2     binder, P000289.  Those are all the founding documents that are relevant

 3     for this part of the questioning.

 4             To facilitate the work of the Bench, I'll give you the number of

 5     the second decree.  It's P000588.  It was passed in the same year.

 6        Q.   Can you tell us what happened with the second decree?  Did it

 7     extend the powers of the president of the Croatian Community of

 8     Herceg-Bosna?

 9        A.   The supplemented -- the amended decree increased the powers of

10     the president of the Croatian Community of Herceg-Bosna, as I stated in

11     paragraph 2 of my report.  And I can read it, if you want.

12        Q.   Just what you believed to be important.  Don't go into detail,

13     because we have your report.  Anyone who wants to know more will easily

14     come back to it.  What we are interested in are the powers of the

15     president of the Croatian Community of Herceg-Bosna.

16        A.   These provisions are very interesting to me, very curious, the

17     possibility to mobilise even minors and the possibility to form a

18     commission to supervise the work of the Security Service.

19        Q.   Can you tell me precisely now what are the obligations and powers

20     of the supreme commander of the armed forces, according to these

21     provisions, that is, the president of the Croatian Community of

22     Herceg-Bosna?  You told us about his power to lead and command the armed

23     forces.  First of all, we'll specify the article in these two decrees

24     that governs this.  Tell us about the first decree first, and what were

25     the key powers granted him?

Page 35567

 1        A.   In both decrees, the first decree and the amended decree, the key

 2     responsibilities are in Article 29.  There is an enumeration of seven

 3     responsibilities and powers of the president, Mr. Boban.

 4        Q.   Could you tell the Court what was in items 2, 3 and 7?

 5        A.   Mr. Boban had the authority to adopt a plan of use and employment

 6     of armed forces.  The plan of employment is, in some countries, called

 7     "the war plan."  In item 3, he provided guide-lines for taking measures

 8     of readiness and mobilisation of the armed forces, and under 4 he was the

 9     main architect of the staffing policy in the armed forces.

10        Q.   Does item 7 confirm this, which is more specific?

11        A.   Yes.  It is part of that, in a way, appointing and relieving of

12     duty of military commanders.

13             JUDGE ANTONETTI: [Interpretation] Well, at Article 29, I'd be

14     interested in number 2 most particularly, because there are seven tasks

15     to be performed by the supreme commander, and I'm interested in task

16     number 2.  I have the impression, reading Article 29(2), that it is

17     Mr. Boban himself who approves and orders armed force operations, armed

18     forces operations.  Do you share this interpretation of all the documents

19     we have looked into?  Because I'm talking about this particular

20     instrument, but it is something which is very important for us to find

21     out.

22             Imagine in a municipality X, there is a military operation

23     carried out by a combatting unit.  Why for, say, in Livno, for the

24     purposes of this, for the purposes of this military operation, is it

25     Mr. Boban at the very top who needs to approve the operation?

Page 35568

 1             Let me clarify the question.  If there is a military operation,

 2     not a defensive military operation but an offensive military operation,

 3     in such a case is it the supreme commander who's giving the approvals,

 4     giving the green light, and who approves the plan developed, for example,

 5     by the Main Staff?

 6             JUDGE PRANDLER:  Before answering the question asked by the

 7     Presiding Judge, Judge Antonetti, I would like also to add as a follow-up

 8     question, the following:  That we have here, of course, originally the

 9     question relates to what Madam Nozica asked, yes, Article 29, and which

10     is about the command and control of the armed forces; but as I have

11     looked at Article 10, I believe that the two articles should be read in a

12     way together, because Article 10 speaks about the executive bodies of the

13     HZ-HB and Defence Department, and then if we have a look at the different

14     departments' activities, it says:  "The department shall engage in

15     activities pertaining to ..."

16             It is actual on page 14, page 14, Article 10.  Then we will see

17     here that monitoring and coordination of activities to implement and

18     establish defence policy and the proposing of measures for its

19     development and implementation.  And then, actually, sub-para 3 says:

20             "The formulation of a plan for the deployment of the armed

21     forces," and then 4:  "The systems of command and control of the armed

22     forces ...," et cetera, et cetera.  So my question is a follow-up to

23     President Antonetti's question.  What, in your view, is the

24     interconnection and relationship of Articles 10 and 29, and what are the

25     roles both of, in this case, the supreme commander of the armed forces,

Page 35569

 1     which was then Mr. Boban, and, of course, the department -- Defence

 2     Department headed by the head of the department?  So it is my question.

 3             MS. NOZICA: [Interpretation] Just a minute, Witness.

 4             Your Honours -- Your Honour Mr. Prandler, if you allow me, we

 5     will deal very soon with Article 10, the witness and I.  It's a very

 6     important article governing the responsibilities and obligations of the

 7     head of Department of Defence, and I believe it will be much easier for

 8     the expert to understand your question if we go through the previous

 9     three pages in this document.

10             But if I may, Presiding Judge Antonetti asked a question about

11     Article 29, a very precise and very interesting question, but I believe

12     the expert can answer but I would to ask the witness to take binder X and

13     have Article 29 before him so that he can give a precise answer to

14     Judge Antonetti.

15             JUDGE ANTONETTI: [Interpretation] Witness, you may have been

16     puzzled by my colleague's question, or perhaps my question was not as

17     clear as it should have been.  Let me repeat this.  This question of my

18     colleague may have caused some confusion for you because my question was

19     not clear.

20             Of course, I've already seen Article 10, but my question is not

21     on Article 10.  My question relates to Mr. Boban, and I wanted to know if

22     it is Mr. Boban, himself, who had to give his approval to an offensive

23     military operation.  And perhaps you could take an example -- or the

24     example I took was Livno, because you may have experienced that yourself.

25     So when your unit was in an offensive operation, your commander says,

Page 35570

 1     Well, tomorrow morning we'll move to that-and-that location five

 2     kilometres away, with, of course, the risk of combatting activities, and

 3     I wanted to know if such decisions were taken by Mr. Boban himself, under

 4     the paragraph, "Command and Control," if Mr. Boban himself was actually

 5     giving the green light to such operations.

 6             THE WITNESS: [Interpretation] Your Honour, I understood you well

 7     both the first and second time.  Your question was quite specific.  Now,

 8     let me say --

 9             JUDGE ANTONETTI: [Interpretation] Usually, my questions are

10     crystal clear and everyone understands them, so thank you.

11             THE WITNESS: [Interpretation] In this -- on this point, I would

12     like to say what the plan of employment of armed forces is.

13             The plan of employment, generally speaking in every army, is a

14     contingency document.  One should not consider that if you have a plan

15     for wartime, and I'm speaking as someone coming from Croatia, if, for

16     instance, Croatia has a war plan for a war with Serbia or with Slovenia,

17     both neighbouring countries, does not -- that plan does not mean that an

18     aggression is planned.  It's just a preventative measure.  However, the

19     plan of defence is more specific.

20             A plan can be defensive or offensive.  Speaking of defensive

21     plans, what can happen is that you are attacked suddenly by surprise.  In

22     that case, a military commander cannot afford to ask for approval from

23     his superior.  He must immediately respond to the attack.  However, if we

24     are talking about an offensive plan in a system that claims to be well

25     structured, the rules are very clear.

Page 35571

 1             In this specific case, it would mean that a war plan had been

 2     prepared in Livno or covering Livno as part of a larger operation.  That

 3     plan would have been made in the Main Staff, but it would have been

 4     approved by President Boban.  That would be the ideal scenario.  That's

 5     the only way we can read this paragraph, this article.  But I must

 6     confess I have not seen the plan of employment of armed forces, as it is

 7     defined here, nor can I remember that Mr. Boban had approved any

 8     offensive actions in any documents, which is easily understandable,

 9     because the main characteristic of the HVO was that it was a defensive

10     force.

11             JUDGE ANTONETTI: [Interpretation] Witness, what you're saying is

12     very important, because this trial has been taking place for about two

13     years and -- this is, of course, my personal point of view.  I don't know

14     if my colleagues share my view.  But you have, in my view, made a

15     distinction of tremendous importance, and that's why I asked my question.

16     It was an open question for you to answer some question marks, the plan

17     was offensive, already offensive.  And that's really my question, you've

18     added something which we've heard here for the first time, as far as I

19     know; that is, that according to you, the HVO never carried out offensive

20     actions, but had always had a defensive policy, and you've also added

21     that you had never seen any document on offensive action with Mr. Boban's

22     name.

23             This is what you answered earlier on, is it not?

24             THE WITNESS: [Interpretation] I do need to clarify, Your Honour.

25     The system that is the basis of my military education, the system I dealt

Page 35572

 1     with, uses the terms "defensive" and "offensive" in a strategic sense.

 2     That means moving the entire army or the bulk of the army.  That kind of

 3     plan is something I have not seen in the HVO.  I have seen offensive

 4     activity by the HVO, but on a tactical level.  That means minor forces,

 5     but I have not seen it on a strategic level.  That means I'm not saying

 6     the HVO never attacked, but all that was on a lower tactical level.  And

 7     let me be quite clear, I mean the period covered by my report.  Later, in

 8     the years 1994 and 1995, I've also seen major --

 9             JUDGE ANTONETTI: [Interpretation] Let me take a specific military

10     example.  Say there's the front-line, the enemy cross it, and the

11     friendly forces are on one side.  The friendly forces, the HVO, for

12     example, have a general defensive policy, a general policy which is

13     defensive.  Imagine they realise that across the line, a mortar has been

14     moved by the enemy to a higher location on a hill, and therefore there is

15     an obvious military risk.  So the HVO decides to attack the hill to take

16     that mortar which may pose a threat at a later stage, so the hill is

17     under attack.  Now, this HVO offensive, would it be considered as the

18     implementation of a defensive policy, and the offensive activity can be

19     considered as a preventative operation, so this offensive operation in

20     such a case, should it be interpreted as part of the overall defensive

21     strategy?

22             THE WITNESS: [Interpretation] Your Honour, on the example you set

23     out, in military terminology we would use the term "active defence."  It

24     could be -- it may be part of a defensive strategy, but I must admit I

25     dealt for a long time -- I've been dealing a long time with an army with

Page 35573

 1     a well-developed strategy.  However, the problem with the HVO is that it

 2     lacks what we call doctrinary documents, and any conclusions on its

 3     strategy can only be made by analysing its activity.  There is no other

 4     basis for making conclusions about their strategy.  That's why I'm saying

 5     that the main thrust of the HVO was defence.  Even after 1993, HVO is

 6     what we called blocking defence.

 7             JUDGE ANTONETTI: [Interpretation] I can follow, but you'll agree

 8     with me that this is quite complicated, because between active defence,

 9     blocking defence, and all those concepts, one may get lost.  But I do

10     understand, but I wonder if everybody's still with you.  Should you not

11     define or clarify some concepts?

12             Earlier on, you said that the HVO did not have any doctrine

13     document.  I'm astonished at this, because a lot of HV [as interpreted]

14     officers were former high-ranking officers of the JNA, so the military

15     doctrine, they knew all about it.  So why did you say that?

16             THE WITNESS: [Interpretation] Your Honour, I said that for the

17     simple reason because I haven't seen any.  I frankly doubt that a

18     document of that nature could exist without me seeing it.  The Yugoslav

19     People's Army --

20             JUDGE ANTONETTI: [Interpretation] [Previous translation

21     continues] ... because usually I don't look at the transcript in English,

22     because I cannot look at you and look at everybody and at the same time

23     look at the screen.  But it was by mere chance, and I happened to see the

24     English text.  And since this is a very complex and difficult field, at

25     line number 8, I said that the HV officers were former JNA officers, not

Page 35574

 1     Croatian Army officers, because in English it said "the HV."  I said "the

 2     HVO," and one may think that it was the Croatian Army on the spot, and I

 3     didn't go that far and draw that conclusion.  What I said is that HVO

 4     officers, at least some of them, were former JNA officers.  So line 8,

 5     it's not "HV officers" but "HVO officers."

 6             Please proceed.

 7             THE WITNESS: [Interpretation] Your Honour, the former Yugoslav

 8     Army, in its 40 or so years of peacetime, had five doctrine-establishing

 9     documents of this nature that determined and chart the doctrine.  I have

10     to emphasise that a picture is being painted, and I cannot agree with

11     that picture, that a large number of trained JNA officers - and when I

12     say "trained officer," I mean a person who graduated from the Military

13     Academy - were numerous in the HVO.  Such people were very few, in fact,

14     in the HVO.  And in the period I'm dealing with, you cannot say that

15     these people occupied high positions.  The highest reach of these

16     officers was commanding a battalion or an artillery battalion, so that in

17     terms of staffing, out of all the armies in Western Herzegovina and

18     Croatia, not to name them all, the HVO had the greatest number of trained

19     officers, which we can see from the documents.  And I did do comparative

20     analysis.  I hope none of the accused will take this against me.  But the

21     HVO had the poorest -- the weakest combat documents, which is an

22     indicator of the level of educational attainment, and training of the

23     entire officers' cadre.

24             JUDGE ANTONETTI: [Interpretation] Do you have a question or shall

25     we have the break?

Page 35575

 1             My colleague has a follow-up question, and then we shall have a

 2     break, because otherwise the cafeteria is going to be closing, and it

 3     will be too late.  I say this turning to Mr. Karnavas.

 4             JUDGE TRECHSEL:  I would like to ask you a question which might

 5     in a way be a summing up of this last discussion.

 6             According to Article 29, paragraph 2, Mate Boban has the power to

 7     draw up a plan for the operation of the armed forces.  In fact, he never

 8     drew up such a plan; is that correct?

 9             THE WITNESS: [Interpretation] Your Honours, I can say that I have

10     not seen it, I cannot guarantee 100 per cent, but when it comes to such

11     plans, when a general plan is drafted, obviously certain things are

12     delegated.  In the former system, this was done by a decree, and this was

13     delegated all the way to the level of a brigade.  So there should have

14     been a trace from that period somewhere.

15             JUDGE ANTONETTI: [Interpretation] Break for 20 minutes.

16                           --- Recess taken at 3.49 p.m.

17                           --- On resuming at 4.19 p.m.

18             JUDGE ANTONETTI: [Interpretation] Before I give the floor to

19     counsel, I'd like to read out a decision.  I'm going to be reading it

20     slowly.  I know the interpreters do not have a copy of the text, and it's

21     a bit long.

22             Oral decision regarding the request submitted by the Petkovic

23     Defence.

24             In order to appeal or certify appeal of the oral decision made by

25     the Chamber, the Chamber has received a submission dated

Page 35576

 1     14th January 2009 by the Petkovic Defence in which they request that the

 2     Chamber re-examine or to certify appeal of the oral decision made

 3     January 12th, 2009, by the Chamber.

 4             In this oral decision dated January 12th, 2009, the Chamber has

 5     decided the following:  Proprio motu, not to authorise the Petkovic

 6     Defence to use two and a half additional hours in order to question the

 7     expert witness, Davor Marijan, over and beyond the additional time which

 8     has already been granted by the Chamber to the Petkovic Defence; that is,

 9     one hour and thirty minutes.

10             At the January 14th, 2009 hearing, the Chamber ordered the

11     parties to present their submissions in response as of January 16th, at

12     the latest.  On January 16th, 2009, the Praljak Defence presented a

13     submission in which they state they have joined the initial request

14     presented by the Petkovic Defence.  In addition, on the same day the

15     Stojic Defence and the Prosecution have presented a filing in response,

16     in which they oppose the Petkovic Defence's request.

17             Having examined these submissions presented by the parties, and

18     having deliberated and discussed it, the Chamber decides to reject the

19     request for the following reasons:

20             First of all, as regards the request to reconsider, in keeping

21     with directive number 5 of the decision made April 24th, 2008, if a

22     Defence team wants additional time for the cross-examination of the

23     witness, it must justify such request in writing, and it is up to the

24     Chamber to determine the length of time for cross-examination on the

25     basis of this request and on the basis of the lists that have been

Page 35577

 1     submitted, in keeping with Article 65 ter of the Rules and Regulations.

 2             Although the Chamber agrees with the Petkovic Defence that indeed

 3     the Chamber has authorised since the beginning of the Defence case, the

 4     Defence teams have used their own time to present their case to

 5     cross-examine other witnesses, we must nonetheless note that the request

 6     for time on the part of the Defence teams is unreasonable.  In particular

 7     as, indicated in the contested decision, the request for additional time

 8     made by the Petkovic Defence is excessive, inasmuch as it modifies

 9     substantially the overall schedule of the hearing of the Stojic Defence

10     and would extend the cross-examination of the expert witness in a way

11     that is contrary to the requirements of a fair and equitable trial.

12             In not authorising the Petkovic Defence to use additional time,

13     over and beyond the additional time which has already been granted by the

14     Chamber, to cross-examine the witness Davor Marijan.

15             THE INTERPRETER:  Davor Marijan, the interpreter makes the

16     correction.

17             JUDGE ANTONETTI: [Interpretation] The Chamber is not intervening,

18     contrary to what the Petkovic Defence states, in the determination of the

19     Petkovic Defence strategy, but is simply using its power and its duties

20     to control the organisation of the examination of a witness in order to

21     provide that the accused benefit from a speedy and equitable trial.

22             The circumstances relating to additional time requested by the

23     Petkovic Defence would correspond to time which would be taken away from

24     the time used to present his own case, and that does not go against the

25     pre-mentioned conclusion.  The Chamber, therefore, does not see any

Page 35578

 1     reason to reconsider the oral decision handed down January 12th, 2009.

 2             Secondly, as regards the request to certify appeal, the Chamber

 3     recalls that the decision taken December 11th, 2008, regarding in

 4     particular the sharing of time for the witness Davor Marijan, was made

 5     after the expert report was examined and that the Chamber considered that

 6     one hour and thirty minutes was a sufficient time span as for the

 7     cross-examination on the part of the Petkovic Defence.

 8             Therefore, granting an hour and thirty minutes instead of thirty

 9     minutes, which had been granted to the Petkovic Defence, if the Chamber

10     were to apply strictly paragraph 15 of the decision taken April 24th,

11     2008, the Chamber has been flexible in the overall granting of time for

12     cross-examination on the part of the Petkovic Defence and has taken

13     account of the particular characteristics of this report vis-à-vis the

14     Petkovic Defence.

15             In addition, the Chamber notes that the Petkovic Defence will, if

16     need be, be able to contest the contents of the expert report, in

17     particular when they present their case, by calling their own witnesses

18     or, as the contested decision indicates, by calling this witness as a

19     witness for its own case.  Therefore, the Chamber does not see that there

20     be any circumstances in the January 12th decision, 2009, which would

21     compromise in any way the fairness and the speediness of the trial or its

22     result; and therefore that this could enable the procedure to progress in

23     keeping with Article 73(B) of the Rules and Regulations.

24             Well, it was a very long text, indeed, but I had to read it out.

25             MS. ALABURIC: [Interpretation] Your Honours, I would like to

Page 35579

 1     thank you for your decision and for your dealing with all of our requests

 2     for additional time, which we have been repeatedly making.  We would just

 3     like to state that none of the counsels [as interpreted] for Mr. Petkovic

 4     will talk about the Department of Defence.  This is not our Defence

 5     strategy.  We will not be addressing the same issues that will be

 6     addressed by this witness.

 7             Thank you once again for your patience.

 8             JUDGE ANTONETTI: [Interpretation] Thank you.

 9             Madam, please continue.

10             MS. NOZICA: [Interpretation] Thank you very much, Your Honours.

11             I would like, at the very beginning, to see whether we have a

12     correct translation of a very significant definition of the HVO that was

13     provided by the witness.  I'm talking about the term "blocking defence,"

14     as it was translated on page 31.  It was translated as "blocking

15     defence," so that was the term that was used in interpretation.  My

16     colleague suggested that a much more appropriate term for what the

17     witness referred to, and it was also referred to in some other cases, is

18     "final defence" or "critical defence."

19        Q.   So I would kindly ask the witness, if necessary, to explain one

20     more time what this term in B/C/S "odsudna odbrana" actually means so

21     that we can get a proper translation of the term.

22        A.   Your Honours, I am obliged, before I answer to this, to finalise

23     my previous answer.  When I spoke about the plan, I did see, for one of

24     the HVO units towards the end of 1992, something that could be described

25     as a defence plan.  This had to do with the territory of Central Bosnia.

Page 35580

 1     And, similarly, in April or May 1993, also in Central Bosnia, I saw plans

 2     that were particularly defensive, and this also goes along with this term

 3     of "critical" or "decisive defence."  I can confirm that I did see some

 4     notes, so only notes without elaboration, from the end of 1992, which

 5     according to my estimate were drafted in Tomislavgrad, and they referred

 6     to something that was a very broad plan of the defence of Kupres, which

 7     the HVO lost to the Serbs.  So this is an addition to what I was saying.

 8     These are the only examples that I can confirm that I did see.  So,

 9     indeed, even if you are -- if you are liberating a territory, you

10     obviously will attack, but I never saw any elaboration of these notes.

11             I apologise, but I felt obliged to mention this.

12        Q.   Mr. Marijan, in order to have a precise interpretation, could you

13     please tell us what the term used by you in your language,

14     "odsudna odbrana," what does it mean, according to you?

15        A.   This term is a military term which is used when you want to say

16     that whoever is defending himself is now in a very unfavorable position,

17     so possibly I might explain this by saying this is the defence on a

18     single line.  So you are literally on a cliff, and you are defending

19     yourself facing a ravine.  So I hope this was clear enough.

20        Q.   Thank you.  This will be enough for the moment.  I would just

21     like to intervene with the transcript.  Page 38, where we are using the

22     term in B/C/S, this is with a B, "odsudna odbrana," rather than with the

23     P as it stands right now.

24        A.   This is the final defence, actually, at the very last line.

25     Though HVO actually never had two lines.  It only had one, which says

Page 35581

 1     something about the HVO.

 2        Q.   As regards the questions posed to you by Their Honours and what

 3     you were saying regarding the doctrine just before the break, there was a

 4     line of questions regarding Article 29(1), item 2.  We were talking about

 5     the first part from item 2, which says:  "... adopts the employment

 6     plan."  You explained to the Chamber that according to you, HVO dealt

 7     with this decisive or final defence.  Is this something that could be,

 8     according to you, related to a lack of doctrine, so can we make a

 9     correlation between this decisive or final defence and the lack of

10     doctrine?  I do not want to lead you in your answer any further, but if

11     you are faced with such a final, decisive defence, do you actually have

12     any time to develop a doctrine or do you have to do something more

13     urgent?

14        A.   Well, Your Honours, I concluded here, and I believe I explained

15     it in some other works of mine, that the basic characteristics of the HVO

16     was the defence.  It was a defence organisation, and this is truly its

17     fundamental characteristic.  So when you are defending yourself, there is

18     an advantage to this.  Defence is considered to be a stronger method of

19     fighting, so it's easier, in other words, to defend oneself than to

20     attack.  This is partially true, but if you are only defending yourself

21     and this defence is not elaborated thoroughly, then sometimes it can

22     happen that whoever is attacking you will have full initiative.  They

23     will be able to choose time and place of the attacks, and this is exactly

24     what happened to the HVO.  And because of this unclear engagement or the

25     impossibility to engage, you can find yourself in a position in which all

Page 35582

 1     of a sudden you will come to realise that you are actually faced with

 2     this final defence or critical defence.

 3        Q.   Mr. Marijan, due to a range of questions that were raised, and

 4     the way in which you qualified the HVO, I would kindly ask you now to

 5     address a topic which I actually planned to address later on, and this

 6     is:  In which way were these two decrees adopted?

 7             Could you please take a look at this binder X.  So these are

 8     documents P289 - this is the Decree on the Armed Forces, adopted on

 9     July 3rd, 1992 - and in the same binder, document P00588, and this is the

10     Decree on the Armed Forces adopted in October 1992.  You are very

11     familiar with these two decrees.  Could you please explain to the Chamber

12     what is the difference between these two decrees?  We can see that they

13     are different in volume, but actually these amendments were adopted

14     relatively soon after the adoption of the original decree.

15        A.   Your Honours, the Decree on the Armed Forces of the

16     Croatian Community of Herceg-Bosna, as can be confirmed in Article 63, is

17     based on the general National Defence of Yugoslavia Act of 1983 and the

18     Act on Military Service from 1985.  These acts, as you can see here, were

19     amended on several occasions, but at this moment this is not too

20     relevant.

21             One thing that can be said about this decree from July 1992 is

22     that it simply took over some of the provisions from the General People's

23     Defence Act but not from the Act on Military Service.  The second decree,

24     however, took over also the provisions from the second-mentioned act, and

25     this is why there is a difference also in approximately 110 additional

Page 35583

 1     articles.  Why was this done in this way, I can't really tell you.  There

 2     is also a rather strange formulation here, which could lead us to

 3     conclude that the acts are not being suspended by the adoption of these

 4     decrees, but only those parts which are contrary to the provisions of

 5     these decrees.

 6             In the largest part, the decree actually takes over all the

 7     articles, so the second decree takes over all the articles from the

 8     previous decree, but there are also some significant amendments of

 9     several articles, and they have to do with the Department of Defence.

10        Q.   Mr. Marijan, so would we be correct to conclude that this second

11     Decree on the Armed Forces, the document P00588, is actually a

12     compilation of the Act on General People's Defence and the Act on

13     Military Service that were effective prior to the creation of Bosnia and

14     Herzegovina?

15        A.   Your Honours, yes, we can say that because this decree took over

16     a great deal of provisions from the previous two pieces of legislation.

17     Obviously, it did not take over the provisions regarding the ideology of

18     communist Yugoslavia and also certain responsibilities and obligations of

19     certain executive bodies have been changed and accorded to the

20     organisational structure of Herceg-Bosna.

21        Q.   Mr. Marijan, you've seen these two decrees adopted by the

22     Croatian Community of Herceg-Bosna.  You are familiar with the previous

23     regulations.  So do you believe that the Decree on the Armed Forces from

24     October of 1992 is a satisfactory amalgamation of these two previous

25     legislative acts?

Page 35584

 1        A.   In my view, it is not.  In my view, it would have been better to

 2     have two different decrees, one on the armed forces or defence, because

 3     the defence deals with a wider scope of issues.  So I might say that in

 4     the HVO and in other armies, and in other societies and states created

 5     after the breakup of Yugoslavia, there was an attempt to remove

 6     themselves, as far as possible, from the ideology of the previous state,

 7     but these attempts were not all that successful.

 8             So HVO wanted to remove itself from the doctrine of the former

 9     Yugoslavia.  This concept of general people's defence and social

10     self-protection - this was its official title - this was actually a

11     doctrine of armed people, and HVO declaretorily [as interpreted] tried to

12     remove themselves from that, but this decree shows that they actually

13     didn't do that, because you still have the so-called civilian defence,

14     which was also one of the elements of the defence, you also have the --

15     you also have monitoring and alerting systems, so many elements, and the

16     very title of the decree does not correspond to the content of the decree

17     itself.  This is why I believe that it would have been better, and

18     certainly it would have been more precise, if they had two decrees

19     instead of one.  Why they opted for dissolution, I can only speculate,

20     and there is no point in doing that.

21        Q.   Mr. Marijan, can you make a comparison?  You mentioned these two

22     decrees from the previous period that were actually merged into one, and

23     they regulated the relations in the JNA.  Can you explain to the Chamber

24     or make a comparison between the JNA and the HVO?  And in terms of that

25     comparison, where would the position of the HVO be?

Page 35585

 1             Let me mention that this was dealt with by Mr. Pringle, too, and

 2     I would ask you for -- to provide arguments for your statements.

 3        A.   Your Honours, whoever tries to make such a comparison and says

 4     that he or she did compare the HVO to the JNA either doesn't understand

 5     what they're talking about or they are not being honest about it because

 6     these two organisations are not comparable.  Let me try to explain.

 7             First, I noticed here, in some expert opinions made for this

 8     Tribunal, that mostly, when talking about the armed forces of the former

 9     Yugoslavia, the term "JNA" is used.  The JNA was not the military force

10     of ex-Yugoslavia.  The military force of ex-Yugoslavia were the armed

11     forces of the SFRJ.  They consisted of the JNA and the Territorial

12     Defence.  All these components were at an equal level.  Let me mention

13     that this was the only such example in the world.

14             In all other cases, one component was dominant, either the

15     territorial one, which was a rare example, or the operational component,

16     which was much more frequent.  But we can't go too deeply into the

17     history of Yugoslavia, because that is not our subject matter here.

18             Let me try to explain where it is possible to position the HVO in

19     this system of armed forces, and I believe it can be positioned in that

20     way.

21             The JNA was a federal army.  It has -- it had its peacetime

22     personnel, that is, professionals, although they were never called that.

23     They were officers, non-commissioned officers, and civilians serving the

24     armed forces.  And in terms of numbers, the farthest -- the stronger part

25     of peacetime personnel were conscripts serving in the JNA.

Page 35586

 1             From 1985 or 1986 on, these conscripts were trained to become

 2     citizens able to engage in warfare in the case of a sudden aggression.

 3     And the wartime personnel of the JNA amounted to about a million, which

 4     is very strong, which is a very large number.  So there was the JNA in

 5     its peacetime strength, as the first echelon, and the second echelon

 6     was -- were the reserve forces of the JNA.

 7             The Territorial Defence was organised by federal units, the

 8     republics.  There was six republics and two provinces, and each had their

 9     own Territorial Defence.  And what I'm about to say is really a literal

10     quote.

11             The Territorial Defence is the widest form of the mobilisation of

12     the people and the population for combat.  The difference between the JNA

13     and the Territorial Defence was that the Territorial Defence was an

14     exclusively wartime component.

15             In peacetime, it had a very small number of officers, mostly in

16     the municipalities.  Every municipality of the former Yugoslavia had its

17     own Territorial Defence staff that comprised three to five persons.  Only

18     in wartime would that structure grow.

19             I know the example of Croatia, and there we're talking about the

20     mobilisation of close to half a million people, apart from the Yugoslav

21     People's Army.  The Territorial Defence had its manoeuvre structure and

22     its spatial structure.  The manoeuvre structure of the Territorial

23     Defence consisted of brigades, and the spatial structure consisted of the

24     staffs in the municipalities, and different smaller units were linked to

25     them or connected with them.

Page 35587

 1             The difference between the manoeuvre component and the spatial

 2     component was the following:  The manoeuvre structure could be used

 3     outside the territory of the municipality from which the personnel were

 4     drafted, and even they could be used outside the territory of their

 5     republic, their federal unit, but the spatial structure would remain in

 6     their area.  They are bound to its territory, and that's why they're

 7     called "spatial."

 8             If I were to rank them by value and under the criteria of

 9     equipment, armaments, et cetera, the armed forces of the SFRJ could be

10     divided into four echelons:

11             The first is the peacetime army; secondly, the reserve forces of

12     the JNA; thirdly, the manoeuvre structure of the Territorial Defence;

13     and, fourthly, the spatial structure of the Territorial Defence.

14             So we can say that the spatial structure of the Territorial

15     Defence is the only part of the armed forces that can be linked to the

16     HVO, in terms of looking for its origin, how it came about.  So this is

17     the only thing that can be compared, actually.

18             Let me mention the characteristics of the spatial structure.  The

19     strong influence of local political and party structures because all

20     appointments of officials, the equipment of those forces were duties of

21     those municipalities, were within the remit of the municipalities.  And

22     the third characteristic is the defence nature of those forces, defensive

23     nature.

24             As we progress, I believe that we will find corroboration for

25     these statements of mine in my opinion, unless you want me to do some

Page 35588

 1     now.

 2             JUDGE ANTONETTI: [Interpretation] On the basis of what you've

 3     just said, I'd like to ask you a very specific question, and you can

 4     possibly answer.

 5             Let's take a theoretical case.  A 22-year-old person who's a

 6     Muslim and lives in Mostar.  He knows he's in a country called the

 7     Republic of Bosnia-Herzegovina.  He knows that this

 8     Republic of Bosnia-Herzegovina has an army, BiH.  He knows that there is

 9     the Territorial Defence and so on.  He also knows that there is a decree

10     adopted by HVO which is likely -- which would make him enlist as an HVO

11     soldier.  So this young 22-year-old Muslim boy, what is he to do?  Join

12     his country's army?  Join the HVO?  How can he solve the situation?

13             THE WITNESS: [Interpretation] Your Honour, do allow me to answer

14     your question, taking the example of Livno, which has been mentioned

15     already.

16             JUDGE ANTONETTI: [Interpretation] Take Livno.

17             THE WITNESS: [Interpretation] All right.  As regards the Livno

18     Muslims, I was a member of one of the stronger HVO brigades, in terms of

19     personnel strength.  Until July 1993, I believe it had six battalions.

20     An entire battalion was made up of Muslim soldiers, and there were Muslim

21     soldiers the other battalions also, but in those other battalions they

22     were a minority.  A 22-year-old Muslim man had the opportunity to choose.

23     He would have had three options:  One, to join the Muslim Battalion of

24     the Livno Brigade, which also had insignia of the BiH Army, apart from

25     the HVO insignia; option 2 would be to join another battalion with a

Page 35589

 1     Croatian majority; and there was also the option for him to leave the

 2     municipality and join a pure unit, if I may call it that, of the BiH

 3     Army.

 4             JUDGE ANTONETTI: [Interpretation] You've just said something that

 5     I am hearing for the first time, and therefore it's of particular

 6     interest to me.

 7             The brigade had six battalions, and therefore there was a

 8     battalion composed totally of Muslims, and you added a small detail which

 9     I've never heard thus far.  You said that in that battalion, aside from

10     the HVO insignia, they also had the insignia of the BiH on their

11     clothing.  Is that the case, and how long did that continue?

12             THE WITNESS: [Interpretation] It really was that way,

13     Your Honour.  I know not because I was in the sector of that battalion,

14     but for the simple reason that in my free time I would meet some

15     individuals of that battalion in town, people who had been at school with

16     me, and they did wear those insignia.  I cannot say that this was the

17     case in other parts of Herceg-Bosna.

18             The mayor of Livno was a very tolerant man, and he certainly

19     wouldn't have insisted that the army, upon which he exerted a great

20     influence, remove these insignia.  I will immediately add when I observed

21     that.  Since September 1992, up until mid-July 1993, I was not at Livno.

22     Whether in the meantime they had removed these insignia, I cannot tell.

23             JUDGE ANTONETTI: [Interpretation] One last question.  Since these

24     were your school-mates, you said you knew some of them, I imagine you had

25     the opportunity to talk with them, what was their state of mind, given

Page 35590

 1     that there was the Croatian Community that existed, the HVO, the army of

 2     the HVO, and the Republic of Bosnia-Herzegovina?  Was there sort of a

 3     schizophrenic atmosphere, they didn't really know where they were at, or

 4     did they have the impression that the HVO was a component of the Republic

 5     of Bosnia-Herzegovina and that it really wasn't a problem for them?  In

 6     particular, what was their state of mind when they knew that between the

 7     HVO and the BiH, there were confrontations perhaps elsewhere, perhaps not

 8     in Livno, but perhaps elsewhere?

 9             THE WITNESS: [Interpretation] Your Honours, I wouldn't be telling

10     the truth if I were to say that we discussed these issues.  We were young

11     boys at the time, and we mostly met in cafes and watched girls.  That was

12     our upper-most interest.

13             JUDGE ANTONETTI: [Interpretation] We can understand that, indeed,

14     that you be interested in girls.  Everyone understands that, but yet

15     there was a political situation at the time.

16             THE WITNESS: [Interpretation] I can only speak about 1992, and in

17     that year I did not have the impression that people of my generation, at

18     least, were bothered by that.  They still had much influence in business

19     and in the authorities, and nobody can say that they were really

20     discriminated against, et cetera.

21             But later on, of course, the confrontations that happened in

22     other municipalities in 1993, which I know from stories that I heard

23     later - I wasn't there, down there at the time - that all that had an

24     impact, that there was dissatisfaction, and that there was -- that there

25     were divisions.

Page 35591

 1             I can mention a naive relative of mine, as an example, who was a

 2     company commander in Livno.  And roughly about the time of when the

 3     clashes between the HVO and the BiH army began, went to Bugojno, which is

 4     a good 100 kilometres away, and he was taken prisoner at the check-point,

 5     of course.  Later on, he was released and didn't have any problems

 6     because he had his notebook on him with a list of his soldiers, and some

 7     of them were Muslims.  I know that he told me later that he didn't have

 8     problems on account of that.  So this goes to show that there was a

 9     strong local focus in all the communities that people didn't really care

10     what was going on in, I don't know, three municipalities away or so.

11     But, of course, in July 1993 the Muslims in the HVO were disarmed, that's

12     a fact, for preventative reasons.

13             JUDGE ANTONETTI: [Interpretation] Yes.  Madam, please continue.

14             MS. NOZICA: [Interpretation] Thank you, Your Honours.  I would

15     like to return to some issues.

16        Q.   If we could finish the topic that we were talking about.  You

17     were making a comparison between the HVO and the JNA and you said that

18     the HVO had a spatial structure and that they were a defensive army.

19     Would you please explain to the Chamber whether the HVO had professional

20     forces and how they fit into this picture you are painting?

21        A.   The HVO did have professionals in its ranks.  There was a

22     regiment and a number of battalions and companies.  I was in a brigade

23     that was a successor of a professional regiment.  I know that their

24     nominal strength were 2.860 men, but I know that they never had over 460

25     infantry.  Sorry, I said "400 infantry," 400 infantry.  In all, the HVO

Page 35592

 1     had about a thousand or 1100 professional soldiers to counter that.

 2     That's a category that did not exist in the former system, and they were

 3     meant to be a manoeuvre forces, but with a thousand or 1100 men.  Well,

 4     it is clear from the number that they weren't much of a manoeuvre force,

 5     and they were not all in the same territory.  Another characteristic of

 6     theirs was that they were infantry units with light weapons.

 7             Up until the summer of 1993, at least, the regiment that I

 8     mentioned got its first 120-millimetre mortar.  That was the heaviest

 9     armament that they had.  So for a year, they fought with weapons the

10     calibre of which did not exceed 60 millimetres, and that's the calibre of

11     a small mortar.  The reserve brigades had greater fire-power, and they

12     made up the majority of the forces.

13             JUDGE ANTONETTI: [Interpretation] I wanted to indicate the fact

14     that since time is of the essence, I would like to ask the Registrar

15     whether we can continue without a break until 17 minutes after 6.00, and

16     then we will have a break.  So we can continue until 17 minutes past 6.00

17     without taking a second break, and that will enable us to gain 20 minutes

18     in our time.

19             Go ahead.

20             THE REGISTRAR:  Your Honours, that is possible.

21             MS. NOZICA: [Interpretation] Thank you, Your Honours.

22        Q.   Let me now return to some issues that are important and follow

23     from the questions of Judge Antonetti about the young man in Livno.

24             You said that in July, the Bosniaks, for preventive reasons, were

25     disarmed in the HVO.  This is something we didn't deal with in this

Page 35593

 1     expert opinion, but let me ask you to be more precise about that.  How do

 2     you know about it, what did you know about it, what documentation did you

 3     see, but briefly?

 4        A.   Your Honour, in the history of the HVO as a military component,

 5     there is a watershed, if I may call it that, after which nothing was ever

 6     the same again on that day, the 30th of June, 1993.

 7             On that day, a significant part of the Muslims of the 2nd Brigade

 8     of the HVO in Mostar betrayed their comrades and crossed the line to join

 9     the BiH Army, a consequence of which was the fall of the barracks, apart

10     from any other problems, and that was a warning to everybody else.  And

11     there was a risk, the risk of keeping Muslims in HVO units was too great

12     from that moment on; and the HVO, which until then had been the military

13     formation with the greatest share of members of other ethnicities, was to

14     enter into an almost mono-ethnic formation, apart from the Orasje

15     district, but the Orasje district is not relevant here, I believe.  But

16     in Central Bosnia and Herzegovina, the Muslims were being disarmed from

17     that day on.

18        Q.   Briefly, do you have knowledge, based on the documents you saw,

19     that the ethnic Croats participated in HVO units in territories

20     controlled by the BiH Army, and together with them fought the Serbian

21     Army?  Do you have such knowledge?  We -- and if you know about such

22     territories, please mention them.

23        A.   Units of the HVO and territories where Muslims were dominant,

24     well, there were HVO units in Sarajevo, first and foremost, Sarajevo and

25     then Tuzla.  There were brigade-level units there, and they continued to

Page 35594

 1     function as HVO for a while after that.

 2        Q.   All right, thank you.  In connection with this, and we'll get

 3     there yet, until the 30th of June, 1993, did you see any documents about

 4     the number of Muslims in HVO units?  I mean the numbers for the period

 5     until the 30th of June, 1993.  We will show a document later.

 6             As a historian who had the chance to compare information about

 7     persons belonging to other ethnicities and other armies, such as the

 8     Serbian Army or the Army of Bosnia-Herzegovina, can you say what the

 9     share of Muslims was in HVO units until June the 30th, 1993?  I am

10     specifically referring to Herzegovina now.

11        A.   I think that in my report, you can find a document of that kind.

12     It dates from the beginning of June 1993, and it depicts the share of

13     Muslims in the HVO.  I believe it was over 16 percent.  Out of that

14     number, most of them were in the Operative Zone Eastern Herzegovina, that

15     is, the valley of the Neretva River, Livno, to a lesser extent in

16     Central Bosnia, and there were many in Orasje.

17        Q.   Thank you.  We'll look at that document later, going through your

18     report, as well as many other documents, but I want this to be clear on

19     the record.

20             You personally saw these people, these Muslim friends of yours,

21     who wore on their sleeves at the same time the coat of arms of the

22     Republic of Croatia [as interpreted] and the BH Army?

23        A.   Yes.  I have -- I have one of those patches in my collection,

24     half HVO, half ABiH.

25        Q.   Those were local Muslims who joined the defence effort?

Page 35595

 1        A.   Yes, mainly from Kotor Varos.

 2        Q.   And who were they fighting, just to be clear?

 3        A.   Against Serbs.

 4             JUDGE ANTONETTI: [Interpretation] It seems to me there must be a

 5     mistake on line 6.  Did you say the patches of the HVO and not the

 6     Republic of Croatia?  Otherwise, we would have the impression that we're

 7     talking about soldiers of the Republic of Croatia who were on site.  Line

 8     6, page 52, must be "the coat of arms of the HVO and the BiH," it seems

 9     to me.

10             Please continue.

11             MS. NOZICA: [Interpretation] Thank you, Your Honour.  Yes,

12     correct, that's exactly what I asked, coat of arms of the HVO and coat of

13     arms of the Army of Bosnia-Herzegovina.

14        Q.   You said, Witness, something which is very important to us here.

15     You made a connection, when you were talking about spatial structures

16     between them and a certain municipality.  You linked them to a strong

17     political and party influence on the local level, and you said that the

18     mayor of Livno was a fair-minded man, a decent man who would have never

19     had a problem with anyone wearing that kind of insignia.

20             Now, a follow-up question would be about the influence of

21     municipalities on the armed forces and on the HVO, because you talk about

22     that in your report in several places, and I believe it's very important

23     to explain here the influence of municipalities.  Could you give us more

24     detail?

25        A.   Your Honour, after several stages of the founding and

Page 35596

 1     establishment of the HVO, there existed municipal staffs of the HVO which

 2     were renamed from TO municipal staffs.  At the beginning, they were

 3     headed by people appointed by municipalities, and thus it happened that

 4     several months later, when the system was already gaining a definite

 5     shape, some structures were already in existence that were greatly under

 6     the influence of municipalities and they were funded by municipalities.

 7             We could see that the kind of thinking, the kind of perception

 8     that the HVO as a municipal force, answerable to the municipalities, but

 9     in my opinion the real strength, the real power of the municipalities,

10     was that heads of municipalities were presidents of local communities, so

11     there were at the same time chiefs on the HVO level, and they were

12     represented on the legislative level.  I think that is a bizarre

13     solution, and I've never seen anything like that anywhere else, but

14     that's how it was.  Therein lies the key to the great power of

15     municipalities over the HVO, and that also explains great resistance to

16     decentralisation -- to centralisation.  And writing this report, I came

17     to the conclusion that Herceg-Bosna would be best defined as a union of

18     loosely-connected municipalities.

19             JUDGE ANTONETTI: [Interpretation] Sir, what you've just said is

20     important.  It's not the first time that this topic has been discussed,

21     and I'd like to profit from the fact that you were here, because you were

22     present in Livno and also because you know a number of people.

23             In your opinion, the local individuals, these VIPs who composed

24     the Presidency, compared to Mr. Boban, because of the number of these

25     individuals in Livno, in Mostar and elsewhere because they were so

Page 35597

 1     numerous, did they have an influence on Boban to the extent that Boban

 2     simply executed orders or decisions made by these local leaders, or, on

 3     the basis of the military documents that you have had the opportunity to

 4     examine, was Boban the man executing orders, and the local leaders were

 5     in the background so to speak?  What is your impression?

 6             THE WITNESS: [Interpretation] Your Honour, I think the intensity

 7     and the frequency of meetings between Boban, as president of the

 8     Croatian Community of Herceg-Bosna, and presidents of municipalities

 9     gives us a clear answer to this question.

10             As far as I know, in 1992 the Presidency convened for the last

11     time on the 17th October 1992, and I remember that date because that's

12     the date when the amendment to this Decree on the Armed Forces was

13     passed, and I cannot remember seeing that the Presidency met again before

14     the end of April 1993.

15             It is my impression that everybody was happy in their own

16     backyard, and I cannot guarantee, of course, that Boban tried to convene

17     sessions and they resisted - I haven't seen it on paper - but the rarity

18     of their meetings at that time leads me to conclude that the policy being

19     followed was, Don't rock the boat and everyone stick to your own

20     municipality.

21             I know it's very difficult to define how much influence Boban

22     really wielded, because I have seen very few documents of that nature,

23     very few documents that could enlighten us in that way.  I heard things

24     from people who knew him, but in my profession that is called hearsay,

25     and you must always allow the possibility that people have their own

Page 35598

 1     ulterior motives for saying whatever they're saying.  But I don't think

 2     any of them held Mr. Boban in very high esteem.  Some people even told me

 3     that apart from his own municipality, he wasn't interested in much.

 4             MS. NOZICA: [Interpretation]

 5        Q.   Mr. Marijan, I asked you, and I'd like you to come back to the

 6     gist of my question, about the influence of municipalities on the HVO

 7     military structure.  You said that the Community of Herceg-Bosna was a

 8     union of loosely-connected states, and if I can paraphrase, each

 9     municipality was a state within a state, and you told us that

10     municipalities were territorially defined.  But tell us now about 1992

11     and 1993.  What was the attitude of those local chiefs and officials

12     towards the HVO and towards the financing of the HVO at this central

13     level?  And we'll turn later to some other details.

14        A.   The influence of municipalities, from the outbreak of the

15     conflict with Serbs and the conflagration of the war in April 1992 until

16     the founding of local bodies, municipalities had already gained a

17     considerable power over defence structures, but it was an inherited

18     power.  It was nothing new, this influence they had over local structure.

19     They had money, and they were the main sources of funding for these

20     forces.  And that turned out to be a problem later because members of the

21     HVO were not all equally paid, for the simple reason that some

22     municipalities were richer than others.  And as new appointments

23     proceeded, it became more and more difficult to follow a definite

24     staffing policy because that led to a conflict with municipalities, and

25     municipalities were not subordinate to the HVO.  Therefore, it was a

Page 35599

 1     conflict with the leader of the municipality, who was also a member of

 2     the Presidency of the HZ-HB.

 3             In the summer and autumn of 1992, local staffs were, for the most

 4     part, renamed into brigades.  In the system which gave me my military

 5     education and training, a brigade is considered to be a composite unit

 6     that is not linked to a specific territory.  However, from later

 7     developments, you see that there was a huge resistance to the idea that

 8     HVO units should go outside their territory.  They simply didn't want to,

 9     and it was only with enormous efforts from the Main Staff that certain

10     units started moving in the autumn 1993 and the winter of 1993-1994.

11     That is another proof of their essentially defensive nature.  You can

12     call it what you want.  You can call a car a Mercedes, but if it's not a

13     Mercedes, it will not perform like one.  And you could say the same about

14     the units of the HVO.

15        Q.   Thank you, Mr. Marijan.  These issues you're talking about, the

16     influence of local authorities, did you notice that this caused problems

17     with mobilisation and other ways of catering to the HVO and supplying it,

18     depending on the municipality in question, its wealth, but also on the

19     leader of the municipality, who may have had a different concept of

20     defending his area?

21        A.   I have seen a large number of documents from which you can see

22     that municipalities were striving for the greatest possible independence.

23             At one session of the HVO on the 14th October 1992, the president

24     of the HVO, the head of the HVO, said that municipalities were acting

25     like states, and at a later session in 1993, it was said that little had

Page 35600

 1     changed; the municipalities had to contribute from their budget to the

 2     Defence Department.  But I have never seen any document about this.  In

 3     the Municipality of Livno, maybe it had nothing to contribute.

 4             I know that on the example of Livno, the brigade was paid until

 5     the end of 1992 from the municipality.

 6             THE INTERPRETER:  Sorry, 1993.  Interpreter's correction.

 7             MS. NOZICA: [Interpretation]

 8        Q.   So to reiterate, you know that the brigade in Livno, until the

 9     end of 1993, was paid by the municipality?

10        A.   Perhaps it's better to say until the autumn of 1993 because I'm

11     not sure if it's October or November.

12        Q.   Let's not split hairs.  It's partly autumn, partly winter.

13             JUDGE ANTONETTI: [Interpretation] Sir, I have a question which is

14     in line with what has just been asked.

15             You remained in those units.  You know that there was the

16     so-called Croatian Community.  Then there was the Republic of

17     Herceg-Bosna; right?  When that transition took place, and when the

18     Republic of Herceg-Bosna was founded, in -- what happened in the minds of

19     the soldiers?  What did they think, "We are a republic as we were under

20     the former Yugoslavia," that is, the state was Yugoslavia, and there was

21     the Republic of Bosnia-Herzegovina, the Republic of Croatia, so it didn't

22     change much at the end of the day, or the foot soldier or the officer or

23     yourselves had the feeling that something new was created -- was

24     established which eventually would become a state?  How did you

25     experience this transition?  And you were on the spot, of course, but

Page 35601

 1     you're also an expert and you managed to review documents, and perhaps

 2     there are documents which may help you answering the question.

 3             THE WITNESS: [Interpretation] Your Honour, we have to go back a

 4     little.  In fact, we have to go back all of 20 years.  Over that time, I

 5     was in the Students Platoon of the Livno Brigade, and it was a peculiar

 6     unit.  It just crossed my mind, I was commander of that platoon in the

 7     independent sector held by a company, and it was a residual platoon of

 8     the HOS that had stripped itself of its insignia, and there was even a

 9     platoon of waiters and a platoon of students; a rather mixed company, you

10     would say.  And you have to believe me when I say that I really don't

11     remember either my own reaction or any of my colleagues' to the

12     announcement that Bosnia and Herzegovina became an independent republic.

13     We in Herzegovina never discussed it.

14             What bothered me a little, perhaps, is something that in 1992 and

15     1993 never happened, was that somebody would come to us soldiers and

16     explain something, so the members of this Students Platoon of the

17     Livno Brigade were totally uninformed about this political decision and

18     its political goal.  From what I know from the documents, I would say

19     that Herceg-Bosna and its armed forces lived from day to day, and that's

20     something that bothered the Muslims more than others.  But in the circle

21     of my acquaintance, and I must say I'm not sure that circle is

22     representative, in the circle of my acquaintances I said the indifference

23     to this was complete.

24             MS. NOZICA: [Interpretation] Your Honour --

25             THE INTERPRETER:  Microphone, please.

Page 35602

 1             MS. NOZICA: [Interpretation]

 2        Q.   I'd like to take you back to your expert report and your

 3     findings.  We left off at something very important, the material

 4     replenishment of the HVO.

 5             Could you tell us very briefly about the tasks of the HVO, and we

 6     can talk about the Decree on the Armed Forces up to Article 50, because

 7     the provisions on readiness are very similar, and about the second decree

 8     as well.  What were the main tasks?

 9        A.   Your Honours, I commented on the tasks of the HVO in Chapter 4

10     based on these decrees.  Its task was to implement the defence policy and

11     to conduct preparations for the defence of Herceg-Bosna.  So there was a

12     plan of defence of Herceg-Bosna.  And let me emphasise it's not a war

13     plan, because the plan of defence encompasses the whole society,

14     determining measures for improving defence, identifying sources of

15     finance, et cetera.  I won't read on.  You can see it in the report.

16     And, of course, one of its fundamental obligations was to provide

17     material supplies to armed forces.

18        Q.   According to both Decrees on Armed Forces, let us take the one on

19     the 3rd of July, what were the tasks of defence -- of the Defence

20     Department, rather, under this decree?

21        A.   The Defence Department -- excuse me.  Do you mean only the

22     stipulations?

23        Q.   It's paragraph 5 in your report.  I mean only the provisions of

24     the Decree on the Armed Forces.  We'll get to Article 10 when it becomes

25     necessary.

Page 35603

 1        A.   The Defence Department of the HZ-HB was an organ dealing with

 2     administrative and professional tasks within the sphere of defence and

 3     security.  That's its official definition.

 4        Q.   When do we find the first reference to the Defence Department?

 5        A.   In May 1992, in the statutory decision on the provisional

 6     structure of the executive power in the HZ-HB, and it was amended on the

 7     3rd of July 1992.

 8             Later, when I speak about this statutory decision, I also mention

 9     the amended decision specifically with a view to the Defence Department

10     because it was only established right then on the 3rd of July.

11        Q.   Speaking of provisions to the armed forces, what is the principal

12     task of the Defence Department?

13        A.   The principal responsibility of the Defence Department was

14     providing material and supplies to the armed forces; that is, weapons,

15     equipment, and other military materiel.

16        Q.   And what was its secondary responsibility, and together with

17     whom?

18        A.   "Secondary" is a good word.  It performed it together with other

19     defence bodies, because this was wartime, after all.  And in view of the

20     extent of the purview, other bodies had other responsibilities; providing

21     food, medical responsibilities, et cetera.

22        Q.   Which article is that?  I'm talking about paragraph 6 of your

23     report, which article governs these responsibilities of the Defence

24     Department providing combat and other equipment in cooperation with other

25     bodies?

Page 35604

 1        A.   It's Article 41.

 2        Q.   Thank you.  That suffices for now.

 3             I would like now to move on.  We've dealt with the influence of

 4     municipalities, and now you can concentrate on the second part of your

 5     report, which is called -- entitled "Defence Department."  Could you

 6     explain to the Judges when the Defence Department was created, what

 7     preceded it, and why it was set up?

 8        A.   The Department of Defence was established to carry out

 9     administrative and professional tasks from the domain of defence and

10     security.  It was established on the 3rd of July, 1992, and started

11     functioning then.  So it was established when there were some structures

12     of the HVO.  The necessity for it had been known for quite a time.  I

13     have mentioned the statutory decision dated May the 15th, but from that

14     decision until the creation of the defence, two months had to elapse.

15     The best example of why it was necessary to the HVO can be seen in a

16     document which is a letter dated 28th of June, 1992, where many tasks are

17     listed that should be carried out by the Department of Defence, so as to

18     unburden the HVO.

19        Q.   We will have to reduce the number of documents I want to show

20     you, because we are making very slow progress.

21             Let me just ask you whether you are referring to document P279 in

22     binder 1, and you said that it was on the 20th of June, but the document

23     reads the 26th of June.  Is this the document you have mentioned a short

24     while ago, so binder 1, the following document, this should be it?  I can

25     tell from here.

Page 35605

 1        A.   Yes, that's the document.  It's -- it is a good depiction of the

 2     situation and about the municipalities.  This shows also to what extent

 3     the HVO is a defence force.  Even in the case of luck at the front-line,

 4     they do not continue to advance, which is, militarily speaking, almost

 5     suicide if you fail to build upon your successes.

 6        Q.   We did note here the Defence Council.

 7        A.   The last two paragraphs on page 1 in the Croatia text; right.

 8        Q.   How does it begin?

 9        A.   After the shock that the enemy had to bear, et cetera.

10        Q.   All right.  Mr. Marijan, in your report you deal with issues that

11     Judge Prandler has mentioned, and these are contained in Article 10 of

12     the decree, so let us show what the tasks of the Presidency of the HZ-HB

13     were in defence matters and what were the tasks of the HVO to the HZ-HB.

14     What does Article 10 say, and is it identical, when we speak about the

15     versions from July and October 1992 respectively?

16        A.   Your Honours, Article 10 makes a list of 24 duties of the

17     Department of Defence, and the decree of the 3rd of July mentions 25, but

18     only because item 6 is actually omitted.  So this was corrected

19     subsequently.  I believe that the list is completely identical, but let

20     me add that the duties of the Department of Defence cannot be understood

21     if Article 10 is viewed in isolation without connection to Article 11,

22     because only that latter article makes it clear.

23        Q.   Mr. Marijan, let us make an analysis.  I hope that we will be

24     able to do so in the remaining 20 minutes.  Let us see what the duties of

25     the Department of Defence were and whether the Department of Defence,

Page 35606

 1     according to the documents that you saw, did anything to implement them,

 2     and how would you characterize these duties the way they are listed here,

 3     and what they mean, in rough terms?  Let us start with -- let me remind

 4     you we're looking at document P00588, so it is in binder X.  So the

 5     document is P00588.  We're looking at Article 10, because here the

 6     numbering is correct.  Please put it in front of you so you don't have to

 7     turn around and you don't have to turn away from the microphone.

 8             Tell me, please, what you mean by task number 1:

 9             "Monitoring and coordinating activities aimed at achieving the

10     agreed policy of the defence system and presenting measures aimed at

11     gaining necessary momentum for the development and eventual realisation

12     within the HZ-HB."

13             I will always ask you to say if this was indeed done by the

14     Department of Defence and whether that is really a task that the

15     Department of Defence should realise.

16        A.   Yes, it is, and I believe I saw some documents about this.

17        Q.   Let us continue with item 2:  "Assessing possible wartime and

18     other dangers."

19        A.   This item, when it comes to other dangers, the assessment of

20     other dangers, is certainly within the remit of the Department of

21     Defence.

22        Q.   Let us continue with 3:  "Making plans on the use of armed

23     forces."

24        A.   That is not a task of the Department of Defence.

25        Q.   Can you -- can you elaborate?

Page 35607

 1        A.   Can I continue, then?

 2        Q.   It seems that my question coincides with what Judge Prandler

 3     wanted to say.

 4             JUDGE TRECHSEL:  I don't know what Judge Prandler -- whether he

 5     wanted to say something.  I am Judge Trechsel, for your information, if

 6     you were referring to me.

 7             THE INTERPRETER:  Interpreter's remark:  My mistake.  Apology.

 8             JUDGE TRECHSEL:  Sorry.  It was an interpreter's involuntary

 9     practical joke.  I'm sorry.

10             I think I also want to hear more about this, and you seem to go

11     into that direction, and you have priority of course, Ms. Nozica.  Go

12     ahead.

13             MS. NOZICA: [Interpretation] Thank you, Your Honour.  That's

14     exactly what I wanted to say.  I suppose that my additional question was

15     in line with the question you wanted to ask.  I'm rather sure I did not

16     mention any names.

17        Q.   So when we speak about assessments, we were discussing item 3:

18             "Making plans on the use of armed forces."

19             You said that this was not the task of the Department of Defence,

20     and I asked you to elaborate.

21        A.   I think that what I have just said is best explained by

22     explaining Articles 10 and 11.  Otherwise, confusion may arise, and we

23     don't want that.

24             Article 10, that provides for the rights and duties of the

25     Department of Defence, can only be interpreted correctly if we know the

Page 35608

 1     content of Article 11.  Paragraph 2 in Article 10, which says that the

 2     Defence Department performs these tasks, in Article 11 we can see that

 3     for the carrying out of these tasks, the Main Staff is being established.

 4     Only then can we proceed to these 24 tasks, because they -- they fall

 5     either under the Main Staff or under the Commander-in-Chief, but not

 6     under the Department of Defence.

 7        Q.   If I understood you correctly, you said the following:  In order

 8     to determine precisely what the tasks of the Department of Defence or

 9     other bodies were, that the Department of Defence carries out staff and

10     other technical work --

11             THE INTERPRETER:  We would kindly ask the Defence counsel to read

12     less fast, if she has to read.

13             MS. NOZICA: [Interpretation] Your Honours, if I may finish.  I am

14     reading and speaking as slowly that I believe I'll go on for -- I'll go

15     on all week, so I apologise to the interpreters.

16        Q.   So we have to see this in connection with Article 11, which says

17     that for the carrying out of the tasks set out in Article 10,

18     paragraph 2, that the Main Staff is established; is that so, Witness?

19             JUDGE PRANDLER:  I hate to [indiscernible] good at the computers.

20     I would like to read what our expert, Mr. Marijan, has said, and then I

21     will lose that if you continue.  So let me then -- let me then point out

22     the following:

23             Mr. Marijan said that paragraph 2 in Article 10, which says that

24     the Defence Department performs these tasks, in Article 11 we can see

25     that for the carrying out of these tasks, the Main Staff is being

Page 35609

 1     established:

 2             "Only then can we proceed to these 24 tasks, because they -- they

 3     fall either the under the Main Staff or under the Commander-in-Chief, but

 4     not under the Department of Defence."  End of the quotation.

 5             Frankly, I do not understand this.  Then how come Article 10 says

 6     in the preamble that the Defence Department shall engage in activities

 7     pertaining to, and then we will have the 25 tasks?  And that is true that

 8     afterwards Article 11 specifies and points out that, and I quote:

 9             "In order to perform the tasks stipulated in paragraph 2,

10     Article 10 of this decree ..."

11             And let me then again emphasise the tasks stipulated in

12     paragraph 2, Article 10 of this decree, that is, the department, the

13     Main Staff shall be established within the Defence Department, that is

14     true, but again I say that in my view all these articles should be read

15     and understood -- I mean, Articles 10, 11 and 29, whatever that was, 29,

16     they should be read and understood and interpreted as a common basis

17     about the defence forces and about the tasks of the defence.  I stand to

18     be corrected, if you so wish.

19             Thank you.

20             THE WITNESS: [Interpretation] What you said, Your Honour, is

21     correct.  These three articles are deeply interconnected, and Article 11

22     cannot be understood properly without Article 29.  Article 10 lists a

23     number of duties, and let me correct myself.  These are, first and

24     foremost, duties of the supreme commander.  There are ten of them, and

25     they are all -- almost all are mentioned here.

Page 35610

 1             MS. NOZICA: [Interpretation]

 2        Q.   Mr. Marijan, you have now said something completely different

 3     from what Judge Prandler wanted to say, so let me state the following:

 4             Judge Prandler said that there was Article 10, there is

 5     Article 29, there is Article 9, that stipulates which bodies have to do,

 6     and he said we have to do that separately.

 7        A.   I apologise.  I had the impression --

 8        Q.   Just a moment.  So Judge Prandler wants to say, if I understood

 9     him correctly, and I assume I did, that Article 10 makes a list of the

10     duties of the Department of Defence in 24 items.

11             Mr. Marijan, I'm not going to ask you questions about the

12     interpretation of law.  We know that legal provisions can only be

13     interpreted by the Chamber.  But I'll ask you, item by item, whether you

14     observed that the Department of Defence actually did that or why you

15     did -- why you think that this is -- should not be part of the duties of

16     the Department of Defence.  And whenever you think that a task was

17     delegated or attributed to some other body and some other provision,

18     please say so.

19             So there is the drafting of plans and the employment of the armed

20     forces.  Is that a task of the Department of Defence?

21        A.   No.

22        Q.   Whose task is that, do you think?

23        A.   That is a task of the Commander-in-Chief of the Armed Forces.

24             JUDGE ANTONETTI: [Interpretation] Mr. Witness, sir, this question

25     of the Chief of Staff, which is an important issue in terms of the chain

Page 35611

 1     of command, we see, under Article 10, the Department of Defence is

 2     responsible for 24 tasks, but then Article 11 states that the Chief of

 3     Staff is created within the Department of Defence or inside the

 4     Department of Defence.

 5             Therefore, this Chief of Staff, under Article 10 and Article 11,

 6     comes under the responsibility of the head of the Department of Defence,

 7     and this Chief of Staff, the structure of which has been defined by the

 8     Commander-in-Chief, Mr. Boban, is going to appoint the general who will

 9     be the head of the Chief of Staff, but that applies during times of

10     peace.  But in times of war, it would seem that there is a different

11     structure, which is the War Cabinet.

12             Since we are talking here about the chain of responsibility, we

13     have to be certain that everyone understands this, that all of the Judges

14     understand this because if we were to make a mistake, that would have

15     consequences.

16             According to what you have studied, was this Chief of Staff

17     integrated into the Department of Defence?  And if that was the case, if

18     it's integrated, then the chief -- the head of the Chief of Staff is

19     subordinated to the head of the Department of Defence, in other words,

20     the minister of defence?  This is the question I put to you.  I don't

21     have the answer.

22             THE WITNESS: [Interpretation] Your Honour, the General Staff or

23     Main Staff of the HVO is a part of the Department of Defence, but its a

24     part of the Department of Defence that has dual remit.  I explained that

25     in my report.  It is subordinate to the supreme commander for some

Page 35612

 1     issues, and the --

 2             THE INTERPRETER:  Sorry, could the witness be asked to repeat

 3     this part of his answer?

 4             THE WITNESS:  [No interpretation]

 5             MS. NOZICA: [Interpretation]

 6        Q.   The interpreter is asking you to repeat your answer.

 7        A.   The Main Staff of the HVO is part of the Defence Department,

 8     which we can see from the decree, and it was headed by the chief of the

 9     Main Staff, who was responsible for administrative and professional

10     affairs, but he was answerable to the president of the HZ-HB.  So the

11     Main Staff had a special position in the area of defence.

12             MS. ALABURIC: [Interpretation] Your Honour, may I just say that

13     once again we have an incomplete interpretation.  The witness said that

14     the chief of the Main Staff was answerable to the head of the Defence

15     Department inasmuch as technical and professional affairs were concerned.

16             JUDGE ANTONETTI: [Interpretation] Mr. Witness, sir, this is an

17     important matter.  Everyone realises that this is an important question.

18     We cannot continue at this hour of the day, for reasons of our schedule.

19     We will all have the entire night to rethink this matter, and

20     Madam Nozica, tomorrow at 9.00, will be able to continue asking questions

21     on this very issue.

22             Mr. Witness, sir, you have taken the solemn oath, and therefore

23     you must have no contact with the Defence or with anyone.  The only thing

24     you can do is to inform your wife that everything is going well; nothing

25     more.  I am giving you these instructions to avoid any potential problem.

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 1             We will resume tomorrow morning at 9.00.  We will be meeting in

 2     the morning, and we will most likely continue with these very matters.

 3             MS. NOZICA: [Interpretation] Your Honour, I'm sorry, but I really

 4     have to say this for the transcript.

 5             If I were allowed to go at least through these principal founding

 6     documents, and I believe I will be able to do that within the first half

 7     hour tomorrow, then at least when we have gone through the founding

 8     documents and what was being done in the Defence Department, it will be

 9     much easier to ask questions, and we could go through the matter more

10     swiftly, because you are now invoking documents that I have yet to show

11     the witness.  I will show them tomorrow, and then we can focus on issues

12     that are the most important.

13             JUDGE ANTONETTI: [Interpretation] Yes, fine.  We all agree on

14     that.

15             We shall have a 30-minute break at this point and resume in a

16     different format that I informed you of.  I won't say any more, because

17     this is a public hearing.

18                           --- Whereupon the hearing adjourned at 6.16 p.m.,

19                           to be followed by an Ex Parte Hearing.  The hearing

20                           will reconvene on Tuesday, the 20th day of January,

21                           2009, at 9.00 a.m.