1 Thursday, 13 May 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 11.06 a.m.

5 JUDGE PARKER: Good morning. Ms. Somers.

6 MS. SOMERS: Good morning, Your Honours and counsel. I want to

7 express the gratitude of the Prosecution for the Chamber's indulgence on

8 allowing a couple of extra hours. There were some logistical issues, and

9 we are very grateful to all who have assisted.

10 JUDGE PARKER: It's something that we think might become the

11 pattern, Ms. Somers.

12 MS. SOMERS: Logistical?

13 JUDGE PARKER: No. Starting at 11.00, rather than 9.00 or...

14 MS. SOMERS: If we could hold that for a 65 ter conference point,

15 I'd be very grateful. Thank you. Actually, it was refreshing, but we

16 appreciate the assistance on all sides.

17 If the Chamber is ready, the Prosecution will announce the next

18 witness.

19 JUDGE PARKER: Yes. If you would. And while that witness is

20 being brought in, we'll deal with a matter for the Defence.

21 I understand you have a further expert, Mr. Rodic.

22 MR. RODIC: [Interpretation] Good morning, Your Honours. Joining

23 the Defence team today in the courtroom is Colonel -- General Radovan

24 Radinovic. He is a Defence expert for command and control, which is

25 precisely the area that General Zorc will be talking about today. The

1 Defence has familiarised General Radinovic with all the aspects of our

2 defence work, as we have done in the case of our previous expert

3 witnesses. Therefore, we would like to ask for your leave for him to be

4 present in the courtroom today.

5 JUDGE PARKER: And I ask, as I did with the last witness,

6 Mr. Rodic, whether you have informed the general of the importance of the

7 confidentiality aspects of being a witness in these proceedings.

8 MR. RODIC: [Interpretation] Yes, we have, indeed, Your Honour,

9 fully, and General Radinovic agrees with all of these obligations.

10 JUDGE PARKER: Thank you very much.

11 MR. RODIC: [Interpretation] Thank you, Your Honour.

12 JUDGE PARKER: The Chamber will certainly allow the presence of

13 the general during the evidence.

14 MR. RODIC: [Interpretation] Thank you.

15 MS. SOMERS: The Prosecution is calling its next witness, General

16 Milovan Zorc.

17 [The witness entered court]

18 JUDGE PARKER: Good morning. Would you please take the card

19 that's given to you now and make the affirmation that's printed i it on

20 it. If you would read the affirmation.

21 WITNESS: MILOVAN ZORC

22 [Witness answered through interpreter]

23 JUDGE PARKER: Good morning. Would you please take the card that

24 is given to you now and make the affirmation that is printed on it. If

25 you would read the affirmation.

1 THE WITNESS: [In English] I solemnly declare that I will speak

2 the truth, the whole truth, and nothing but the truth.

3 JUDGE PARKER: Thank you very much. If you could sit down now.

4 Thank you.

5 MS. SOMERS: Your Honours --

6 JUDGE PARKER: I think we're ready, Ms. Somers.

7 MS. SOMERS: Thank you. Before we commence, I want to clarify

8 that the witness will be addressing the Chamber in the Slovenian language,

9 and there is a translation booth that has a special -- it will be

10 translated into English but from Slovenian, so that the Chamber is aware.

11 I believe this is the first time we have had that language used in the

12 courtroom. Thank you.

13 JUDGE PARKER: I assume it is being also translated into the other

14 languages of the Tribunal.

15 MS. SOMERS: It is, of course.

16 JUDGE PARKER: Thank you.

17 MS. SOMERS: Excuse me.

18 Examined by Ms. Somers:

19 Q. Good morning, General. Would you be good enough to state your

20 full name, date of birth, and place of birth.

21 A. My name is Milovan Zorc. I was born on the 20th of August, 1935,

22 in Zagreb.

23 Q. And would you state what your nationality, your ethnicity is,

24 please.

25 A. My nationality is Slovene.

1 Q. Are you currently employed?

2 A. No. Currently I'm not employed. I am retired.

3 Q. When did you retire, and from what position did you retire?

4 A. I retired on the 1st of January, 2003, as an advisor for defence

5 issues to the president of the Republic of Slovenia.

6 Q. Would you please indicate the name of the president of the

7 Republic of Slovenia for whom you worked up to the time of your

8 retirement.

9 A. Yes. Throughout that time, the president of the Republic of

10 Slovenia was Mr. Milan Kucan.

11 Q. Prior to your undertaking your position with President Kucan, what

12 did you do professionally? Were you a professional member of the Armed

13 Forces?

14 A. Yes. I was a professional officer of the Armed Forces of

15 Yugoslavia.

16 Q. When did you begin your career in the Armed Forces? If you could

17 take us through a history, of course briefly, as there is much in your

18 report, but I want to make sure the points that are important are

19 emphasised.

20 A. I began my military career after the -- finishing, completing, the

21 military academy in 1958. After that, I was commander of a squad, of a

22 platoon. I was also assistant to the commander of a regiment and of a

23 division, and the head of the republican staff of the TO of Slovenia, as

24 well as also a deputy of the TO of the republic, and I was also a

25 commander of the 4th army corps in Sarajevo up until 1991.

1 Q. General, where is the military academy that you attended? Where

2 was it located?

3 A. The military academy was in Belgrade. Also, all the other

4 military schools that I attended and completed were in Belgrade.

5 Q. In 1979 to 1981, did you have a position at the University of

6 Ljubljana?

7 A. Yes. From 1979 until 1981, I was the head of the chair of defence

8 studies at the University of Ljubljana.

9 Q. Prior to your becoming the commanding officer -- the commander of

10 the 4th army corps in Sarajevo, what was the rank that you held and what

11 were your duties? Where were you immediately prior to becoming the

12 commander of the 4th Corps?

13 A. I was the head of the republican staff of TO. I was the rank of

14 colonel. And I also, after that, held the rank of a commander of a

15 division in Sarajevo. And in 1986, I became major general.

16 Q. And what division was it that you held the rank of [Microphone not

17 activated] in Sarajevo? What division?

18 A. It was the 4th ground division, infantry division, in Sarajevo.

19 Q. Thank you. When did you leave the forces, the Armed Forces of

20 Yugoslavia?

21 A. I left the active service in the Defence Forces of Yugoslavia on

22 the 30th of June, 1991. It was at my own wish.

23 Q. How did you come about making your departure from the armed

24 services? Was a request of any kind put in? If so, when?

25 A. Yes. I left the active service at my own request, which the

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 request was submitted in April 1991. And the reasons for those were the

2 following: Up until 1991, for five years, I was living separately from my

3 family, which was still living in Ljubljana. Secondly, in the active

4 service of the Armed Forces, I see no prospects for me any more, and I

5 also met the requirements for early retirement.

6 Q. Was there any resistance to your putting in your request for

7 retirement or was it a smooth process?

8 A. No. No. I had no problems with that.

9 Q. And when did you actually leave the armed services? Were you to

10 have left in July or was there a period of remaining at the disposition

11 of?

12 A. In fact, I left the military service on the 17th of May, 1991,

13 because at my request, on the 6th of May, the Presidency of Yugoslavia

14 took a decision on my request, and they issued an order that my service be

15 terminated. And on the 17th of May, I transferred the functions to the

16 corps commander and stopped being a military. Up until the 30th of June,

17 I was in the status of being at the disposition.

18 Q. Did you come to a point where you actually left the military prior

19 to the end of 1991?

20 A. Yes. All this what occurred was prior to the conflicts in 1991,

21 which began on the 27th of May -- correction, 27th of June, 1991.

22 Q. And when did you go to work, or did you enter the services for

23 president --

24 MR. PETROVIC: [Interpretation] Your Honour, if I may just be

25 permitted. It's something to do with the interpretation. The witness

1 said, as far as I heard, on the 27th of June, he had the conflict in

2 Slovenia in mind, which is not accurately reflected in the transcript.

3 MS. SOMERS: Shall I repeat the question for you, General?

4 A. Yes, please.

5 Q. When did you go to work for or enter the services of President

6 Kucan?

7 A. In fact, I was invited to attend consultations the next day, on

8 the 28th of June, and from then on, in form only, I was advising the

9 Presidency concerning decisions they have to take on the military area.

10 All this took place up until 19 October 1991, when I was also officially

11 appointed as an advisor to -- for defence matters to the Presidency of

12 Slovenia.

13 Q. From June 1991 on, did you ever perform any further functions for

14 the Armed Forces of Yugoslavia?

15 A. No. After leaving the active military service, I performed no

16 work whatsoever for any armed forces.

17 Q. General, turning now to some points in your report. Can you

18 please identify or itemise the levels of command and control. What are

19 the levels -- I think you made reference to three levels of command and

20 control. What are they, please?

21 A. The command and control system in the Armed Forces of the former

22 Yugoslavia was on the strategic operational, and tactical level. Each of

23 these levels had one or more levels of command within that level.

24 Q. Can you indicate what the operational group is in terms of a

25 formation in the Armed Forces of Yugoslavia, former Yugoslavia?

1 A. An operational group is a provisional, a temporary formation of

2 the armed forces which, in its framework and the meaning of its mission,

3 is of an operational nature. Therefore, the command of such an

4 operational group is on an operational level, as -- similarly as in the

5 regular army formations, is a ground, land corps in the military naval

6 district.

7 Q. Is there a commander of an operational group? Are there all the

8 indicia of command and control in an operational group, starting with a

9 commander?

10 A. Yes, of course. Any unit or formation must have a commander and

11 on a higher level also a command. Therefore, an operational group had to

12 have a command which is headed by the commander of the operational group.

13 Q. Do principles of command and control apply to an operational

14 group?

15 A. Yes, of course. All principles of command and control are uniform

16 for all the armed forces, which includes the operational group.

17 Q. Whether or not an operational group may in size reflect a

18 corps-level formation or an army-level formation, does that change any

19 aspect of command and control that applies to it? Does its size in that

20 sense make any difference? Does command and control still apply?

21 A. The size of the formation or a unit of -- even of a temporary one,

22 as is an operational group, does not influence the principles, the content

23 of a command and control for that given unit.

24 Q. Is the commander of the operational group the only commander who

25 issues orders related to -- who issues orders related to the operations --

1 to the units of that operational group, operations related to the units.

2 I hope I haven't confused that. But I'll repeat it if it helps. Is the

3 commander of the operational group the only commander who issues orders

4 related to the operations of the units of the operational group?

5 A. Yes. In the Armed Forces of Yugoslavia, there was the command

6 principle. Any unit or formation had only one commanding officer, and

7 also the operational group had only one commanding officer. So yes, the

8 singleness of command.

9 Q. The expectation, is there the same expectation that when an -- I'm

10 sorry. What is the expectation when an order is issued? What is the

11 expectation of the commander who issues the order?

12 A. When the officer in authority issues an order to a subordinate,

13 it's not only his personal expectation, but it's also the legal

14 expectation that that order is fully implemented, executed, without any

15 discussion.

16 Q. The implementation of orders, what is the responsibility of the

17 commanding officer to supervise the implementation of orders?

18 A. The responsibility of the commanding officer who issues a combat

19 or other order to the subordinate unit is responsible fully for its

20 implementation, and he must ensure that this order is then fully

21 implemented.

22 Q. If the order is not fully implemented, what is the responsibility

23 of the commander?

24 A. The responsibility for an incomplete implementation of the order

25 differs. If the subordinate had all the possibilities to implement the

1 order, then the responsibility of the subordinate and the superior is

2 total. But if the circumstances conflict, or limited possibilities of

3 implementation, then this can be accepted as a part of the situation, and

4 additional measures are then taken for the full implementation of the

5 order.

6 Q. Must the commander, however, be made aware and accept -- does it

7 go back to the commander, who must accept that?

8 A. Yes. The commander must be informed, not only when but also how

9 and with what effects the order has been implemented. And if it partly it

10 had not been implemented [as interpreted], the reasons must be given for

11 that partial implementation.

12 Q. Reporting. What is the system by which commanders become informed

13 of the activities of their subordinate units?

14 A. Commanders at all levels are regularly informed about the actions

15 of the subordinate units, about the situation in the units, and about the

16 foreseen tasks for the units. This is ensured by regular and

17 extraordinary reporting in battle. It can be battle reporting. In

18 peacetime, it is daily reporting. Data -- daily regular reporting. And

19 it refers to all important events taking place, and if there are some

20 extraordinary events, then also extraordinary reporting is directed

21 towards the commanding officer.

22 Q. Do commanders have to keep themselves informed? Is there a

23 continuous reporting system, particularly in combat?

24 A. Yes. As I've said, commanders must be, and they are responsible

25 for setting up such a reporting system so that they can be informed fully

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 about the situation in the subordinate units. This is done through

2 regular reporting, interim reporting, from the front, or in the area where

3 something important is happening. They can also send their officers from

4 their staff to the subordinate unit where these subordinates then follow

5 and report to the commander, and also through information they receive

6 from other bodies, civilian bodies or some other neighbouring units.

7 Q. Can you indicate how many levels below the reporting the commander

8 expects to be kept directly informed of? Below and above.

9 A. The number of levels of subordinate units from which the -- he

10 receives information and reports and precise data concerning the situation

11 is two levels below. That's formally speaking. The commander receives

12 information reports from the first level below, and it informs about what

13 its subordinate levels and units are doing. In this way, the commander is

14 informed about the two lower levels he is commanding. This is as far as

15 formal reporting is concerned.

16 However, his responsibility and interest to know what the

17 situation is must be comprehensive and he must reach out to the very last

18 soldier. This refers information concerning his units. In order to be

19 able to judge the situation in his unit, each commanding officer must be

20 informed about the broader, the general situation, namely, concerning two

21 levels above.

22 Thus, let us take, for example, the corps commander must be in

23 detail informed what the other units, superior units in the district,

24 military district, what the neighbouring units are doing. The first

25 level, about the first level, he must be informed in detail.

1 As the second higher level, the corps, he must be informed about

2 the general situation in the armed forces and the objectives.

3 Q. This is applicable also to operational group command and control

4 aspect?

5 A. Yes. This refers to any command whatsoever, also of the

6 provisional groups, as is the case of the operational group.

7 Q. The obligation to be informed, would that also include the

8 obligation to affirmatively seek out the information necessary to know

9 what is taking place in zone of responsibility where the unit, the

10 subordinate units, are found? In other words, is it a passive or is it an

11 active function?

12 A. Yes, you're right. It is the interest and the obligation of the

13 commanding officer to know what the position and situation of his

14 subordinate units is, in his zone of responsibility, is so important that

15 he must not allow to passively wait to be the recipient of information.

16 There is a compulsory system of reporting. He has intelligence

17 bodies that -- he has other bodies in his command. And he cooperates with

18 neighbouring units. In that way, he collates data, he cooperates with the

19 civilian bodies in his zone, and of course there is also intelligence

20 operations against the other side in case of hostilities. He must also

21 activate them in order to be able to get as big as quantity as possible of

22 relevant data.

23 Q. In combat, can the commanding officer, particularly, let's say, of

24 a formation such as the operational group, wait to learn from the enemy

25 side, the opposite side, about what that commanding officer's units have

1 done perhaps in the way of use of weaponry or implementation of attacks,

2 to be considered fully informed under command responsibility? Is that the

3 means by which it is done?

4 A. As I have already noted in the course of the previous question, in

5 no case can the commanding officer, if an example is an operative group

6 commanding officer, cannot be left waiting to be informed or to be

7 informed by somebody else, not by his subordinate unit. When it comes to

8 the activities of its own subordinate units, he cannot just simply wait

9 for the information to come to him. He must be informed by his own units.

10 Q. In addition to the obligatory informing by his own units, can he,

11 the commander, act or at least react to information concerning his troops'

12 activities that comes from perhaps the other side or third parties, as an

13 additional means of being informed?

14 A. Yes. The underlying problem in passing decisions is the quality

15 of information and the reliability of information, and not just the source

16 of information. The source could be within his own units, could be from

17 the neighbouring units. Neighbouring units could be the source of

18 information. It could be the public. Mass media could be the source of

19 information or any other data coming from the population, et cetera. It

20 is essential that the commanding officer assesses that the data is

21 credible and this is enough grounds for taking action if action is needed.

22 Q. Must the commander -- or is there an obligation to do that in a

23 timely, responsible way?

24 A. You mean in terms of his reaction?

25 Q. Yes. Reaction, verification, assessment. Yes.

1 A. Any decision should be taken in a time when it can still be

2 efficient. Therefore, as a rule, as quickly as possible, or immediately,

3 so as to be able also to take remedial reaction.

4 MS. SOMERS: Everyone has been provided with a binder of documents

5 that were part of the footnotes of the report, and there would be some

6 additional documents perhaps outside of that binder. The binder also may

7 have -- may contain documents which had previously been exhibited, and we

8 will inform the Chamber if referring to those documents what the previous

9 exhibit number is.

10 [Prosecution counsel confer]

11 MS. SOMERS: If I could ask to turn to the tab in the binder which

12 contains tab 19, please. There are, I'm informed, Your Honours, some

13 seven tabs which contain documents that are previously exhibited. I

14 can -- we can discuss this, but it might be preferable to resubmit the

15 entire binder, because it is footnotes, or I can do it individually so

16 that there's no confusion whatsoever about the -- any exhibit numbers.

17 Q. General --

18 JUDGE PARKER: We seem to be in the pattern of tendering

19 individual, having started the other way, there have been found to be

20 inconveniences in that, I gather.

21 MS. SOMERS: I am fine with either way. I want it so that the

22 Chamber has the easiest way of accessing the -- I know some documents are

23 with one number, then tab such-and-such. Mr. Hvalkov, Admiral Jokic's was

24 a different -- I'm fine with going individually and just making sure that

25 everything that was footnoted is given a number.

1 JUDGE PARKER: Well, we have tended to be guided by counsel's

2 judgement as to which is to be the most convenient. Counsel's judgement

3 is not necessarily always been correct, but it's hard for us to know at

4 the beginning of a witness which is likely to prove in the end the most

5 practical. What is essential, whichever system is followed, is that if a

6 document is actually already an exhibit, that the record clearly reveal

7 that.

8 MS. SOMERS: My preference is to individually do this. I think

9 it's better practice for now.

10 JUDGE PARKER: I think generally that has tended to be your

11 practice. It's not necessarily been universal among the Prosecution team.

12 MS. SOMERS:

13 Q. General, I'm going to ask -- you have the versions in the English

14 language as well as in the Serbo-Croatian language, and I'm going to ask

15 you if you can indicate what that particular document is that is before

16 you.

17 A. Well, if I have the same document as you, it concerns the

18 instructions of the federal secretary of defence concerning the use of the

19 rules of the war law, and these are instructions that were adopted by

20 virtue of a regulation of the Presidency of Yugoslavia as the

21 commander-in-chief of the Yugoslav Armed Forces.

22 MS. SOMERS: The English translation reads federal -- Federal

23 Secretariat for National Defence. Regulations on the application of

24 international laws of war in the Armed Forces of the SFRY.

25 Q. I would ask you: Have you -- are you familiar with this

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 particular document and these rules or regulations that are contained

2 therein?

3 A. Yes.

4 Q. Can I ask you, please, to look at Article 20: "20. Personal

5 responsibility for violations of the laws of war. Every individual - a

6 member of the military or a civilian - shall be personally accountable for

7 violations of the laws of war if he or she commits a violation himself or

8 herself or orders one could be committed. Ignorance of the provisions of

9 the laws of war do not exonerate the transgressors from responsibility."

10 Is this a principle that has not only in this document been part

11 of the rules, regulations, the doctrine of the Armed Forces of Yugoslavia,

12 but is it also in other areas of doctrine? Is it a fundamental principle

13 that is found throughout various documents upon which commanders rely?

14 A. Yes. We can indeed say that personal responsibility is part and

15 parcel of relations within the Yugoslav Armed Forces, including also

16 responsibility for the respect of orders, as well as compulsory orders

17 such as this one and similar orders and instructions.

18 Q. Thank you, General. Article 21, please. "Responsibility for the

19 actions of subordinates. An officer shall be personally liable for

20 violations of the laws of war if he knew or could have known that units

21 subordinate to him or other units or individuals were planning the

22 commission of such violations, and, at a time when it was still possible

23 to prevent their commission, failed to take measures to prevent such

24 violations. That officer shall also be held personally liable who, aware

25 that violations of the laws of war have been committed, fails to institute

1 disciplinary or criminal proceedings against the offender, or, if the

2 instituting of proceedings does not fall within his jurisdiction, fails to

3 report the violation to his superior officer."

4 Reading further: "An officer shall be answerable as an accomplice

5 or instigator if by failure to take action against his subordinates who

6 violate the laws of war, he contributes to the repeated commission of such

7 acts by units or individuals subordinated to him."

8 This provision, can you indicate practically, in a practical

9 manner, what this requires in combat for a commanding officer to do?

10 A. While this particular provision, under the scope of this rule, has

11 the intention, obviously, that the provisions in question should indeed be

12 abided by in everyday practice, as well as the combat activities of the

13 Yugoslav Armed Forces. And the people or institutions that are to

14 guarantee this are institutions of command and control, the chain of

15 command, from the very superior or commander-in-chief to the lowest level

16 of commander. And it is stipulated thereby that all commanding officer

17 should indeed take on board and adopt individual measures and do their

18 utmost and the necessary so that the provisions of such an order be

19 implemented in practice. Should anyone fail to do so, they do not in fact

20 abide by the duties of command and control in accordance with the law and

21 this order or these provisions, and that is a provision guaranteeing this.

22 And then the last paragraph actually makes this responsibility of

23 all officers, senior officers, even greater in case of failure on their

24 part not to adopt measures and makes them actually co-responsible for any

25 punishable or criminal acts carried out.

1 Q. We will come [Microphone not activated] in a short time to a

2 discussion about the --

3 THE INTERPRETER: Microphone for counsel, please.

4 MS. SOMERS: I'm terribly sorry.

5 Q. We will come in due course to a discussion about the nature of

6 measures that are at the disposal of a commander. But a question to you,

7 General, is: In addition to whatever may be provided by regulation or

8 law, do there also exist measures for dealing with situations such as the

9 ones we've just discussed, that arise purely from the authority of a

10 commanding officer? Perhaps it might euphemistically be called de facto,

11 but that arise from the authority of a commanding officer.

12 A. Well, if what you have in mind is -- are the provisions of --

13 under Article 21, I must say that it is especially the second paragraph

14 that deals with criminal responsibility of officers, senior officers, in

15 the event where they violate or in fact are a violation of the rules of

16 the law. And any commanding officers in this case are responsible for

17 order, discipline, combat readiness, as well as the adequate activities,

18 appropriate behaviour on the part of their forces. And it arises from the

19 very function of commanding officer whereby they should see to it that the

20 orders are indeed carried out in accordance with the law and regulations.

21 Regulations say that it is indeed forbidden to commit a criminal act. So

22 therefore, that arises from his very position.

23 Q. Turning to Article --

24 THE INTERPRETER: Microphone, please.

25 MS. SOMERS: I'm sorry.

1 Q. Article 33 is the next provision I'd ask you to look at. The

2 general heading of that section is "Criminal responsibility for war crimes

3 and other serious violations of the laws of war."

4 Looking at Article 33, is a non-exhaustive list. It is a list of

5 war crimes and other serious violations, to include -- and then there are

6 various things that are enumerated. If you look under section 5, which is

7 on -- section 5, not Article 5, section 5 of Article 33, there is perhaps

8 about halfway down, both opening fire at undefended places and

9 non-military targets, deliberate bombardment of the civilian population.

10 And lower down, close to the bottom, in the English translation,

11 destruction of monuments of culture and of historic monuments and

12 buildings and institutions with scientific, artistic, education or

13 humanitarian goals.

14 How are these categorised, General. What is the degree of

15 seriousness of these violations that I have just addressed?

16 A. The acts perpetrated here in this guideline, this is operational

17 guideline by the operational commander, includes all these violations of

18 international law, so that commanding officers would not carry with them

19 international treatise. And the significance of all this is that in all

20 armed forces, including commanding officers, are informed in advance as to

21 what is prohibited and what constitutes crime in Yugoslavia. All these

22 activities mentioned here are also contained in the criminal law of

23 Yugoslavia. The significance of this is very high, because it is a

24 criminal act if perpetrated.

25 Q. And whether -- are these criminal acts, whether or not there is a

1 formal declaration of war, a state of imminent threat of war, or any other

2 state? Are they criminal acts at all times?

3 A. To my mind, it applies to any armed conflict, whether the state of

4 war is declared or not.

5 Q. We will turn shortly to what the responsibility as to dealing with

6 criminal behaviour is, what the commander's responsibility is.

7 But I would ask also to take a look at Article 34, please.

8 "Criminal offences against humanity and international law." And then it

9 cites that: "In conformity with its international obligations, the SFRY

10 has prescribed in the Criminal Code of the SFRY," chapter 11, criminal

11 offences against humanity and international law, "that violations of the

12 laws of war referred to in item 33 of these instructions constitute

13 criminal offences and are punishable."

14 And then they go on again to cite particular ones and the -- about

15 the fourth one up cites: "Destruction of cultural and historic

16 monuments." And war -- and further up, second from the top of the list:

17 "War crime against the civilian populations."

18 The -- can you just briefly at this point explain the

19 interrelationship between the Criminal Code and then crimes that are -- of

20 the SFRY and crimes that are enumerated in the laws of armed conflict,

21 such as the one we are looking at now? Because they are referred to in

22 Article 34. If you could maybe just help clarify or explain a little bit

23 about the interrelationship.

24 A. Crimes against humanity in international law are contained here

25 for information, so that military persons reading this guideline are aware

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 what crimes in Yugoslavia are stipulated as criminal acts. All these

2 criminal acts are contained in the Criminal Code of Yugoslavia, thus

3 becoming criminal acts in Yugoslavia. They have been introduced into the

4 internal Criminal Code of Yugoslavia. And in view of the fact that these

5 are criminal acts, if perpetrators are military perpetrators or civilian

6 perpetrators, it is the military justice dealing with it, or military

7 courts and military prosecutors. They deal with all criminal acts of

8 military persons perpetrated against international law.

9 Q. Would you please take a look at Article --

10 THE INTERPRETER: Microphone, please.

11 MS. SOMERS: Excuse me.

12 Q. Would you please take a look at Article 36: "Establishment of

13 facts and provisions of violations of the laws of war. A Yugoslav officer

14 who learns of violations of the laws of war shall order that the

15 circumstances and facts surrounding the violation be investigated and the

16 necessary evidence collected."

17 The language there is "shall." What, then, is your view of the

18 thoroughness, the energy with which a commanding officer, under

19 circumstances that would be indicated in this article, act in order to

20 fulfil the requirements of Article 36? Can you comment on how a

21 commanding officer should conduct himself in order to fulfil this

22 obligation of law?

23 A. Article 36 obviously stipulates yet again ways and means and who

24 is supposed to carry out this particular guideline within the armed

25 forces. And therefore, in command and control system, commanding officers

1 shall use all the energy of their command so as to fulfil the requirements

2 so that in case crimes occur, the perpetrators who are their subordinates

3 will be court-martialled.

4 Q. Article 38, please: "Conducting criminal proceedings. The

5 competent Yugoslav authorities shall conduct criminal proceedings against

6 perpetrators of serious violations of the laws of war according to the

7 provisions of the Law on Criminal Proceedings, the Law on the Military

8 Prosecutor's Office, the Law on Military Courts, and the provisions of the

9 regulations on the organisation and jurisdiction of military courts and

10 proceedings before military courts during an imminent threat of war and a

11 state of war."

12 Then the provision concerning prisoners of war is not something

13 I'm going to highlight at this point.

14 As this -- because this provision exists as part of the regulation

15 or law which governs commanders, must there be provision for these

16 institutions to exist at all times or to be made -- if -- to be available?

17 Must these institutions, such as the courts, military prosecutor's

18 offices, must they be at the disposal of commanders in order to carry out

19 their command responsibility?

20 A. No. It seems to me that military courts and military prosecutor's

21 offices must not be at disposal to commanding officers for fulfilling of

22 their obligations concerning this particular provisions or rules and

23 regulations. This particular --

24 Q. I think perhaps you misunderstood my question. Let me rephrase

25 it. The obligations imposed by law on commanders require that certain

1 matters be undertaken by them, by them, and perhaps through a different

2 part of the process, military prosecutor's offices, courts - that are not

3 part of the commander's jurisdiction - have to be used. Does the system,

4 does the system for an efficient military require the existence and

5 availability of these institutions in order for the provisions of this

6 article to work? Is my question clearer to you? If not, I'll give you a

7 specific example.

8 A. Before you give me a specific example, it seems to me that I have

9 understood the question even before. For my introduction, I noted that

10 military justice, by and large, is independent. It is not part and parcel

11 of commanding of military units. The very fact that military commanding

12 officers on all levels must inform military prosecutor's office in case of

13 perpetration of a crime against international humanitarian law, or any

14 crime, for that matter, that such a fact of crime does exist, to my mind,

15 if there is or there isn't -- if the military justice exists or doesn't

16 exist, it is not the matter of military commanders. It is the matter of

17 the state, as such.

18 Therefore, it seems to me that military commanders can always

19 provide for the fact on ostensible perpetration of a crime is forwarded to

20 military prosecutor's office at any level available. So what at a later

21 stage the justice does, it no longer falls within the competencies or the

22 mandate of military commanders.

23 Q. If, for example, a military court or other institution in the

24 process described here is not available in a location close to where the

25 commander and his units are situated, does that excuse the commander from

1 carrying out his obligations with respect to the investigation and what

2 we've just discussed? Perhaps part two of that question is: Would the

3 existence of courts elsewhere compensate for that?

4 A. Yes, you're right. The availability of military justice body and

5 military prosecutor's office, in the first place, in the vicinity or in

6 the zone of individual commander and their unit is not essential. If

7 there are some reasons the availability of military prosecutor's office or

8 unit of military prosecutor's office is not actually available on the

9 level of a division corps, an individual military zone, then it is

10 available at a higher level, and the commander may or shall or must, when

11 it comes to the information of a perpetrated crime, ostensibly perpetrated

12 crime, the commander must inform his superior as far as the secretariat of

13 military defence [as interpreted], and as regards the internal

14 organisational structure of military prosecution, they are the ones who

15 have to pinpoint which prosecution is going to deal with a particular

16 matter.

17 MR. PETROVIC: [Interpretation] There's an interpretation matter,

18 by your leave. The witness said, "Up to the level of the federal

19 secretary for National Defence." I'm talking about page 24, line 6.

20 JUDGE PARKER: Thank you, Mr. Petrovic.

21 THE INTERPRETER: May the witness also kindly be asked to slow

22 down a little for the benefit of the interpreters, please.

23 MS. SOMERS:

24 Q. General, we've been requested to speak a bit more slowly so the

25 interpreters can pick up accurately everything that we're saying.

1 At this time we'll move away from this document. I would ask that

2 it be moved into evidence, please.

3 JUDGE PARKER: The regulations, tab 19, will be received.

4 THE REGISTRAR: This exhibit is P189.

5 MS. SOMERS:

6 Q. General, in your report, you have, in your various footnotes, made

7 reference to manuals or bodies of law or regulation, and I want to simply

8 read out the names and the titles, indicate what footnote is the basis,

9 and also the tab, and then ask individually to just have these documents

10 moved in.

11 In tab 2, which is the manual for the works of commands and staff,

12 referred to in footnote 3, can you confirm that is one of the sources in

13 your footnote?

14 General, I'm just going to ask you these questions. In

15 footnote 3, if you'll just confirm that that is one of the sources. Yes?

16 A. Right. This is one of the sources that I've looked through.

17 Q. Okay. To the extent I can get these in right now, I'll get as

18 many footnotes as I can.

19 The second -- the third tab, extract -- is an extract from the

20 strategy of the All People's Defence; it's tab 3. In reference to

21 footnote 4, reference to footnote 4. Can you confirm that that was also

22 used in your report?

23 A. Yes, I do confirm that.

24 MS. SOMERS: If I can for a moment ask that these two documents be

25 admitted with separate admission numbers. We'll try to get that

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 accomplished quickly.

2 JUDGE PARKER: The document at tab 2, the manual for commands and

3 staff, will be received.

4 THE REGISTRAR: That is marked as P190.

5 JUDGE PARKER: The document at tab 3 will be received.

6 THE REGISTRAR: That is P191.

7 MS. SOMERS:

8 Q. Looking at tab 4, which is referenced in footnote 16, there are

9 various extracts from the Official Gazette of -- which contain the Law on

10 Service in the Armed Forces. If you could confirm in your footnote 16,

11 General, that these in fact sources -- if you could look at footnote 16,

12 please.

13 A. Yes. Yes, of course.

14 MS. SOMERS: If I may ask, please, to move this into evidence.

15 JUDGE PARKER: That will be received.

16 THE REGISTRAR: That is P192.

17 MS. SOMERS:

18 Q. Tab 5, and I will not source it at this moment to a footnote, but

19 I will ask you, General, without looking at a footnote, if you can just

20 recall that strategy of armed conflict, section command and control of the

21 Armed Forces, would that also refer to or relied upon by you, the strategy

22 of armed conflict?

23 A. Right. Strategy of armed combat, armed conflict.

24 Q. That is also a source that you referred to? You can check

25 footnote 8. Perhaps that will -- footnote, that will give you some ...

1 Are you able to find it, General? Are you confirming, footnote 8?

2 A. Yes.

3 Q. Okay.

4 A. This I've confirmed. It's the strategy of armed --

5 Q. Sorry. I may have missed it. Thank you.

6 A. It's footnote number 8.

7 MS. SOMERS: I'd ask for an exhibit number, please, moved into

8 evidence.

9 JUDGE PARKER: The document at tab 5 will be received.

10 THE REGISTRAR: This is P193.

11 MS. SOMERS:

12 Q. Tab 6 refers to various articles in the Law on All People's

13 Defence, referenced footnotes 9, 10, 11, 15. Are you able to find it,

14 General Zorc?

15 A. No. No, not yet. I did find it -- I did find it, but item 6

16 speaks of the Law on the Service in the Armed Forces, while the 9 and 10

17 speaks the law on general people's defence [as interpreted], if you're

18 speaking of my footnote.

19 Q. I'm asking about footnotes 9, 10, that is the Law on All People's

20 Defence.

21 A. Yes. Yes. That is the Law on All People's Defence, which I

22 availed myself of while writing this report.

23 Q. From tab 6, I would ask that that be moved into evidence, please.

24 JUDGE PARKER: It will be received.

25 THE REGISTRAR: This is Exhibit P194.

1 MS. SOMERS: I will -- in the interests of trying to get the

2 footnotes a little bit better annotated, I will move on. And would the

3 Chamber advise when the first break will take place.

4 JUDGE PARKER: In the order of 12.30.

5 MS. SOMERS: Thank you very much.

6 Q. General Zorc, there is a use of the term "discipline" which may

7 have a specific meaning, or let's say discipline or disciplinary. I want

8 to make sure that when we use certain terms, we understand each other.

9 The way of dealing with various offences in the armed forces, does it

10 depend on whether an offence is considered disciplinary or criminal? Does

11 the categorisation of an offence as disciplinary or criminal have a

12 bearing on how it is -- how its treatment, how it's processed in the

13 military system of the forces of Yugoslavia?

14 A. The term "discipline" refers to military discipline. Military

15 discipline, disciplinary offences, mistakes, measures, require -- refer to

16 the violations of military relations and order in the military force,

17 Armed Forces of Yugoslavia. And these questions do not imply criminal

18 proceedings or the Yugoslav terminology in Yugoslavia.

19 Q. What does cover criminal proceedings in Yugoslav terminology? How

20 is the distinction made between what you have just described as

21 disciplinary offences and criminal?

22 A. Well, prosecution of perpetrators of crimes is a part of the state

23 order, and it's not a part of the military system. It's the prosecution

24 of criminal acts. And which are described and foreseen in the Criminal

25 Code of Yugoslavia and which are -- a special procedure is foreseen for

1 the prosecution of these criminal acts in the courts, be it military or

2 civilian, in the former Yugoslavia.

3 Q. And when these criminal acts are found to have been committed by

4 persons in the armed services, is there a difference in the way they are

5 dealt with by the commanding officers? In other words -- perhaps you

6 could give us an example of a disciplinary offence, as you just referred

7 to, and then I'll ask you in a moment to give us an example of a criminal

8 offence, and how they might be treated by commanding personnel, commanding

9 officers.

10 A. Violations of military discipline are foreseen in the Law on

11 Military Service, and there it specifies violations of military

12 discipline, military relations. And if they are less important, less

13 significant, they are disciplinary mistakes. If they're more serious,

14 they are disciplinary offences. And how they are treated: They -- we

15 have process rules which are specified in that law, and they apply for

16 internal military relations.

17 On the other hand, criminal offences, which are then prosecuted by

18 military courts, are prosecuted in line with the code, Criminal Code, and

19 the law of procedure. It's possible that a single act may be a criminal

20 act and a violation of military discipline. In that case, the violation

21 is treated as a criminal act by the military court. But in exceptional

22 cases, disciplinary measures may also be taken.

23 So in certain cases, if it's a criminal act, it can also involve

24 the violation of discipline, and vice versa.

25 Q. We'll be breaking in a few minutes for -- we'll be pausing in a

1 few minutes, but I would like to ask you to begin to think about

2 explaining the role of commanding officers with respect to the handling of

3 incidents or instances where criminal behaviour is suspected as opposed to

4 how a commanding officer would handle the instance where a disciplinary

5 violation perhaps, as you described, of lesser importance is handled. If

6 you could take us through - if you want to start, and we'll pause

7 shortly - an example, going from the beginning sort of to the end, of how

8 a disciplinary violation might be treated. Perhaps from your own

9 experience you can give an example, and how it is inquired into or looked

10 at, how it comes to the attention of the commanding officer and what is

11 happening after that, the process?

12 JUDGE PARKER: That sounds such an extensive task. I think we

13 might break first and let the witness think about it.

14 We will have a half-hour break at this time to enable something

15 called lunch or something like it to be taken.

16 --- Recess taken at 12.30 p.m.

17 --- On resuming at 1.06 p.m.

18 JUDGE PARKER: Mr. Petrovic.

19 MR. PETROVIC: [Interpretation] Your Honour, I would like to have a

20 moment, if I may.

21 During our first session today, the examination-in-chief of

22 Mr. Zorc, in the Defence team's view, there has arisen a problem in terms

23 of what the substance of the interpretation is. Despite all the best

24 efforts of our interpreters to put the message across into English and

25 then back from English into B/C/S, or Slovene, the substance of the

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

1 translation or the interpretation is quite generalised, imprecise, in

2 certain aspects, and even occasionally inaccurate. This would naturally

3 call for constant interventions on the part of the Defence team and

4 carefully examining the transcript in relation to what the witness today

5 has said.

6 The Trial Chamber and this Tribunal respect everyone's right to

7 choose their own language in addressing the Trial Chamber, despite which,

8 in this case, the Defence would like to propose the following, with the

9 witness's content: For the witness to speak B/C/S, if he can, if he's

10 willing to, because that would make the whole process of interpretation a

11 lot simpler and the result would probably also be a more accurate

12 transcript. And that is, after all, the goal of everyone taking part in

13 this procedure. The OTP, the Defence team, as well as the Trial Chamber.

14 Therefore, I would like to have this matter looked into, whether

15 there is a possibility to do something like that, especially given the

16 fact that most of the tabs, most of the documents in the binder, are in

17 B/C/S, the original texts. First he reads the B/C/S, then the Slovene

18 version, and then from Slovene it's being interpreted into English, and

19 then from Slovene backtranslated into B/C/S. Therefore, we have almost

20 four simultaneous interpretations of one and the same substance. Some of

21 that substance is lost along the way.

22 Thank you very much, Your Honours.

23 JUDGE PARKER: Clearly, Mr. Petrovic, every process of

24 interpretation has the potential to introduce some inaccuracy on a

25 particular matter. Occasionally, that may be material.

1 It would not be the view of the Chamber that a witness should be

2 required to speak in a language other than their first language. It is

3 for a witness to indicate the language in which they are most at ease to

4 give their evidence. Therefore, the Chamber would not require or direct

5 the witness to give evidence in any language other than his own language.

6 If it is his free wish to give his evidence in another language of

7 the Tribunal other than his own language, he may do so, but, as I

8 understand it, he has chosen to give his evidence in the Slovene language.

9 That being so, and if that continues to be his position, we must, as we

10 have throughout the trial, deal with any material discrepancies in the

11 translation by correction as they become apparent. That will slow the

12 process a little, and we may not always have a perfect translation,

13 because, in particular, of the multiple steps through which the process is

14 occurring. But it is nevertheless the best we can manage, and experience

15 shows that it generally proves adequate.

16 Ms. Somers, I leave it to you. You have dealt with the witness.

17 Whether the witness wishes to change or stays with his own language is a

18 matter for him.

19 MS. SOMERS: Thank you, Your Honour.

20 Your Honour, before going back to the area of questioning prior to

21 our very brief lunch break, I wonder if I could just make it simpler with

22 getting some of these other documents very quickly into evidence. And I

23 pick up from -- in tab -- in tab 9 -- I'm sorry. Tab 7. I can't read my

24 colleague's writing. In tab 7, there is, in connection with footnote 10,

25 item 15 from the Official Military Gazette, and I wanted just to confirm,

1 General Zorc:

2 Q. If you look at your footnote 10?

3 A. Yes.

4 Q. That is [Microphone not activated]

5 MS. SOMERS: May I please move that particular -- I'm sorry.

6 There are two. Oops.

7 Q. And then item 517 also from the same -- yeah, the same footnote.

8 It's the Official Gazette. There are two items contained in that tab

9 dating June 15, 1983. So the item 515 and item 517, General, from that

10 footnote. Confirm as to both.

11 A. Yes.

12 MS. SOMERS: May I ask, please, for exhibit numbers to be assigned

13 to these particular documents.

14 JUDGE PARKER: These are those at tab 7?

15 MS. SOMERS: Yeah. It is technically a document with two items on

16 it, so I think one exhibit number will be sufficient.

17 JUDGE PARKER: Tab 7 documents will be received.

18 THE REGISTRAR: P195.

19 MS. SOMERS: Looking at tab 8, which is referenced in footnote 17,

20 regulations on the responsibilities of the land army corps in peacetime in

21 1990 publication.

22 Q. Have you had a look, General? In tab 8, reference to footnote 17.

23 Confirming, General?

24 A. Yes. Yes, I used that.

25 MS. SOMERS: Please move that into evidence.

1 JUDGE PARKER: It will be received.

2 MS. SOMERS: Thank you.

3 THE REGISTRAR: This is P196.

4 MS. SOMERS:

5 Q. From tab 9, an extract from the rules of service of the Armed

6 Forces, a 1985 publication making reference to execution of orders. Again

7 in footnote 19, General.

8 A. Yes, that's correct.

9 MS. SOMERS: May I please move it into evidence.

10 JUDGE PARKER: It will be received.

11 THE REGISTRAR: This is marked as P197.

12 MS. SOMERS:

13 Q. For footnote -- for tab 10, which is referenced -- or two articles

14 of it are referenced in footnote 26, footnote 26. I would ask that

15 instead of just those two articles, we have provided the chapters --

16 instead of Articles 208 and 209, General, can you confirm that you did use

17 those articles?

18 A. Yes. I used the Article 208.

19 MS. SOMERS: What I would propose to do is to actually substitute

20 the entire chapters instead of just those articles. I think it would be

21 more helpful. And that would be chapter 16 of the -- the SFRY Criminal

22 Code 1990.

23 JUDGE PARKER: Do we have it?

24 MS. SOMERS: Yes.

25 JUDGE PARKER: Where?

1 MS. SOMERS: Oh, I'm sorry. It's to be distributed. But we have

2 it for you, but it has not yet made its way into the binder. It is a

3 substitution that is a more complete document. And we'll get it to have

4 it placed in.

5 JUDGE PARKER: Well, we won't receive it until we have it.

6 MS. SOMERS: Also being distributed is chapter 20, which we're

7 asking also to be substituted. What we're doing, Your Honour, is

8 substituting two chapters for the cites in one footnote.

9 JUDGE PARKER: Am I correct in thinking that it is chapters 20,

10 and what is the second --

11 MS. SOMERS: 16 and 20. There will be a question asked of 20, and

12 I wanted to make sure it was included.

13 JUDGE PARKER: Where is chapter 16?

14 MS. SOMERS: It should be -- it should have been part of your

15 distribution. I'm sorry. Just let me check.

16 JUDGE PARKER: Is that part way through the first document? Yes.

17 Does that mean -- all right. They're in reverse order, the stapling put

18 me off. Chapter 16 and chapter 20 will be received as one exhibit.

19 THE REGISTRAR: This is marked as P198.

20 MS. SOMERS: Thank you for allowing that brief diversion.

21 Q. General, just before the lunch break, we began -- I asked you a

22 question about various types of punishment, basically. Now, can you

23 confirm that punishment is divided into criminal and disciplinary?

24 A. Yes. These are two different matters. Criminal acts, and they're

25 defined and are the same for all citizens of a state, while the

1 disciplinary violations, and they are also measures, countermeasures, are

2 foreseen for the military, because it is something internal to the

3 military. These are two different things.

4 Q. Excuse me. I'm sorry. Are disciplinary violations handled before

5 the military disciplinary court?

6 A. You said before?

7 Q. In front of, by, handled by the -- referred to the military

8 disciplinary court.

9 A. I have to explain this. Military -- violations of military

10 disciplines, as I have said, can be of a milder nature or a more serious

11 nature. The responsibility of a military for violations -- and it's left

12 to the commanders and superior commanders. Violations -- milder

13 violations carried out by the officers or non-comms are left to their

14 commanders and the superiors. Only more serious violations of military

15 discipline carried out by non-comms and officers are a matter for the

16 disciplinary -- military disciplinary court.

17 JUDGE PARKER: Mr. Petrovic.

18 MR. PETROVIC: [Interpretation] Your Honour, unfortunately, here we

19 have another example of what I spoke about a while ago. Even with my

20 limited understanding of the Slovene language, we have no way of

21 controlling what the witness is actually saying and how it's being

22 interpreted into the other languages since I simply don't understand the

23 language well enough.

24 However, at page 35, line 23, there's an obvious example of

25 misinterpretation, or rather inadequate interpretation. The essence of

1 what the witness said in that particular sentence is that the

2 responsibility for the soldier, not for the army in general, that these

3 are two different things. He's talking about the soldier as a member of

4 the armed forces. To put it in the simplest possible way, at the lowest

5 possible level. He's referring to a private, to a reserve soldier or to

6 someone doing their military service. And here we have responsibility for

7 military violation, which in no way reflects what the witness originally

8 said.

9 Thank you.

10 JUDGE PARKER: Could you pursue that issue, Ms. Somers.

11 MS. SOMERS: Yes.

12 Q. General Zorc, referring to the particular question, the -- I'd

13 like to read it for a second. The question was: In front of, or by whom,

14 or are they referred to military district court. You said: "I have to

15 explain this. Military -- violations of military disciplines, as I have

16 said, can be of a milder nature or a more serious nature. The

17 responsibility of a military" -- and I believe the word "commander" was

18 left out -- "for violations is left to the commanders and superior

19 commanders. Violations, milder violations carried out by the officers or

20 non-comms," and perhaps you can explain by "non-comm," "are left to the

21 commanders and the superiors. Only more serious violations of military

22 discipline carried out by the non-comms and officers are a matter for the

23 disciplinary military disciplinary court."

24 I believe you heard the concern or the question raised by my

25 colleague opposite about the completeness or the comprehensibility of the

1 answer. Can you explain again so that it is clear what is meant.

2 THE INTERPRETER: May the witness once again be reminded to slow

3 down, please.

4 A. Well, military discipline is violated by the military. They can

5 be soldiers or superior officers with a rank. They can be

6 non-commissioned officers or officers. These are two categories. It

7 means soldiers and officers.

8 Now, for violations of military discipline, milder ones, for both

9 structures, their Superior Command is responsible, that is, for the

10 soldiers and the officers or non-commissioned officers. For more serious,

11 more severe violations, disciplinary violations, is also responsible their

12 superior officers, but for the officers and non-comms, the commander

13 cannot deal with their serious violations, and for that, the military

14 disciplinary court is responsible. The responsibility and the process for

15 the dealing with serious offences of disciplinary offences, it's more

16 serious because they are therefore treated and processed in front of the

17 disciplinary military court.

18 MS. SOMERS:

19 Q. Where is the military disciplinary court located?

20 A. They are at the level of certain commands. It can be the army

21 command or of an army area. And in times of war, they are foreseen also

22 at lower levels.

23 Q. So they are nearer to the commander, where the commander is

24 physically located? Is that correct?

25 A. Yes. They are institutions close to the commands and also the

1 judges. They are also elected from the various -- judges are elected from

2 the ranks of officers, so it is closer, yes.

3 Q. Who establishes -- who sets up military district -- I'm sorry-

4 military disciplinary courts?

5 A. They are established by the command structure from the federal

6 secretary and the commanders of the military districts. So they are

7 appointed by military commanders.

8 Q. When we are dealing with criminal violations, serious criminal

9 violations, criminal violations, now, are these handled by a different

10 organ called a military court?

11 A. As I've explained, all criminal acts perpetrated by the military

12 persons are treated by the military justice, namely, military courts,

13 military prosecutors of the former Yugoslavia. And they are not within

14 the system of command and control. They are independent justice

15 institutions in the armed forces.

16 Q. And is a military court generally found in a military district in

17 terms of its location, its placement?

18 JUDGE PARKER: You seem to be assuming it has a physical location.

19 MS. SOMERS:

20 Q. Can a military court be convened or placed within a military

21 district? Tell us about the military courts. What -- where are they

22 generally? How are they set up? Who establishes them? Who runs them?

23 A. Military courts and prosecutors are established by law, which were

24 adopted by the Assembly of the Parliament. The setting up of military

25 courts and of the prosecution, and the appointment of the judges and

1 prosecutors, was in the competence of the supreme commander of the Armed

2 Forces of Yugoslavia.

3 The courts were organised in a way that the courts, at the first

4 level, and the supreme military court. The first-level courts covered the

5 entire territory of Yugoslavia and were formed for a certain part of the

6 territory of the former Yugoslavia. These were in a different location,

7 namely, in the cities where also higher commands were located, the

8 commands of the armies or the military districts.

9 Therefore, they were formed for certain territories, and all the

10 criminal acts perpetrated by the military were then treated and processed

11 by the military court for that area.

12 Q. And what is -- who is the -- what is the organ or who is the

13 person to whom criminal violations are referred within this military court

14 system? Does there exist a military prosecution, a military prosecutor?

15 A. Yes.

16 Q. Would you explain the role of that military prosecutor.

17 A. Yes. Yes, I can. I've mentioned in my previous answer. I spoke

18 about military courts and the military prosecution.

19 Military prosecutor's office were founded in a similar fashion as

20 the military courts. At the first level, they were in the same premises,

21 the same location as the first-level military courts. And they have the

22 role of investigating crimes as in civilian life. And if there is an

23 information concerning a certain possible criminal act, information coming

24 from anybody, but usually it comes from the organs of the military police,

25 the security organs of the armed forces, or individual superior officers

1 of this alleged -- the information concerning a criminal act is then

2 sent -- this information is sent to the public -- to the military

3 prosecutor. This information is then sent to the prosecutor, who then

4 asks the investigating judge to investigate this alleged crime, and it is

5 then the prosecutor who will judge whether he will prosecute or not.

6 Here, from the point of view of military command and control, the

7 role of the superior officers, the commanding officers, is very important.

8 All citizens of Yugoslavia have the obligation to report the alleged

9 criminal offences to the military police or the military prosecution.

10 However, the superior officers, the commanding officers, had a greater

11 responsibility concerning this sending of information. They were officers

12 who have a higher responsibility concerning discipline, order, within

13 their units.

14 THE INTERPRETER: May the witness kindly be reminded to slow down.

15 MS. SOMERS:

16 Q. General, I want to convey the request of the interpreters to try

17 to speak more slowly so they can catch everything. Thank you.

18 If I can ask you, General, now: You've given us an introduction

19 to the system. Can you give examples, examples, of let's say what you

20 called a mild violation occurring by a subordinate of a commander, and how

21 that is handled and how -- and what types of punishment or -- yeah, what

22 types of measures can be meted out by the commanding officer, the superior

23 officer.

24 A. As I have already noted, if you speak in terms of disciplinary

25 violations, that is, violations of military discipline, then, I repeat,

1 violations of military discipline had been enlisted in the Law on Armed

2 Forces Service and the same violations could be minor or more serious. If

3 these violations were of a milder nature, minor violations, they were

4 dealt with by superior military commanders. They had at their disposal

5 measures, a number of measures, different sort of measures, for soldiers,

6 stricter; for example, it would involve detention, prevention of exit,

7 additional work, and similar. And for officers, military officers, they

8 were of ethical nature, for minor violations. Disciplinary measures

9 called warning, censure, and serious censure, were applied.

10 Q. General, can you give an example, an example. You were a

11 commander [microphone not activated]. Just -- for example, failure to

12 salute, failure to be on time, how would that be handled, if it were by a

13 regular soldier?

14 A. Perhaps failure to salute is an act that would not be liable for

15 disciplinary liability, especially when applied to younger soldiers that

16 are only being trained for military service. A better example to this

17 effect would be arbitrary departure from unit, uncensured departure from

18 the barracks, or unallowed absence of senior officer. So in what way a

19 superior military commander would assess such an act depends on the

20 situation. If the unit is performing a serious task, then any departure

21 from the unit could constitute more serious violation of discipline. And

22 of course the other way around is also true. The departure or absconding

23 for a small period of time could be dealt with as a minor violation and is

24 not sanctioned at all.

25 However, if the person is an officer performing responsible duties

1 in barracks, arbitrary departure or absence could be dealt with as a more

2 serious violation of military discipline. This should not always be the

3 case, depending on the tasks performed by the officer.

4 If the officer commands a company, and if such an officer leaves,

5 the entire company to wait for him, then, of course, it's a more serious

6 violation than if an officer carrying out staff duty does not report for

7 work. So it all depends on the post.

8 Furthermore, if such an act, such as absence from work for several

9 days without permission and without notification, occurs in relation to a

10 senior officer, this could be dealt with as a more serious violation of

11 military discipline. In such a case, their superior, on the level of the

12 commander of regiment on higher level must initiate disciplinary

13 investigation against such an officer.

14 In order to carry out such a disciplinary investigation, one of

15 the officers is mandated, and this particular officer must explore all the

16 circumstances of the act committed.

17 Q. General, when you -- excuse me, general. The translation says an

18 officer is mandated. Is that -- do I understand to mean appointed or

19 designated? If you could perhaps clarify. It says: "In order to carry

20 out such a disciplinary investigation, one of the officers is..." and the

21 translation says "mandated." Can you perhaps explain what you mean. Are

22 you referring to "appointed" or "designated"?

23 A. Right. The responsible commanding officer identifies one of the

24 commanding officers to carry out disciplinary investigation, "izvidjaj" in

25 Serbo-Croat, and this is to explore all the circumstances of the case, and

1 in the report to the superior commander should propose further measures,

2 and these measures, or this particular report, can assess that the very

3 violation was not of a serious nature. It can also identify that the

4 violation was of a serious nature, thus suggesting the superior officer to

5 provide for the perpetrator to face military court. In case the

6 investigation has manifested that a minor violation of discipline was in

7 question, then the matter is solved by the commanding officer himself by

8 declaring a disciplinary measure, as I've already noted in one of my

9 previous answers.

10 If the perpetrator is put to military disciplinary court, then

11 this court is dealing with entire case and also passing the judgement. Or

12 passing the disciplinary sentence.

13 Q. If we take a different example of a criminal violation, can you

14 first of all indicate or confirm, based on some earlier testimony, what

15 the obligation is of the commander, the superior commander, toward getting

16 the information about the violation. Where does it have to go? How does

17 a case -- how does a matter get to the military court? Give us the path.

18 A. Hence violations occur more or less in military units and military

19 life. Criminal offences also occur within the framework of armed forces

20 within military units and military barracks, but also beyond, in civil

21 life, because military persons could commit crime offences of other sort,

22 not only against armed forces. If this violation or assumed or ostensible

23 criminal offence is assessed as potential criminal offence, then military

24 senior officers might provide for this charge to come before the military

25 prosecutor. When -- or until the military investigating judge does not

1 take over this procedure into their own hands, the military senior

2 officers must provide for the protection of potential evidence and for

3 detention of the potential perpetrator if they have control over him or

4 her.

5 When the military investigating judge takes over the compilation

6 on further data concerning the potential criminal offence, the

7 responsibility of military senior officers comes to an end. From here

8 onwards, the military investigating judge is carrying out all other

9 measures, with the help of military police bodies and, on his requirement,

10 also with the assistance of bodies of military command or military

11 commanders, and then the military investigating judge then passes on his

12 report to the military prosecutor that then takes decision on

13 investigation. From here on, the criminal proceedings start, and it seems

14 to me that I don't have to elaborate on it.

15 Q. You mentioned military police. What is the role of military

16 police in the -- in this process involving criminal violations?

17 A. Military police is vested with different tasks and functions. One

18 of them is also criminal prosecution, that is, cooperation in criminal

19 prosecution of perpetrators of criminal offences. In this particular

20 function, this criminal-legal function, the military police bodies are

21 carrying out the same tasks as any other police bodies are, including

22 civilian police bodies. They are both liable and mandated to gather data

23 to protect possible traces, evidences, to detain potential perpetrators,

24 to gather other data, and also to detain the suspect, that is, potential

25 perpetrator, until the investigating judge does otherwise. So military

1 police is carrying out the well-known tasks in the field of criminal

2 prosecution.

3 Q. What is the obligation, the responsibility of a commander to

4 ensure that the information gets to the military prosecutor either on his

5 own or through the military police or through some appropriate method in

6 the system? What is that obligation?

7 A. I have already explained that. The obligation to report assumed

8 criminal offence to the military prosecutor is one addressed with all the

9 population and with all citizens. Commanders of the armed forces have a

10 responsibility which is even greater to report on a criminal offence that

11 falls within their scope. And information about an assumed criminal act

12 in fact can come from any member of the armed forces or a civilian person

13 to the military prosecution. It may come via or through commanders of the

14 armed forces. They can also in fact provide information about this.

15 However, as a rule, this is in fact carried out -- is carried out normally

16 by the military police. Because when there is an offence or an assumed

17 criminal act that has been committed, the superior officers call the

18 military police. Once the military police has been notified,

19 automatically the military prosecutor, especially the investigating judge,

20 are also informed and notified, and it is then up to them to take further

21 action.

22 Superior officers, when I'm talking about the responsibility of

23 the senior officers to report on criminal acts, that is also a

24 responsibility of all superior officers. Let me give you an example.

25 If this notification was, for instance, made by the commander from

1 the battalion, for instance, from a company, there is no more need for

2 anybody else to do it. If, for instance, the commander of the company

3 failed to do so for lack of contact, for being in combat action and the

4 like, he or she reports it to his superiors, and it is the superior

5 officer that will do it, be it commander of the brigade, battalion, and

6 the like. Whatever commander in the chain of command can actually report

7 on it, whereas it is the responsibility of all commanders to report it.

8 Once this is done, the function concerning this area ceases.

9 Q. Then the responsibility, if I understand it, is to ensure, to

10 ensure, that the information is reported to the prosecutor, whether it's

11 through the military police or whatever, but make sure -- to ensure that

12 it is reported; is that correct?

13 A. Yes, it is.

14 Q. If you know, where was the military court that would, in the

15 autumn of 1991, have handled matters concerning Dubrovnik?

16 A. To my knowledge, for the 9th military maritime district, that is

17 indeed the Dubrovnik district, well, that was the responsibility of Split,

18 of the Split district.

19 Q. If for any reason the military court --

20 MR. PETROVIC: [Interpretation] Your Honour.

21 JUDGE PARKER: Yes.

22 MR. PETROVIC: [Interpretation] There's an interpretation error.

23 Military naval district in Split. That's what the witness said.

24 JUDGE PARKER: Do you distinguish between maritime and naval?

25 That's what's recorded here.

1 MR. PETROVIC: [Interpretation] No, Your Honour. This is what my

2 objection refers to. Page 46, the last line, line 25. [In English]

3 [Previous translation continues]... of the Split district.

4 [Interpretation] That's where the error is and how it should read is

5 "military naval district" instead.

6 JUDGE PARKER: That is said earlier in the sentence. I don't

7 think it can be understood in any other way. But thank you, Mr. Petrovic.

8 MR. PETROVIC: [Interpretation] Your Honour, my apologies, but I

9 must step in and point this out, because it's absolutely substantial. In

10 the very same sentence, the witness says the 9th military naval sector,

11 the Dubrovnik area is in relation to that, which is under the competence

12 of the military naval district in Split. That's the essence of that

13 sentence.

14 As far as I know, it's a reference to the 9th VPS, military naval

15 sector, when it's about Dubrovnik. And this is the responsibility of the

16 military naval district in Split, or rather, the headquarters. This is

17 the substance of what the witness said, and I believe we can ask him to

18 have this confirmed, if necessary.

19 JUDGE PARKER: Mr. Petrovic, I don't read the answer, lines 23 to

20 25, as saying anything different.

21 MR. PETROVIC: [Interpretation] Your Honour, if that is the case,

22 then indeed we don't seem to have a problem. Thank you very much.

23 MS. SOMERS: May I inquire of the witness on that point.

24 Q. General --

25 A. Well, I think that I have to correct this, because I did not say

1 that the 9th military maritime sector was within the competence of the

2 military maritime district. What I said was that the competence of the

3 military court in Split, in the area covered by the 9th military maritime

4 sector.

5 So what happened in the area of Dubrovnik is within the

6 territorial competence of the military court in Split, and not of the

7 district, because that is the military command, whereas here we are

8 speaking about the judicial system, the military judicial system, that is.

9 Q. Having asked you about the military court that would have had

10 jurisdiction over matters in the Dubrovnik area and your response that you

11 believe it was in Split, if for any reason that particular court and the

12 personnel that would normally be attached to it were not available, where

13 could a matter be held that would normally be held in Split? Which

14 military court - or is there a choice - could handle it?

15 A. Well, should it happen, for any reason, that the bodies of the

16 military prosecution and the first-instance military court were unable,

17 physically, to perform their duties, their tasks, then it would be the

18 competence of the superior of the higher military court and military

19 prosecution to determine what other prosecution or court would look into

20 that matter. And the military commanders obviously cannot decide on such

21 matters. And it is in the interest of the military commander to provide

22 information about such possible criminal acts and that they should reach

23 military prosecution, not necessarily some determined prosecutor's office.

24 If one is not available, then it is decided which instance, other instance

25 it should be referred to.

1 Q. When you say "other instance," are you referring to which other

2 location or jurisdiction, which other military court it would be referred

3 to? I'm sorry?

4 A. Yes, indeed. And this is in the chain of command in this system

5 of military courts and military prosecutor's offices.

6 Q. Can you give some locations where there were military courts

7 during that time period?

8 A. Well, it is a bit difficult to enumerate them all, but I know that

9 there was a prosecutor's office, military prosecutor's office in Ljubljana

10 later on and also before in Zagreb. There was also both a court and

11 prosecution in Sarajevo, where I was active, in Split as well, and also in

12 other garrisons where they had superior commands.

13 Q. The unavailability or would the possible unavailability of one

14 military court, let us say in Split, be any -- would it excuse a commander

15 from his obligation to ensure that information about criminal offences

16 nonetheless got passed up to a military court somewhere?

17 A. No. It would not exonerate that person from the duty to do so.

18 As I have explained, if the military prosecutor's office does not exist in

19 an area because there is combat, ongoing combat, or for some other reason,

20 then it is the chain of command that in fact is respected, and the

21 information should be provided by the next commander at the adequate

22 level. And if at the first instance such a court is not operational, then

23 we go up, further up the chain of command and up to the secretariat of

24 defence, and thus in fact competence or authority is vested into some

25 other military court of the first instance. And the same goes also for

1 the military prosecution, prosecutor's office.

2 MR. PETROVIC: [Interpretation] Your Honour, my apologies for

3 interrupting. However, this last passage of the transcript, if possible,

4 may we please have the answer to that particular question again, slowly.

5 As far as I'm able to understand the language that the witness is

6 speaking, the substance of what he said is not reflected in this

7 particular interpretation.

8 MS. SOMERS:

9 Q. Are you able to -- are you able, General, to take a look on your

10 screen and see if it is correctly translated? It would be line 24 of

11 page 49.

12 A. I'm looking. I think that it corresponds to what I have said.

13 Q. Thank you. General, why is discipline, the concept of discipline,

14 important in military organisational life?

15 A. The army or military organisation is a specific institution, and

16 its purpose is, it is also equipped, designed for, equipped, as well as

17 trained, for the use of force. That means that it is a very sensitive

18 organisation in a country. And availing of a power that the armed forces

19 avail of cause for a very solid internal set-up or internal organisation,

20 as well as a very solid internal control. And this organisation and this

21 control is ensured by the system of command and control, which also

22 ensures the respect of specifically prescribed standards of behaviour by

23 the military. And the military relations are determined or -- are

24 determined by single officers, by this duty to issue orders, and also the

25 fact that all subordinates have to strictly abide or respect and carry out

1 the orders, while respecting very clearly all provisions of the military

2 order and discipline.

3 That is, therefore, a system of internal military relations, of

4 internal military discipline, whose purpose is to guarantee that any

5 senior officer in the chain of command, as well as also the state

6 leadership, can trust its armed forces; namely, that their power will not

7 be misused, abused. And these are the reasons, therefore, controlling,

8 being in total command of all military is a reason that -- for which, of

9 course, a very strict internal organisation and discipline are required.

10 Q. Is the enforcement of orders by a commanding officer critical --

11 the enforcement and implementation of orders, is it critical to

12 maintaining the system of discipline?

13 A. Yes. Yes. It is essential for maintaining the military

14 organisation, as well as ensuring the functioning of the system of command

15 and control. Issuing -- implementing orders without a right to complaint

16 actually is part and parcel, an essential part and parcel of the military

17 organisation in general.

18 MS. SOMERS: I'd ask to have Exhibit P198 put before the witness,

19 please. It is chapter 20 of the Criminal Code - sorry - of the Criminal

20 Code of the SFRY, Armed Forces. Sorry. Strike Armed Forces. It is the

21 Criminal Code of the SFRY.

22 Q. In chapter 20, if you would look at Article 201. Do you see it,

23 General? Article 201 of chapter 20. Do you have it in front of you?

24 A. Yes, I can see.

25 Q. The overall chapter heading is "Criminal acts against the Armed

1 Forces of the SFRY." Specifically, failure or refusal to carry out an

2 order, Article 201: "1. If a member of the armed forces fails or refuses

3 to carry out an order of a superior officer which is related to the

4 service, and if this has serious detrimental consequences for the service,

5 or if the service was seriously jeopardised, he shall receive a prison

6 sentence of three months to five years.

7 "2. If an act as described in paragraph 1 of this article incurs

8 serious consequences for the service, the perpetrator shall receive a

9 prison sentence of one two ten years.

10 "3. If a member of the armed forces fails, through negligence, to

11 carry out the order of a superior officer, as described in paragraph 1 of

12 this article, he shall receive a prison sentence of up to one year."

13 The seriousness -- would you agree that the -- that there is a --

14 THE INTERPRETER: Microphone, please.

15 MS. SOMERS:

16 Q. Would you agree that the act of carrying out an order, per se, or

17 the failure to carry out an order per se, is one that has, in general,

18 very serious consequences?

19 A. Undoubtedly, yes, because this violates the very basis of the

20 military organisation.

21 Q. Given the obligation of the commander to ensure that discipline is

22 maintained, that orders are implemented, would there be a compromise in

23 command and control if that commander did not carry out his obligations?

24 Would the compromise -- would the failure to ensure discipline compromise

25 the command and control of the superior officer?

1 A. No doubt, yes. Of course, if the subordinate does not carry out a

2 single order, it is a very serious matter for the system of command and

3 control and for controlling of the subordinate unit. If the subordinate

4 does this several times and fails to carry out a number of orders, or if a

5 number of subordinates do the same, then this constitutes an extremely

6 serious matter, an extremely serious problem for a military unit.

7 Q. What is the signal sent to other persons in the unit if an order

8 is given, it is not implemented, and there is no either discipline or

9 inquiry or action taken as a result of the failure to implement the order?

10 A. Signal that is sent through the failure to act by the superiors by

11 the failure to carry out orders to other members of military units would

12 be very negative. The subordinates must feel that the requirements of the

13 superiors and the requirements of military relationships and military

14 organisation and regulations are serious and that the violations of these

15 military relationships be tolerated. These must not be tolerated, because

16 if this is so, then this might bring about disintegration of military

17 organisational structure.

18 If I add: The general prevention could be even more important

19 than the individual one in a specific case in a military organisational

20 structure.

21 Q. What, in your view, is the effect of failure to enforce or to

22 impose discipline for failure to enforcing -- to enforce orders, what is

23 the effect on the -- what I might call the climate or the tone of the

24 command?

25 A. As I have already noted, if, against violation of military

1 discipline, no measures are taken, or if nothing is done against a

2 military person failing to carry out a military order, this can bring

3 about the violation of military order, military discipline or

4 disintegration of the organisational structure. It can bring about the

5 situation when senior officers can no longer control their subordinate

6 military units. The implications might be extremely negative.

7 Q. If there exists a series of orders or directives from Superior

8 Command not to shell or attack a particular site which is protected under

9 international law, international humanitarian law, and the order is

10 violated, it is not complied with, and damage is worked, there is damage

11 that results, maybe in a -- damage to objects or to human beings, and

12 there is no investigation - and I use the term in the sense of gathering

13 information - as to the circumstances, what is the effect of those orders

14 or directives?

15 A. If I understand well, you aim at failure to carry out military

16 orders and failure of superior commanders against -- to take measures

17 against those that haven't carried out orders in military circumstances.

18 In this context, I can only note that in such circumstances, the potential

19 disintegration of military discipline and the inefficiency of military

20 command and control is even more accentuated. The significance of such an

21 act in war circumstances is much more significant than in peaceful

22 circumstances. And therefore, the consequences of such a so-called

23 tolerance could be disastrous in terms of controlling of military units,

24 that in such circumstances can even more expand illegal operations within

25 the framework of their units and on the territory they are located.

1 Q. If the same orders or directives which are rooted -- which may be

2 rooted in international humanitarian law are subsequently violated and

3 there is no investigation again in the sense of gathering information

4 about the incident by superior officers, what is the implication further

5 for the value of the orders?

6 A. Well, the situation is the same as when it goes for military

7 organisation. In case a violation of international humanitarian law or

8 violation of rules and regulations by the federal secretary so as to

9 respect international humanitarian law in wartime circumstances, this all

10 in turn constitutes the significant lowering of respect of command and

11 control on the part of low-ranking officers. This implies that such

12 illegal acts could be further expanded, meaning that a greater number of

13 members of armed officers -- armed forces officers could carry out more

14 criminal offences for wartime, even though this would have to be

15 discontinued and put an end to, and therefore, to my mind, the

16 implications could be really disastrous.

17 Q. And if, and if, other officers or other members of the armed

18 forces were to carry out more offences during time of conflict, as you

19 just referred, given the failure to enforce previous orders which resulted

20 in these consequences, what, in your view, would those -- the other group,

21 the further group, expect to happen to them if they violated the order?

22 If it had not been punished once, twice, what is the expectation of any

23 disciplinary or -- yeah, disciplinary in the sense of criminal system

24 involvement? What do you -- how do you view that?

25 A. If I understand well your question, I might note that failure to

1 act already against the first violation of military discipline, or

2 violation of military order, or lack of respect of military rules and

3 regulations, the very first violation that has not been sanctioned can

4 give an impression to other members of armed forces, or privates, or

5 common troops, that we cannot expect to understand the rules and

6 regulations of international humanitarian law or internal rules and

7 regulations that military officers are to carry out, these people, in

8 turn, could get a feeling that carrying out of offences, a violation of

9 international humanitarian law is not ruled out, is not illegal, or is

10 even tolerated, or even sanctioned, even allowed. Of course this

11 impression is false or wrong, but it can occur if we fail to take measures

12 against the first violation of orders. And consequences and implications

13 might be further sprawl of illegal offences on part of members of armed

14 forces.

15 Q. In the situation discussed where, despite the legal prohibition

16 and orders affirming the prohibition against attacking certain protected

17 sites, if, despite that, there is a -- you learn, as a commanding officer,

18 that there is a violation, what do you do -- what would you do, under --

19 first of all, would you view that as a crime, the actual act of attacking,

20 for example, a cultural monument? Is that a crime, a criminal act?

21 A. Any type of information, an information about acts carried out by

22 subordinate units, anything that could be in fact seen as a criminal act,

23 is something that any commander should take very seriously and deal with

24 very seriously. And in accordance with the rules, with the previously

25 mentioned rules, such a commander should undertake everything in his power

1 to establish the facts, the state of affairs, and once he does so, to then

2 notify the military prosecutor in case he deems that this could be

3 assessed as a criminal act. And if this criminal offence is conspicuous

4 enough so that any, for instance, superior officer can justifiably say

5 that this is indeed what happened, then what one can expect from

6 subordinate officers, and all superiors expect from all commanders,

7 namely, that they would in fact become involved personally, and personally

8 would make it their personal commitment to prevent any future such acts,

9 to put an end to it as soon as possible, if necessary, through personal

10 intervention of commanders at ever-higher levels, so as to arrive at a

11 moment when it is possible to prevent it.

12 Whereas, of course, criminal measures, this is something that will

13 be up to the criminal -- to the court.

14 JUDGE PARKER: Mr. Petrovic.

15 MR. PETROVIC: [Interpretation] Your Honour, if I may. We have

16 this description here.

17 THE INTERPRETER: Microphone for counsel, please.

18 JUDGE PARKER: We have lost what you said, Mr. Petrovic.

19 MR. PETROVIC: [Interpretation] Your Honour, please excuse me.

20 Page 57, in this last long explanation by the witness, the explanation

21 runs as follows: The superior, if necessary, should stop whatever is

22 going on, on the stop. That part of the transcript is simply missing. And

23 that is indeed what the witness said. At least, that was my

24 understanding.

25 JUDGE PARKER: Are you able to indicate at what point of the

1 answer that appeared?

2 THE INTERPRETER: Microphone for counsel, please.

3 JUDGE PARKER: Microphone.

4 MR. PETROVIC: [Interpretation] Your Honour, page 57, line 14,

5 15, 16.

6 JUDGE PARKER: Thank you.

7 MR. PETROVIC: [In English] [Previous translation continues...]

8 become involved personally. [Interpretation] This "personally" and then

9 something is missing.

10 JUDGE PARKER: Perhaps you could follow that up, Ms. Somers.

11 MS. SOMERS:

12 Q. The question comes from -- I've just lost it on the screen.

13 All superiors are personally to involve themselves and make it

14 their personal commitment. Can you perhaps explain what you mean there.

15 A. Military commanders are responsible that their subordinate units

16 should carry out the tasks that they have within the scope of the law and

17 in accordance with the law. However, they should do so by not acting or

18 doing something that is forbidden. And if, in carrying out a task,

19 something as serious as the violation of the international laws of war

20 occurs, or, for instance, criminal acts are performed, perpetrated, it is

21 possible that besides, for instance, orders that are given through liaison

22 channels, and this is also actually in accordance with what happens in

23 practice, the commander should in such instances in fact go personally and

24 see the subordinated unit that is problematic in this respect. And that

25 on the spot there, personally he gives suitable orders and sees to it that

1 such illegal acts are stopped.

2 Q. May I inquire of the Chamber at what point a break will be taken?

3 JUDGE PARKER: I'm waiting to see whether your --

4 THE INTERPRETER: Microphone, Your Honour, please.

5 JUDGE PARKER: [Microphone not activated].

6 MS. SOMERS: This would be fine. Thank you.

7 JUDGE PARKER: We will have a break now of some 20 minutes.

8 --- Recess taken at 2.30 p.m.

9 --- On resuming at 2.55 p.m.

10 MS. SOMERS: Your Honours, there are yet a few documents that I

11 would like to tender quickly, get that behind us. Just to note that the

12 next one is already -- in tab 11, it is Exhibit P121, just so that the

13 Chamber is aware that it has been referred to in footnotes 27 and 28.

14 Then tab 12 is referred to in footnote 29.

15 Q. General, if I could ask you to take a look at footnote 29.

16 A. I see it. I can see it.

17 Q. There is an order for the deployment of the VPO. It is -- it

18 purports to be signed by Admiral Kandic and it is part of a footnote. Can

19 you confirm that that was cited in your report? General, that was cited

20 in your report? Yes?

21 A. Yes. This was a source. I used this document.

22 Q. And the -- there's an error in the translation of that document at

23 the bottom. Just for the record, I'll ask for it to be retranslated. It

24 should read 20 September. I believe it reads 20 April, erroneously.

25 If I could ask for an exhibit number, please, and tender it into

1 evidence.

2 JUDGE PARKER: You tender this, do you?

3 MS. SOMERS: Yes. I would tender it in evidence because it is in

4 the report.

5 JUDGE PARKER: It will be received.

6 MS. SOMERS: Thank you.

7 THE REGISTRAR: This document is P199.

8 MS. SOMERS: Thank you.

9 Q. Next, looking at tab 13, which is referenced General, in your

10 footnote 31. It is a combat order of Djurovic dated 1 October 1991. Can

11 you confirm --

12 A. Yes.

13 Q. Thank you.

14 MS. SOMERS: I ask to move that in.

15 THE WITNESS: [Interpretation] Yes, yes.

16 JUDGE PARKER: It will be received.

17 THE REGISTRAR: This is Exhibit P200.

18 MS. SOMERS:

19 Q. Tab 14, a combat order signed by -- dated 6 October 1991, of

20 Captain Milan Zec, footnote -- referred to in footnote 32, General?

21 A. Yes. Yes. I used that.

22 MS. SOMERS: I'd like to move that in, please.

23 JUDGE PARKER: This will be received.

24 THE REGISTRAR: This is Exhibit P201.

25 MS. SOMERS: Thank you.

1 Q. The next tab, 15, is already Exhibit P105, and it is referenced in

2 footnote 33. Tab 16, General, that is a combat order --

3 A. Yes.

4 Q. Footnote 37 -- from footnote 37, dated 29 November 1991.

5 A. Yes. These are the orders, which contain that which has been

6 described in my report.

7 Q. There's a second order. That's correct. One of 24 November,

8 which is already in. That is P122 of footnote -- sorry. That same

9 footnote references two documents, Your Honours. One of them is

10 already P122, dated 24 November. I would ask to tender the other document

11 of 29 November and ask for an exhibit number, please.

12 JUDGE PARKER: The document which is the first at tab 16 will be

13 received.

14 THE REGISTRAR: P202.

15 MS. SOMERS:

16 Q. As I indicted Your Honours, the second document is P122. There is

17 a third document, a report concerning discipline in the 472nd Brigade of

18 Captain Zec, 31 October. That is already Exhibit P108.

19 And there is a fourth document also referenced in the same

20 footnote, 37, of Admiral Jokic dated 31 October 1991, and that is

21 already P107.

22 Tab 17 there is a plan on measures and activities dated the 4th of

23 December, 1991. It is Exhibit P110.

24 And then tab 18. It is cited, General, in footnote 42,

25 footnote 42. An extract from the Official Gazette of the SFRY, dated --

1 it looks like 18 October 1991. Item 765 on the establishment of imminent

2 threat of war. Imminent threat of war exists. Can you confirm that that

3 was a reference for your report?

4 A. Yes.

5 MS. SOMERS: I would ask, please, to tender it and have a number

6 assigned.

7 JUDGE PARKER: It will be received.

8 THE REGISTRAR: P203.

9 JUDGE PARKER: Now, there seems to be more than one document in

10 that tab.

11 MS. SOMERS: In tab 18, Your Honour?

12 JUDGE PARKER: Only one English translation of I think the first

13 document.

14 MS. SOMERS: I'm sorry.

15 JUDGE PARKER: One is the 22nd of May, 1992.

16 MS. SOMERS: I'm sorry. I'm clarifying whether or not footnote 18

17 had a second document, and I ...

18 [Prosecution counsel confer]

19 MS. SOMERS: So the Chamber knows, I'm sorry to take you back for

20 a moment, in tab 18 there was a second document, which is already -- I'm

21 sorry. There was a first document. The Official Gazette of the SFRY,

22 which I think we erroneously labelled P203 is in fact P151. And if I

23 could --

24 JUDGE PARKER: Well, that will have to be --

25 MS. SOMERS: P151. That's our error. Sorry.

1 JUDGE PARKER: Yes.

2 MS. SOMERS: And if perhaps the second document could be assigned

3 P203.

4 JUDGE PARKER: Do we have a translation of that?

5 MS. SOMERS: It is requested. It is not yet available.

6 JUDGE PARKER: And that's the Gazette of the 22nd of May, 1992?

7 [Prosecution counsel confer]

8 MS. SOMERS: I have been reminded that in -- if you take one

9 second, go back to tab 11, there are two documents. They are both

10 previously admitted.

11 JUDGE PARKER: Tab 11?

12 MS. SOMERS: Yes, sir. P120 and P121. They are already

13 previously admitted, so the Chamber is aware.

14 JUDGE PARKER: 120 -- the first appears to be an order for further

15 actions of the 23rd of October, 1991. Is that P121?

16 MS. SOMERS: Yes, sir.

17 JUDGE PARKER: And the next document dated the 24th of October,

18 1991, it's a decision for further actions. Now, what is that exhibit

19 number?

20 MS. SOMERS: That is P120. 120, 1-2-0.

21 JUDGE PARKER: P120.

22 MS. SOMERS: And there is, in tab 20 -- I want to make sure I have

23 the right numbers. Rather than hold Your Honours up, we'll clarify this

24 so that there's no delay. Apologies.

25 Q. Also, General, I'm sorry that I had to take a moment and do some

1 logistical matters. But I will ask you: In connection with one of the

2 exhibits we just spoke about that had been mentioned in your footnote 29,

3 which is -- concerns an order bearing Admiral Kandic's name, were you

4 shown -- were you also shown an order which is D44, from an officer named

5 Cokic, Jevrem Cokic, about an order to attack concerning the operations in

6 Dubrovnik? Did you have a look at that order as well during your proofing

7 session? It is not in front of you, General. It is not in front of you.

8 A. No, I don't have it in front of me. But yes, the proposed order

9 of the operational -- of the operational group, I did see it yesterday.

10 Yes, I glanced through it.

11 Q. And that also has certain elements similar to the contents of the

12 Kandic order. Did you make that observation yesterday?

13 A. Yes. Yes, I observed that the decision was -- the order was

14 similar concerning the use of the forces of the 2nd Operational Group.

15 JUDGE PARKER: Is this document an exhibit?

16 MS. SOMERS: No, sir, it is not, but I wanted to make sure the

17 record reflected the general had seen it. I think it's important just to

18 note that the contents were presented to him. I am happy to --

19 JUDGE PARKER: [Microphone not activated].

20 THE INTERPRETER: Microphone for the president, please.

21 MS. SOMERS: It was introduced by the Defence during the course of

22 the cross-examination of Admiral Jokic. The date --

23 JUDGE PARKER: So it must have --

24 MS. SOMERS: 29 -- I believe it was 29 September 1991.

25 JUDGE PARKER: Is this Exhibit D44?

1 MS. SOMERS: It is.

2 JUDGE PARKER: Thank you. Now I understand.

3 MS. SOMERS: Sorry. I think I said it earlier and perhaps it

4 wasn't clear from my --

5 JUDGE PARKER: You said D44, and I didn't immediately register

6 that to be an exhibit number. My incapacities.

7 Had you meant not to deal with tab 21?

8 MS. SOMERS: I am trying to clarify if there is a previous number

9 attached to these so that I don't --

10 JUDGE PARKER: Thank you.

11 Mr. Petrovic, I see you standing.

12 MR. PETROVIC: [Interpretation] Your Honour, it's about

13 interpretation again, page 66 [as interpreted], lines 18 and 19. The

14 witness said he saw that decision, and he means D55, and the

15 interpretation runs that it is similar to the decision by the 2nd

16 Operational Group. And what the witness actually said is that it precedes

17 the decision made by the 2nd Operational Group. Therefore, if we can

18 please clarify this particular matter.

19 JUDGE PARKER: I think you didn't mean page 66.

20 MR. PETROVIC: [Interpretation] Your Honour, I mean page 64. You

21 are quite right. My apologies.

22 JUDGE PARKER: Ms. Somers, there's something there for you to

23 clarify.

24 MS. SOMERS: Yes. Actually, the question was whether or not there

25 was -- there were elements of the first order that were reflected as well

1 in the second -- in what was the order by -- order or proposal by Jevrem

2 Cokic. That was my question.

3 Q. And your response?

4 A. Well --

5 Q. Concerning the -- general activities in the -- Dubrovnik and the

6 JNA. I did not ask anything in particular about the 2nd Operational Group.

7 That was not part of my question.

8 A. The document that you had shown me was a proposed decision on the

9 use of the force of the 2nd Operational Group, and that all referred to

10 September 1991. And what I have said was it was a proposed decision on

11 the use and that this was the decision which preceded the use and the

12 introduction of the operations of this group.

13 Q. Returning to the questioning about violations of orders. I give

14 you a scenario, and I would ask, please, that you listen very carefully to

15 what I -- what my question is. An order to cease fire is in existence,

16 has been issued. A member of an operational group, allegedly on his own

17 initiative, undertakes to violate that order, undertakes to open fire in

18 the face of a cease-fire in place. What would you view as the appropriate

19 response of the superior officers concerning that violation of the order

20 to cease fire?

21 A. Well, the violation of an order is, per se, negative and it should

22 be sanctioned. What should the superior officer do in this situation will

23 depend on whether this violation lasts so long that he has to get involved

24 and stop it, or was the violation so brief that he can only act

25 post-festum. Therefore, if it -- the violation lasts for a certain period

1 of time, the superior commanders must get involved in order to stop, put a

2 stop to this violation. Regardless whether they succeed or the violation

3 is stopped, they must treat this violation and sanction this violation and

4 adopt measures in order to avoid a repetition of this.

5 Q. Now, you have -- we can break this into a second part. You have

6 indicated that they must act to stop the violation. You have indicated

7 that the duration of the violation is a factor into what they should do.

8 Let us give the scenario in which the violation of a cease-fire order has

9 the effect of a major, major outbreak of fire from the other side, with

10 the result that there is now engagement by both sides. It lasts over a

11 period of hours. Among the objects affected or targeted are protected

12 areas, protected by international humanitarian law, as well as injuries to

13 civilians protected by international humanitarian law. What would be the

14 appropriate response of the commander upon realisation that it is not

15 stopping quickly?

16 A. The violation of a cease-fire caused by one side, as a rule, gives

17 rise to a response of the other side, and that's a rule of action. The

18 other side cannot just wait and be a victim of the attack, irrespective of

19 a cease-fire. How to stop such a conflict caused by a single violation,

20 when both sides insist they didn't begin it, it's very difficult to stop

21 such an attack, particularly a one-sided effort to stop it. But if you

22 have such a battle position that it's clear that one side can stop,

23 one-sidedly such a conflict caused by the initial violation and he

24 withdraws, then such -- this can be done. And the superior officers can

25 order this and withdraw the forces from the fire of the other side. But

1 if they're in such a position where they cannot withdraw, then both sides,

2 with the assistance of a third party or through mutual cooperation on a

3 higher level, should simultaneously stop firing at each other.

4 So this is a rather complex situation, but it's rather frequent

5 when cease-fire violations occur.

6 Q. If the opening of fire, as I referred to earlier, by -- on the

7 initiative of a unit, an operational group, if the opening of fire is

8 contrary to a strategic goal, a cease-fire which is part of a greater

9 strategic goal, what is the obligation, or what would be the appropriate

10 response of the superior commanders to ensure that that strategic goal is

11 met, this goal having been interfered with by the outbreak?

12 JUDGE PARKER: Mr. Petrovic.

13 MR. PETROVIC: [Interpretation] Your Honour, can my colleague

14 please say precisely which superior officers she has in mind, which level.

15 First level, second level, third, fifth level? I think she should specify

16 when she asks a question like this.

17 MS. SOMERS:

18 Q. The highest commanding officer in the operational unit. What is

19 the obligation of the highest commanding officer in the operational group?

20 JUDGE PARKER: Do you mean the commander of the operational group?

21 MS. SOMERS: Yes. Yes. The highest -- the commanding officer

22 which is the highest level.

23 Q. What is the appropriate response?

24 JUDGE PARKER: Commander, not commanding officer.

25 MS. SOMERS: I'm sorry. I'm sorry, Your Honour. I do this all

1 the time. Correct.

2 JUDGE PARKER: Mr. Petrovic.

3 MR. PETROVIC: [Interpretation] Your Honour, we are talking about

4 abstract ideas and tasks that we must tackle. Therefore, may we have this

5 explained clearly first. There is the battalion level, the battalion has

6 its own Superior Command, which is the corps command, or the VPS command.

7 And then the VPS command has its own Superior Command above them, as the

8 OTP claim, the operational group. It is in that context that we should

9 hear answers from the witness. It should be made perfectly clear which

10 roles in which specific situations are implied by the question.

11 Thank you very much, Your Honour.

12 JUDGE PARKER: I leave it to you to formulate your question. If

13 it isn't right, it won't be much use to anybody.

14 MS. SOMERS: I would, if I may, just respond to this particular

15 point that I am specific about the operational group commander, and that

16 is the thrust of my question. I deem everything else right now

17 irrelevant.

18 Q. I want to know about the appropriate response from the operational

19 group commander as to the events that have flowed from the violation of a

20 cease-fire order of one of his subordinate commanders, by one of his

21 subordinate commanders.

22 A. If you ask me about the situation which existed around Dubrovnik

23 when you had the violation of a cease-fire, from the military point of

24 view, I should state that we should see who took the initiative and who

25 was attacking and who was defending. The attacker has the opportunity of

1 withdrawing from the attack, and the defender not.

2 The 2nd Operational Group was performing -- carrying on operation.

3 And it was -- he was running the operational group commander. And the

4 commanders of VPS and the commanders of the brigades and of the battalion.

5 They all had their share of responsibility.

6 So you said that it depends on the strategic interest, what is to

7 be done in case of a violation of a cease-fire. I must say that first we

8 have to see what is the strategic interest. Was it for the operational

9 group commander to maintain the blockade of Dubrovnik, or was his primary

10 interest the prevention or stopping this violation of cease-fire? What

11 was more important for him? I cannot assess that.

12 Q. General, let me give you a scenario where the strategic goal is to

13 have a cease-fire in effect, and I will add a dimension for you, that the

14 commander one level down from the operations group commander has given an

15 order that fire cease. It has not been obeyed. It has not been obeyed.

16 It appears not to be obeyed. What is the appropriate response of the

17 operations group commander under those circumstances? If you can be very

18 specific and brief, it would be helpful.

19 A. In such a concrete case, if a cease-fire has been imposed, it's

20 also in the interest of the two sides to maintain it. The commander whose

21 side has committed this violation should have intervened if he had the

22 opportunity. If he had the initiative, the place, he could do so to stop

23 the other side, but also withdraw his units to another place so that the

24 other side wouldn't have the other -- the targets and would stop its fire,

25 and the cease-fire would be in place again.

1 MR. PETROVIC: [Interpretation] Your Honour, there's an

2 interpretation problem yet again. Page 71, line 1. [In English]

3 [Previous translation continues...] side has committed this violation.

4 [Interpretation] The witness used the word "commander" and then the

5 word "unit" or "enota," in Slovene. I think that means "unit." The

6 commander, therefore, whose unit committed the violation.

7 JUDGE PARKER: Would you like to clarify, Ms. Somers?

8 MS. SOMERS: My counsel opposite has asked what particular word --

9 let's see.

10 Q. When I asked you and you answered, you said: "[And] in such a

11 concrete case, if a cease-fire has been imposed, it's also in the interest

12 of the two sides to maintain it."

13 Then the transcript says: "The commander whose side has committed

14 this violation should have intervened if he had the opportunity." Did you

15 intend, if I understood correctly, to use the term -- was it -- if I

16 understood correctly, Your Honour "commander"?

17 JUDGE PARKER: No, no. Whose unit or whose side has committed

18 this violation. I'm not sure what it is the witness wanted to say.

19 MS. SOMERS: I will --

20 THE WITNESS: [Interpretation] Unit. Unit. Unit. Whose

21 subordinate unit participants in the violation of the cease-fire.

22 JUDGE PARKER: Thank you.

23 MS. SOMERS: Thank you very much, General.

24 Q. You had mentioned the commander whose side has committed this

25 violation should have intervened. How should the commander whose side

1 committed the violation, how should he have intervened? Can you tell us

2 concretely what type of intervention you had in mind, possibilities.

3 JUDGE PARKER: I think the question should read: Whose

4 subordinate unit has committed the violation.

5 MS. SOMERS: Yes. The subordinate unit. Yes.

6 A. At present, I can't define what I would do myself, how I would

7 stop the violation of the cease-fire. Of course, there are many

8 possibilities. The first, the easiest is via means of communication to

9 issue an order to the subordinates down to the perpetrators of the

10 violations, of the shelling, to stop that action immediately. Of course,

11 if it's possible, he can also order to -- order to stop the shelling and

12 to withdraw from that position.

13 Q. If such orders are given --

14 JUDGE PARKER: Sorry. I was --

15 THE WITNESS: Just a minute. Just a minute. Just a minute.

16 JUDGE PARKER: -- pause for the transcript. He may not have

17 finished his answer.

18 THE WITNESS: [Interpretation] Yes. Of course, the commander also

19 can and must also more efficiently, if the issuing orders -- the issued

20 orders do not reach the subordinate or if they're not effective. And in

21 that case, send a deputy or somebody else on the location, or somebody

22 else, or that he personally issue orders, or even go personally to that

23 unit, and there, stop directly the shelling, of course, if he decides --

24 so decides or if he can order the withdrawal of the unit. If all that

25 isn't feasible, then, at a higher level, they meet and both sides decide

1 on a new cease-fire. Both sides can then decide to stop this violation of

2 the cease-fire.

3 MS. SOMERS:

4 Q. While this violation of the cease-fire is occurring, I put to you

5 that areas of historic or cultural interest protected by international

6 humanitarian law are being shelled by units under the command of the

7 operational group. As time goes by, more and more damage is occurring.

8 Efforts to bring the firing to a halt, through the intervention of

9 subordinate officers, but high-ranking subordinate officers, have failed.

10 What is the appropriate response for the operational group commander?

11 A. Well, in the event -- we have a situation where one side is

12 shelling the protected monuments, cultural monuments and so on -- in such

13 a case a cease-fire to stop fire is an obligation that the subordinate

14 officer should be able to obtain, regardless of the fact that the other

15 side also is involved in fire. Because this shelling is unauthorised even

16 not if this is fire on both sides. If the first or the second order are

17 not successful, then there is no other -- in fact, other solution than for

18 the commanding officer to be there even personally so as to put an end to

19 it. There is no other possibility. Therefore, on the site, on the site

20 of the battle, of the fire itself. So that in fact through his

21 intervention, this be stopped on the spot.

22 Here, of course, I'm speaking about the operational -- of

23 operational activity, in fact, within the area of such activities and

24 within a short period of time.

25 Another matter is indeed how, later on, responsibility of those

1 having taken part in the violation of cease-fire will be raised and in

2 this illegal attacks on protected areas and monuments.

3 Q. You indicated an appropriate response may be for the commander

4 himself to go to the area. Can you comment about --

5 MR. PETROVIC: [Interpretation] Your Honour, which commander are we

6 talking about? Please, let's clarify. Which commander do we have in mind

7 here? Battalion commander, brigade commander, corps commander, or the

8 commander of the operational group, an army-level unit? Please let us

9 have this clarified.

10 MS. SOMERS: I have been asking, General, to clarify about the

11 operational commander, the commander of the operational group.

12 Q. Is that the commander you had in mind who should personally

13 intervene and if all other measures fail to go?

14 A. By all means, this is a responsibility to be borne by all

15 commanders in the chain of command, from the top to the bottom, including

16 also the infantry, battery, for instance, the infantry company, all of

17 them have this responsibility. And if all the lower levels do not do it,

18 then obviously up to the very highest level, and that is in that case, in

19 that particular case, the commander of the operational group. And this

20 situation is already very problematic; namely, that he is not capable of

21 stopping the problem through the other levels and that he has to become

22 involved personally. However, it cannot be excluded, and in the extreme

23 case, this is something he should do as well.

24 Q. Is an appropriate response -- would an appropriate response

25 include removal or physical removal from the scene of the offending

1 lower-level commander, let us say a battalion commander for the sake of

2 argument, who continues actively to be involved in attacks?

3 A. Possibly. But this is not a formal removal of a commander from

4 the commanding post, but possibly, for instance, the superior officer in

5 some way can remove the undisciplined commander from the very site of

6 operations, either by taking him away with him or by some other similar

7 measure.

8 If, for instance, a commander, a superior commander, even the

9 supreme commander, should go to the site itself, to the spot, and then

10 personally give an order for the fire to cease, and one of the

11 subordinates would resist this order and would not in fact implement it,

12 that would be actually flagrant disobeyance [as interpreted] and criminal

13 offence and in this event, therefore, he should take a measure which would

14 also imply, in fact, depriving him of his liberty, and such a potential

15 offender would therefore be turned over to the prosecuting authorities.

16 Q. Would the operational group commander, if obligated to meet with

17 his superior commander at a point later in the day, would that operational

18 group commander be excused from that type of personal intervention

19 required by the continuing pacts which are not being stopped pursuant to

20 orders?

21 Let me make it quite clear: If the operational group commander

22 has to see his superior commander, and yet the activity which is the

23 subject matter of that meeting persists at a very dangerous level, would

24 the operational group commander appropriately seek to defer the meeting

25 and personally intervene in the situation at hand?

1 A. Well, such an assumption that you have just presented obviously is

2 very serious and places the commander in a situation where he has to weigh

3 and assess whether to respond to the requirement of his superior and come

4 and see him, leave his post and go and see him, while, for instance, the

5 situation with his unit critically asks for his personal presence. Well,

6 in this event, obviously, it seems quite normal to me that such a

7 commander, together with his superiors, should judge and assess what is

8 better. Because to stop violation, violation of cease-fire, would be

9 equally important and in the equal interest also of his own superior.

10 Therefore, to defer such a meeting for an hour or two is probably

11 less important than, in fact, stopping the -- than the stoppage of

12 cease-fire. And such a requirement and this need for personal presence

13 obviously still implies and is within the great responsibility of the

14 operational commander.

15 MR. PETROVIC: [Interpretation] Your Honour, the witness didn't say

16 commander of the operational group. He said operational commander. And

17 these are two different things.

18 JUDGE PARKER: Ms. Somers.

19 MS. SOMERS:

20 Q. General, when I pose to you, when I speak about the operational

21 group commander, I wish to clarify that I am referring to the commander of

22 the operational group. Is that the same level of officer you are

23 referring to in your response, General?

24 A. Well, myself, I was actually -- what I had in mind was the

25 commander of the operational group. But this commander is also the

1 commander of VPS. However, both are facing -- both have this dilemma.

2 They have to resolve it, both with their superior. And the same would be

3 also in the case of the commander of the VPS, because he too would have to

4 resolve such a dilemma. But at any rate, he would have to assume

5 responsibility for not having intervened and put an end to the attack

6 because he went to see the -- his superior. To me this cannot be

7 compared.

8 MS. SOMERS: I have been advised that there is a transcript

9 correction, page 76, line 16 should read "cease-fire violation." I think

10 it might be off my screen. Yeah. And then stoppage of cease-fire

11 violation.

12 Q. Ultimately, who is -- which commander is ultimately responsible

13 for making sure that the situation is brought under hand? What is the

14 highest level of responsibility? Who is the ultimately responsible

15 officer, commander?

16 A. Within the operations that a given commander in fact leads, well,

17 in the case of the operational group, that is the commander of the

18 operational group, because he is in fact the highest instance -- he has

19 the highest responsibility in the field.

20 Q. [Previous translation continues]... I'm talking about at the

21 operational level.

22 MR. PETROVIC: [Interpretation] Please, allow the witness to finish

23 his answer.

24 MS. SOMERS: I wanted to make sure my question was correct -- was

25 clear.

1 Q. Within the operational group on the operational level, who

2 ultimately bears the responsibility for making sure that the matter at

3 hand is dealt with?

4 A. Well, by all means, the commanding officers [as interpreted] of

5 operational group, because he indeed is the superior officer.

6 Q. Excuse me. I believe the transcript says "commanding officers."

7 Did you mean "commanding officer"?

8 A. [In English] Yes.

9 Q. Or commander -- let us get our -- let us get our -- commander,

10 commander. We have -- make our term -- commander of the operational

11 group. Thank you.

12 Let us now take the scenario where, hours later, a cease-fire is

13 in fact -- well, fire stops and there is an assessment, there is a report

14 from the other side of serious damage to protected -- sites which are

15 protected under international humanitarian law, as well as to -- injury to

16 civilians in -- within that area, which is also a protected area. Let us

17 talk now about what must -- what steps must be done to react to the

18 information that there has been what, on its face, may be a criminal

19 violation of international humanitarian law.

20 A. [Interpretation] This is the situation after, after the attacks,

21 when the damage has already occurred. Well, in such a case, the

22 commanding officers in the chain of command and the military leadership,

23 as -- in general, have the responsibility to carry -- to bring up the

24 responsibility of those members of the armed officers [as interpreted]

25 who, in fact, participated in the illegal attacks on the unprotected

1 civilian targets.

2 Q. Excuse me. Do you -- excuse me. I want to clarify. Do you

3 mean -- when you say "unprotected civilian targets," I'm not clear.

4 That's how the translation came out. Would you indicate --

5 A. [In English] Protected.

6 Q. Thank you.

7 A. [Interpretation] This responsibility evidently is a criminal

8 responsibility, because this is a criminal offence, because in fact such

9 attacks on cultural -- on protected cultural monuments is a criminal

10 offence; and the perpetrator, once identified, has to be brought to the

11 military court.

12 Another aspect which, in fact, then remains to be taken into

13 consideration for the commanding officers -- officer and the competent

14 authorities is to ensure that something similar does not happen again; and

15 for it, other measures are called for, are necessary, and to my mind,

16 especially, in fact, measures relating to the personnel. Commanders who

17 are capable of such offences should be removed from their posts, and

18 others -- and they should be replaced by other people who will respect,

19 actually, regulations and orders. With the same people, well, you cannot

20 actually expect that something like it will not happen again with the same

21 people.

22 Q. Can we discuss what you're referring to as the removal, the

23 process of removal? How does that come about? How is an officer -- or

24 what role does a commander have in the process of removal?

25 A. Well, removal of individual commanding officer from their post can

1 be accomplished by a number of ways. One of the ways is, very briefly,

2 issuing of orders by the competent senior officer on removal and

3 transferring of the officer to another post. No disciplinary measure is

4 necessary. This is regular staff measure taken.

5 Another way to remove such an officer from their post is by

6 initiating a criminal procedure against such a person, and the competent

7 investigating judge apprehends them by depriving them of liberty.

8 Similarly, according to the law, it is possible to remove, temporarily

9 remove, an officer from his post if a procedure is initiated against him,

10 in view of a disciplinary infringement, if a disciplinary investigation is

11 initiated against him. Once the disciplinary procedure to court-martial

12 such a person is initiated, then such an officer can be removed from his

13 post.

14 These are some essential ways and means to remove him or her.

15 Q. Now, the first option you mentioned about no disciplinary

16 measures, just a transfer, would that -- did you intend to mean that in

17 the situation where serious criminal violations have occurred, that that

18 is an option, where serious criminal violations such the ones we have just

19 discussed occurred?

20 A. Well, if a criminal offence occurred, then the primary way is to

21 deprive him of liberty and initiate a criminal procedure against him.

22 I've noted a general option that the system of command and control has at

23 its disposal to somebody that has only threatened to use force can be

24 removed from a sensitive post. However, if and when a criminal offence

25 occurred, then the criminal procedure had to be initiated. Thus, the

1 person is removed from his post by competent bodies.

2 Q. The initiation of the criminal offence, can you indicate how that

3 would come about under these circumstances? I'm sorry. Excuse me. I'm

4 sorry, General. Not the initiation of the criminal offence; initiation of

5 the criminal procedure concerning the offence. I'm terribly sorry.

6 A. It is initiated in the circumstances when it is established that

7 an assumed criminal offence has occurred. If, in a combat situation,

8 during fire, there is no doubt that the criminal offence has occurred,

9 then a military prosecutor must be notified, as well as investigating

10 judge should have been notified, so as to take decision how to proceed.

11 If a commander commanding -- operationally commanding, firing, and if fire

12 still goes on, then he can be deprived of his liberty, also by a competent

13 body of a security service, competent body of military police, or his

14 superior officer, who is on a higher-ranking level than him. All these

15 could deprive him of liberty until investigating judge decides on how to

16 proceed, and then investigating judge takes over the criminal procedure

17 against this particular person.

18 Q. Does the commander of the operational group, as the highest

19 commanding officer in that group, have an obligation to ensure that the

20 information about the violations, about the criminal violations, reaches

21 the appropriate prosecuting or criminally investigating authorities?

22 A. All levels of commanding posts must or shall provide for that. If

23 this is not provided for on a lower level, then the commander leading such

24 an operation is the superior officer and the most responsible to provide

25 for this matter. And when this is done, the military prosecutor is

1 notified. But this does not imply that he personally must notify the

2 military prosecutor. He personally must check and verify whether the

3 military police has been informed, whether the military police has

4 notified the prosecutor, whether other subordinate officers have done so.

5 If that has been done, it has been implemented, and his responsibility is

6 that, in one way or another, the prosecutor has been notified.

7 Q. This applies to the commander of the operational group, that he

8 must personally check and verify whether the military police have been

9 informed, whether they've notified the prosecutor, whether other

10 subordinate officers have done so? Is this what you are saying is the

11 obligation of the commander of the operational group?

12 A. Well, the commander of such a level as operative group has its own

13 command. In this command, he has his own body, an assistant for political

14 and legal matters. He has a legal clerk. He also has a head of security

15 service, or any body can acquire information and check the information and

16 just notify the commander on the result. Prosecutor's office is notified,

17 then commander can say "thanks." Or prosecutor's office has not been

18 notified, he can command anybody in his staff that this be done, thus

19 providing for the initiation of the procedure.

20 Q. The commander of the operational group is aware of the allegations

21 of the crime having been committed. There appears to be no action taken

22 by a military prosecutor. Nothing seems to be happening. Is there --

23 what is the obligation of the commander of the operational group to ensure

24 that, in fact, because he knows the allegations have been lodged, to, in

25 fact, that information reaches the military prosecutor?

1 A. The interest and the responsibility of the commander is that the

2 procedure is initiated, and that is duly carried out.

3 However, if this has not happened, in view of something has

4 occurred with the investigating judge or the prosecutor - of course, we

5 are now speaking in terms of the implementation of criminal responsibility

6 for what has happened for illegal firing - he then must notify his

7 superior, and namely that no measures have been taken by the judicial

8 bodies.

9 For example, in view of the questions as you have already put to

10 me, if, for example, the competent investigating judge or military

11 prosecutors get killed, in such a case, commander notifies his superiors,

12 and the superior then notifies other high-ranking bodies to guarantee for

13 the replacement of lower judicial bodies, that cannot carry out their

14 duties.

15 Q. Let me ask you more specifically: If it becomes apparent that the

16 other persons within the operational group who could communicate the

17 information, either through the military police or by some other means, to

18 the military prosecutor, have not done so, have not done so, not because

19 of death or whatever of the military prosecutor, then what is the

20 obligation, the responsibility, of the commander of the operational group?

21 A. His responsibility is to make sure that this data reaches the

22 military prosecutor. If none of his subordinates or others have done so,

23 then he must demand for this to be done by somebody else. Or similar, he

24 may also demand this from commanders from his own command on the level of

25 operational group, which is all possible. If there is no communication

1 with prosecutor's office, the commander can then ask that this be

2 communicated through his superior commander.

3 Q. But he must -- do I understand you correctly: But he must ensure

4 that the information is communicated? Is that correct?

5 A. Right. Correct.

6 MS. SOMERS: Thank you. Your Honours, I note that it is 4.00. I

7 assume the next question to me will be: How much longer. If I may

8 examine respectfully for part of the morning session, less one hour, if

9 that is acceptable.

10 JUDGE PARKER: Thank you. [Microphone not activated] I must

11 adjourn for the evening now. We will resume again at 9.00 in the morning

12 and your evidence will continue then. Thank you.

13 --- Whereupon the hearing adjourned at 4.00 p.m.,

14 to be reconvened on Friday, the 14th day of

15 May, 2004, at 9.00 a.m.

16

17

18

19

20

21

22

23

24

25