Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4058

1 Tuesday, 26 February 2008

2 [Open session]

3 [The witness entered court]

4 --- Upon commencing at 8.31 a.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Registrar, please call the case.

7 THE REGISTRAR: Thank you and good morning, Your Honours. This is

8 case number IT-03-67-T, the Prosecutor versus Vojislav Seselj.

9 JUDGE ANTONETTI: [Interpretation] Thank you. Today is Tuesday,

10 26th of February, 2008.

11 Good morning to the Prosecution. Good morning, Witness. Good

12 morning, Mr. Seselj. And good morning to everyone assisting us in this

13 case.

14 We'll now proceed with the cross-examination of the witness. The

15 accused, and I'd like to thank him for this, has given us three large

16 binders. We've all received them at the Bench. I suppose that the

17 Prosecutor have received them as well, and the witness will thus be able

18 to follow the cross-examination more easily.

19 Unless Mr. Seselj has any administrative matters to raise, I'll

20 ask him to proceed now with his cross-examination of the witness.

21 THE ACCUSED: [Interpretation] Mr. President, I have two

22 administrative matters to raise, very important ones, and unless those

23 matters are clarified, I don't think it will be possible for the

24 cross-examination of this witness to continue.

25 But before I do that, I'd like to provide the witness with a set

Page 4059

1 of documents, and I'd like the witness to have the possibility of studying

2 those documents during the break, because I'm not going to use any of

3 those documents before the break. So if he could use that time to look

4 through them, and then we could save time during the cross-examination.

5 There are many documents there. Some of them still have not been

6 translated, but I did provide them on time, I think some three months ago,

7 in fact.

8 Now, the first problem is this: The OTP has not provided me with

9 a statement or the interview of General Zivota Panic, and it was

10 duty-bound to disclose it to me, and this is a violation of Article 21,

11 para 1, 2 and 4(b) and (e) of the Statute. It's a violation of the 68(1)

12 of the Rules of Procedure and Evidence and Article 6 of the European

13 Convention on Human Rights.

14 The European Court for Human Rights has already had a number of

15 judgements passed, and the view in those judgements is the following:

16 That the procedure in all criminal proceedings must be contradictory,

17 adversary, and guarantee the equality of the parties. That is what is

18 called "the equality of arms" in the judgement by the European Court,

19 and --

20 THE INTERPRETER: "Adversarial," interpreter's correction.

21 MR. SESELJ: [Interpretation] So that is the basic right. Any

22 failure to disclose any relevant evidence upsets the principle of a fair

23 and efficacious trial. On the basis of 6(1) of the European Convention,

24 it is the duty of the Prosecution to provide the Defence with all relevant

25 evidence and documents that it has in its possession. This right to an

Page 4060

1 adversarial proceedings means that both sides can be informed of each

2 other's evidence and documents and that they can discuss them.

3 And I would like to remind you of Franzepen [phoen] versus

4 Austria, a case in 1991; Hit [phoen] versus Great Britain, 1996; Jasper

5 versus Great Britain, 1995; and so on and so forth, the precedence for

6 that.

7 Now, there is no reason why in this particular trial any

8 restrictions should be applied, nor is the Prosecution -- nor did the

9 Prosecution stress any restrictions in its comments with respect to the

10 questioning and statement of Zivota Panic. Now, since the European

11 Convention on Human Rights protects the interests of the parties and the

12 interests of justice and law at the same time, the parties in the

13 proceedings must be provided with a possibility of stating their views as

14 to whether a document is worthy of their comments and should be used in

15 the proceedings or not. And the functioning of their organs is based on,

16 among other things, the fact that each party can state its views on any

17 document and piece of evidence contained in the file, in the dossier.

18 Now, it is beyond all reasonable doubt that the statement given by

19 General Panic, who was the commander of the 1st Military District, whose

20 authority stretched over Vukovar and to which the 1st Guard's proletarian

21 Division was subordinated, and by the same token the 1st Guards Brigade,

22 Sector South and North, that that is exceptionally relevant and of capitol

23 importance to my defence, as well as the final outcome of this trial in

24 general. I was not given the possibility of becoming acquainted with the

25 contents, and then, with respect to those contents, to be able to question

Page 4061

1 this expert witness, Mr. Theunens, who belongs to the OTP team,

2 Prosecution team. And you saw last time he confirmed that as a member of

3 the Prosecution team, he took part in the questioning of the witness, in

4 the questioning of the suspects, in preparing the witness for testimony,

5 and performed all the tasks that other members of the Prosecution team

6 perform.

7 Now, there is absolutely no equality of arms here, therefore, and

8 I have provided you with two statements which arrived -- which came to my

9 possession yesterday, so I found them in my cell at 5.00 p.m., 5.00 in the

10 afternoon, and I had a visit throughout the day, my family came to visit

11 me, and I was given that at 5.00 in the afternoon. Perhaps the Detention

12 Unit received the material earlier on, but I could not provide a

13 translation on time. It is the statement by Lieutenant

14 Colonel Vidoje Mijailovic and the statement by Colonel Mijo Milosevic as

15 well. And they are witnesses to the fact that on the 27th of October,

16 2002, in Pancevo, at an assembly of the association of former members of

17 the 51st Mechanised Brigade, whose headquarters is in Pancevo, and whose

18 commander was once a long time ago, General Zivota Panic. They talked to

19 General Panic, and I would like to read out to you just the most relevant

20 portions of those statements, and you have in front of you the statements

21 in their entirety, certified in the Municipal Court of Pancevo, on the

22 25th of February, 2008. That is to say, they were certified yesterday.

23 Lieutenant Colonel Vidoje Mijailovic and Colonel Mijo Milosevic

24 saw the footage, the video, of the examination-in-chief of this witness

25 and my insistence on the statement and the text of the questioning and

Page 4062

1 interview of Zivota Panic, and that is what motivated them to contact a

2 member of the team. Assisting in my Defence, a lawyer, Pete Vijojic

3 [phoen], was contacted, and they offered these statements to him.

4 Lieutenant Colonel Vidoje Mijailovic says here that on that occasion,

5 Zivota Panic complained to him and said that he had a lot of very serious

6 problems in his life created by the investigators of The Hague Tribunal,

7 that he was frightened for his life and the life of his children, and said

8 that The Hague interpreters questioned him for 12 days, 10 hours

9 continuously and exerted pressure upon him, that they blackmailed and

10 threatened him that they would raise an indictment against him unless he

11 agreed to be a witness of the Prosecution before The Hague Tribunal unless

12 he stated what The Hague investigators demanded that he said, and that

13 during the questioning, many of the documents were put to him, whereas he

14 had never heard of any of those documents before or knew what their

15 contents were. And that was what the greatest trouble was, as far as he

16 was concerned, because he was asked to confirm the documents, and unless

17 he did so The Hague Prosecution would raise an indictment against him for

18 war crimes. As Lieutenant Colonel Mijailovic says, General Panic also

19 told him that The Hague investigators forced him to sign a statement.

20 And now my comment to that: The statement exists. There are two

21 witnesses that confirm that Zivota Panic told him that he had signed the

22 statement.

23 THE INTERPRETER: The interpreter's correction, The Hague

24 "investigators," not The Hague "interpreters" earlier on.

25 JUDGE ANTONETTI: [Interpretation] One moment, Mr. Seselj. I'm

Page 4063

1 listening to you with great interest, but one fellow judge has a question

2 about the possible link between the cross-examination of this witness and

3 General Panic. Is there a link? Could you please tell us about this, and

4 then you can proceed with your comments.

5 MR. SESELJ: [Interpretation] Gentlemen, Judges, I'm going to

6 disclose a little secret that the Prosecution did not know about.

7 In August 2004, along with a certification, certification number

8 6, and you can ask the Prosecutor for the entire contents of the Document

9 Number 6, the Prosecution gave me a short resume -- supplied me with a

10 short resume of General Panic's statement. And as far as I'm concerned,

11 it is absolutely exculpatory, and I have to put that statement to this

12 witness during the cross-examination.

13 At the status conference on the 4th of October, 2004, I demanded

14 the Pre-Trial Judge Agius at the time to request the Prosecution to

15 provide me with the statement in its entirety. Agius' response was, and

16 you can see the transcript from that 4th of October, 2004, status

17 conference, that the Judges of the pre-trial Chamber did not receive that

18 exculpatory -- do not receive the exculpatory material that the

19 Prosecution is duty-bound to disclose to me. And then he asked that I

20 make the request in writing. After a certain amount of time, I did ask to

21 receive this in writing, but the Prosecution never provided me with

22 Zivota Panic's statement.

23 Zivota Panic says in that statement that all the volunteers of the

24 Serbian Radical Party were within the composition of the JNA units, that

25 not a single one was suspected of war crimes, that they were disciplined,

Page 4064

1 and he claims that the White Eagles, Beli Orlovi were never within the

2 composition of the JNA, and so on and so forth. So these are statements

3 he makes in that statement of his, so General Zivota Panic's statement is

4 extremely important to me, so that the witness -- I can put certain parts

5 of that statement to the witness. He's an expert witness and a member of

6 the Prosecution team, so I'd like to hear his views on that statement.

7 I'd also like to finish quoting from the statements. I have

8 almost finished Vidoje Mijailovic's statement, and then I would like to go

9 on very, very briefly from Colonel Mijo Milosevic's statement, a short

10 excerpt there, and then I would like to ask the Trial Chamber to take

11 certain steps in that regard.

12 General Zivota Panic also said to Vidoje Mijailovic, as it says

13 here in the statement, that The Hague investigators forced him to sign a

14 statement which they compiled, but that he would never recognise that

15 statement as being his own. And the statement that he signed, he was

16 never provided with, and that he's very sorry that he hasn't got a copy of

17 that statement of his so that he could show us --

18 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you're going too

19 fast. Can you please repeat what you've just said, but please do so more

20 slowly, because we want to understand exactly what you're saying. So

21 please start again, but slowly.

22 MR. SESELJ: [Interpretation] The sense of what I'm quoting now is

23 something additional, that is to say, that in the statement something it

24 says that Zivota Panic did not wish to have contained in the statement,

25 but after the terrible pressures exerted upon on him, he signed everything

Page 4065

1 without reading the statement. And he said that according to the

2 testimony of Lieutenant Colonel Vidoje Mijailovic --

3 JUDGE ANTONETTI: [Interpretation] You're talking about the

4 statement signed by General Panic, whereas last week the Prosecutor told

5 us that there is no document, there has never been such document. That's

6 why I was asking you to repeat what you just said very slowly, in order

7 for us to be aware of the matter at hand.

8 MR. SESELJ: [Interpretation] President, I am insisting on the fact

9 that General Panic's statement does exist, that's what I maintain, and

10 that the Prosecution is attempting to hide it.

11 Lieutenant Colonel Mijailovic says that Zivota Panic also told him

12 the following: That The Hague investigators forced him to sign a

13 statement which they compiled, but that he would never recognise that

14 statement as being his own, and that that statement, the one he signed,

15 was never given to him, and that he is very sorry that he hasn't got a

16 copy of that statement of his in order to be able to show us all the

17 troubles he had to go through and all the terror exerted against him, and

18 pressure, and blackmail. That's what Vidoje Mijailovic says.

19 General Panic also told him that The Hague investigators offered

20 him every form of assistance, beginning with monetary assistance and other

21 benefits. And they said that they would not be raising an indictment

22 against him if he agreed to be a Prosecution witness. He also told him

23 that the whole time these threats and pressures were being exerted against

24 him, he refused to testify falsely and did not accept any other benefits

25 of enticements. And then he stresses that as a heart patient, he was

Page 4066

1 forced to sign the statement under duress and under threat, and that

2 during these 12 days of abuse, they broke him down and he could take it no

3 longer.

4 Now, you know that immediately after that, Judges, Zivota Panic

5 did in fact have a heart attack and died of that heart attack.

6 Now, according to the statement made by Colonel Mijo Milosevic,

7 given also on Monday, the 25th of February, that is to say, yesterday,

8 Colonel Milosevic describes that same meeting of officers of former

9 members of the 51st Mechanised Brigade in Pancevo and says the following:

10 "During the conversation with General Zivota Panic, I saw that he

11 was very much concerned and worried, and he complained that The Hague

12 investigators questioned him for a full 12 days continuously. And that

13 The Hague investigators were creating major problems for him because they

14 asked him to be a Prosecution witness of The Hague Tribunal and that they

15 gave him a very hard time, but that he refused, nonetheless, to be a

16 Prosecution witness, and that he wasn't going to make false testimony

17 against the military and political leadership of our country, of our

18 state."

19 General Panic also said that The Hague investigators exerted

20 pressure on him and that they tried to blackmail him and threaten him that

21 they would raise an indictment against him if he failed to agree to be a

22 Prosecution witness, and he refused to cooperate.

23 Now, a copy of his statement was not provided to him.

24 And now Colonel Milosevic describes here who also was present, and

25 they were General Enes Taso, Colonel Zoran Jovanovic, Lieutenant Colonel

Page 4067

1 Milenko Lukic. He was there as well as others.

2 Therefore, I have two pieces of evidence that a statement exists

3 by General Zivota Panic in the Prosecution, they have it.

4 The third piece of evidence is confirmation number 6 of the

5 Prosecution. So before you make a ruling, would you please request that

6 the Prosecution provides you with confirmation or certification number 6

7 and the summary of certain statements that they disclosed to me with that,

8 and you will find a summary of the statement made by General Zivota Panic.

9 There are two. They sent that to me pursuant to Rule 68.

10 Now, Zivota Panic -- they exerted pressure on Zivota Panic to be a

11 false witness in the Milosevic trial, to begin with, but along the way he

12 mentioned the role of the volunteers of the Serbian Radical Party and, as

13 far as I'm concerned, gave an absolutely exculpatory statement.

14 Now, the Prosecution didn't take that into account at the time

15 because the pressure was directed against Milosevic -- for him to testify

16 against Milosevic. We're dealing here with 2001, when the Milosevic trial

17 was still ongoing, and they weren't even thinking about raising an

18 indictment against me at that time. So that is why this slipped in, and

19 it's completely exculpatory where I'm concerned.

20 So, please, would you request that the Prosecution provide me with

21 a statement of Zivota Panic straightaway and the transcript of his

22 interview and questioning. I have nowhere else that I can use this except

23 during the cross-examination of expert witness Mr. Theunens here.

24 JUDGE ANTONETTI: [Interpretation] Fine. Let me summarise, and

25 then I'll ask the Prosecution to tell us what their position is.

Page 4068

1 Everything started the following way: Last week, during

2 examination-in-chief, mention was made at one time of the role played by

3 General Panic at the time of the Vukovar events, and let me remind you

4 that the Vukovar events are pleaded in the indictment. Therefore,

5 General Panic at the time was at the head of the 1st Military District,

6 and Vukovar was located within the 1st Military District.

7 Then the accused, Mr. Seselj, when raising an objection, stated

8 that he had in his possession a summary of the statement made by

9 General Panic that, according to Mr. Seselj, demonstrates that Mr. Panic

10 had made a written statement to the OTP.

11 Mr. Seselj told us that this is certificate number 6.

12 Having said that, I have to go back even further in time to the

13 pre-trial stage, and my two fellow Judges did not take part in that stage

14 and they might not be aware of some information, if they have any time to

15 delve in the hundreds of pages of documents produced by the pre-trial

16 stage that lasted for a very long time. At some point during the

17 pre-trial stage, the accused told us that he had been informed that there

18 were 207.000 pages of exculpatory evidence. According to the Rules, he

19 demanded to be provided with these documents.

20 Following this request, I told Ms. Dahl that she had to do

21 everything for the accused to receive as many pages as possible of these

22 documents, but I also said that in order to facilitate this on the side of

23 the Prosecution, the accused could give key words to the Prosecution for

24 the Prosecution to then conduct a document search. That was done, and I

25 understand that 3.000 pages were disclosed to the accused, thanks to these

Page 4069

1 key word searches.

2 It appears that according to the accused, everything General Panic

3 said comes under Rule 67, and that under other Rules the accused would

4 like to receive the written statement made by General Panic, and it is the

5 duty of the Prosecution to disclose this document. Otherwise, they might

6 receive very serious sanctions.

7 Because of this, last week I solemnly asked the Prosecution to

8 conduct a thorough check and to check that there had never been any

9 written and signed statement. And last week, at the end of last week, the

10 OTP told us here, in this courtroom, that General Panic had been heard or

11 questioned as a suspect, but that no written and signed statement had been

12 produced.

13 Since that time, since the end of last week, we've seen two

14 documents appear from two colonels. We've received the statements in

15 B/C/S, without a translation, but allegedly, according to these two men,

16 General Panic, before he died, because apparently he had a heart attack,

17 he apparently stated that the Office of the Prosecutor, after 12 days of

18 interviews, questioning, had him sign or purportedly had him sign a

19 document, and that this document exists, there is such a document, since

20 General Panic allegedly told of this to these two colonels who certify

21 this fact or attest to that fact in this document.

22 What is the exact position now?

23 Mr. Marcussen, can you please shed some light on this for us?

24 MR. MARCUSSEN: Yes, Your Honours. Good morning.

25 To deal with the last issue first, the issue of the material we

Page 4070

1 have from General Panic, now, we're still looking into this after the

2 discussions that took place last week, but the status is still today, as

3 far as I know, that we don't have anything -- any written statements

4 signed by Panic. We have the recordings of the suspect interview. We

5 have a transcript from a documentary prepared by the BBC. That transcript

6 was -- has been given initials by General Panic whereby he adopts what is

7 in the transcripts. And then we appear to have the August document, which

8 I haven't looked at but I just saw on the screen now, which appears to be

9 summaries, a notification to the accused of some of the contents of the

10 suspect interview of Mr. Panic.

11 Now, the accused is presenting two statements from people who say

12 that Panic has said that he has signed a statement. Now, whether that is

13 correct, whether Panic has said that, whether he -- why he might have said

14 that, I don't know. I would like to -- again, I was given some time, and

15 I'm grateful for that, to look into this. I'd like a bit more time to

16 make sure we've turned over all the pages that we need to turn in the OTP

17 to determine whether there exists a statement, but we have so far not been

18 able to find anything and we have been looking for this material.

19 So at this stage, I think there's confusion maybe on the part of

20 the accused because of these different types of written material related

21 to Panic's statement. But as I stand here today, as far as I know, there

22 is no written statement. We'll continue to look into it, and I'll report

23 back before this witness has finished his testimony.

24 JUDGE ANTONETTI: [Interpretation] I've understood.

25 This certificate, acknowledgment of receipt number 6, is a summary

Page 4071

1 that the accused has in his possession. According to you, was this

2 summary prepared on the basis of this suspect interview which we can see

3 in the DVD, or was it prepared on the basis of a written statement which

4 you cannot find?

5 MR. MARCUSSEN: I'm having the particular document printed and

6 brought down to me so I can take a look at it. I would think that it is

7 done based on the recorded suspect interview. I see -- we would have

8 disclosed, if we felt necessary, the statement itself or excerpts from it,

9 if that existed. So just from the nature of this kind of a document, I

10 would think it's done exactly because we don't have a statement but

11 because we have a recording which is a less-handy document to work with.

12 JUDGE ANTONETTI: [Interpretation] Very well.

13 Now, the other question I have for you: General Panic, who

14 commanded the 1st Military District, normally speaking, if crimes had been

15 committed in Vukovar, the question could have arisen; in other words, he

16 could have been involved in these crimes, either under Article 7(1) or

17 7(3) of the Statute. Seemingly, General Panic was not prosecuted in any

18 way.

19 Nonetheless, all the information collected by the OTP on

20 General Panic should have been disclosed to the accused, because the

21 accused needs to rebut what happened in Vukovar. Therefore, he needs

22 to -- also according to him, this is exculpatory material. He should have

23 been handed over, in his own language, the transcript of the DVD.

24 So does the Prosecution have any intention of having this

25 translated and have any intention of disclosing this to him, because he

Page 4072

1 has asked this for two reasons; under Article 67, but also under Article

2 68 of the Rules of Procedure and Evidence.

3 MR. MARCUSSEN: Your Honours, what the accused considers to be

4 exculpatory in nature is, from what he's saying, the fact that volunteers

5 were resubordinated to the JNA while they were in Vukovar. That is also

6 the Prosecution's case. The accused is presenting a number of issues as

7 if they were exculpatory, as if it's inconsistent with the Office of the

8 Prosecution's allegations in the case, but they're actually not.

9 Mr. Theunens gave evidence about the resubordination of volunteers to the

10 JNA during the Vukovar campaign and during other periods in time that are

11 relevant to the indictment. So this is not --

12 JUDGE ANTONETTI: [Interpretation] Mr. Marcussen, I am not going to

13 give you any legal -- a legal lesson here, but just a few reminders, in

14 legal terms, that we understand what's at stake here.

15 If crimes were committed in Vukovar, the question is: Who

16 committed these crimes? If it so happens that the people who committed

17 the crimes were members of the army subordinated to the JNA, then this

18 comes under the responsibility of the JNA. And what about the

19 responsibility of the accused?

20 In the indictment, the accused is charged under Article 7(1) in

21 all its forms, and, amongst others, he's charged for his role in the JCE.

22 Now, if we take JCE and its third form, in other words, if crimes were

23 committed by the JNA under form 3 of the JCE, he could be held liable for

24 these crimes, but if there is no joint criminal enterprise because the

25 Prosecution would be unable to prove that such a joint criminal enterprise

Page 4073

1 existed, then Mr. Seselj would be held liable for the other forms

2 mentioned in Article 7(1); did he order, did he plan, and so on and so

3 forth.

4 So he can quite legitimately feel that he needs to know whether

5 these crimes were committed by perpetrators under the control of the JNA,

6 and he had no authority over the JNA. He had no authority to order, to

7 plan and so on and so forth. That is why it is so important to know

8 whether Mr. Panic said what he might have said.

9 So this must be disclosed to him.

10 You draw other conclusions, because you feel that this is not

11 exculpatory material and therefore you need not disclose this to him, but

12 his point of view is different. This is what the whole question hinges

13 on. So you did disclose some of the material because the DVD has been

14 sent to him. The decision had been taken.

15 In other words, when we are talking about exculpatory material,

16 the exculpatory material should be disclosed in a hard copy form and in

17 his own language so that he can use it.

18 So what do you have to say to that?

19 MR. MARCUSSEN: Indeed, Your Honour, I don't think there's any

20 disagreement about neither the scope of Rule 68 nor the potential

21 significance of Panic's interview. We are in the process of reviewing

22 again the Panic interviews, as he was interviewed for a number of days, so

23 we are having people looking at the recordings to determine whether or not

24 there is any material that falls within Rule 68.

25 The obligation of compliance with Rule 68 is, on the Prosecution,

Page 4074

1 we're fully aware of our obligation under that Rule, and we take it very

2 seriously.

3 Now, it is not because the accused states that something is

4 exculpatory, in his view, that it falls within Rule 68. There's no

5 dispute that the material is relevant. We have tried to disclose the

6 material to the accused on Thursday or Friday, when we tried to give him

7 the DVD with the recordings to enable him to review the material. If

8 something is -- falls within Rule 68, Your Honours have ruled that we need

9 to provide the material in written form to the accused, and we will do so

10 if we determine that there is exculpatory material in the interview.

11 Now, the process of transcribing I think it's 43 hours of

12 interview or something like that is not something that can be done

13 overnight, and if we have to do that once we have reviewed the material,

14 we will do it. There's no -- there's no dispute there. But as I said,

15 there is an issue about what is actually exculpatory in this case.

16 Now, if Your Honours order us to provide a transcription of this,

17 then of course we will comply, but what we're doing is we're adopting the

18 Rules as they have been understood so far in this case, namely, that Rule

19 68(b) material or Rule 68(2) material is provided to the accused in the

20 form that we have it, and 68 material and statements of witnesses and so

21 on and so forth are provided in hard copy in the language of the accused.

22 So we are in the process of doing this, and I have been given

23 notification of --

24 JUDGE ANTONETTI: [Interpretation] I've understood, Mr. Marcussen,

25 what you're saying. I have another question.

Page 4075

1 You said that these 12 interviews with Mr. Panic amount to 43

2 hours. Forty-three hours -- four hours is approximately 100 pages, so 43

3 hours, you would have a thousand pages of transcript. So these 43 hours

4 and these thousand pages, would these be included in the 207.000 documents

5 which the accused has been notified of or would this not be part of that

6 batch of documents?

7 MR. MARCUSSEN: I would suspect that it does not, the reason being

8 the following: The big number of pages that we're talking about

9 originates from various collections of material that the Office of the

10 Prosecutor has received during various times, so it is documentary

11 evidence, whereas what we're talking about here is a suspect interview, so

12 that would fall within a separate collection of material, if you want.

13 JUDGE ANTONETTI: [Interpretation] Very well. So let me sum up

14 your position. I shall give the floor back to Mr. Seselj.

15 A, there is no written statement, but you are still checking this

16 out.

17 B, you confirm that there have been 12 suspect interviews of 43

18 hours, which amount to hundreds of pages, and you will do all you can to

19 disclose this to Mr. Seselj under Rule 68.

20 That is your position. I've understood you correctly, haven't I,

21 Mr. Seselj, unless you would like to add something, Mr. Marcussen.

22 MR. MARCUSSEN: I do feel it necessary to refute the allegations

23 of pressure put on the witness during the interviews. If Your Honours

24 would like, we are happy to provide a recording of the suspect interviews

25 so you can see for yourself how the interviews took place. There is just

Page 4076

1 absolutely no basis for the allegations that come up now about pressure

2 against these witnesses. Of course, those feed into a number of other

3 allegations of the same nature. These will be dealt with later, if the

4 Trial Chamber find it necessary, pursuant to the order, but I do find it

5 necessary to strongly refute these allegations. They are misplaced, there

6 is no basis for them. And I find it quite disturbing that we continue

7 have these sort of allegations sort of the on the fly in court, those

8 statements that come in last minute and it being addressed in this matter.

9 But we will get back to this, I suspect, later.

10 JUDGE ANTONETTI: [Interpretation] Mr. Seselj.

11 THE ACCUSED: [Interpretation] Mr. President, I must point out two

12 things.

13 Firstly, you mentioned key words on the basis of which the OTP

14 should identify potential exculpatory material and disclose it to me.

15 They disclosed to me potentially exculpatory material on the basis of only

16 three key words: Arkan's Tigers, Yellow Wasps, White Eagles. They

17 avoided disclosing to me potentially exculpatory material for the key word

18 "Serbian Guard," and those are the four key words, if I remember

19 correctly, which you mentioned, and I think I do remember correctly.

20 However, the two most important key words, when identifying

21 potentially exculpatory material, must be my name and "Serb Radical

22 Party," so they should have disclosed to me all the material they have

23 available where my name is mentioned, even if only once, or the name of

24 the Serbian Radical Party. I think that is the very minimum of potential

25 exculpatory material.

Page 4077

1 Secondly, the Prosecutor has insisted more than once here that

2 they do not know whether Zivota Panic's statement is exculpatory for me,

3 that it is only my claim. Judges, sirs, I am not claiming that the

4 statement or the interview of General Zivota Panic is potentially

5 exculpatory for me. It was the Prosecution that established this on the

6 19th of August, 2004, with receipt number 26. They disclosed to me 23

7 various summaries under Rule 68(1). These are different statements by

8 different people, given under different circumstances. Under number 14

9 was a summary of the statement of General Zivota Panic. The summary of

10 General Zivota Panic's statement was then given to me in eight points.

11 You don't imagine that someone in the OTP viewed all those videos again

12 and then drew up those eight points. The summary was based on a

13 statement.

14 JUDGE ANTONETTI: [Interpretation] [Previous translation

15 continues]... Right away, Mr. Seselj.

16 Mr. Marcussen, Mr. Seselj, I didn't mention this a few moments

17 ago, but during the status conference, in the presence of Judge Agius, the

18 issue had been officially addressed, and Judge Agius had quite rightly

19 said that these documents should be disclosed by the Prosecution to

20 Mr. Seselj, and had therefore at the time asked the Prosecution to

21 disclose to Mr. Seselj all these documents.

22 Mr. Seselj has just told us that on the 19th of August, 2004,

23 there were 23 summaries which were disclosed to him. This includes

24 certificate number 6, which means that as of 2004 onwards, as far as the

25 Prosecution is concerned, the summary may contain exculpatory material.

Page 4078

1 In addition, we had agreed with Mrs. Dahl that by using key words,

2 she was to search in all the documents anything pertaining to the

3 Yellow Wasps, about Seselj's name, and conduct a search with those words,

4 including the Serbian Radical Party.

5 Now, these 43 hours of interview with General Panic which you

6 mentioned, well, normally speaking, if you're using this software package,

7 you should be able to find mention of Mr. Seselj, if General Panic

8 mentioned him. I'm sure he mentioned him by the mere fact that Mr. Seselj

9 came to Vukovar, and therefore one can be more or less sure that he did

10 mention his name. Did he mention the volunteers of the Serbian Radical

11 Party? That, I don't know.

12 So, Mr. Marcussen, before giving the floor back to Mr. Seselj, as

13 far as these 23 summaries are concerned, those that have been disclosed

14 under Rule 68, and certificate number 6 is part of these documents, this

15 happened as early as August of 2004. This is where the Prosecution felt

16 that there was exculpatory material in this.

17 MR. MARCUSSEN: Two points, Your Honours.

18 First, as to the ability of search engines to pick up information

19 within Panic's interview, the problem is that when a file is -- when we

20 have on the audio recording -- when we do a search for words in documents,

21 it doesn't capture an audio recording. The search engine cannot search in

22 an audio file. They search for words in written documents. So the search

23 wouldn't have come up in that kind of a context.

24 I have just received receipt number 6 and the summary, and indeed

25 there is mention of --

Page 4079

1 THE ACCUSED: [Interpretation] If I may intervene, Mr. President.

2 As the Prosecutor has now got receipt number 6, let him first find item 14

3 and read point 1 of the summary of Zivota Panic's statement in its

4 entirety. It's very brief, just a few sentences. Please let him do this.

5 JUDGE ANTONETTI: [Interpretation] It would have been interesting

6 for the Trial Chamber to have this certificate, certificate number 6, but

7 you've just confirmed, haven't you, that Mr. Seselj is mentioned in this

8 document, and Mr. Seselj would like you to read this out to us, the item.

9 MR. MARCUSSEN: I take slight issue with the fact that the accused

10 is cutting me off while I'm making my submissions and trying to direct

11 what I should be doing later on.

12 I would like to provide Your Honours with a copy of receipt number

13 6.

14 So, Your Honours, I was explaining why a search for words do not

15 pick up the contents of an audio or video recording.

16 Now, as I said, on the second point, the receipt number 10 --

17 sorry, receipt number 6, indeed, on the 19th of August, 2004, there was a

18 disclosure which was qualified as a Rule 68 disclosure and which provides

19 the summary of -- yeah, I believe there were eight items that were

20 considered to be potentially exculpatory, falling within Rule 68 at the

21 time.

22 So this information was provided at the time to the accused, so he

23 was -- he was told what material was considered falling within Rule 68 at

24 the time.

25 I mean, I think -- I appreciate that, later on, that the scene for

Page 4080

1 disclosure of this kind of material has changed so that the format in

2 which the disclosure should take place has changed, so that it is being

3 required now that it provides material in hard copy. In August of 2004,

4 that was not the requirement.

5 But I think the important point is that the material that the

6 accused should have has been given to him since August. And, again, the

7 point that the accused is making based on this material, namely, that as

8 SRS/SCP volunteers were operating under the command of the JNA, well, that

9 is not in dispute by the Office of the Prosecutor. That is, indeed, what

10 we're saying. The case is in -- well, an additional issue as to whether

11 or not the accused also had control at the same time over his volunteers,

12 and we've heard evidence about that, and there would be more evidence

13 about that during the case.

14 Now, as I said, the Office of the Prosecutor can transcribe the

15 entire interview. That will take whatever time it will take, but we can

16 undertake to do that. But it's not something that can be done overnight.

17 The accused is refusing to work with the audio recordings, and that sort

18 of blocks us. The Office of the Prosecutor does not -- we don't have a

19 transcript of the English version. We're producing material here for the

20 benefit of the accused that we don't even have ourselves.

21 We are also in the process of doing transcripts of the B/C/S

22 hearings where our -- the witnesses that are going to be called testified,

23 so there are many transcription processes in motion at this time, and we

24 can put this into the pipeline as well or we can try to identify the

25 portions of Panic's interview that are covered by the eight points in

Page 4081

1 receipt number 10 and transcribe those relevant parts for the accused.

2 But I think this receipt gives the accused notice of the relevant bits of

3 the interview with General Panic.

4 And for the purpose of the accused's cross-examination of

5 Mr. Panic, he can put the propositions he wants to put to the witness. He

6 doesn't need a statement from Panic to put these propositions to the

7 witness. So I don't see why this issue should in any way impede the

8 accused's possibility to carry out his cross-examination.

9 JUDGE ANTONETTI: [Interpretation] Mr. Seselj.

10 THE ACCUSED: [Interpretation] Mr. President, you can also look at

11 the transcript of the status conference of the 14th of October, 2004, and

12 on several occasions after that I insisted that the statement of

13 General Zivota Panic be disclosed to me in full. At that time, I did not

14 even know that General Panic had been interviewed as a suspect and that

15 there had to be a video recording. In 2004, no one offered that video to

16 me.

17 A summary is made based on a statement, not based on a video

18 recording.

19 Imagine someone in the OTP, whenever it is required, has to view

20 the entire video, take notes, and then draw up a summary based on those

21 notes. For the sake of the public, if need be, I can read it, just item 1

22 out of these eight items of the summary of Zivota Panic's interview.

23 Maybe the Prosecution is ashamed of this, so let me read it out in item

24 number 1.

25 JUDGE ANTONETTI: [Interpretation] Which item would you like to

Page 4082

1 highlight?

2 THE ACCUSED: [Interpretation] Just item 1 of the summary of

3 General Zivota Panic's statement or interview. Just let me read it,

4 unless there is an objection by the Prosecutor.

5 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Marcussen. On page 2,

6 this is the item we are interested --

7 MR. MARCUSSEN: The first item reads:

8 "Chetniks who came to the combat area (Vukovar and its vicinity)

9 placed themselves under the JNA command and could therefore not be

10 considered paramilitaries anymore. They carried out tasks given to them

11 by OG --"

12 THE INTERPRETER: Could the Prosecutor read more slowly for the

13 interpreters, please.

14 MR. MARCUSSEN: My apologies.

15 "They carried out the tasks given to them by OG South. Seselj

16 sent one or two groups of Chetniks to Vukovar. They were integrated in

17 operative units in OG South, but remained together as a distinct group

18 within the JNA units, wearing JNA insignia. Panic said that he ordered

19 Mrksic to equip and clothe SRS volunteers who came to OG South (timing is

20 not available). There were never any reports about any wrongdoing by

21 these volunteers. White Eagles were never integrated into the armed

22 forces because they were criminals. Panic is adamant that during the

23 operations in Croatia, there were never any paramilitary groups included

24 in the OG."

25 If I may add a comment, I think this is fairly consistent with

Page 4083

1 what the evidence of Mr. Theunens has been so far.

2 JUDGE ANTONETTI: [Interpretation] Very well.

3 Mr. Seselj, we have to conclude on the matter. The Prosecutor

4 will do what it should and provide you, as soon as it can, because this

5 will take some time, with what General Panic has said. The Prosecutor is

6 right in this. In light of the summary, you are able to cross-examine the

7 witness on these matters. This is the first point you wanted to raise.

8 What was the second point you wanted to raise?

9 THE ACCUSED: [Interpretation] Mr. President, it may be poor

10 interpretation, but in the summary it says that General Zivota Panic

11 ordered General Mrksic to arm the volunteers of the Serb Radical Party.

12 That was not said in the interpretation, and that General Panic -- there

13 was something else I observed, but now it escapes me -- that these

14 volunteers carried out the tasks of Operative Group South. And in

15 footnote number 1, it says that General Panic used the expression

16 "Seselj's men, sympathisers of the Serbian Radical Party" and "adherents

17 of the Serbian Radical Party." He used those terms to identify those

18 volunteers, so that it is clear to General Panic also that Seselj's men

19 were a specific group and that not all Chetniks could be considered to be

20 Seselj's men.

21 What I wanted to say was the following: My rights have not been

22 respected here. Of course, I can cross-examine this witness even if not a

23 single document is disclosed to me, and I do not want to interrupt these

24 proceedings for any reason, but it is my right to openly brand the

25 unlawful behaviour of the OTP each time it occurs.

Page 4084

1 In my view, General Panic's interview is a document under

2 Rule 68(1). I have the right to have that document disclosed to me, and

3 it has not been disclosed. This witness would have been an ideal

4 opportunity to make use of that material in my cross-examination, but I

5 cannot use a summary of the statement in my cross-examination, and I will

6 not use it.

7 Let me say one more thing. There is not a shred of evidence that

8 the OTP, as of Thursday last week, started transcribing the interviews of

9 Zivota Panic. They haven't even started doing it. They think they can

10 avoid it. That's the problem I'm facing.

11 Well, now, to give you a specific example, I happened to have an

12 opportunity to unmask the entire background of all this. Imagine how many

13 similar instances there are that I know nothing about. What is happening

14 now is the pattern of behaviour of the OTP over the past five years.

15 Documents are being concealed from me. I am being given the documents

16 drop by drop. Less relevant documents are disclosed to me, while key

17 documents are concealed. These are all the facts I have to face. Of

18 course, I'm aware of these facts, and in spite of these facts, I will

19 continue to defend myself, I will continue my cross-examination of this

20 witness. But I think that by agglomerating all this evidence of the

21 unlawful behaviour of the OTP, I will bring about a situation where the

22 Chamber will have to take measures.

23 We have not had a single witness here without procedural problems

24 cropping up.

25 JUDGE ANTONETTI: [Interpretation] All right. Before I give the

Page 4085

1 floor back to Mr. Marcussen, I would like, on my own behalf, to make a

2 significant comment.

3 Rule 48 -- Rule 68, I'd like to read this Rule:

4 "(i). The Prosecutor shall as soon practicable disclose to the

5 Defence any material which in the actual knowledge of the Prosecutor may

6 suggest the innocence or mitigate the guilt of the accused."

7 And we have another significant comment under (ii). I quote:

8 "The Prosecutor shall make available to the Defence in electronic

9 form a collection of relevant material held by the Prosecutor, together

10 with the appropriate computer software with which the Defence can search

11 such collections electronically."

12 So since a lawyer may speak French or English, as a counsel he may

13 receive the documents in either languages, but when we have an accused who

14 defends himself, and this is the case with Mr. Seselj, I interpret (i) as

15 meaning he must have receive, in hard copy and in his language, everything

16 that is related in paragraph (i).

17 Now, anything related to electronic searches, let's assume, for

18 example, that Mr. Seselj would like to search for further material, this

19 is another issue. That's my interpretation. But if we talk of

20 General Panic, commander of a military district involved in the Vukovar

21 events, then, as far as I'm concerned, I think that the hearing of

22 Mr. Panic is related to Rule 68(i), and therefore the transcript must be

23 disclosed to the accused on hard copy in his language. Otherwise, the

24 equality of arms is not observed.

25 This is as much as I wanted to say in order for this to be on the

Page 4086

1 transcript.

2 Mr. Marcussen, do you have anything to add?

3 JUDGE HARHOFF: For the record, since the Presiding Judge has

4 offered his view, that I might have the same view, but I'm unable to make

5 any final determination of the issue of whether the statement by Panic --

6 or the interview with Panic does or does not come under Rule 68 until I've

7 seen the interview.

8 JUDGE LATTANZI: [Interpretation] I would also like to add

9 something, considering the views of the Presiding Judge, of course. But

10 up to now, the Chamber had never made such a decision, so this also

11 explains and justifies the action of the Prosecution, who have not

12 disclosed the material up to now, all of the exculpatory material, at

13 least as considered by the accused. So I would like to add one comment,

14 which is as follows.

15 It is for the Prosecution to check out in order to see whether or

16 not an exculpatory document is such, and of course if the Prosecution

17 conceals any materials, their responsibility may be subject to punishment

18 by the Chamber. But in any case, it is the responsibility of the

19 Prosecution to check out in order to see whether such material exists.

20 MR. MARCUSSEN: Thank you, Your Honours.

21 As for the President's interpretation of Rule 68, (i) and (ii), I

22 believe that has been formalised in a decision that has been issued about

23 the mode of disclosure, and we are complying with that decision when we

24 disclose material to the accused.

25 We have -- in 2004, the Office of the Prosecutor already

Page 4087

1 disclosed, as potentially exculpatory, the information that is included in

2 receipt number 6. As it is with these things, when reference is made to

3 Article 68, it's difficult to know whether things are within Rule 68(i) or

4 (ii), so whether it's relevant or exculpatory. It is also difficult to

5 make these sort of determinations when there appear to be different views

6 about what is exculpatory; for example, the issue of whether or not it is

7 exculpatory that the volunteers were subordinated through the JNA.

8 As I said, we are in the process of reviewing the whole set of

9 interviews once again and are trying to find exculpatory material.

10 Now, I must say that I took the President's statement as being an

11 order to us that we should transcribe the testimony, and if -- should

12 transcribe the suspect interview, and if that is the view, then of course

13 we do as we're ordered to.

14 We're certainly not trying to hide anything, and I guess that's

15 the bottom line of what I'm trying to say. We provided this material to

16 the accused. We informed him of the contents of the suspect interview.

17 We did so in 2004. We're prepared to provide him the audio recordings.

18 He is refusing to receive them. He has the exact material we have. If we

19 are directed to transcribe this whole thing to him, we will do that. And

20 all I'm saying with respect to the timing of that is, it's not going to be

21 something that can be done overnight, in light of the volume, and it has

22 to be fed into the pipeline of material that we are in the process of

23 transcribing.

24 JUDGE ANTONETTI: [Interpretation] Just a second, because I'd like

25 to complete what I said, given what my colleague Judge Lattanzi just said.

Page 4088

1 I would like the legal officer to find for the Chamber the

2 transcriptions of all the decisions in order to see what is relevant to

3 electronic disclosure. In addition to this, I would like to say that I

4 share the views of Judge Harhoff as to the relevance of what is or is not

5 exculpatory. But in order to determine on this issue, we need to see the

6 interview of General Panic, which we haven't seen yet. There may be

7 exculpatory elements in that interview, but in order to decide, we need to

8 have the document.

9 So before the Prosecution starts anything, I'm telling the OTP

10 that they should disclose electronically General Panic's statement to the

11 Chamber. The Chamber will review that statement and then will tell the

12 Prosecution whether or not there should be a disclosure on hard copy to

13 the accused.

14 But in any case, there is already an existing major material

15 problem, which is that regarding the 1.000 pages, it is quite obvious that

16 1.000 pages are not relevant to Vukovar. So within these 1.000 pages, the

17 Chamber should know exactly what are the relevant passages as to Vukovar.

18 But in order to determine this, the Chamber needs to have the document.

19 So, please, give us first the DVD, and then we'll tell you what

20 are the passages that should be disclosed to the accused if the Chamber

21 are unanimous. If the Chamber are not unanimous, then a decision will be

22 made with possibly individual dissenting opinions. And if need be, the

23 issue may be submitted to the Appeals Chamber. So that's what I meant to

24 say.

25 We have spent over an hour and 15 minutes on these procedure

Page 4089

1 issues.

2 Mr. Seselj.

3 THE ACCUSED: [Interpretation] Mr. President, in my opinion and as

4 far as I see it, the Rules of Procedure and Evidence, neither you nor your

5 colleagues are looking at the relevance of evidence -- or, rather, when --

6 or, rather, you have to attach weight to the various evidence. Now,

7 according to the Rules, the OTP assesses which document in their

8 possession can be potentially exculpatory. The Prosecutor has already

9 made that assessment. He made it in 2004. So they don't have to go into

10 a reevaluation of that now. That would be misplaced.

11 Secondly, I insisted here that only point 1 of the summary be read

12 out. There are seven other points, because it's an eight-point statement,

13 which are also relevant for my defence because they relate to the alleged

14 joint criminal enterprise. Now, this joint criminal enterprise links me

15 up to Slobodan Milosevic and all the rest, everything else. So it's not

16 only when General Panic mentions my name or the members of the Serbian

17 Radical Party which is relevant. Other things are relevant, too, when he

18 speaks of the role of Milosevic and Kadijevic and Adzic, and a whole

19 series of other individuals who were proclaimed in different indictments

20 raised by the Prosecution for having been participants in the joint

21 criminal enterprise at top level, and I find it an honour to find my name

22 among them there. Don't misunderstand me. It's an honour for me to be

23 quoted at that top level and qualified as a participant at this imagined

24 joint criminal enterprise. It strengthens my historical role and worth.

25 However, the Prosecution must provide me with all the information

Page 4090

1 which can challenge the existence of the joint criminal enterprise itself,

2 and so I'm opposed to the fact that the Trial Chamber can view all these

3 videos and footage and then mark which part is relevant for my defence and

4 which is not. The entire footage must be transcribed on paper so that

5 then I can assess what can be useful to me and what is not useful, because

6 if you are the filter, if you are put in the role of the filter in

7 assessing all this, then the Trial Chamber runs the risk of being an

8 appendage to the OTP, that you have to say, "This is necessary, this is

9 not necessary." I understand what the OTP wishes to achieve, but I don't

10 think that the Trial Chamber can allow itself to play that role.

11 The minimum of minimum requirements as far as exculpatory material

12 is concerned are the documents, all the documents where my name is

13 mentioned and the Serbian Radical Party is mentioned, because all that can

14 potentially be exculpatory for me. So that is the minimum of documents

15 that the Prosecution must disclose to me on paper and in the Serbian

16 language.

17 And I drew your attention on many occasions, Mr. President, that

18 the OTP is just not ready to go ahead with this trial. I have done

19 nothing for four or five years, and this is the beginning of my sixth

20 year, and on Sunday I celebrated five years of imprisonment in The Hague

21 with my fellow prisoners. This is now my sixth year. So I never slowed

22 down these proceedings, so my struggle for my elementary rights cannot be

23 considered that I'm slowing down the process. And I'm fighting for my

24 basic rights, and I'm telling you that that was an order, as far as I'm

25 concerned, and it is proper in this particular instance. It is my right

Page 4091

1 to have the entire interview of Zivota Panic put down on paper and the

2 summary on the basis of the statement because -- and the entire statement,

3 because the summary is based on the statement, not on the interview.

4 Picture the following situation: When the Prosecution talks to

5 someone who is a potential subject and talks to that person for 10 or 15

6 days, they record all the proceedings, and any time they need it in some

7 other trial, then they look through -- would have to look through all this

8 recording and then make a summary on the basis of their notes when they

9 review the material, review the recording. That is just not done. It

10 would be stupid.

11 What they have is a statement. The statement represents the

12 document which is again compiled by the Prosecution on the basis of the

13 questioning, interview.

14 You see, a statement is a form of a summary or precis of the

15 questioning or interview. And then they give me the summary of the

16 statement, because in the summary the Prosecution refers to Zivota Panic

17 in the third person, not the first person, it does not say: "I,

18 Zivota Panic, say such-and-such." It is the Prosecutor who in the summary

19 describes what he happened to notice from the statement made by

20 Zivota Panic which could be potentially exculpatory for me. And the other

21 seven points are highly relevant, because it is on the basis of the other

22 seven points and the material on the basis of which those points were

23 constituted that I have the possibility of refuting the whole question of

24 the existence of the joint criminal enterprise, and that's not something

25 that's impossible.

Page 4092

1 Let me remind you that in Mrksic, Sljivancanin and Radic, the

2 joint criminal enterprise concept fell through. The Trial Chamber

3 rejected it, rejected the fact that any joint criminal enterprise existed

4 in Vukovar at all. So if General Mrksic, Colonel Sljivancanin and

5 Major Radic were not members of the JCE in Vukovar, then how can I be a

6 member of it? Then I would be there on my own, as a single member, just

7 one member of the JCE.

8 So these are very complicated matters, and for us to be able to

9 deal with the matters in a rational fashion, all the relevant documents

10 must be provided.

11 JUDGE ANTONETTI: [Interpretation] This is another issue.

12 In order to conclude on material disclosure, I would like to

13 remind everyone that a decision was made on June the 7th by myself in the

14 framework of the Pre-Trial Chamber following motion 249 regarding document

15 disclosure. The decision has ten pages, and I quote:

16 "Orders the Prosecution to disclose as soon as possible, on hard

17 copy and in a language understood by the accused, the documents mentioned

18 under item I."

19 Rule 68, item I. And so a decision was made, and on November the

20 5th, 2007, another decision was made by the Chamber whose title is:

21 "Second decision regarding the obligation of the Prosecution resulting

22 from the Rules of Procedure and Evidence."

23 I quote:

24 "The Chamber orders the Prosecution to disclose as soon as

25 possible in hard copy and in a language understood by the accused the

Page 4093

1 3.000 documents about -- identified by the OTP, thanks to the key words

2 given by the accused."

3 End of quotation.

4 So Mr. Marcussen.

5 MR. MARCUSSEN: I'm slightly concerned about the way the

6 allegations are now spiraling from the Office of the Prosecutor to

7 potential issues with the Chamber and things like that. I was going to

8 offer that we, within -- it will take us two or three weeks to do, but

9 that we simply transcribe this whole set of interviews. The interviews

10 were done in B/C/S and in English, so Panic speaking in his language is

11 translated, OTP members or staff members speak in English, there's

12 translations back and forth. The accused could have reviewed this with

13 his more than 20 assistants had he wanted to.

14 I am strongly of the belief that we're not hiding anything. It

15 is, to be fair, very difficult to understand why the accused insists on

16 proceeding in this manner, but in light of the way the allegations have

17 been made at the moment, I think the most prudent for all of us is that

18 the Prosecution take on the burden and transcribe this thing and provide

19 it to the accused on this particular occasion. We're not going to

20 continue to do this at the request of the accused in all future cases, but

21 in this particular case, we will undertake to do that to put an end to

22 this matter.

23 Thank you.

24 JUDGE ANTONETTI: [Interpretation] So for everybody to be clear on

25 that, a decision was made by the Chamber according to which the

Page 4094

1 Prosecution had to disclose the 3.000 documents identified with the key

2 words. So this is not put into question by the Chamber.

3 The only new element today is anything related to Panic, because

4 apparently the Panic transcripts are not part of these 3.000 documents.

5 So the Chamber may well understand that Mr. Seselj insists on receiving

6 the Panic transcripts on hard copy and in his language.

7 The Chamber, therefore, will have to make a decision on

8 Mr. Seselj's request, and we can make that decision only when we are

9 informed and aware of what Mr. Panic said, because there's no use asking

10 you to have 3.000 pages translated if there's no interest for the Chamber.

11 So we'll see the transcripts and make a decision afterwards.

12 Now, the time of the break has arrived, three minutes before the

13 break.

14 Mr. Seselj.

15 THE ACCUSED: [Interpretation] Well, Mr. President, I'd like to use

16 those three minutes, not to take up more of your time, so that we can

17 start off with the cross-examination after it straight away.

18 But on Thursday, I understood that the Prosecutor asked that the

19 remaining documents from the register, from the file, which he wasn't able

20 to use during the examination-in-chief of the witness to be included in

21 the exhibits, and then I was opposed to that.

22 Now, over the weekend, or, rather, yesterday, on the 25th of

23 February, I received a much more extensive list of documents which the

24 Prosecution would like to tender. Now, this list reminds me of the

25 November list. I wasn't able to establish whether it is coincides

Page 4095

1 exactly. I think some amendments have been made.

2 Now, I'm not challenging the right of the Prosecutor to tender

3 these documents and the Trial Chamber to admit them outside the

4 examination-in-chief or cross-examination of the witness, but I consider

5 that with respect to each of these documents, we have at least -- I have

6 to say at least "yes" or "no" in the courtroom, I have to state my views,

7 because for each of these documents it must be recorded that it was put

8 forward and tendered, and whether it was just marked for identification or

9 admitted into evidence, and not to have me state my views to all this in

10 writing. If I were to have to give written views, then we could have the

11 whole proceedings and trial conducted in written fashion.

12 I write what I want to say, put down on paper what I want to say.

13 The Prosecution puts in writing what it wants to say and so on. So I

14 would like to state my views on each of these documents, and I can tell

15 you in advance that I would agree to -- or rather, I would agree to

16 two-thirds of the documents, that they be admitted, especially where it

17 comes to excerpts from my books, but there are certain documents that

18 can't be admitted into evidence directly. They have to be put to certain

19 witnesses and we have to discuss the relevance and authenticity of these

20 documents.

21 So I would like to ask you that you set aside one day - you don't

22 have to hurry - in which the Prosecutor would submit all the documents

23 that it wants to have directly admitted, and then we can take it document

24 by document and I can state my views on each of the documents. It is a

25 large number of documents, and we can't just have them admitted without

Page 4096

1 previously discussing them.

2 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, the Prosecution have

3 given you a list of documents that you have reviewed, and you just said

4 that you would have no objection for -- to a third of those documents to

5 be admitted. So it would be useful for the Chamber if, after the break,

6 you tell the Chamber which documents you are -- for which documents you

7 have an objection to their admission, because there may well be a large

8 number of documents that will raise no problem. However, it is for you to

9 tell us, because I'm unable to determine what your views are on these

10 documents. It is for you to tell us.

11 We had thought initially that you had objections to the admission

12 of any document that is -- that would not have been submitted to a

13 witness. Now you just modified this view slightly by saying that

14 according to you, there were documents that could be admitted. So that's

15 already a good step forward.

16 Now, it would be useful for the Chamber if next time you tell us,

17 "I have objections to the admission of this and that and the other

18 documents."

19 Now, we have spent almost an hour and a half on procedural

20 issues --

21 THE ACCUSED: [Interpretation] Please, Mr. President, I didn't

22 change my position, although there are certain elements that -- on the

23 basis of which you drew that conclusion. It is the subject of discussion

24 that is being changed.

25 On Thursday, as far as I understood the Prosecutor, perhaps I

Page 4097

1 misunderstood him, perhaps the interpretation wasn't the right one, he

2 asked for the remaining documents from those three files which he didn't

3 have time to use during the examination, and he wanted those documents

4 admitted into evidence, and that's what I was objecting to.

5 Now, over the weekend, I received a much more extensive list, and

6 many of these documents I'm not going to challenge. And if they are

7 excerpts from my books, of course, I am not going to challenge them at

8 all. I don't know about the translation, but that's the Court's problem.

9 So I can state my views on that, but there are certain other

10 documents from my book that are not excerpts from my books which the

11 Prosecutor did not use and did not present to this witness during his

12 examination. Well, let him wait for some other witness and present those

13 documents to this other witness. You saw documents without signature,

14 without dates, without any official type of marking, and had I not

15 intervened straight away, maybe that would have been admitted into

16 evidence too; it would have passed you by.

17 You see that danger always exists and that is why I'm very

18 cautious, perhaps I am abundantly cautious or exceedingly cautious, but

19 what can I do? I can't change that.

20 JUDGE ANTONETTI: [Interpretation] We'll have a 20-minute break.

21 --- Recess taken at 10.00 a.m.

22 --- On resuming at 10.25 a.m.

23 JUDGE ANTONETTI: [Interpretation] Fine. The hearing is resumed.

24 Mr. Seselj, you have the floor for the cross-examination of the

25 witness.

Page 4098


2 Cross-examination by Mr. Seselj: [Continued]

3 Q. Mr. Theunens, we have established, or rather we established on

4 Thursday that the eight years that you've been working in the OTP of The

5 Hague Tribunal, you participated in almost all the forms of activity of

6 the OTP, which means that you participated in interviewing witnesses,

7 interviewing suspects, preparing indictments, witness proofing for the

8 Prosecution, and other kinds of work; is that correct?

9 JUDGE ANTONETTI: [Interpretation] Mr. Marcussen.

10 MR. MARCUSSEN: I don't believe that the witness's evidence was

11 that he participated in preparing indictments. His testimony was that he

12 provided input on -- when requested, he provided input to the lawyers who

13 prepared the indictments.

14 THE ACCUSED: [Interpretation] I did not say that Mr. Theunens

15 participated in writing indictments, but in preparing indictments. He was

16 a consultant, an adviser. It's hardly possible for two people to write

17 something together, but he did participate, and that is beyond doubt from

18 his statement on Thursday.

19 Q. Isn't that so, Mr. Theunens? He was an adviser for military

20 matters.

21 A. Your Honours, I would first like to answer the initial question

22 where reference was made to eight years. As I stated initially, I started

23 to work for the OTP on the 28th of June, 2001, so we are barely at seven

24 years at this stage.

25 To answer the second part of the question, it is correct that I

Page 4099

1 work as a military intelligence analyst in the Office of the Prosecutor,

2 that I'm requested by senior trial attorneys, trial attorneys, legal

3 officers, investigators, to assist them with military matters, but it's

4 impossible for me to determine to what extent the input or the information

5 I provide to the people I mentioned is included in indictments.

6 JUDGE HARHOFF: Mr. Theunens, do you, as the accused suggests,

7 take part in the interviewing of witnesses, the proofing of the witnesses,

8 and the other things that he mentioned, all the forms of activity of the

9 OTP, that you prepare the indictments and all of this? Could you be more

10 specific as to the exact role you play in relation to this indictment?

11 THE WITNESS: Your Honours, I see two parts in your question. I

12 have participated in interviews of senior military witnesses and suspects,

13 where I was there mainly to assist the people conducting the interview

14 with military matters. When it concerned interviews of witnesses, so

15 senior military witnesses, I sometimes also asked questions or I selected

16 documents that could be shown to these witnesses during the interview, at

17 the discretion of the person in charge of the interview.

18 In relation to this particular indictment, I was sent, during the

19 various stages of the preparation of the indictment, draft versions of the

20 indictment where I only looked at the factual sections, where, for

21 example, certain dates or certain events were discussed, or the names of

22 structures or of people, and where then my input was sought in order to

23 determine whether the information that was included in the draft

24 indictment was correct.

25 It is obvious, as I'm not a lawyer and have not had significant

Page 4100

1 legal training, that I never got involved in legal matters, so I was never

2 consulted and I never interfered or intermingled in the determination of

3 legal issues, like counts and stuff like that.

4 JUDGE ANTONETTI: [Interpretation] But with respect to

5 General Panic, were you one of those who questioned him or interviewed

6 him?

7 THE WITNESS: Indeed, Your Honours, and I'm actually -- I'm

8 pleased that I can provide maybe a more accurate picture of the interview,

9 or at least one session of the interview, than what was said earlier in

10 this courtroom.

11 In my recollection, there were two sessions of meetings with

12 General Zivota Panic. I only --

13 JUDGE ANTONETTI: [Interpretation] If Mr. Panic -- if Mr. Seselj

14 wants to put questions to you about this, he'll do so, but of course what

15 you understand, that I want to assess how close you are to the OTP.

16 Vukovar is part of this case, and I'd like to know whether you interviewed

17 or whether you took part in proofing sessions for Radic, Mrksic and

18 Sljivancanin, whether you took part in the proofing of these three during

19 the preparation of that particular trial, the Vukovar trial.

20 THE WITNESS: Yes, Your Honours, I participated in a number of

21 proofing sessions for the Vukovar trial, specifically for a number of

22 proofing sessions of senior military witnesses.

23 JUDGE ANTONETTI: [Interpretation] Fine.

24 MR. SESELJ: [Interpretation]

25 Q. You confirmed here, Mr. Theunens, that you participated in witness

Page 4101

1 proofing in various cases also, did you not? Do I remember correctly?

2 A. Yes, Your Honours, but, I mean, I don't see a direct problem with

3 that, unless I would start to do the job of what the lawyers are doing.

4 My task, as a military intelligence analyst, only assists in -- only

5 consists, excuse me, of assisting the lawyers who are actually doing the

6 proofing, with legal matters. I also assist them with the selection of

7 documents they could be -- that could be used during the proofing or in

8 the court session, but that is -- that is all I do. I don't get involved

9 in legal matters.

10 Q. I never accused you of dealing in legal matters, but you answered

11 all my questions on Thursday in the affirmative, that you participated in

12 drawing up my indictment, that you participated in drawing up the amended,

13 extended indictment, that you participated in proofing Prosecution

14 witnesses, that you participated in suspect interviews, that you carry out

15 proofing of witnesses, of course, together with others from the OTP within

16 the scope of your expertise. I'm not challenging that. I'm not accusing

17 you of being a legal expert at any point. And that you also signed a

18 declaration that you would keep the secrets of the OTP. So I am drawing

19 the conclusion here that you are a witness in your own case, as if

20 Mr. Mundis were to testify here or Mr. Marcussen, or Madam Christina Dahl.

21 You're all members of the OTP team, but you have different roles within

22 that team; am I correct, Mr. Theunens?

23 A. Your Honours, I think that is a misrepresentation of my role.

24 I would like to bring us back to my report, because my report is

25 actually the reason why I'm here, and I'd like to draw your attention to

Page 4102

1 the fact that any claim that is made in this report is based on a

2 document, and the document, the nature of the document, can be found in

3 the footnotes. There is not one claim made in that report, or conclusion

4 drawn in my report, which is not substantiated by one or more documents.

5 Now, it is obviously up to the Honourable Judges and the Trial

6 Chamber to determine the weight of my evidence, i.e., to determine the

7 importance and the weight of the documents that have been included in my

8 report.

9 I also stated last week, and I wish to repeat it, that whether I

10 wrote this report for the OTP or for some -- or in the Belgian military,

11 or for a research institute, or for anybody else, it would have been the

12 same report, because the contents of the report is determined by the

13 sources I consulted. It is true that I consulted mainly documents that

14 are available to the OTP, but as we discussed this morning, there is an

15 extensive amount of what is called Rule 68 or exonerating material

16 available to the OTP.

17 So I think it would be incorrect to reduce my testimony and my

18 report to just the fact that I am here as a representative who seems to

19 be -- of the OTP who is testifying in his own trial, because I think

20 that's inaccurate and incorrect.

21 JUDGE LATTANZI: [Interpretation] Witness, these are preliminary

22 matters. We are not dealing with the substance of your testimony or of

23 your reports. These are preliminary questions we are putting to you,

24 because we have to determine whether this so-called proximity with the

25 OTP -- between you and the OTP may have led you to reach certain

Page 4103

1 conclusions, rather than others. Therefore, it's a question that comes

2 before what you've just explained.

3 THE WITNESS: I understand, Your Honours, but I wanted to clarify

4 my point of view from the start of the discussion.

5 MR. SESELJ: [Interpretation]

6 Q. In the hypothetical situation, Mr. Theunens, in which Mr. Mundis

7 or Mr. Marcussen were to appear as OTP experts, sitting in the chair

8 you're sitting at now, they would of course not be testifying about

9 military matters as experts; they would be testifying primarily to legal

10 matters. But what would be the difference, in principle, between their

11 expert testimony and your expert testimony, the difference in principle?

12 Let's lay aside for the moment the fact that you are a military expert and

13 they are, allegedly, legal experts. What would be the difference, in

14 principle, between your appearance in the courtroom and theirs?

15 A. Your Honours, I cannot -- I don't know what Mr. Mundis or

16 Mr. Marcussen would say or if they would compile a report, what this

17 report would be about. But if they would do so and I would be competent

18 in the matter they would address in their report, in their testimony, I

19 would obviously look at it with a critical sense, as I as an analyst

20 always do when doing my job, and then I would listen to what they say and

21 then see whether there is any bias or not.

22 Bias, as such, is an issue that -- or a problem that exists with

23 intelligence analysts everywhere, and it's important to avoid any bias.

24 And, first of all, discovering bias and avoiding it is one of the first

25 things I learned doing my job, not only while doing my job but also during

Page 4104

1 the training courses I attended in the course of my career. There are

2 different forms of bias. Obviously, the fact that somebody works for a

3 particular organisation can result in bias, but then it's up to that

4 individual, in this situation myself, to avoid that the fact that one

5 belongs to a particular organisation has an impact on the way how I do my

6 job as an intelligence analyst; i.e., how to avoid that bias which would

7 obviously be very -- would be a problem that could arise.

8 Q. Mr. Theunens, please listen to my questions carefully, and if

9 possible, answer only what I'm asking you about. Don't give me responses

10 to questions I didn't put. Don't extend the topic of this conversation

11 too far, because as you know, I have little time at my disposal. I have no

12 knowledge that Mr. Mundis or Mr. Marcussen participated in writing the

13 indictment against me or that they participated in extending the

14 indictment against me, or that they participated in interviewing

15 Prosecution witnesses --

16 JUDGE ANTONETTI: [Interpretation] One moment. We have a problem.

17 There's a technical problem. We need to take a break. We'll just wait

18 here for a few minutes.

19 Fine. Things are working again now.

20 Mr. Seselj, please proceed.

21 MR. SESELJ: [Interpretation]

22 Q. Well, for example, Mr. Theunens, I have not a single piece of

23 information showing that Mr. Mundis or Mr. Marcussen participated in

24 drafting the indictment against me or in extending that indictment, or

25 that they participated in interviewing potential witnesses and other

Page 4105

1 preparations for this trial. I do have evidence, however, that you

2 participated in drafting the indictment against me, drafting the extended

3 indictment, interviewing witnesses, proofing witnesses, interviewing

4 suspects, and so on and so forth.

5 Am I correct in saying that I have more reason to believe in the

6 impartiality of Mr. Mundis and Mr. Marcussen than I have to believe in

7 yours? But please answer me briefly. The best would be to say "yes" or

8 "no."

9 A. Well, then my answer is, "No."

10 Q. Mr. Theunens, you are interested in the success of the indictment

11 against me because you participated in its creation, you participated in

12 preparing the trial, collecting documents, preparing and proofing

13 witnesses and so on; isn't that right?

14 A. Your Honours, my interest is -- and I've said the same, actually,

15 to -- in the Vukovar trial when I was questioned there by the Defence

16 attorney of Mr. Mrksic, that my interest is to provide, how small it can

17 be, a contribution to justice, and if justice means -- I mean, just to

18 rephrase, whatever this means for the indictment, that we'll know that at

19 the end of the trial, but the most important and the driving factor in my

20 work, and also the reason -- the main reason for me to come to the -- come

21 and work for the OTP is to have justice prevail.

22 Q. You know, Mr. Theunens, as you worked for years for the Belgian

23 Intelligence Service, to what extent espionage, as an activity, is

24 impartial. We were able to see this in the case of spies of the French

25 Intelligence Service, Yves Tomic. Now we have a spy of the Belgian

Page 4106

1 Intelligence Service; that's you. You both claim to be impartial. But I

2 also believe that spies are partial, because I know what that service

3 entails. So please don't try to justify yourself and claim that you're

4 impartial. Everybody in the world knows to what extent spies are

5 impartial.

6 You completed a military academy of the Belgian Army --

7 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I have to interrupt

8 you, because at line 9 of page 49 of the transcript, Mr. Seselj says that

9 you're a spy, that you work for the Belgian Secret Services. What is the

10 answer to this, "yes," "no"; do you have anything to say about this?

11 THE WITNESS: Your Honours, I think Mr. Seselj has a wrong

12 understanding of the concept of espionage, because espionage, as I know it

13 and as it is also determined in literature on the subject matter of

14 intelligence, consists of a covert method which is used by hostile

15 intelligence services to acquire information dealing with national

16 security of a country to which they are not entitled. I have never been

17 involved in such activities.

18 As far as Mr. Tomic is concerned, I have not read his CV, but

19 listening to parts of his testimony, I would be surprised if he had ever

20 been involved in such activities.

21 MR. SESELJ: [Interpretation]

22 Q. Mr. Theunens, I know very well what espionage is, but let's take

23 it step by step, and then we'll come to the merits of the issue of

24 espionage and what you did in the Balkans as a NATO officer. We have to

25 take it step by step.

Page 4107

1 You completed the military academy of the Belgian Army; isn't that

2 right?

3 A. Your Honours, I was never in the Balkans as a NATO officer. I

4 participated in two missions as a member of the United Nations Protection

5 Forces and then as a member of the United Nations Transitional

6 Administration for Eastern Slavonia. And my third assignment consisted of

7 a national assignment where, as a member of the Belgian Armed Forces, I

8 accomplished certain tasks in the SFOR headquarters. And indeed I

9 completed the military academy at the Belgian Royal Military Academy.

10 Q. As an officer of the United Nations, you sent intelligence reports

11 to certain structures of the United Nations, but also to the Belgian

12 Intelligence Service and the NATO headquarters; isn't that correct?

13 A. Your Honours, I have provided a CV which is part of the report or

14 annex which establishes -- or which provides an overview of my

15 professional activities, both during my time at ICTY as well as prior to

16 my time at ICTY. For what my professional activities prior to June 2001

17 are concerned, I am subject to the Belgian law on security clearances and

18 classification from 11 December 1998 which prohibits me from discussing

19 detailed matters with persons who have no need to know or who have no

20 Belgian security clearance. Even my tasks as a platoon commander in the

21 Belgian Armed Forces, when I was stationed in Germany, are the subject of

22 this prohibition.

23 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Theunens. I've taken

24 note of your answer. Mr. Seselj is asking you the following question:

25 When you were an UNPROFOR member, did you ever send reports to the Belgian

Page 4108

1 Secret Services and did you ever send reports to the NATO Intelligence

2 Services? The question was very clear and straightforward. In answer to

3 this question, you tell us that because of your particular status, you are

4 prohibited from answering. Have I got it correctly, did I understand

5 correctly?

6 THE WITNESS: Yes, that is correct, Your Honours. I can discuss

7 the matters to the extent that they are covered in the written CV that is

8 part of my report, but I cannot talk about relations between the service I

9 worked in and other services, the focus of intelligence efforts, methods

10 that were applied, sources, and other classified matters.

11 JUDGE ANTONETTI: [Interpretation] Mr. Marcussen.

12 MR. MARCUSSEN: I just wanted to underline that the witness is in

13 the situation that Your Honours surely would have had with all witnesses

14 of this nature, military staff and police staff who are subject to these

15 kind of restrictions in their domestic jurisdictions, and I think what we

16 have here is a situation where the witness can talk about his tasks, but

17 he cannot go into operational details for reasons that are obvious and

18 well known to everyone in -- from domestic systems.

19 JUDGE ANTONETTI: [Interpretation] Fine.

20 Mr. Seselj.

21 MR. SESELJ: [Interpretation]

22 Q. Well, your avoidance of an answer, Mr. Theunens, is the best

23 answer, in my view, because everything is clear now. And the Prosecutor

24 needn't jump to his feet as if stung, because I have the right to prepare

25 the witness for my next question.

Page 4109

1 JUDGE ANTONETTI: [Interpretation] Mr. Marcussen, what did you want

2 to add?

3 MR. MARCUSSEN: I object to the mis-qualification of this. The

4 witness is not avoiding to answer the question. The witness is under an

5 obligation not to discuss operational details, and it's not that the

6 witness is not willing to answer the accused's questions when they are

7 within the bounds of what he can speak to.

8 JUDGE ANTONETTI: [Interpretation] Fine. I understand, and I

9 suppose my fellow Judges have understood as well, what it's all about.

10 [Trial Chamber confers]

11 JUDGE ANTONETTI: [Interpretation] After considering the matter, we

12 are rather puzzled about this. The question put to the witness was very

13 straightforward. So, Witness, you can't confirm or deny anything; you're

14 just telling us, "I can't answer because of my status as a Belgian

15 military officer, and I have to abide by some rules," as such, although

16 you're also an international civil servant? Do not forget that we are

17 here within the framework of international justice.

18 THE WITNESS: I understand, Your Honours, and I think maybe it's

19 helpful that I make the clarification.

20 Obviously, it is clear that when I was working in the UNPROFOR and

21 UNPF and subsequently UNTAES headquarters, it is clear that I compiled

22 what we call military information reports, assessments, other documents,

23 for the members of the UN headquarters, as well as relevant authorities

24 outside the UN headquarters, including sometimes providing elements of

25 information that would be used for replies to questions from the Security

Page 4110

1 Council. But for any relations I may have had or did not have with my --

2 the service I worked for in Belgium or a NATO organisation, that is

3 subject matter -- that would be subject matter of the 11th of December,

4 1998 law.

5 JUDGE ANTONETTI: [Interpretation] Fine. Yes, that's how we

6 understood your answer.

7 JUDGE LATTANZI: [Interpretation] One more thing.

8 Within the UNPROFOR, were you allowed, because of the rules of

9 engagement that prevailed at UNPROFOR, were you allowed to keep contacts

10 with your original services in your own country?

11 THE WITNESS: Your Honours, it's a very complicated matter. Why?

12 Because UNPROFOR was sent as a peacekeeping mission, which means that

13 there is a peace agreement and that the parties are willing to implement

14 the agreement, and that they will do all efforts in order to continue with

15 that implementation. Very soon, from the earliest stages of the

16 deployment of UNPROFOR, it became clear that UNPROFOR was not a

17 peacekeeping mission, because in simple terms there was no peace to keep.

18 And then it became clear that the various troop-contributing nations who

19 noticed that actually their soldiers were exposed to dangers which went

20 beyond the dangers and the risks one would expect from a peacekeeping

21 mission, that various countries undertook efforts in order to better

22 protect their forces, including the collection and exchange of

23 intelligence and information.

24 JUDGE LATTANZI: [Interpretation] I'm sorry, but Chapter 7 clearly

25 shows that the objective is not only to maintain peace, but to establish

Page 4111

1 it as well.

2 THE WITNESS: That is correct, Your Honours. And, for example,

3 UNTAES, the later mission, was indeed sent under Chapter 7. However --

4 and the UNCRO mandate, which replaced UNPROFOR in Bosnia and

5 Herzegovina -- in Croatia, excuse me, also made references to Chapter 7 of

6 the UN Charter. But the initial resolution that established UNPROFOR, in

7 my recollection, makes reference to Chapter 6 of the UN Charter.

8 JUDGE ANTONETTI: [Interpretation] Fine. I see that although you

9 stated that you are just a military man, you also have some knowledge in

10 law, and that's always a good thing.

11 Mr. Seselj.

12 MR. SESELJ: [Interpretation]

13 Q. I'm surprised, Mr. Theunens, by the fact that you're now referring

14 to the provisions of Belgian law which prohibits you from providing

15 information about your activities. Now -- for many reasons. What am I

16 interested -- what would I be interested in Belgian laws for? Belgium was

17 an aggressive country in the war against the Serb people; isn't that

18 right?

19 A. Your Honours, I don't think that is a correct representation of

20 the facts.

21 Q. Very well. But during your testimony in the trial against General

22 Mrksic, Colonel Sljivancanin and Major Radic, when asked by one of the

23 Defence counsel, you confirmed that as an officer of the United Nations,

24 you provided intelligence information to the Belgian Army; and that

25 confirmation of yours is to be found on page 10754 of the transcript in

Page 4112

1 the Vukovar Troika trial. And I assume through e-court and your

2 computers, you can have that up on your screen straight away, Judges.

3 10754 is the page number.

4 Did you indeed confirm that, assert that?

5 A. Your Honours, that isn't -- I apologise for the transcript.

6 That's an incomplete quotation of my answer. It's correct that the

7 Defence attorney of Mr. Mrksic asked me whether, while I was working for

8 UNPROFOR, I sent reports, and he said "reports," not specifically

9 intelligence reports, to the Belgian Armed Forces. I first mentioned to

10 the Judges that -- that there was a law on classification and security

11 clearances. I may have not used the exact terminology, but -- or the same

12 terminology, but I said that I was subject to legal limitations. And then

13 the Presiding Judge, the Honourable Judge, Judge Parker, said that, "We

14 understand this, but just answer 'yes' or 'no'." And then I said, "Yes."

15 Q. And, Mr. Theunens, since you said "yes" then, then from the

16 Belgian espionage, they rubbed your nose in it, and now in these

17 proceedings against me, in this trial, you don't want to state either yes

18 or no; isn't that the case?

19 A. Your Honours -- sorry.

20 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, who is a very

21 intelligent man, is trying to make you say something which you don't want

22 to say. This is why Mr. Marcussen is on his feet.

23 Mr. Marcussen.

24 MR. MARCUSSEN: Indeed, and I'm not even sure that it's not that

25 the witness want to say this. The witness is not at liberty to discuss

Page 4113

1 these matters, and he cannot answer these questions. So -- and the

2 accused is well aware of this. And, frankly, I also question the

3 relevance of this line of questioning to the issue of the witness's report

4 and his work as an expert for the Office of the Prosecutor.

5 So I think, first of all, it's an irrelevant line of questioning

6 that the accused is pursuing, and he has been informed about the

7 impossibility of the witness to address these questions, and I would like

8 to request that the Chamber to direct him not to continue --

9 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, the witness

10 specified that he could not answer these questions. He's a Belgian

11 officer. He needs to abide by the bylaws or internal laws. We do not

12 need to abide by these rules, but you cannot put these questions to him.

13 So he says that he needs to abide by these rules, so please move

14 on to another topic.

15 THE ACCUSED: [Interpretation] [Interpretation] Mr. President, I

16 hope that you're not going to count that in my time.

17 Now, this witness took part, in 1995, as an officer of the United

18 Nations, in preparing the Croatian Storm and Flash Operations against the

19 Republic of Serbia and Krajina. At the time he had his headquarters in

20 Zagreb, and he knew full well that these operations were being prepared,

21 but did nothing to prevent them, to say the least. So he's directly

22 involved in the conflict on the territory of the former Yugoslavia,

23 because Croatia's aggression against Serbian Krajina was realised with

24 direct assistance from NATO; and we have countless evidence to bear that

25 out. And he took part in all that, and now he appears here as an

Page 4114

1 unbiased, impartial witness, and I have to devote a whole hour to his role

2 in those events as an officer of the Belgian armed forces. And he, in

3 advance, states that he is not at liberty to disclose anything about his

4 years of service working for the Belgian Intelligence Service. Well,

5 what's the point of me cross-examining him at all, then?

6 JUDGE ANTONETTI: [Interpretation] Witness, Mr. Seselj claims that

7 in 1995, at the time you were a member of UNPROFOR, you purportedly

8 prepared, together with the Croatians, the Storm and Flash Operations. So

9 this is true, this is not true; what can you say about this? Yes or no?

10 THE WITNESS: Well, Your Honours, this is obviously not true. I

11 worked as a military information officer in the UNPROFOR UNPF

12 headquarters, and, I mean, if Mr. Seselj wants, we can go into the details

13 of what exactly I did, and in relation to storm-and-flash. But I think

14 it's a false claim and there's no fact whatsoever to support this kind of

15 political claim.

16 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Seselj, he's

17 answered the question.

18 THE ACCUSED: [Interpretation] Mr. President, in this belated

19 curriculum vitae, because I was provided with two pages belatedly, under

20 point 5, line 3, it says that from December 1994 until October 1995, this

21 witness worked at UNPROFOR headquarters in Zagreb, and on the following

22 affairs: Monitoring, analysis and evaluation of the political and

23 military situation in Croatian, Bosnia-Herzegovina and the former Yugoslav

24 Republic of Macedonia, as well as the Federal Republic of Yugoslavia on

25 strategic operational and tactical levels. That's what he did.

Page 4115

1 Now, I have documents to show that Croatia officially informed

2 UNPROFOR forces that it was preparing an aggression and that it asked

3 those forces to move out of the axes along which the Croatian Army would

4 move during the aggression, which was done, because not a single United

5 Nations soldier stood up to the aggression, provided resistance, or

6 attempted to protect the civilian population, which was its mission.

7 Now, as you're bringing me to the situation where the witness

8 refuses to answer, I'll move on, I'll no longer insist on that, because as

9 far as I'm concerned, that was the most convincing answer that the witness

10 has yet given.

11 JUDGE ANTONETTI: [Interpretation] It's better to move on to

12 another topic. But would you like to respond to this fact? This is

13 Mr. Seselj's theory. He says that there was some degree of collusion

14 between UNPROFOR and the Croatian Army. And according to Mr. Seselj, the

15 best proof of this is that when the offensive was launched, UNPROFOR

16 troops did not stand in the way. So either you say, "I've got nothing to

17 say," "This is true," "This is not true." What do you have to say to

18 that?

19 THE WITNESS: Your Honours, this is obviously not true, in the

20 sense that when you look at the size of these operations, they were

21 planned and prepared months ahead. And it is only, I think as far as

22 Operation Storm is concerned, one or two hours in advance that the

23 Croatian authorities informed the senior command level of UNPF, that was

24 General Janvier, the force commander, of the upcoming operation. However,

25 as was clear to everyone at that stage who was following the situation in

Page 4116

1 Croatia, we didn't have to wait for that phone call from the Croats to

2 Janvier to know that the Croats were preparing a large-scale operation

3 against the Krajina.

4 And if you want and if Mr. Seselj wants, we can go into more

5 detail about that.

6 As I mentioned earlier, I can talk about my activities in the

7 various peacekeeping headquarters, but I can't not address issues that

8 deal directly with the activities of the Belgian service I belonged to

9 prior and after my participation in these peacekeeping operations.

10 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, move on to another

11 topic.

12 MR. SESELJ: [Interpretation]

13 Q. When you completed the military academy, you gained the title of

14 second lieutenant, did you not?

15 A. Your Honours, the rank of second lieutenant is given in the third

16 year of military academy, in the division I was in, the all-arms division.

17 Q. So what rank did you have when you completed the military academy

18 at the very end?

19 A. I was still a second lieutenant.

20 Q. That's what I'm saying. As a second lieutenant, you left the

21 military academy, having completed your training there. The highest

22 command functions in the Belgian Army that you occupied was the commander

23 of a tank platoon; right?

24 A. Your Honours, I was also the -- during the time period I was a

25 platoon commander, I also was the acting company commander during several

Page 4117

1 months.

2 Q. Well, Mr. Theunens, when I did my military service, compulsory

3 military service as a rank-and-file soldier, I replaced the command of a

4 captain, captain first class, in a third of the military training, because

5 with a PhD. I did my military service, so he gave me the entire military

6 education sector to deal with. You were never a company commander; you

7 could have commanded a company by taking over if somebody -- the commander

8 went to the toilet or something or was engaged elsewhere, so give me

9 precise answers.

10 I have a document saying that you were named platoon commander.

11 Right?

12 A. It's not clear to me, what the question is, Your Honours.

13 Q. The highest command post that you occupied in the units of the

14 Belgian Army was platoon commander, a commander of a tank platoon; right?

15 Am I right there?

16 A. No, Your Honours, that is not correct, because as I have

17 explained, during several months I replaced my company commander while he

18 was attending language courses.

19 Q. While he was attending languages courses. He might have been on

20 leave, for example, too, gone off on a holiday. Very well, Mr. Theunens.

21 But even if you were a company commander, it is too low a

22 commanding rank for you to be able to be called an expert on any matter;

23 isn't that right?

24 A. Your Honours, I think that's a question the honourable Judges will

25 deal with.

Page 4118

1 Q. What, in your opinion, Mr. Theunens, does the word "expert" mean

2 and denote?

3 A. Your Honours, I don't think my opinion has any relevance in that

4 context. There are articles in the ICTY Statute that determine the

5 requirements that apply to whether somebody can be called an expert or

6 not, and it's up to the honourable Judges to decide whether the person who

7 is proposed by one of the parties to testify or to file a report and/or

8 testify as an expert merits that title, yes or no, and then also to decide

9 about the ultimate issue, i.e., what the weight of the evidence of that

10 person will be.

11 Q. Mr. Theunens, I am testing your credibility. You must answer my

12 question. What, in your opinion, does a specific concept mean? And in

13 this case, the concept of expert. You can say you don't know how to

14 answer that, but you can't get away from it by giving broader

15 explanations.

16 The word "expert" in every language on this planet of ours has a

17 specific meaning, it means the same. So what, in your opinion, does the

18 word "expert" mean? And I'm testing your professionalism, whether you

19 know what the term "expert" means.

20 JUDGE ANTONETTI: [Interpretation] Mr. Marcussen.

21 MR. MARCUSSEN: We have had with other witnesses the same kind of

22 exercise, of getting into semantics and the witness's knowledge of

23 specific terms. Whether or not the witness can give a different

24 definition of "expert" that the accused is happy with is utterly

25 irrelevant to any issue before the Chamber, and I think we should just

Page 4119

1 move on to something that is relevant.

2 That would be my submission.

3 JUDGE ANTONETTI: [Interpretation] I think that would be better. It

4 would be better to move on to another topic. You said, in any case, that

5 it would be for the Judges to assess whether you are an expert or not at

6 the end of the day, but let me remind you that a decision was handed out

7 on the matter and the question will focus on whether, yes or no, your

8 expert report should be admitted.

9 But as far as you are concerned, Witness, what is an expert in

10 your eyes? An automotive expert, a plumbing expert, a ballistics expert.

11 What makes an expert specific, what is it?

12 THE WITNESS: In general terms, Your Honour, I would say an

13 expert, and you've given a number of examples, is somebody who, by his or

14 her training, education, and professional or other relevant activities,

15 has acquired knowledge which goes beyond the level of the average citizen

16 in a particular subject matter.

17 MR. SESELJ: [Interpretation]

18 Q. Am I right, Mr. Theunens, in saying the following: That an expert

19 is a person who has the most knowledge and greatest experience in a

20 certain field? Would my definition of "expert" be more complete and

21 better than the one you've just improvised?

22 A. Your Honours, I did not improvise. And, secondly, well, it's

23 Mr. Seselj's definition. I may have another definition. If we go out on

24 the streets in The Hague and we ask four people for their definition, we

25 may -- we have four different versions. I think we're turning in circles,

Page 4120

1 I gave the initial answer where I stated that it's up to the honourable

2 Judges to decide about that. That would also be my final answer to this

3 question.

4 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, once again it would

5 be better to move on to another topic.

6 THE ACCUSED: [Interpretation] Yes, I am going to move on to

7 something else.

8 Q. Now, did you gain the title of "Master of Science," Mr. Theunens?

9 A. Yes, Your Honours. When I finalized my education at the military

10 academy, it was still called "Licentiaat" in Dutch, or "License" in

11 French, and I understand with the various measures in the European level

12 to equalise university degrees, that the License of the military academy

13 corresponds with the Master's.

14 Q. So you gained the rank of Master of Science on the basis of the

15 application of the so-called Bologna declaration; is that right,

16 Mr. Theunens?

17 A. Well, I gained it because of the studies I completed successfully,

18 and what happened afterwards is beyond my control.

19 Q. I'm not accusing you of applying the Bologna declaration. Don't

20 misunderstand me. The Bologna declaration has put pay to all of European

21 education. But I'm just asking you -- I'm just saying the Bologna

22 declaration was applied, and it was on the basis of that declaration that

23 you gained the rank that corresponds to the title or rank of Master of

24 Science. Just say whether I'm right there or not?

25 JUDGE ANTONETTI: [Interpretation] Bologna, you're talking about

Page 4121

1 the town in Italy, not Boulogne in France. When I look at the transcript,

2 it has Boulogne, but I believe this is Bologna in Italy.

3 MR. SESELJ: [Interpretation]

4 Q. Could you answer that question briefly, please?

5 A. To keep it short, the answer is, "Yes."

6 Q. Now, before it was applied, the Bologna declaration was applied in

7 Belgium, and I'm saying the word correctly, Bologna, you prepared a

8 Master's thesis on the subject of international politics; right?

9 A. That's not entirely correct, Your Honours. While I was working in

10 Brussels, I attended an evening course which would, if you complete the

11 education or the studies, would allow you to use the title of Master's of

12 International Politics, but that was not an official title.

13 Now, before I could complete the studies, I was asked or invited

14 to come and work for the Office of the Prosecutor, so I never finalised

15 the studies and I didn't complete a thesis. I had hoped to do so, but my

16 professional activities in The Hague prevented me from doing so.

17 Q. Very well, Mr. Theunens. All I wanted was a brief answer, but

18 you've answered my question affirmatively. You were prevented from

19 becoming an MA, but in the meantime you gained that rank thanks to the

20 Bologna declaration, and we've dealt with that matter.

21 Now let's move on to another area, another question. I'm going to

22 tell you what this is like in Serbia or what it was like in the former

23 Yugoslavia, and tell me whether that corresponds to the situation in

24 Belgium, in what I'm going to present now.

25 In Serbia, in the former Yugoslavia, an officer, having completed

Page 4122

1 the military academy, could advance regularly up to the rank of captain

2 first class, which corresponds to your rank of commander. Now, after

3 that, that person would have to proceed or not proceed to the Command

4 Staff Academy, which lasts for two years, and then take an examination for

5 major. And if he passed, then he would be a major, and then lieutenant

6 colonel and then colonel. He could move up the ranks. And then after

7 that, some people, not everyone, had the possibility of attending war

8 school, or the School of National Defence, as it was called, which also

9 lasts for two years, and a general's thesis and general's examination is

10 then passed, and Doctor of Science is the rank achieved after the

11 general's examination. So the MA would correspond to a Major and the

12 general's examination would give you the title of a PhD. Is that how it

13 is in Belgium, does it correspond to the situation in Belgium?

14 A. No, it is not, Your Honours, because the training courses that are

15 attended after the military academy, i.e., we have a one-year senior

16 officer candidate staff course, excuse me, which I attended, there is

17 later on a one-year -- what we call a third cycle, but that is a senior

18 officers' course. Those courses do not provide any academic title, even

19 though one attends additional education and a thesis needs to be written

20 or other tests and exams passed. They do not provide an academic title.

21 Q. First of all, in Serbia you don't get an academic title, either,

22 but the major's examination is of the same rank as a Master of Science or

23 Master of Arts. A major cannot say that he is a Master of Science. The

24 general's examination is equivalent to a PhD examination, although a

25 general will never claim to be a PhD. But I'm speaking of the level of

Page 4123

1 the rank of the examination.

2 For example, when a colonel completes war school and passes a

3 general's examination, he is not automatically promoted to the rank of

4 general. This depends on other circumstances; the number of generals'

5 posts that are vacant and so on and so forth. But once he becomes a major

6 general, he has the same rank as an assistant professor and so on and so

7 forth. Am I correct, Mr. Theunens? But please respond as briefly as you

8 can. If I'm wrong, just say, "No," and we'll move on.

9 A. Your Honours, this may be the situation in Serbia, but it doesn't

10 apply to the Belgian Armed Forces.

11 JUDGE ANTONETTI: [Interpretation] He would like to know whether

12 things work the same way. In Belgium, you can be a lieutenant and have a

13 university degree and be a PhD holder. Can you confirm this?

14 THE WITNESS: Indeed, Your Honour. This is not -- the only thing

15 that is established is that somebody who attends military academy and

16 concludes his studies successfully, he will be, nowadays, a Master or an

17 engineer. And what happens later on, well, there can be people who

18 acquire PhD two years later but it has no relevance for their rank or not,

19 unless there is a special recruitment for experts in a particular subject

20 matter, like legal affairs, where the fact that they obtained an

21 additional degree, I mean, academic title, can accelerate their career.

22 THE ACCUSED: [Interpretation] Mr. President, you may have

23 misunderstood my question. I don't know what the interpretation was. I

24 was a PhD, but in the army I had a very low rank. A PhD does not entail a

25 high military rank automatically. But had I wanted to gain employment in

Page 4124

1 the army with a PhD, I would have been a military employee with the same

2 rank as a colonel. I never acquired that rank because I was never

3 employed in the military. But a colonel with a war school has the same

4 rank as a PhD. But evidently the witness doesn't understand this, so we

5 will move on.

6 Mr. Theunens --

7 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I think the witness

8 has understood and the Bench has also understood. In the Belgian Army,

9 there is no equivalence between the ranks and the degrees. You can be an

10 officer in the Belgian Army without holding or having a PhD. And you can

11 be a lieutenant in the Belgian Army and still have a PhD.

12 THE WITNESS: Exactly, Your Honours.

13 THE ACCUSED: [Interpretation] Well, that's not the essence of what

14 I'm insisting on, but I won't waste time. I'm speaking of the level, not

15 on gaining certain rights based on an academic title, but of the

16 equivalence.

17 Q. Witness, would you, with your qualifications and rank of Komandant

18 or Captain First Class be able to be an expert on anything in Belgium?

19 A. Your Honours, with the rank of lieutenant, as you can see from my

20 written CV, I was designated to provide the briefings to the chief of

21 defence staff and other senior officials on matters relating to the

22 situation in the Balkans. So just to clarify that, there is no direct

23 equivalent or direct link between rank and knowledge, especially not in

24 the armed forces I functioned in.

25 Q. Mr. Theunens, in the course of your examination-in-chief, you

Page 4125

1 explained to us the methodology used in intelligence work, and you

2 expounded this in certain points. There's no point in repeating this.

3 But have you ever dealt with scholarly or scientific methodology?

4 A. Your Honours, during -- I will provide two elements of information

5 to this question.

6 First of all, during my education at the military academy, one of

7 the first courses we had was a course in the consulting of sources as well

8 as source critique, and it started on a very mundane level on how to visit

9 a library, but obviously became more complicated.

10 The second element I would like to mention is that during the time

11 period I worked as an intelligence analyst, I've been in touch with

12 obviously people from various environments, including university

13 professors or people working on a PhD and so on, and we would discuss

14 methodology they applied, as well as what we applied, and we came to the

15 conclusion that there was a lot of similarity between, on one hand, the

16 intelligence cycle and, on the other hand, the scientific methodology

17 applied by -- for example, by PhD candidates or university professors.

18 Q. I'm drawing the conclusion from your response that you did not

19 delve into the methodology, but that you came across people who did. This

20 reminds me of my Aunt Mira, who never even completed primary school, but

21 she has an understanding of medicine because she had a doctor in her

22 neighbourhood. I'm asking you about scientific and scholarly methodology,

23 and you are speaking of methods.

24 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, we are very happy to

25 know that you have an Aunt Mira who was well versed in medicine without

Page 4126

1 being a doctor, but he said that the methodology used in the intelligence

2 services was very similar to the methodology used in other areas, like

3 university professors. This is what he said.

4 MR. SESELJ: [Interpretation]

5 Q. Mr. Theunens, did you ever work on a project, a scientific or

6 expert project, in the military field before you became an employee of the

7 International Tribunal?

8 A. Your Honours, it's not clear to me what Mr. Seselj means

9 by "scientific or expert project."

10 Q. Well, that's the whole problem, that you don't understand this.

11 Anyone engaged in scholarship or science and who is an expert in a field

12 knows what a scholarly project or an expert project is.

13 JUDGE LATTANZI: [Interpretation] Mr. Seselj, do you believe that

14 only university professors can be experts? I find that a little bit

15 strange. I am, myself, a professor, so I believe I know what we do and

16 what we don't do. Nonetheless, you can be an expert even if you don't

17 have any scientific knowledge or if you don't use any kind of scientific

18 methodology. You can still be an expert. Why not?

19 Whatever the case may be, I believe it is for the Judges to settle

20 the matter, and it's not for you to comment on the answers provided by the

21 witness.

22 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I agree with what my

23 fellow Judge has just said. You can be an expert without automatically

24 holding a title or without being a professor at university. For example,

25 take the case in the automotive industry, you're going to ask somebody to

Page 4127

1 talk about a spark plug. In the automotive industry, perhaps a mechanic

2 can also provide an expert opinion on how a spark plug works in an engine

3 of a car, so you don't have to -- like you, you don't have to have the

4 title of university professor to claim that you are an expert. Maybe this

5 is what is making our life difficult.

6 THE ACCUSED: [Interpretation] I'm convinced, Mr. President and

7 Madame Judge, that there is no university professor who could fix your car

8 as a good mechanic can, but what we have before us is an expert report on

9 more than 400 pages, which should have been done according to scientific

10 methodology. It's not the same thing as fixing a car.

11 An expert has to have the best knowledge of a certain field. He

12 has to be among those who are most familiar with a certain field. And for

13 an expert report of this kind, he also has to be conversant with

14 scientific methodology.

15 You can say that I'm wrong in your judgement, which you will

16 eventually hand down, but what I'm trying to show you now is that this man

17 cannot be an expert of any kind. You can say later on that I'm wrong --

18 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, please show in what

19 way this gentleman's expert report did not apply any scientific method.

20 In what way does his report contain failings? What should he have done,

21 what didn't he do, as far as you're concerned? And you will be able to

22 highlight this by putting your question properly.

23 THE ACCUSED: [Interpretation] Well, I fully agree with you,

24 Mr. President.

25 Q. Mr. Theunens, what scientific method did you use in compiling this

Page 4128

1 expert report? Identify your scientific method.

2 A. Your Honours, as was explained through the examination, the method

3 I applied was the method I am familiar with called "the intelligence

4 cycle." I can explain again the various steps and phase of the

5 intelligence cycle. And I realized, when doing research on various

6 aspects of the intelligence cycle, that this kind of methodology is also

7 applied by certain universities. And as I explained earlier, when I gave

8 an earlier answer to the question, it was quite similar to the methodology

9 applied by people I was in contact with while I was still working in the

10 armed forces, for example, PhD students or professors who were also

11 dealing with matters related to the Balkans.

12 Q. So, Mr. Theunens, you do not understand the difference between

13 methodology, as a science, and methodics, as an expert discipline, and

14 your method of the intelligence cycle, which belongs within the domain of

15 intelligence methodics, you are trying to represent it here as a

16 scientific methodology. Am I right?

17 A. Your Honours, my understanding was that I was asked which

18 methodology I applied when compiling the report, and I replied that I used

19 the intelligence cycle when compiling the report.

20 Q. Your intelligence cycle belongs in the methodics of your

21 intelligence work, prescribed by your intelligence service. It has

22 nothing to do with scientific methodology. Do you know, Mr. Theunens,

23 what epistemology is?

24 A. No.

25 Q. You don't know. It's a theory of scientific knowledge. It

Page 4129

1 examines logical foundations, of provisions, of the possibility of

2 scientific knowledge, and so on and so forth, and methodology is based on

3 epistemology. I'm asking you this question, because I observed that in

4 your expert report you confused ontological, gnosiological and axiological

5 aspects of the problem, so I have to ask you whether you know what

6 ontology is?

7 A. No, Your Honours, I don't know.

8 Q. Do you know, Mr. Theunens, what gnosiology is?

9 A. No, Your Honours, I don't know.

10 Q. Do you know what axiology is?

11 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you are submitting

12 Mr. Theunens to an exam right now. However, there was something that was

13 interesting in your initial questions, which was determining whether the

14 methodology used in military intelligence can be applied in the field of

15 work that was entrusted to him by the OTP; in other words, relationships

16 between the volunteers and the events on the ground, et cetera. This may

17 be relevant, but now if you submit the witness to an exam about ontology,

18 gnosiology, et cetera, he will answer that he does not know, because I

19 think you should not forget that he is basically a military officer. He

20 is not a university professor.

21 THE ACCUSED: [Interpretation] Mr. President, what I'm asking him

22 about is secondary school-level knowledge. Every secondary school pupil

23 in Serbia, and I assume in France, knows that ontology is the theory of

24 your existence, gnosiology is the theory of knowledge and axiology the

25 theory of values. He says doesn't know this, and now you keep insisting

Page 4130

1 on saying he's an expert. I'm trying to show you that he's an ignoramus.

2 The OTP has represented him as an expert, and you're trying to prevent my

3 expert questions.

4 I have already disqualified him as any kind of expert. You can

5 declare him to be whatever you like. What can I do about it? But he

6 lacks even secondary school knowledge.

7 Q. Mr. Theunens, as you don't know these things, I'm powerless to put

8 expert questions to you, questions of scientific methodology. I can,

9 however, put specific questions to you, concrete questions.

10 How could you write, in this report of yours, that -- it's on page

11 3 of your report, page 3 in the Serbian -- that the Yugoslav People's Army

12 consisted of the General Staff and three branches of service, ground

13 forces, air force and air defence, and navy? How could you write that, as

14 a military expert, the top expert?

15 A. Your Honours, I included this paragraph in the executive summary,

16 and it's a summary of the information that is included elsewhere in the

17 report, including there the legal references on which this summarising

18 sentence was based. It is correct that there is no legal reference that

19 states that the General Staff was part of the JNA, but I thought it would

20 assist the reader just to summarise the various legal references and come

21 to this conclusion.

22 Q. Did you, Mr. Theunens, consider that this report would be read by

23 a fool who knows nothing, and then you could comfortably say that the JNA

24 is comprised of the General Staff and three branches of service? What did

25 you think? How could you introduce the General Staff as an integral part

Page 4131

1 of the JNA? Where is your legal basis for that? On what basis did you do

2 that?

3 JUDGE ANTONETTI: [Interpretation] Mr. Marcussen.

4 MR. MARCUSSEN: The second part of the question -- I think the

5 first part of this question, implying that he -- that the expert thinks

6 the Court is a fool and things like that, is inappropriate.

7 THE ACCUSED: [Interpretation] Please, I didn't call the expert a

8 fool. I really don't know what sort of interpretation you're getting. I

9 said, "Did you consider that this report would be read by some fool with

10 no understanding of this so that you could pass on to him this information

11 that the army was -- consisted of the General Staff and three branches?"

12 I can call the expert an ignoramus, I can say that he's lying about

13 certain things, but why on earth would I call him a fool? I'm a person

14 with gentlemanly manners, I'm a Chetnik Vojvoda, so why would I call him a

15 fool?

16 Don't laugh, Mr. Marcussen, because it's contagious.

17 THE WITNESS: Your Honours, I will attempt to answer the first

18 part of the question.

19 On page 19 in the English part of the report, in the English

20 version of the report, the first part, I have a title "The General Staff

21 of the SFRY Armed Forces," and there it is stated that the SFRY General

22 Staff is in the composition of the Federal Secretariat for People's

23 Defence and carries out staff and other expert jobs. The reference I use

24 for that is 65 ter number 496, the SFRY Presidency order number 26 dated

25 the 13th of August, 1987. It is this Presidency order which transforms

Page 4132

1 the General Staff of the JNA to the General Staff of the SFRY Armed

2 Forces, which is further explained in the section on the Jadinstvo [phoen]

3 reorganisation plan which you can find in page 26, English page 26, of

4 Part 1 of the report. And through the Jadinstvo, the General Staff of the

5 JNA becomes the General Staff of the SFRY Armed Forces.

6 MR. SESELJ: [Interpretation]

7 Q. I have to observe, then, that you had at your disposal a document

8 from 1987, where the General Staff of the JNA was transformed into the

9 General Staff of the Armed Forces, and in spite of this, in the

10 introductory part of your expert report and in the executive summary which

11 I received a few days ago, you state that the JNA was composed of a

12 general staff and three branches. How was this possible, then? Was this

13 written by different people, one wrote one thing and the other wrote the

14 other? Doesn't this look like a schizophrenic expert report? In one

15 place, you say one thing, and in another place, you say another, like a

16 split personality. Or was this written by more than one person and you

17 didn't check what the other one wrote? What's true, Mr. Theunens?

18 A. Your Honours, the report was compiled by myself and nobody else,

19 and it is true that at first glance there is this difference between what

20 I state in the executive summary or the summarising paragraph, on the one

21 hand, and in the body of the report, on the other hand, but my

22 understanding of the General Staff was that even when it was renamed and

23 repositioned from "General Staff of the JNA" into "General Staff of the

24 SFRY Armed Forces," that this had no significant impact on its structure,

25 of its role, except of course that its competencies as General Staff of

Page 4133

1 the SFRY Armed Forces became wider because it also encompassed the TO.

2 So if Mr. Seselj wants to make a big thing of that, that is his

3 choice, but I hope that my explanations can clarify the matter for you.

4 Q. Mr. Theunens, I'm not making an issue of that, but the General

5 Staff of the Armed Forces, the JNA and the Territorial Defence were both

6 subordinated to it in their entirety; isn't that correct?

7 A. Indeed, but it's not that they are all subordinate to the

8 General -- yeah, that is correct. I mean, when the General Staff of the

9 JNA became the General Staff of the SFRY Armed Forces, it became the

10 authority over the JNA and the TO, whereby I wish to clarify that the

11 General Staff or the chief of the General Staff, as such, has no command

12 role. He can only forward the orders issued by the Federal Secretary for

13 People's Defence.

14 Q. In the structure of command of the Armed Forces, the presidency of

15 the SFRY is at the top, then the Secretariat for National Defence, then

16 the General Staff of the Armed Forces; isn't that correct? Am I right?

17 A. That is correct, Your Honour.

18 Q. And the General Staff, as the third level here, is in charge both

19 of the JNA and the Territorial Defence equally; isn't that correct?

20 A. Yes. I mean, after 1987 [Realtime transcript read in error

21 "1997"], that is correct.

22 Q. Why, then, did you write that the General Staff was part of the

23 JNA when the General Staff was above the JNA? That's my basic question.

24 Why is this in your report?

25 JUDGE ANTONETTI: [Interpretation] Sorry, I'm slightly lost right

Page 4134

1 now, because 1997 was mentioned and the years following 1997, but we are

2 interested in 1991, 1992, 1993, 1994. 1997 has no interest for the

3 Judges. What is important is the chain of command. Who makes the

4 decisions at the top and how the order is forwarded within the period of

5 1991, 1992, 1993.

6 THE ACCUSED: [Interpretation] I'm talking about 1987, not 1997.

7 From 1987 onwards, that's what I'm insisting on. So there's no

8 misunderstanding, perhaps the problem was in the interpretation.

9 JUDGE ANTONETTI: [Interpretation] Okay. So starting in 1987, what

10 is the chain of command, according to you?

11 THE WITNESS: Your Honours, starting from the top level, i.e., the

12 political level, we go from the Supreme Command, consisting of the SFRY

13 Presidency, which is led by the president of the SFRY Presidency, through

14 the staff of the Supreme Command, which consists of the Federal Secretary

15 for People's Defence, assisted by his Secretariat, as well as the chief of

16 the General Staff, assisted by his General Staff, downwards to the

17 operational units. In clear terms, it means that the Federal Secretary

18 for People's Defence could issue orders directly to the military

19 districts, so he doesn't have to go through the Chief of General Staff,

20 even though there are examples of orders transiting from the Federal

21 Secretary for People's Defence through the chief of the General Staff to

22 the operational units, and at the operational level, the highest level in

23 peacetime would be the military district level.

24 JUDGE ANTONETTI: [Interpretation] All right. So here we're

25 dealing with a very significant issue. Correct me if I'm wrong, please.

Page 4135

1 The Supreme Command is composed of the Presidency with the

2 president, and assisted by the staff of the Presidency in which the

3 Secretariat to the Defence plays a particular role, and the Defence

4 Secretariat forwards orders to the units without having to go through the

5 head of the Main Staff; is that it?

6 THE WITNESS: That is correct, Your Honours, and that is different

7 from what exists in certain Western countries.

8 JUDGE ANTONETTI: [Interpretation] Fine.

9 Now, in order to account for Mr. Seselj's concerns, the JNA and

10 the Territorial Defence, the TO, are at a lower level. They receive

11 orders from the Defence Secretariat; is that it?

12 THE WITNESS: Yes, Your Honours, but the difference -- or the

13 change that is made in 1987 is that the Chief of General Staff, when he

14 receives orders from the Federal Secretary for People's Defence, he can

15 forward them directly to JNA and TO, whereas before there would be a

16 direct line from the Federal Secretary of People's Defence to the TO,

17 without passing through the Chief of General Staff, because before 1987 he

18 would only be responsible for the JNA. After 1987, the chief would --

19 JUDGE ANTONETTI: [Interpretation] So if there's one thing we

20 should keep in mind, it's that starting in 1987, the orders forwarded to

21 the TO go through the head of the General Staff, which was not the case

22 before.

23 THE WITNESS: That is correct, Your Honours, and also the TO

24 becomes subordinated to the -- what is called the strategic operational

25 level units, i.e., the military districts, whereas before they were on a

Page 4136

1 parallel level.

2 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, please carry on, but

3 these things had to be clarified because unless they were clarified, we

4 were in danger of being totally at a loss.

5 But the time of break has come, so 20 minutes' break.

6 --- Recess taken at 11.55 a.m.

7 --- On resuming at 12.20 p.m.

8 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. We'll

9 stop at a quarter past 1.00.

10 Mr. Seselj, you've used up one hour and 17 minutes so far.

11 Let me also remind everyone that tomorrow, we'll be starting at

12 9.00 and not at 8.30 a.m., because my fellow Judges won't be sitting in

13 the Delic case tomorrow afternoon, and we'll be sitting from 9.00 a.m.

14 tomorrow.

15 On the other hand, on Thursday, we'll start at 8.30, and we'll sit

16 until a quarter past 1.00 on Thursday.

17 I would also like to notify you of the fact that tomorrow

18 Judge Lattanzi won't be with us, for professional reasons. That's

19 tomorrow and the day after tomorrow. Judge Harhoff and myself will be

20 here, of course.

21 This by way of an introduction, and now let me give the floor to

22 Mr. Seselj.

23 MR. SESELJ: [Interpretation]

24 Q. Mr. Theunens, you should know that Yugoslavia, somewhere towards

25 the end of the 1960s, developed a specific concept of the doctrine and

Page 4137

1 system of the All People's Defence; right? Are you aware of that?

2 A. I am aware of that, Your Honours, and that is discussed in my

3 report on -- in the English version on page 4, where I mention that the

4 doctrine of All People's Defence was published as the official military

5 doctrine in 1969.

6 Q. Would you be able, Mr. Theunens, to tell us, just in a few words,

7 what the substance of the concept of All People's Defence is? In a few

8 words, how would you explain the concept of All People's Defence to

9 somebody who doesn't know anything about it?

10 A. Your Honours, it would mean that all human and materiel resources

11 are being used in order to defend the country. And, for example, I make

12 reference to a legal manual for commanding officers dating from 1976 in my

13 report, when I first explain what "All People's Defence" means.

14 Q. Do you agree that the essence of the concept of All People's

15 Defence is the Marxist concept of an armed peoples?

16 A. Your Honours, I have not studied All People's Defence from that

17 angle, i.e., from the Marxist angle, to see whether there is any

18 similarity with the Marxist concept of defence, so I would not be able to

19 answer that question.

20 Q. Mr. Theunens, you could have found that in the numerous literature

21 in which explanations are given for the concept of All People's Defence,

22 you needn't read all of Marx and Engels. You could have learned it from

23 the literature, and there is a lot of literature on this subject. You

24 could have come by that elementary information.

25 Now, how would you, in a few words, define the doctrine of All

Page 4138

1 People's Defence? All People's Defence, yes.

2 A. Well, I think I answered that question. The doctrine consists of

3 using all resources that are available, both on the human as well as on

4 the materiel level, for defensive purposes, i.e., to struggle against an

5 aggressor.

6 Q. Mr. Theunens, you said that a moment ago, when I asked you what

7 the concept of it was. So the concept and doctrine can't be the same

8 thing. You're repeating what you said about doctrine, so that means you

9 don't know what "concept" means and what "doctrine" means. Now, if I tell

10 you that doctrine -- the doctrine of All People's Defence is a doctrine of

11 waging an all people's war or defence, or defensive war, would you agree

12 that is the substance of what it means when we say "doctrine"?

13 A. Your Honours, my understanding of the word "doctrine" is that

14 "doctrine" means -- I mean military doctrine are the guiding principles

15 used by armed forces in order to implement political goals. I think that

16 when Mr. Seselj provided the answer to his own question, he said twice the

17 same, but that's maybe a translation issue.

18 THE INTERPRETER: Microphone.

19 JUDGE LATTANZI: [Interpretation] In that context you're dealing

20 with at the moment, Witness, were we talking about defence against an

21 external aggressor or against an enemy coming from the country itself,

22 from inside the country?

23 THE WITNESS: Your Honours, the focus is on an external aggressor.

24 JUDGE ANTONETTI: [Interpretation] Mr. Seselj is asking you to

25 define this doctrine, and the word "national" has been used, "war of

Page 4139

1 national defence." And let me follow up on the question put to you by my

2 fellow Judge.

3 If the nation is threatened from within, can this doctrine be

4 applied then as well?

5 THE WITNESS: The doctrine emphasizes the importance of the fact

6 that it includes all nations and nationalities of the socialist Federal

7 Republic of Yugoslavia, whereby the JNA would be a federal armed force,

8 i.e., which covers all the republics of the SFRY and which represents all

9 the republics, and the TO would be established and organised and so on by

10 the republic.

11 Now, as I replied to the question of Judge Lattanzi, the documents

12 I have reviewed, for example, the military manuals, all focus on external

13 threats. However, there are, within the SFRY armed forces, organs like,

14 for example, the Security Administration, UB, who deal specifically with

15 threats, foreign as well as internal threats against the armed forces.

16 Also, on the federal Minister of the Interior level, there would be organs

17 or services that deal with threats from inside against the stability and

18 the order within the SFRY.

19 And as I said, the focus of the doctrine and the military -- the

20 use of the armed forces is all focused on an external threat, whereby an

21 external force invades the country. There was talk at the time of a plan

22 S-1 and later plan S-2, depending on whether the threat came from the

23 Warsaw Pact and then that was reviewed into a threat coming from NATO

24 countries, and this was then the main guidance or guiding plan for the

25 armed forces in order to establish defensive plans. So external threats.

Page 4140

1 JUDGE ANTONETTI: [Interpretation] The national issue may be on the

2 agenda.

3 Before Vukovar, the national issue involves everyone, Muslims,

4 Croats, everyone. I'm talking of the use of this national -- word

5 "national." But if nationalistic tendencies appear within one of these

6 components, can the authorities intervene to guarantee this national

7 concept within the Yugoslav meaning of the term? My question may be

8 rather complex, but you might be able to answer it nevertheless.

9 THE WITNESS: Indeed, Your Honours, and that's exactly what we --

10 what we see when we see -- when we look at the developments in early 1991,

11 that is, that the Federal Secretary for People's Defence, Kadijevic,

12 considers that the Presidency, his Supreme Commander should actually give

13 him instructions in order to act against cessionist forces, including in

14 Slovenia and later Croatia.

15 For example, during the Presidency sessions in January 1991 and

16 March 1991, Kadijevic asks the Supreme Command, i.e., the members of the

17 Presidency, to decree a state of emergency which would create the legal

18 conditions for the SFRY armed forces or what remains of the SFRY armed

19 forces to act against the internal threat.

20 But when I was answering the question first, I was focusing on

21 what I saw in the military manuals. The military manuals, as far as I've

22 seen them, do not discuss fighting against an internal enemy, except for

23 the specific manuals for the Security Administration.

24 MR. SESELJ: [Interpretation]

25 Q. Do you know, Mr. Theunens, what the difference is between the

Page 4141

1 concept and doctrine? I see that you mix up those two concepts.

2 A. I know the difference between "concept" and "doctrine,"

3 Your Honours, but when Mr. Seselj asked the question about "concept," I

4 refer to my report, where I use the word "doctrine" to explain what All

5 People's Defence was all about.

6 Q. Well, that's where the problem lies, Mr. Theunens, because you're

7 mixing up the notion of "concept" and "doctrine." You give the same

8 answers when I ask you about what "concept" means and what "doctrine"

9 means, and neither answer is satisfactory and based on fact.

10 But here's a new question for you: In what case would it be

11 against an internal enemy, based on the legal system of Yugoslavia, would

12 the use of the armed forces be allowed? Just in brief terms, in what

13 situation?

14 A. Is the question about a legal reference or do you want me to

15 explain what the Supreme Command, i.e., the Presidency could do and how

16 this mechanism would be implemented?

17 Q. You are allegedly the expert, Mr. Theunens. I'm not interested in

18 what the Presidency could do as the Supreme Command. What I'm interested

19 in is a brief answer to my question. Since you've already stated that the

20 armed forces are primarily oriented towards standing up to a potential

21 aggressor or external enemy, then in what case would the armed forces be

22 permitted to resist an internal enemy? Just give me a brief answer in two

23 or three words, if you know the answer. If not, we can move on.

24 A. Well, if -- if -- the military does what the Supreme Command,

25 i.e., the Presidency, tells it to do. Now, legally we know from the

Page 4142

1 Constitution, Article 240 [Realtime transcript read in error "214"], that

2 the mission of the SFRY armed forces also includes maintaining the

3 territorial integrity of the SFRY -- of the SFRY, excuse me, as well as

4 the social order. So in case there are threats against the territorial

5 integrity or social order from within, which then, according to the

6 Supreme Command, i.e., the Presidency, warrant the use of the armed

7 forces, well, then the conditions would be fulfilled to use the armed

8 forces to act against such a threat.

9 Q. Your answer is fairly satisfactory, with a brief addition. In

10 case there was an attempt to forcefully change the constitutional system,

11 it has to be a forcefully applied change for the supreme commander to

12 act.

13 We had a movement in the 1980s, and in that movement I was one of

14 the formal dissidents, but we did not try to change the system by force.

15 We did this by peaceful means, and then armed force could not be deployed,

16 because if the armed forces were to be deployed, it would have to be a

17 forcible attempt at changing the constitutional order. Am I right?

18 A. Yes, Your Honours. I would just like to make a small correction

19 to the transcript on page 85, line 25. It should read "Article 240"

20 instead of "Article 214" of the 1974 SFRY Constitution.

21 Q. Mr. Theunens, what did the system of All People's or Total

22 National Defence comprised of? What were the components of that system?

23 A. Your Honours, in addition to the SFRY armed forces consisting of

24 the JNA and the TO, there were also -- there was also a structure known as

25 "civil defence" which was organised by republic. There was also a

Page 4143

1 monitoring service, as well as maybe other bodies which I have not

2 explicitly mentioned.

3 Q. You don't know that, Mr. Theunens. The system of All People's

4 Defence encompassed all the social subjects and individuals who were of

5 age, citizens of age, adults, so the system was all-embracing. All the

6 state organs, all the factories, all the social enterprises, all the

7 social organisations, as well as political organisations, and indeed all

8 individuals were the subjects in the system of All People's Defence or

9 Total National Defence; isn't that right?

10 A. Yes, Your Honours. I misunderstood the question, then. Just to

11 bring us back to my report, I state on page -- English page 4 that the

12 whole of the population was involved in the -- under the doctrine of All

13 People's Defence in order to defend the country.

14 Q. Mr. Theunens, do you know what political organisations existed in

15 communist Yugoslavia before the introduction of the multiparty system?

16 A. Your Honours, I have a vague recollection of a number of

17 organisations that existed, but I have not discussed them in my report

18 because I did not consider them relevant for the subject matter of my

19 report.

20 Q. That was fairly important and relevant, Mr. Theunens, you know,

21 because the League of Communists existed, the Socialist Alliance of the

22 Working People of Yugoslavia existed as an organisation of the National

23 Front, the Socialist Youth Alliance, the Student Alliance, as well as the

24 Veterans Alliance, and even a trade union's association which had certain

25 features of a political organisation in addition to trade union rights.

Page 4144

1 All of them were political organisations, and each of them had its place

2 and role in the system of All People's Defence; isn't that right?

3 A. Your Honours, I have not analysed or studied the role of these

4 various organisations in my report, so I'm not able to provide more

5 information as to what Mr. Seselj has stated here.

6 Q. You must have done that. You necessarily had to do that, because

7 during the examination-in-chief, Judge Antonetti drew your attention to

8 the provisions of the law governing All People's Defence, and those

9 provisions speak of the role of the League of Communists therein, and even

10 in the sphere of command over the armed forces; isn't that right? The

11 League of Communists had a certain role to play there as a political

12 organisation; right?

13 A. Your Honours, I have not come across documents -- I mean, while

14 studying the documents I have included in the report, I have not come

15 across documents that indicate that the League of Communists intervened in

16 operational matters or in command-and-control matters that are relevant in

17 the context of my report.

18 Q. The law states quite clearly what the role of the League of

19 Communists is in military units. Do you happen to know that every JNA

20 unit and every unit of the Territorial Defence had its own organisation,

21 its own League of Communists organisation; do you know about that?

22 A. Your Honours, as we discussed in the examination, I am familiar

23 with the existence of organs for morale and political guidance in the

24 staffs and the commands of JNA and TO units, and the role of these organs.

25 Q. Now we have a legal system in which the role of the political

Page 4145

1 organisations is defined within the sphere of the country's defence. The

2 system is now changed. From a one-party system, it became a multiparty

3 system. But all the legal provisions on the work of political

4 organisations in the sphere of the country's defence remain the same. Why

5 does the Serbian Radical Party, when it was formed, and it was registered

6 officially in February 1991, why would it not have -- why would it not be

7 one of the subjects in the country's defence with its inception? The

8 League of Communists no longer exists. We have a multiparty system.

9 There's nothing more logical -- well, you had one party before, and now

10 you have many parties, but the role in each subject in the country's

11 defence remains the same. Nobody changed that, or do you have proof to

12 the contrary?

13 A. No, Your Honours, but I just want to reiterate that the

14 documents -- I mean, the regulations, the manuals, as well as the

15 operational documents, orders and reports, I discussed in the report and I

16 reviewed while preparing the report, do not mention anything about the

17 role for political parties in the issues that are relevant in the context

18 of my report.

19 JUDGE ANTONETTI: [Interpretation] Expert witness, as I listen to

20 the questions and answers, I was wondering whether, in terms of your

21 method and approach, when you prepared your expert report, did you not see

22 these issues from the standpoint of a European, in other words, somebody

23 who was standing behind the famous curtain, and that you basically applied

24 your world view to concepts which were different; in other words, you

25 applied your German, Belgian, or whatever concept without factoring in

Page 4146

1 this political information, in other words, that this part of the world

2 was different and had its own internal workings, the role played by the

3 League of Communists that disappeared but which was replaced by others

4 like the Serbian Radical Party, and that at that time the doctrine or the

5 concept of All People's Defence should be seen through the prism which

6 prevailed before Yugoslavia's disintegration.

7 Did you not ask yourself this question when doing your work,

8 because the Belgian political parties, I assume, faced with a conflict,

9 would have certainly played a part by having a bill adopted, but would

10 have undoubtedly not played the same role as in the former Yugoslavia,

11 where the political parties were playing a role. I even put the question

12 to you, "Was there a political commissioner," and you said, yes, in so

13 many words, because you said in some of the units there was somebody in

14 charge of morale and other affairs, and what might be missing in your

15 report is the fact that the workings of the system under Tito was not

16 assessed as it should be.

17 THE WITNESS: Your Honours, I do not think that I have applied a,

18 call it, only or limited Western view to the problem I had to deal with,

19 when considering especially part 1 of the report it is very obvious that

20 the communist doctrine, at least the interpretation Tito had given to

21 communist doctrine placed an essential role in the defence and the armed

22 forces and how the armed forces function, their role and so on, even

23 though, and I want to make a correction to what I think may have said

24 during the first day of the examination, Yugoslavia or Serbia was never a

25 member of the Warsaw Pact.

Page 4147

1 Now, it is true that at the end of the 1980s, we see other

2 political parties set up, there are multiparty elections in the course of

3 1990, but having reviewed an extensive number of military documents, I

4 haven't come across any document that suggests that these other political

5 parties are allowed to play a role in the armed forces or whether any of

6 these political parties takes over the role, and morale and doctrine --

7 the ideological role that the League of Communists had. On the contrary,

8 documents from security organs and other organs of the Security

9 Administration, they keep a close eye on the various political parties

10 that are emerging, both -- I mean, not only in Serbia but also in the

11 other republics, and they are very suspicious of these other political

12 parties, in particular when they try to infiltrate the armed forces.

13 Now, coming now to the essential issue in this report, i.e., the

14 role of volunteers, the legislation, as it existed in communist times, did

15 not mention a role for political parties. The decrees and orders that are

16 adopted between August 1991 and December 1991 do not make any mention of

17 political parties, either in the recruitment or the training and so on of

18 volunteers, so if these political parties had been allowed to play a role

19 whatsoever, well, it would have been formalised somewhere. If these --

20 the non-communist political parties would have been allowed to participate

21 in the elaboration or the implementation of the defence doctrine, it would

22 have been put on paper somewhere. There would have been a trace. Well,

23 there are no such traces. On the contrary, the --

24 JUDGE ANTONETTI: [Interpretation] Witness, now, if you adopt a

25 Marxist view, if you look at the issue of All People's Defence in that

Page 4148

1 light, everybody takes part in this, the trade unions, the associations,

2 political parties, and so on and so forth. The best proof of this is you

3 quoted Article 240 of the 1974 Constitution, and in the last paragraph it

4 is mentioned that:

5 "Any citizen who takes part in resistance against the aggressor is

6 a member of the armed forces," which means that any citizen, including

7 volunteers who are citizens, are automatically members of the armed

8 forces. This is written in the Constitution. Therefore, the political

9 parties can also adopt this notion of All People's Defence, but it seems

10 that you do not draw the same conclusions in your report.

11 THE WITNESS: Your Honours, with political parties, if we mean the

12 different political parties that emerged once the multiparty system was

13 implemented, I can only reiterate that these parties, as such, while

14 implementing their party programmes or party ideologies, did not play a

15 role in the defence, at least de jure were not foreseen to play a role in

16 the defence.

17 It is obvious that in the situation prior to the existence of a

18 multiparty system, whereby all the organisations that existed in the SFRY,

19 labour organisations, syndicates, political movements, they all shared the

20 same ideology, they all shared Tito's interpretation of the communist

21 ideology or call it socialist ideology. That is not the case in the

22 multiparty system, and that is exactly the issue I think that is of

23 importance.

24 You cannot have -- and that's not a Western view. That's, I

25 think, a view that applies to any armed force.

Page 4149

1 You cannot have a defence system where each party has its own

2 component in the defence system, the blue party has something, the black

3 party has something, the yellow party has something, because it would be a

4 violation of the principle of unity in command and control.

5 We have discussed earlier the analogy between All People's Defence

6 and guerrilla warfare, or at least the doctrine or the concept -- concept

7 as it was defined by Mao. As I said earlier, for Mao the ideology is the

8 key component, but there's only one ideology. It's the communist, or call

9 it socialist, ideology. So whatever party, as long as they share that

10 ideology, or whatever organisation, as long as they share that ideology,

11 they could play a role in the defence.

12 However, when we come with other ideologies, for example, national

13 ideologies, which go straight against -- against the key idea of the SFRY

14 armed forces, i.e., brotherhood and unity, there is no role -- there

15 cannot be a role for these parties in the defence of the country. And

16 that's not just my interpretation. That's based on the documents I

17 reviewed.

18 Otherwise, looking at it from the opposite side, the SFRY

19 authorities and SSNO would have had all interests in getting as many

20 volunteers as possible if the political parties were allowed to play a

21 role in the defence of the country, but Kadijevic and others had a very --

22 had a negative view. Okay, they legalise the volunteers because they have

23 no other means. There is no response to mobilisation, or a very poor

24 response, so they have to use these people, but not because they want the

25 political parties to play a role in defence, but just because there's no

Page 4150

1 other manpower available.

2 JUDGE ANTONETTI: [Interpretation] You have provided a rather

3 lengthy answer.

4 JUDGE LATTANZI: [Interpretation] I'm a little bit lost. I might

5 be mistaken, but I feel that all of this is not very relevant, has nothing

6 much to do with our indictment and nothing much to do with the expert

7 report. This was not designed to assess whether the participation of the

8 volunteers was legitimate or not, whether the volunteers were to be part

9 of All People's Defence or not, according to Yugoslav law.

10 So the question, I believe, is a totally different question we

11 would like to address.

12 In the last part here, I must say that I'm a little bit at a loss.

13 JUDGE ANTONETTI: [Interpretation] Yes, Witness.

14 THE WITNESS: Correct, Your Honours, that it goes beyond the

15 initial scope of my report, but I understand that there is a concern with

16 the honourable Judges that actually there was nothing wrong with the fact

17 that political parties mobilised or organised their own volunteers, as

18 this was in any way foreseen by All People's Defence doctrine, which, as

19 was pointed out in the Constitution and among other things, stated all

20 citizens who participate, armed or not, in an aggression will be

21 considered members of the armed forces.

22 But what I tried to highlight in my reply is that all these laws

23 and the doctrine existed or was established and was applied during the

24 time that there was only one ideology, the communist or Tito's

25 interpretation of communism or call it socialist ideology. And there were

Page 4151

1 indeed many organisations -- there was the organisation of collective

2 labour, students and so on and so forth, but they all shared one doctrine.

3 It was not a multiparty system.

4 The problem arises when multi or different political parties with

5 different ideologies and sometimes ideologies that are opposite to the

6 communist ideology feel that they have to play a role in the defence of

7 the country, because they see, for example, that, well, we have here -- we

8 can use nationalistic motives or ideology and try to use that ideology in

9 the context of the armed forces, i.e., to influence the use of the armed

10 forces. That is, in my understanding, not in line with or not coherent

11 with the doctrine of All People's Defence.

12 MR. SESELJ: [Interpretation]

13 Q. Mr. Theunens, who drew your attention to the fact that during the

14 examination-in-chief, you made an error when you said that Yugoslavia left

15 the Warsaw Pact in the 1950s?

16 A. Actually, Your Honours, I think the session stopped in the --

17 around 1315, and when I cycled home, I realised that I had made an error,

18 and I thought that -- I knew that Yugoslavia left or was removed from the

19 Cominform [Realtime transcript read in error "common form"] at the time of

20 Stalin because of a conflict between Tito and Stalin, and I wanted to be

21 sure about the issue of the Warsaw Pact. And then I realised that

22 actually Yugoslavia had never been a member of the Warsaw Pact, and that's

23 how it happened.

24 Q. Mr. Theunens, who was with you on the bicycle and helped you

25 realise that?

Page 4152

1 A. I don't know whether I have to answer that question, Your Honours.

2 Q. Mr. Theunens, you consulted someone about the contents of your

3 testimony, and whoever it was drew your attention to the error; isn't that

4 right?

5 JUDGE ANTONETTI: [Interpretation] Were you the person who checked

6 out or were you helped, assisted, by someone? Of course, not by your

7 bicycle, who cannot speak.

8 THE WITNESS: No, I did it by myself, Your Honours. And to be

9 really open, I looked at old course books I had from the military academy,

10 I checked in that because it was something I wanted to be certain about.

11 And in the history course in military academy, we, for example, we studied

12 the Warsaw Pact and the establishment of the various Blocs in Europe and

13 so on and so on, and this is how I finally then discovered that something

14 I had stated was not entirely correct.

15 MR. SESELJ: [Interpretation].

16 Q. Mr. Theunens, you've just stated that Yugoslavia left the

17 Comintern. When did Yugoslavia leave the Comintern? The Communist

18 International, that is.

19 A. I thought I mentioned the Cominform but, anyway, I think this

20 happened at the end of the 1950s. I don't have a precise date, but I know

21 it had to do with a conflict between Tito and Stalin.

22 Q. Mr. Theunens, how could Yugoslavia have left the Comintern in the

23 1950s when, by a decision of its competent organs, in 1943 the Comintern

24 was dissolved? So Yugoslavia remained in it for ten years after its

25 dissolution? How is that possible?

Page 4153

1 A. Your Honours, there may be an issue in the transcript, but I used

2 the term "Cominform" initially. "Cominform," not "common form."

3 "Common forum."

4 Q. What is the Cominform, Mr. Theunens?

5 A. I have no exact recollection, Your Honours, of the nature of that

6 organisation. I know that it included countries from Central and Eastern

7 Europe and that the Soviet -- or the former Soviet Union had a leading

8 role in it, but I cannot provide any additional information.

9 Q. Was the Cominform a kind of military alliance, Mr. Theunens?

10 A. No, it was not, Your Honours.

11 Q. What does it have to do with the Warsaw Pact, then?

12 A. It was an issue of the dates, Your Honour, and the relations

13 between the Socialist Federal Republic of Yugoslavia and various call it

14 supranational or international organisations of communist countries, which

15 there was Cominform, there was Warsaw Pact, and I had confused the two of

16 them.

17 Q. Are you trying to say that the Cominform was a supranational

18 organisation of communist countries; right?

19 A. No, Your Honours. What I'm trying to say is that it was an

20 organisation of countries with a regime that could be qualified as

21 communist or socialist, as they call it themselves, which were located

22 primarily in Central and Eastern Europe, and that the former Soviet Union,

23 led by Stalin, played a leading role in it. I'm sure that an expert in

24 Cominform will be able to tell you much more about it, but this is what I

25 can say about it.

Page 4154

1 Q. Mr. Theunens, was the Cominform, C-O-M-I-N-F-O-R-M, an

2 international organisation?

3 A. To my recollection, Your Honours, it included various countries in

4 Central and Eastern Europe which were led by communist or, as they call

5 themselves, socialist regimes. And as it includes different countries, it

6 could be called international.

7 Q. Mr. Theunens, what, in your view, is the definition of an

8 international organisation? What does an international organisation

9 encompass?

10 A. Maybe there's confusion, Your Honours, with "supranational" and

11 "international," but, anyway, "international" for me means that it

12 includes countries or members of different countries. There can be an

13 international football competition.

14 Q. Let's simplify matters. You're almost right. International

15 organisations are organisations of state, would you agree, such as the

16 United Nations, such as the European Community was before the Union was

17 formed, such as the NATO Pact, such as ACN, such as the Arab League, such

18 as the Organisation of African Unity; those are all organisations of

19 states, are they not?

20 A. Yes, they are.

21 Q. And the Cominform is an information bureau of communist and

22 workers' parties. It has nothing to do with states. It's an information

23 bureau of communist and workers' parties to which the French and Italian

24 communists also belonged, although they were not the ruling parties in

25 their countries; isn't that right?

Page 4155

1 The problem is, Mr. Theunens, that you know nothing. Let's move

2 on.

3 A. I don't know whether I have to answer the question, Your Honours,

4 but --

5 JUDGE ANTONETTI: [Interpretation] What you call "common forum" in

6 English, does it refer to the Communist International?

7 THE WITNESS: Your Honours, I was referring to the -- I can spell

8 it, the C-O-M-I-N-F-O-R-M. It's not "forum" but it's "form," which in my

9 understanding was an organisation where countries from Central and Eastern

10 Europe cooperated together with the Soviet Union. There may be other

11 members. As I stated, I'm not a specialist in the COMINFORM. But what I

12 remember is that at one point in time Tito decides to leave the League of

13 Communists, to leave the COMINFORM following a conflict with Stalin which

14 had been ongoing already for a long time. And the only reason I mentioned

15 the COMINFORM was that I confused the two organisations when I said that

16 it was that Yugoslavia left the Warsaw Pact in the end of the 1950s,

17 because it actually left the COMINFORM, so ...

18 Q. It's still not clear to you, Mr. Theunens, that the COMINFORM is

19 an international organisation of communist and workers' parties, because

20 Italy and France were never communist states, but their communist parties

21 were members of the Cominform; isn't that right?

22 A. Yes, Your Honours, that's right, and I should actually clarify

23 that it's the Yugoslav League of Communists that left the Cominform, which

24 seems to be difficult to spell, but ...

25 Q. But you did not know that when you were supposed to explain it,

Page 4156

1 because you kept on insisting that the Cominform is an organisation or an

2 association of countries, of states. When was Tito's Yugoslavia a member

3 of a military alliance, and of what alliance if it was, do you know?

4 A. To my recollection, Tito's Yugoslavia was never a member of a

5 military alliance.

6 Q. Mr. Theunens, I would immediately invalidate your diploma which

7 you got from the Belgian Military document, because from 1953 to 1956,

8 Tito's Yugoslavia was a member of the Balkan League with Greece and

9 Turkey, and it was treated as an extension of the NATO pact, and only when

10 Greece and Turkey joined the NATO pact directly did the Balkan League die

11 out. I think you are no officer, but maybe Belgium can tolerate this

12 because it has a long military tradition.

13 THE INTERPRETER: Could Mr. Seselj repeat his question, please.

14 JUDGE ANTONETTI: [Interpretation] Mr. Theunens, Mr. Seselj is

15 saying that between 1956 and 1966 --

16 THE ACCUSED: [Interpretation] 1953 and 1956.

17 JUDGE ANTONETTI: [Interpretation] Between 1953 and 1956, in other

18 words, for three years, apparently, Yugoslavia was a member of the Balkan

19 Alliance, together with Greece and Turkey, and it was only when Greece

20 entered NATO that Yugoslavia left this alliance. Did you know this or

21 not?

22 THE WITNESS: Apparently not now, Your Honours. Otherwise, I

23 would not -- I wouldn't have made such an oversight. But I may have known

24 in the past, but I didn't remember at this stage.

25 THE ACCUSED: [Interpretation] My next question was: In 1946 [as

Page 4157

1 interpreted], for how long did Belgium resist Hitler's soldatesque?

2 JUDGE ANTONETTI: [Interpretation] 1940, not 1946. There's a

3 mistake in the transcript.

4 THE ACCUSED: [Interpretation] 1940, I guess.

5 JUDGE ANTONETTI: [Interpretation] Relevance, I suppose.

6 Mr. Marcussen.

7 MR. MARCUSSEN: Yes. It's irrelevant.

8 THE ACCUSED: [Interpretation] I questioning the credibility,

9 Mr. President. I'm challenging the witness's credibility. I have the

10 right to challenge the expert's credibility in this way.

11 JUDGE ANTONETTI: [Interpretation] Mr. Theunens, the accused is

12 testing your knowledge by asking you questions related to history. How

13 long did Belgium resist in 1940?

14 THE WITNESS: Your Honours, I have no exact recollection. It was

15 not a matter of a month.

16 MR. SESELJ: [Interpretation]

17 Q. Was it hours and minutes, Mr. Theunens?

18 A. I've answered the question, Your Honours.

19 JUDGE ANTONETTI: [Interpretation] He's answered.

20 THE ACCUSED: [Interpretation] He doesn't know, then.

21 JUDGE LATTANZI: [Interpretation] He's not a historian, anyway.

22 MR. SESELJ: [Interpretation] But at the military academy, he must

23 have learned about the heroic traditions of the Belgian Army, Madam Judge.

24 In Serbian military academies we are constantly learning about the heroic

25 traditions of the Serbian Army. I suppose Belgium must have a heroic

Page 4158

1 tradition also, but, very well, I'll move on. I couldn't resist putting

2 this question to him, because I have to show you what an absolute

3 ignoramus this expert witness is.

4 Q. Mr. Theunens, are you aware that in communist Yugoslavia, there

5 were special volunteer units?

6 JUDGE ANTONETTI: [Interpretation] There's an objection, because

7 you said that the expert didn't know anything.

8 Mr. Marcussen, you have the floor.

9 MR. MARCUSSEN: That is my objection. The accused might very well

10 have this kind of opinion about the witness, but it's not proper language

11 before the Court.

12 THE ACCUSED: [Interpretation] I can speak about it either in

13 prison or in the courtroom. I have no further place to say this. But I

14 do have to say that this alleged expert is an ignoramus, but I'll put

15 another question.

16 Q. Mr. Theunens, do you know that in communist Yugoslavia, there were

17 special volunteer units?

18 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you may well say

19 that the expert is not a true expert, but there's no need to tell him that

20 he's ignorant. The two things are quite different.

21 THE ACCUSED: [Interpretation] Let me remind you, Mr. President, of

22 a historical precedent of the trial of Oscar Wilde. Whatever it was

23 possible to say in cross-examination then, I can say here now. But I am

24 much less severe than those who participated in that trial. I can't

25 recognise, myself, when I see how good-natured I am towards the false

Page 4159

1 witnesses and experts of the OTP.

2 I have two more questions before we conclude for today, because

3 that's one stage of my cross-examination which will then be rounded off.

4 Q. Mr. Theunens, are you aware that in communist Yugoslavia, there

5 was special volunteer detachments within the system of All People's

6 Defence?

7 A. Your Honours, I'm aware of the definition I took for volunteer

8 units from the 1981 military lexicon, which is discussed on English page

9 72 of part 1 of my report, where, indeed, mention is made of volunteer

10 units tracing back to history not only in Yugoslavia but also outside of

11 Yugoslavia, and making mention of the existence of volunteer units in

12 Yugoslavia, even though the focus seems to be on the Second World War. I

13 have not come across information indicating the existence of volunteer

14 units under the doctrine of All People's Defence.

15 Q. Mr. Theunens, if I say to you that as a pupil in the third form of

16 secondary school, I became a member of a volunteer unit of the Territorial

17 Defence of the City of Sarajevo and that I participated in an inspection

18 of the units of the Territorial Defence conducted by General

19 Franjo Heljevic [phoen] and the commander of the city staff, Colonel

20 Stefan Valter reported to him, and I stood in the front row and held a

21 semi-automatic rifle on my shoulder, would you believe me? And I was a

22 pupil in the third form of secondary school, of grammar school. Do you

23 believe me, that that's how it was?

24 A. Mr. Seselj, if -- or, Your Honours, if Mr. Seselj says so, then I

25 don't know -- I don't see a reason why I should not believe him. But what

Page 4160

1 I said, when I answered that I have not come across --

2 JUDGE ANTONETTI: [Interpretation] Witness, the question is not an

3 entirely innocent question as regards the volunteers of the Serbian

4 Radical Party, because if before the 1990, 1991, 1993 events, if before

5 that there was a volunteer system established in Yugoslavia, and he gave

6 you the example of the fact that when he was still a schoolboy, he was

7 part and parcel of a military unit, so it's quite possible that this was

8 natural in the former Yugoslavia, this existence of volunteer units who

9 participated together with the army to the implementation of this all

10 defence concept, but then why didn't you study this?

11 THE WITNESS: Your Honours, I don't think it's a matter of me not

12 studying something. It's more a matter of me looking at documents and

13 drawing conclusions from these documents.

14 As we discussed during my testimony, the concept of volunteers is

15 defined in the law. The legal references also give a minimal age for

16 volunteers. I mean, these legal references, I have included in my report,

17 and if I'm not wrong, the minimum age was 18 years old. So if school

18 children organised in one way or the other and even have to carry an

19 automatic weapon, based on my understanding of the system, that is not the

20 same as the legally-defined volunteers as they are -- as they are

21 described in, for example, the 1982 All People's Defence Law or the later

22 decrees, where a minimum age a maximum age, as well as other conditions

23 are explained.

24 I have not come across information indicating in legislation or

25 doctrine indicating that school children could join volunteer units and

Page 4161

1 what these volunteer units then would do in case of an armed conflict.

2 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, put your last

3 question, because it's already 1.15. We have to close. I think you had a

4 last question.

5 THE ACCUSED: [Interpretation] If I may put a sub-question in

6 connection with this one, and then I'll put my next question.

7 I'd like to draw Mr. Theunens' attention to the following: In

8 1972, I was almost 18. I became a member of a unit two or three months

9 before my 18th birthday. We had special uniforms. Berets were introduced

10 for the first time for volunteers.

11 Q. But my last question for today is the following: If I were to say

12 to you that as a student of the Faculty of Law, I was a member of

13 volunteer students teaching the detachment, which comprised about 100

14 members, and that I personally, according to the guidelines and the way

15 the Territorial Defence was organised, as a member of the faculty

16 committee of the league of students, I formed this detachment for which

17 the faculty bought uniforms from the Territorial Defence staff, would you

18 believe me if I gave you that information?

19 A. Your Honours, I have no reason not to believe the information. I

20 just want to reiterate that in the context of the preparation of my

21 report, the documents I have reviewed, especially those dealing with the

22 components of the SFRY armed forces, JNA and TO, whereby it is also stated

23 that any armed structure that is not incorporated in the JNA shall be part

24 of the TO, there is no specific mention of student units or other

25 volunteer units. But in the concept or in the doctrine of All People's

Page 4162

1 Defence, I have no reason to not to believe what Mr. Seselj is saying.

2 THE ACCUSED: [Interpretation] Let me just explain the essence of

3 this question, Mr. President.

4 I was the president of the League of Students of the Faculty of

5 Law. The Faculty Committee of the Faculty of Law, carrying out its role

6 as a political organisation within the system of All People's Defence,

7 formed students teaching volunteer detachment. It was called "Mosa

8 Pijade" after a well-known communist revolutionary from between the two

9 world wars. It was a political organisation of students which formed this

10 teaching detachment, and that was within the system of territorial

11 defence.

12 I assume that you are surprised by this fact which I am telling

13 you now. Isn't that right, Mr. Theunens? You had no idea about this?

14 A. Your Honours, as we discussed when talking about All People's

15 Defence, I'm not surprised by this, because I think one important aspect

16 is that here it's explicitly authorised by the authorities. When we go

17 back to the Article 118 of the 1990 Law on Defence of the Republic of

18 Serbia, it is clearly stated that only the state authorities are allowed

19 to plan, organise, equip, train armed forces. So if the authorities, in

20 the context of the implementation of the concept of All People's Defence,

21 believe that it is necessary to organise students into one form of

22 defence, is it civil defence, is it -- are these volunteers to be members

23 of the TO or whatever, that's all fine, but it's important to notice that

24 it is -- it is in line or it is the result of the decision of the

25 authorities and it is coherent with the ideology of All People's Defence.

Page 4163

1 JUDGE ANTONETTI: [Interpretation] We continue tomorrow, starting

2 at 9.00.

3 --- Whereupon the hearing adjourned at 1.20 p.m.,

4 to be reconvened on Wednesday, the 27th day of

5 February, 2008, at 9.00 a.m.