Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12201

 1                           Thursday, 20 November 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 2.20 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.

 7             Madam Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 9     number IT-06-90-T, the Prosecutor versus Ante Gotovina et al.

10             JUDGE ORIE:  Thank you, Madam Registrar.

11             I was informed that the parties would like to raise further

12     disclosure issues.  An opportunity will be given for that later today.

13     The witness is -- or is is there any urgency in the matter.

14             MR. MISETIC:  I don't think we've been made aware of what the

15     issues are, Your Honour.

16             JUDGE ORIE:  Oh.  Then perhaps I'm misinformed.

17             Mr. Waespi.

18             MR. WAESPI:  Yes.  We'd like -- in fact Mr. Russo is here only

19     for the first session and unfortunately not after 6.00.  We'd like to

20     raise to an issue which was triggered yesterday by your acceptance of the

21     offer by Mr. Theunens to deliver his expert report which triggered e-mail

22     responses from the Defence this morning.

23             I would just like to clarify a couple of issues in relation to

24     that.

25             JUDGE ORIE:  Yes.  Well, Mr. Theunens is here now.  I don't

Page 12202

 1     suggest that if Mr. Russo is available during the first session that --

 2     how much time would you need?  Three minutes or five minutes?

 3             MR. WAESPI:  I would like not to answer the question.  But we can

 4     do it at the beginning of the second session if that suits you.

 5             JUDGE ORIE:  Yes.  Then at least we -- first of all, I don't know

 6     how appropriate that will be for Mr. Theunens to be the witness of -- of

 7     what we discuss about disclosure issues apparently triggered by your kind

 8     gesture yesterday, Mr. Theunens, to provide earlier versions.

 9             We will do it, then, at the beginning of the second session.  But

10     this is not a way to -- the reason why I'm usually scheduling procedural

11     matters at the end is because then you are limited in time.  The same

12     limits apply if you will raise the issue in the beginning of the second

13     session.

14             MR. WAESPI:  Thank you, Mr. President.

15             JUDGE ORIE:  Then, Mr. Waespi, could you give us any indication

16     as how long you would deal with the -- with the issue you started with as

17     the Chamber requested you to do.  That is, the issue of expertise, scope

18     of expertise, and the other matter was the methodology.

19             MR. WAESPI:  I think it is probably another half an hour, I would

20     say.

21             JUDGE ORIE:  Another half an hour.  We would then give an

22     opportunity to Defence to deal with that before we go to the substance of

23     the report.

24             Mr. Waespi, please proceed.

25             MR. WAESPI:  Thank you, Mr. President.

Page 12203

 1                           WITNESS:  REYNAUD THEUNENS [Resumed]

 2                           Examination by Mr. Waespi:  [Continued]

 3        Q.   Good afternoon, Mr. Theunens.

 4        A.   Good afternoon, Your Honours, Mr. Waespi.

 5        Q.   Before we go into the detail of your methodology, I would like to

 6     kind of finish your CV, and we did not really look at your CV and did not

 7     tender it.

 8             MR. WAESPI:  If 65 ter 6100 could be brought up.

 9        Q.   You're familiar with your CV, obviously.  Is there anything you

10     would like to add or clarify to the CV that you see displayed on the

11     screen very soon?

12        A.   Your Honours, this is the CV that was attached to the report when

13     it was filed in December 2007.  Just a small update, as I mentioned

14     yesterday, in the meanwhile I testified in the trial of Vojislav Seselj;

15     that happened in February 2007.  And I testified on the basis of an

16     expert report titled, Role of SRS/SJP volunteers in the conflict in

17     Croatia and Bosnia and Herzegovina.  And also as we mentioned yesterday,

18     on the 12th of September -- excuse me, on the 13th of September, I spoke

19     at a conference in Oslo on the use -- on the role of military expertise

20     in laying criminal charges.  That conference was also attended by

21     Mr. Cayley.

22        Q.   Thank you, Mr. Theunens.

23             MR. WAESPI:  Mr. President, if we could tender this piece of

24     evidence, please.

25             JUDGE ORIE:  Madam Registrar.  No objections, I see.

Page 12204

 1             Madam Registrar.

 2             THE REGISTRAR:  Your Honours, that would be Exhibit number P1112.

 3             JUDGE ORIE:  P1112 is admitted into evidence.

 4             MR. WAESPI:  Thank you very much, Mr. President.

 5        Q.   Last point on the time you were part of the Belgian Ministry of

 6     Defence.  Did you also acquire knowledge about the special police that

 7     was deployed in -- in Croatia while you were part of the Belgian MOD?

 8        A.   Indeed, Your Honours.  We considered the activities, and I use

 9     that term in a very general manner, of the special police together with

10     the activities of the Guards Brigades and also a unit known as the

11     1st Guards or the Presidential Guard as key indicators for possible

12     contentions of the Croatian armed forces in relation to the UNPAs.

13        Q.   Thank you, Mr. Theunens.  Let's move to the methodology in more

14     detail.

15             Yesterday, you described the sources you relied upon to which you

16     had access to.  Now, can you tell us, and I know you described it in your

17     previous testimonies as an expert in detail, but please again walk us

18     through the process, how you transformed these sources into your report?

19        A.   Your Honours, the methodology I applied is commonly known as the

20     intelligence cycle.  The intelligence cycle covers four phases.  The

21     first one, direction; then there is collection; third one is processing;

22     and the last one is dissemination.  These are what is called discrete

23     phases, i.e., they happen simultaneously and they interact with each

24     other.

25             And if you want, I can go into more details of these phases.

Page 12205

 1        Q.   Yes, please.  And please address when you start addressing

 2     direction and then tell us when you talk about collection and processing

 3     and lastly, dissemination, so we see the steps under each of those four

 4     headings.

 5             Let's start about direction, concretely in this case.

 6        A.   Your Honours, in this case, direction consisted of the lists I

 7     received and which were discussed yesterday, i.e., the ten-point and

 8     subsequently the 17-point -- 17-item list, whereby in response I proposed

 9     a draft outline or table of contents.  Once this draft outline was

10     approved by Mr. Tieger, I used that outline in order to focus my further

11     efforts and that is meant by direction.

12             In the collection phase, as the word says it, I started to

13     collect information.  We mentioned yesterday, for example, what kind of

14     documents I looked at, whereby this collection was driven by obviously

15     the direction, i.e., the specific nature of information I required based

16     on the draft outline.

17             In the processing phase, the information is transformed into

18     intelligence.  What is meant by that in the processing phase, five steps

19     will be carried out.  First of all, the information that has been

20     collected will be collated, which means it will be organised by team or

21     by topic, electronically in hard copy and so on.  Secondly, which is --

22     the second step, which is a very important step in this context, is the

23     evaluation step.

24             During the evaluation step of the processing phase, the

25     information will be appraised from two aspects.  First of all, the

Page 12206

 1     reliability of the source; and secondly, the credibility of the

 2     information.  A reliable source can provide information of low

 3     credibility and vice versa.  Again, if you wish more details I can

 4     explain in detail what is meant.  Basically, reliability means --

 5     reliability goes to aspects like what is the relation between the source

 6     and the information, what is the reputation of the source, does the

 7     source have any particular interest in relation to the information, and

 8     so on.  Credibility of the information deals with, well, has the

 9     information been corroborated by other sources, is the information

10     coherent with what we know already.  Because we never start from zero.

11             Anyway, in the next step of the processing phase, the information

12     will be analysed which means that we will review the newly collected

13     information in order to identify relevant facts for subsequent

14     interpretation.

15             According to doctrine analysis is followed by integration, which

16     means that -- actually, integration is difficult to disassociate from

17     analysis because it happens more or less mentally at the same time.  The

18     information will be organised in patterns, but it is a mental process.

19     And after analysis and integration, we will interpret the information, in

20     order to determine what the significance is of the information compared

21     to what we know already.

22             So that covers the processing phase.

23             The last phase, the dissemination phase, basically is the report,

24     i.e., the analysed information which has become intelligence, because of

25     the mental processes I just described, will be presented in a manner that

Page 12207

 1     is, according to doctrine, timely and appropriate.

 2             To conclude this intelligence cycle is something I was first --

 3     first learned about in Military Academy.  It's applied in most armed

 4     forces or in most intelligence services, even though I realize, that for

 5     example, in United States there is a slightly different identification of

 6     the different steps, and also criminal analysts, there is a slightly

 7     different denomination of the different steps and phases, but it -- at

 8     the end it all comes to the same process, which, as I mentioned,

 9     especially where processing is concerned, is a mental process, which is

10     obviously determined by the training, education, and experience of the

11     analyst.

12        Q.    Thank you, Mr. Theunens.  Now you mentioned that you applied the

13     methodology of an intelligence analyst.  From your experience as an

14     expert in other cases, in preparing drafts, in testifying, do you see any

15     differences in the analysis carried out by an analyst and an expert

16     witness?

17        A.   Your Honours, traditionally, an intelligence analyst will predict

18     events, i.e., he or she looks at certain events that have happened and

19     will try to make a prediction in order to determine what can happen in

20     the future.  Here the role is almost the opposite.  Here the analysis or

21     the intelligence cycle is applied in order to explain certain events or

22     to describe them.

23             So in summary, I would say that traditional intelligence analysis

24     is about predicting, whereas here my role, as well as of colleague

25     analysts, criminal analysts or military analyst in the OTP, is about

Page 12208

 1     describing or explaining.  But in my view, the same mental processes

 2     apply.

 3        Q.   Let me follow up with a couple of concrete situations or

 4     examples.

 5             How did you determine the relevancy of the documents to be

 6     included into the report and what criteria did you use to include them or

 7     not?

 8        A.   Your Honours, I compared with the activities I described

 9     yesterday, i.e., the professional activities I carried out before joining

10     the ICTY.  I saw myself, especially in this case, in what I would

11     describe as a very privileged situation because there's such a huge

12     amount of what I would call firsthand source material available.  I mean

13     by that, that I had the unique privilege of being able to review

14     documents that were produced by the organisation itself that conducted

15     the activities, i.e., the Split Military District, subordinate units of

16     the Split Military District, orders signed by, for example,

17     General Gotovina, or by, for example, Generals Cermak or Markac, which is

18     rarely the case in a traditional intelligence service because there one

19     has rarely the original documents, and most of the times one has to work

20     with sources who can be secondary or even third-hand or even fourth-hand.

21             So the fact that I had first-hand sources, i.e., the original

22     military documents was of course very interesting from the point of view

23     of reliability of the sources.

24             As to the credibility of the information, because of the volume

25     whereby certain events were covered by not just one document but

Page 12209

 1     sometimes by ten, 15 documents or even more, and documents provided --

 2     produced or provided by different originators, for example, one could

 3     have a report of an OG to the Split Military District Command about a

 4     certain event whereby at the same time there is report by the officer for

 5     intelligence and security, SIS, about the same event or even a report by

 6     the head of the department for political affairs again discussing the

 7     same event but from a different angle.  That is, if I can express myself

 8     that way, almost an incredible luxury for an analyst in order to do his

 9     or her work.

10        Q.   Were you ever faced with a situation where the documents gave

11     contradictory information or did not allow for a clear conclusion?

12        A.   Indeed, Your Honours, and this is visible in the second part of

13     the report, when I discussed the relations, the professional relations

14     between the commander of the Split Military District, General Gotovina,

15     and the commander of the Knin garrison during and after Operation Storm,

16     General Cermak.

17             The documents, what I would call de facto documents, i.e., the

18     documents that discuss the situation in August 1995 in Knin, did not

19     allow me to draw a clear conclusion as to the subordination between or

20     the subordination of Cermak to Gotovina as it prescribed in the doctrinal

21     documents on garrison command which are reviewed in the first part of the

22     report.  And I have tried to describe the conclusions which I could draw

23     on the situation which I -- where I stated the situation is not as

24     clear-cut as one would expect from the doctrine.  I have attempted to

25     describe it as such in the second part of the report.

Page 12210

 1        Q.   During the course of your work, have you developed or formed any

 2     views about the authenticity of the documents or certain categories of

 3     these documents?

 4        A.   Indeed, Your Honours.  Obviously I'm not in a position to do any

 5     forensic investigation, because I -- I mean, I don't have the background

 6     and I only had copies to look at.  But again applying the methodology I

 7     have explained, because of the fact that different sources would address

 8     the same event in a similar fashion, not only during the same time-period

 9     but sometimes there were, like, much reports from a later date, but again

10     describing the same event in a similar fashion is important from the

11     point of view of corroboration of the information.  Also, an element of

12     importance is that military documents have numbers, and, for example, the

13     Office of the Prosecutor has the logs, the registers of these documents

14     whereby, as it is in the case in the armies I'm familiar with, that a

15     document when it is received is -- is recorded as incoming mail and when

16     it is sent it is recorded as outgoing mail.  I could compare that --

17     indeed the numbers I could find on the document were also available in

18     these registers of incoming and outgoing mail.  So these are some of the

19     criteria I could apply to verify the authenticity of the documents I had

20     access to.

21        Q.   You have told us already yesterday, I believe, that you were not

22     part of the investigation into the Gotovina case.  Is that correct?

23        A.   That is correct, Your Honours.

24        Q.   And you did not participate in any interviews of witnesses in the

25     Gotovina case.

Page 12211

 1        A.   That is correct, Your Honours.

 2             MR. WAESPI:  Now to finish off, Mr. President, Your Honours, I

 3     would like to go to the report itself and have the witness identify the

 4     structure.

 5             If we could pull up 65 ter 6098, please, and this is the report,

 6     the first part of the report.

 7        Q.   Now we'll see and I think we are all familiar with it, that it

 8     contains a cover page, then the next 14 pages is a table of contents.

 9     That's in e-court pages 2 to 14.

10             Can you explain us the structure using the table of contents, in

11     all briefness.  We can all read it ourselves.

12        A.   Your Honours, the report has basically two parts.  The first part

13     is what I would call the de jure part, and that is intended to explain

14     the basics of doctrine that existed in the Croatian armed forces at the

15     time of the events, covering the aspects like structure, command and

16     control within -- excuse me, command and control over the armed forces,

17     i.e., the civilian command.  Command and control within the armed forces,

18     the planning and organisation of combat operations, as well as military

19     discipline and military law.

20             In the second part of the report --

21        Q.   If we stop here for a moment.

22             Before we go into the second part, in e-court pages 15 to 17, in

23     the current document that's the first part, we see a section called

24     scope.  Can you explain what the purpose of the -- these couple of pages

25     are?

Page 12212

 1        A.   Your Honours, the scope explains the overall structure of the

 2     report.  Basically explains what I just mentioned for the first part of

 3     the report, and what I was about to mention for the second part of the

 4     report, and also mentions in brief terms the sources -- I mean, the

 5     categories of sources I used for the report.

 6             MR. WAESPI:  If we could go to the next page on e-court because

 7     that shows that scope part of your report.

 8        Q.   And we move on to the next section.  That's e-court page 18

 9     through to 41.  This is called executive summary, and we see now the

10     first page.

11             Can you explain the purpose of the executive summary and how it

12     relates to the main body of your report.

13        A.   Your Honours, the executive summary has two objectives.  First of

14     all, to summarize the key aspects of the report, and obviously following

15     from that, the second objective is to present the -- the conclusions I

16     drew from the material I reviewed.  By conclusions I mean military

17     conclusions, i.e., what was the significance of the different documents I

18     reviewed and what did it mean from a military point of view.

19             And as you may have noticed, I have tried for each -- and each

20     section of the report starts with a summary, and -- which highlights the

21     most important aspect of that section whereby the executive summary then

22     summarizes the summaries of the individual sections.

23        Q.   Thank you, Mr. Theunens.

24             MR. WAESPI:  I don't know, Mr. President, whether you want to

25     mark for identification the first part of the report, or whether I should

Page 12213

 1     just move on to the next 65 ter, which is the second part of the report.

 2             JUDGE ORIE:  Yes.  The report has been filed as a whole at the

 3     time.  You want to split up now the two different --

 4             MR. WAESPI:  Not necessarily.  The mere purpose is whether we

 5     should leave it as a 65 ter, hanging, or whether we should assign a

 6     marked for identification number, and indeed both parts can be together

 7     into one number.

 8             JUDGE ORIE:  I think as a matter of fact, it's preferable to have

 9     it marked for identification, if only that we have access to it in

10     e-court.  The Judges have no access to 65 ter numbers.  And then since

11     we're limited in the numbers of exhibits to have open on the screen, I

12     would prefer to have the whole of the report under one exhibit number.

13             MR. WAESPI:  Yes.  The second part would be 6099.  If that could

14     be brought up as well.

15             JUDGE ORIE:  Yes.  And then I'm asking you the following,

16     Mr. Waespi, you earlier asked the CV to be admitted into evidence.  Now I

17     noticed that the CV is not mentioned in the filing in which the report

18     was submitted.  Neither is it mentioned in the table of contents of the

19     report, but it is part of the filing.  If we look at the page numbering,

20     the sequential page numbering given by the registry in order to know what

21     was filed.  And then I see that a two-page CV, and the same, I think, as

22     the one we admitted appears as the page numbers 3899 and 3900.  The last

23     one being the first page of the curriculum.  And that's the same ERN

24     number as the ERN number that was admitted a while ago.

25             So now is it separate or is it also part of the report?  It was

Page 12214

 1     part of the filing in which the report was submitted.

 2             MR. WAESPI:  Yes.  I believe it is important and I understand

 3     that your decision, I think of the 18th December, addresses the

 4     qualifications of the expert based on this CV.  So it is part of the

 5     report but we can --

 6             JUDGE ORIE:  If it is part of the report, we can vacate the

 7     number that was assigned to the CV alone, and we would then have the

 8     expert report as submitted - when was it - in the filing of the 19th of

 9     December, 2007.  That would then comprise the first part of the report,

10     second part of the report, and the CV.  Is that ...

11             MR. WAESPI:  That's correct, Mr. President.

12             JUDGE ORIE:  Then I suggest that we vacate the number that was

13     just assigned to the CV and that -- I wanted to say that we then assign

14     that number to the whole of it, but, of course, the CV was admitted into

15     evidence whereas it is suggested that the report is marked for

16     identification only.

17             So, therefore, perhaps it would be better to split that off

18     because the CV is admitted, and I see no reason to change that at this

19     moment, and then to assign the next number to the report, the two

20     sections of it.  Two 65 ter numbers, one exhibit number.

21             Madam Registrar, what number would be assigned?

22             THE REGISTRAR:  Your Honours, the report would be Exhibit number

23     P1113.

24             JUDGE ORIE:  And it is marked for identification and keeps that

25     status for the time being.

Page 12215

 1             Please proceed, Mr. Waespi.

 2             MR. WAESPI:  Thank you, Mr. President.

 3        Q.   You wanted to explain what the structure of the second part of

 4     the expert report was.

 5        A.   Yes, Your Honours.  So in the second part of the report, I focus

 6     on the events in the zone of responsibility of the Split Military

 7     District between end of July and end of October 1995.  In addition, I

 8     thought it would be useful also to explain -- to provide some background

 9     information, in relation to the existence of a self-declared Serb state

10     in -- known as the RSK, as well as its armed forces.  The deployment of

11     an UN peacekeeping force in April 1992 and its mandate, and of course,

12     also the relevant background elements in relation to the use of the

13     special police inside and adjacent to the zone responsibility of the

14     Split Military District during August 1995 and the command of the Knin

15     garrison during and after Operation Storm.

16        Q.   Thank you, Mr. Theunens.

17             MR. WAESPI:  If 65 ter 6099 could be brought up, and that's a

18     further complication, Mr. President.  There is an addendum which is

19     comprised of 42 pages.

20             JUDGE ORIE:  Yes.  That would then receive a -- for the time

21     being, a separate number.  So the report, one exhibit number; the

22     addendum another exhibit number.

23             MR. KEHOE:  If I may, Judge, I think in a -- my learned friend, I

24     do believe that 6099 was part 2.

25             JUDGE ORIE:  Yes.  That is part 2, at least what we see on the

Page 12216

 1     screen.

 2             MR. WAESPI:  That's correct, it's 6101.  Thank you, Mr. Kehoe.

 3        Q.   Can you tell us, Mr. Theunens, why did you prepare an addendum.

 4        A.   Your Honours, after the filing of the report in December 2007, I

 5     kept on conducting searches in the databases and in particular in the

 6     translation database to find out whether new documents that were relevant

 7     for my report had become available.  In addition, Mr. Alan Tieger

 8     provided me with a hard copy of a list of documents the Prosecution

 9     wanted me to review, and I'm not sure anymore of the date, but I believe

10     that was in April 2008.  I reviewed the documents that were included in

11     that list and then applied the same methodology as I did with the report

12     in order to include documents I considered relevant, documents I had

13     found myself or -- and/or that were included in the list into an

14     addendum.

15             I have mentioned in the introduction to the addendum, that the

16     addendum includes documents that were obtained after December 2007.  I

17     want to clarify this, that I have also included a few documents that were

18     available or that may have been available prior to December 2007, but

19     when I did so, I did that because I considered it -- these older

20     documents relevant, in order to provide additional background or

21     explanation to the new documents.

22        Q.   Thank you, Mr. Theunens.

23             MR. WAESPI:  Mr. President, if this document could be marked for

24     identification.

25             JUDGE ORIE:  Madam Registrar, the addendum would be ...

Page 12217

 1             THE REGISTRAR:  That would be Exhibit number P1114, Your Honours.

 2             JUDGE ORIE:  Thank you, Madam Registrar.

 3             MR. WAESPI:

 4        Q.   And lastly --

 5             JUDGE ORIE:  And that -- yes, has the status of an exhibit -- of

 6     a document marked for identification and keeps that status for the time

 7     being.

 8             MR. WAESPI:

 9        Q.   And, lastly, Mr. Theunens, if we could discuss 6151, please.

10             Did you have a chance to review your report and draft a document

11     called corrigendum?

12        A.   Yes, Your Honours, I did so.  The corrigendum covers basically

13     two aspects identified as contents and one -- and the second as

14     footnotes, whereby I have attempted to identify all the typographic

15     errors that were, unfortunately, still included in the version of the

16     report that was filed in December 2007, as well as changes in

17     translation.  For example, one document, the war diary of the

18     Split Military District which has been tender in the trial as P71, I was

19     informed by, I think it was Mr. Morris or Mr. Shakhmetov that the initial

20     translation was incomplete, and that the -- the amended or corrected

21     translation was complete, which meant that all the references to page

22     numbers of that document had to be reviewed, and if needed, corrected.

23     And that can be seen in the footnotes section of the corrigendum.

24             JUDGE ORIE:  Mr. Theunens, since you're talking about corrigenda,

25     you earlier said that you testified in the Seselj case and that that was

Page 12218

 1     new in February 2007.  Was that what you wanted to say?

 2             THE WITNESS:  2008, Your Honours, I apologise.

 3             JUDGE ORIE:  Thank you.

 4             Please proceed.

 5             MR. WAESPI:  Thank you, Mr. President.  I would like to have this

 6     document marked for identification as well.

 7             JUDGE ORIE:  Madam Registrar.

 8             THE REGISTRAR:  Your Honours, that will be Exhibit P1115, marked

 9     for identification.

10             JUDGE ORIE:  Thank you, Madam Registrar.  It keeps that status

11     for the time being.

12             Please proceed.

13             MR. WAESPI:  Thank you.  That concludes my examination on the

14     expertise of the witness and the methodology.

15             JUDGE ORIE:  Mr. Theunens, as I explained to you earlier, we've

16     split up the portions of your evidence.  We completed one portion

17     yesterday.  We're now in the second portion so the Defence will have an

18     opportunity to cross-examine you on the matters that were raised until

19     now by Mr. Waespi and on any other matter within this same area.

20             Mr. Kehoe.

21             MR. KEHOE:  Thank you, Mr. President.

22                           Cross-examination by Mr. Kehoe:

23        Q.   Good afternoon, Mr. Theunens.

24        A.   Good afternoon, Mr. Kehoe.

25        Q.   Preliminarily, Mr. Theunens, you said that Mr. Tieger give you a

Page 12219

 1     list of documents prior to your filing the addendum that we now have

 2     marked as P1114.  Can you tell us how many documents he gave you,

 3     approximately?

 4        A.   If I remember well, the list had, I think, between 30 and 40

 5     entries, but I'm not sure.

 6        Q.   And approximately when was that that he gave you that?

 7        A.   I believe it was in April, but, again, because I work on several

 8     cases at the same time, it could also have been in March.  But I

 9     understand that you have received a copy of that list and there is a date

10     on it.

11        Q.   I understand, sir.  I'm just asking you.

12        A.   Okay.

13        Q.   Now, sir, let me go back it your CV, and you have a rank of

14     Commandant coming out of the Belgian military forces.  Is that right?

15        A.   That is correct, Your Honour.

16        Q.   What rank is that in the scheme of officer ranks within the

17     Belgian military?  Take us up from the lowest to the highest.

18        A.   Well, it's the rank between captain and major.

19        Q.   That is not my question.  My question is take us from the lowest

20     to the highest.

21        A.   Okay.  We start at second lieutenant, I mean, from low.  Then we

22     have first lieutenant.  Captain, commandant, major, lieutenant-colonel,

23     colonel.  We have brigadiers now but that is purely -- actually an

24     administrative rank which is only applied in international organisations.

25     Then we have major-generals, lieutenant-generals, and we have two

Page 12220

 1     generals, i.e., the chief of Defence Staff has four stars, as well as the

 2     king who is a supreme commander.

 3        Q.   Mr. Theunens, during your military career you -- well, what was

 4     the largest unit that you ever commanded?

 5        A.   The largest -- I mean, do you mean unit -- sorry.  Do you mean

 6     largest by manpower or by equipment or ...

 7        Q.   By manpower.

 8        A.   Yeah, well, really command was -- I was the acting commander of a

 9     company during an exercise, a tank company, which is approximately 80

10     people.

11        Q.   And in that circumstance you were the acting commander.  Is that

12     right?

13        A.   That's correct.

14        Q.   Okay.  Putting aside your acting commanding over 80 people, what

15     is the largest unit of men over which you had full command as the

16     superior?

17        A.   Your Honours, full -- I mean, an acting commander has full

18     command because otherwise is he not a commander.  And, yeah, so the

19     position I held before, platoon commander, I was responsible for 15

20     people.

21        Q.   Okay.  So you were a platoon commander and responsible for 15

22     people, and when you were an acting commander you were responsible for

23     80, right?

24        A.   No.  It's when you are a tank company commander that -- or acting

25     tank company commander you are responsible for 80 people.

Page 12221

 1        Q.   Now let us go through some of your military background, sir, and

 2     I would like to address ourselves to -- by the way, before I do that, how

 3     long were you an acting commander?

 4        A.   I think the longest period in -- the longest was for one or two

 5     weeks but it happened at several occasions.

 6        Q.   So -- and how many occasions did that happen in?

 7        A.   I think three or four.  The situation was that the company

 8     commander was attending French language courses, which is one of the

 9     mandatory things in a -- for a person who has Dutch as a mother tongue

10     and vice versa, before attending the second level staff course.

11        Q.   Okay.  And it's fair to say that any of these positions that you

12     held were being held during peacetime and not during a time of war.

13     Isn't that right?

14        A.   Indeed, Your Honours.  But if you allow me, I would like to

15     explain that -- or I would like to add that peace or war, the principles

16     are the same.

17        Q.   Now, let us turn our attention to your education.  I mean, you

18     noted for us several times on direct examination some of the courses that

19     you took in military history and military sciences, and you also took

20     physics and chemistry and psychology.  Now, you would not consider

21     yourself an expert in all these different disciplines would you, simply

22     because you took a course in the Military Academy in those items?

23        A.   Your Honours, I don't think it is up to me to determine whether I

24     am expert or not.  I can talk about my professional experience and

25     explain why I believe that my experience, both the educational or

Page 12222

 1     academic as well as professional experience, is relevant for the report,

 2     but I don't think it is up to me to determine whether I am an expert or

 3     not.

 4        Q.   Mr. Theunens, my question to you is:  Do you believe that you are

 5     an expert in those disciplines simply because you took a course in them?

 6        A.   The answer is I do not believe -- I mean, the answer is that

 7     whether or not a person is an expert because --

 8        Q.   Excuse me, sir.  Do you have a difficulty understanding my

 9     question?  I'm asking whether you believe --

10             JUDGE ORIE:  Mr. Kehoe.

11             MR. KEHOE:  Yes, Your Honour.

12             JUDGE ORIE:  Please.

13             Mr. Kehoe would like to know, I think, Mr. Theunens, whether on

14     the basis of the courses you followed in other matters, whether you would

15     consider yourself an expert in these fields.  The first question is:

16     Have you ever considered that for yourself, whether you would be an

17     expert in chemistry, for example.

18             THE WITNESS:  Well, chemistry was not my strongest course, I have

19     to admit.

20             MR. KEHOE:  Join the club.

21             JUDGE ORIE:  Well, my question simply was whether you ever

22     considered the question for yourself whether you are an expert in

23     chemistry, which I understand for some lawyers is not an easy one, yes.

24             THE WITNESS:  I understand, Mr. President, what you are pointing

25     at.

Page 12223

 1             Obviously I never considered myself an expert in chemistry or any

 2     specific course I took because, in my understanding of the word

 3     "expertise," it is not just a matter of academic qualifications, it's

 4     also a matter of professional experience and if you wish I can explain

 5     that further.

 6             JUDGE ORIE:  If Mr. Kehoe wants further explanation, he will

 7     certainly ask for it.

 8             Please proceed, Mr. Kehoe.

 9             MR. KEHOE:

10        Q.   Let us be more direct on that score, Mr. Theunens, and talk to

11     you a bit about artillery and your expertise in the field of artillery.

12             You told us yesterday and, Your Honours and my learned friends,

13     it's at page 12179, beginning on line 5, and if at any point you want me

14     it read back verbatim what it says, Mr. Theunens, I will do so, that you

15     took a ballistic course.  Now this ballistics course that you took was in

16     the academy, was it not?

17        A.   That's correct, Your Honours, and that was the first element of

18     my response.

19        Q.   Then during -- when you were a commissioned officer, I believe,

20     and this at line 9 on that same page, you noted that you took a week-long

21     forward observer school, right?

22        A.   That's correct, Your Honours.

23        Q.   And a forward observer school is -- is just training what a

24     forward observer does with artillery saying, Look, you know, you got to

25     go so far to the left or so far to the right.  That's what it does,

Page 12224

 1     right?

 2        A.   That's basically what I recall from the course.  I mean,

 3     obviously there is background information on the types of fire, the

 4     different command and control relations that exist between the unit that

 5     provides the fire support and the unit requests the support.  But in

 6     practical terms it is as you described.

 7        Q.   And I think the last item that you gave us in that score was -

 8     and this begins on same page, Your Honours, line 21 - a brigade level

 9     staff course where you learned the use of many different weapons during a

10     year-long course, right?

11        A.   Yes.  And as I mentioned, that also included the organisation of

12     artillery support on brigade level which I consider very significant in

13     the scope of the matters related to the artillery I addressed in my

14     report.

15        Q.   You never commanded an artillery group either at a corps or a

16     division or a brigade level, have you?

17        A.   No, I haven't, Your Honours.

18        Q.   Now is it a fact, sir, that are you not an expert in artillery,

19     are you?

20        A.   That's a correct observation, Your Honours, and I have not tried

21     to create such an impression in my report.

22             In my report, I have not addressed the technical issues, i.e.,

23     whether or not the right targets were engaged, and if there was

24     collateral damage or undesired damage, whether or not that could be

25     statistically explained.  That is it not a field of my expertise and I

Page 12225

 1     have therefore not endeavoured to express any professional conclusions in

 2     that regard.

 3        Q.   Did you not, in your report, Mr. Theunens, offer an opinion that

 4     the artillery attack on Knin and other towns in the Krajina were

 5     indiscriminately fired upon?  Did you not offer that opinion?

 6        A.   Could you direct me to the page where I make that opinion or

 7     express that opinion?

 8             MR. KEHOE:  Can you pull up the page?

 9        Q.   On page 180, and I believe this is part 2.

10        A.   Your Honours, what I have written there is that -- I wiil read

11     out the sentence:  "The duties of the Split Military District artillery

12     include," and then I open the parenthesis, meaning that I'm quoting from

13     a document which has been actually been addressed at an earlier stage in

14     the report, "putting the towns of Drvar, Knin, Benkovac, Obrovac and

15     Gracac under artillery fire and then I add myself without indicating

16     which specific targets in Drvar, Knin, Benkovac, Obrovac, and Gracac

17     under artillery fire."  And then I add myself:  "Without indicating which

18     specific targets in Drvar, Knin, Benkovac, Obrovac, and Gracac the Split

19     Military District artillery is to engage."

20             I have not used the expression "indiscriminate."  I have -- all I

21     have tried to do is to quote from the order.  I then compared that order

22     with what I had learned in my brigade level staff course, where we

23     would -- for each and every target have a precise description.  I

24     understand that the Croatian armed forces did not use the same grid

25     reference system as we did, but at least there would be a description

Page 12226

 1     like the command post or that enemy battalion or the logistics centre.  I

 2     mean, a specific identification of the target which goes beyond the level

 3     of the name of a smaller or bigger town.

 4        Q.   Continuing to read the portion after you stopped.

 5        A.   Yeah.

 6        Q.   "The fact that the orders of subordinate units, the OG Zadar

 7     order for the attack of artillery dated 3 August 1995 instructs:  'Put

 8     the following towns under artillery fire, Benkovac, Obrovac, Gracac, that

 9     were reviewed during the preparation of this report do not contain more

10     specific targeting information either.'"

11             And this is your opinion:  "Suggests that the Split Military

12     District commander and its subordinate commands regard these

13     Serb-controlled towns as military targets that could be engaged with

14     artillery."

15             You support that on the next page, page 181, where you cite an

16     order or a report by Brigadier Ademi back to General Gotovina where it

17     says:  "This conclusion is reinforced by a report," and you gave the

18     report number, Brigadier Rahim Ademi, Chief of Staff of the Split

19     Military District and commander OG, Operative Group, of course, Livno,

20     sends on 7 May 1995 to Major-General Gotovina, commander of the Split

21     Military District.  Ademi informs Gotovina in this report that:

22     "Pursuant to your command, we are ready to open fire on Knin within four

23     hours.  Ademi's report to Gotovina does not mention which military

24     targets are to be engaged."

25             Now, Mr. Theunens, by the inclusion of those paragraphs in your

Page 12227

 1     report, you were attempting to suggest to the Chamber that Knin,

 2     certainly Obrovac, Benkovac, Gracac, and by logical conclusion Knin was

 3     fired upon indiscriminately, didn't you?

 4        A.   Your Honours, I don't think that that is a correct representation

 5     of what I have written.  But before going to the issue of your question,

 6     I would like to draw the Trial Chamber's attention to 65 ter 4 --

 7        Q.   Excuse me, sir.  Excuse me.  Please answer my question.

 8             JUDGE ORIE:  The witness started what -- to answer the question

 9     and he thought that relevant for his answer was to draw our attention to

10     a certain document and the witness is entitled to do so.

11             THE WITNESS:  Thank you, Mr. President.

12             On page 185, I quote from the operative log-book of the

13     4th Guards Brigade, which is one of the Guards Brigades of the Split

14     Military District.  This document is 65 ter 4581.  And I have included

15     some entries which I considered relevant in the context of the use of

16     artillery by the Split Military District during Operation Storm on page

17     185, and, for example, the last entry I quoted for the 4th of August,

18     dated -- 1038 hours, I will read it out :  "Brigade commander asks not to

19     pound Knin anymore since our troops are already there."

20             The reason I mentioned this is that, as I tried to explain when I

21     addressed the methodology, one should not look at documents in isolation.

22     Secondly, to address the question you asked, basic -- I have not made an

23     analysis of use of artillery -- I mean, of whether or not Knin was

24     shelled or not.  All I have done is used the information included in

25     orders by Gotovina and his subordinate units as well as you read out an

Page 12228

 1     earlier note or report by his Chief of Staff where the possibility of

 2     shelling these towns is being addressed.  Now I have read out an entry in

 3     the diary of the 4th Guards Brigade, indicating that indeed Knin was

 4     shelled or was -- was exposed to artillery fire.  I have nowhere

 5     suggested whether or not Knin was shelled indiscriminately.  I think

 6     that's an important distinction between what is in the report and what

 7     you tried to -- to present here.

 8             MR. KEHOE:

 9        Q.   Mr. Theunens, let's take first things first.  Let us look at the

10     page that you looked at, on page 185, where it talks about ceasing firing

11     on Knin.  That is an order to cease firing on the Knin area because HV

12     troops are in town, right?

13        A.   Indeed, 1038, yes.

14        Q.   Now go back to page 180.  Is it your testimony now that, on page

15     180, the bottom of that page, and your supporting paragraph on the next

16     page, 181, where you discuss the piece of information that was sent by

17     Brigadier Ademi to General Gotovina.  Is it your testimony that you,

18     based on that information, were not trying to suggest to this Chamber

19     that towns in the Krajina were indiscriminately fired upon pursuant to

20     the order of General Gotovina.  Yes or no?

21             JUDGE ORIE:  Mr. Waespi.

22             MR. WAESPI:  I think the question has been answered before.

23             JUDGE ORIE:  Well, certainly the witness had not said yes or no.

24     Whether this is a yes or no answer could still be seen.

25             But did you -- could you please clarify what your position is in

Page 12229

 1     relation to this question.  If can you do it by yes or no, fine; if you

 2     think you couldn't, then please give us the answer, but a brief answer is

 3     preferred.

 4             THE WITNESS:  Yes, Mr. President.  I will try to be brief, even

 5     though it will not be a yes or no answer.

 6             What I have stated in the report is that the artillery of the

 7     Split Military District can engage these municipalities.  Whether or not

 8     they did, I did not have the information available to determine which

 9     targets they engaged and that was not in the scope of my report.  So I

10     think there's an important distinction between what they could do and

11     what they actually did.  My report addresses what they could do, and for

12     what they actually did, I only have the entries in the diary of the

13     4th Guards Brigade.

14             JUDGE ORIE:  May I take it that if you say the report tells us

15     what they could do, that what you wanted to express is that on the basis

16     of the documents you found, what limits on what they could do were found

17     in those documents and that you expressed that in your report.  Is that a

18     more precise formulation of what they could do, because what someone can

19     do is ...

20             THE WITNESS:  Indeed, Your Honours.  So I mentioned in the report

21     what the view of the commander of the Split Military District was in

22     relation to the shelling of Knin based on the deployment of his weapons

23     and his -- the planning he had in order to conduct his part of Operation

24     Storm.

25             JUDGE ORIE:  Please proceed, Mr. Kehoe.

Page 12230

 1             MR. KEHOE:  And if I just may follow up, Mr. President, on your

 2     question, if I may.

 3        Q.   Then what were you suggesting to the Trial Chamber when you said

 4     that this particular order, they do not contain more specific targeting

 5     information.

 6             What were you suggesting?

 7        A.   Well, I think I answered the question, Your Honours, but I can

 8     repeat it.  That based on my expertise in planning of artillery fire, on

 9     one hand, as well as documentation from the Split Military District I

10     reviewed, I would have expected more detailed information as to which

11     specific targets were to be engaged in these towns.

12             I have included examples of the kind of targeting information one

13     would expect on page 187 of my report where -- and that is exactly the

14     same as I learned in my military.  We have a number for the target, there

15     is a -- a description of the target with coordinates, as well as a

16     physical description of the target and identification of who can engage

17     the target.

18             One doesn't have to be an artillery expert to know that this is

19     the basic information that is required in order to allow those that have

20     to carry out the fire to know what they have to fire on when.

21             Now, maybe these lists exists for Knin, Benkovac and Drvar, but I

22     would have expected, again, based on my background, that such information

23     would have been included in the order, or that at least the description

24     would be much more specific than, as we read out in the beginning, the

25     town of Knin, the town of Benkovac, Drvar, and Obrovac.

Page 12231

 1        Q.   So I take you have not been shown some of those targeting

 2     documents.  Is that right?

 3        A.   Whether -- it could be that in the lists I received from

 4     Mr. Tieger in April that there were such lists included, but the lists,

 5     for example, I included on page 187 is something -- yes, is one of the

 6     documents or one of the relevant documents in this context I've -- I

 7     found doing the searches, and this specific one addresses targets to be

 8     engaged by units -- artillery units of the Split Military District.

 9             So when I had the information, I included it in the report.

10        Q.   So you did get lists of targets from the Office of the

11     Prosecutor?

12        A.   Your Honours -- I'm sorry for the transcript.  I made my own

13     searches.  So I may have received some documents from the Office of the

14     Prosecutor, but in addition, I did my own searches.  So it is not just a

15     matter of receiving documents, it is also a matter of identifying the

16     documents myself.

17        Q.   So the answer to the question is that -- we'll get back to this

18     issue at some length in any event.

19             But going back to your expertise, your collecting of those

20     documents and the -- your actual exercise of collecting these documents

21     in conjunction with your background does not render you an expert in

22     artillery, does it?

23        A.   Your Honours, I believe that I have answered the question.  I'm

24     not an artillery expert.  I have not pretended to be one.  But I do

25     believe that my military training and expertise allow me to draw the

Page 12232

 1     conclusions I drew in my report as to the planning or -- and the choice

 2     of targets which is indicated in the reports that we just discussed.

 3        Q.   That's fine, sir.  I just wanted to be clear that you are not, in

 4     fact, an artillery expert.

 5             Now, given your rank in -- given your rank and your experience in

 6     the Belgian military, and you told us that you had never had any

 7     experience in high-level command and control, right?

 8        A.   Your Honours, yesterday I answered a similar question by

 9     Mr. Waespi in the sense that, indeed, I did not exercise that command and

10     control myself.  But I worked in the staffs, both the General Staff of

11     the Belgian armed forces, doing an exercise in a brigade staff, as well

12     as the force command of significant peacekeeping operations, both UN-led

13     as well as a combined joint task force which was kind of NATO-led later

14     on.  So I believe that I'm in a position to understand how command and

15     control works at whatever level and how it is being implemented.

16        Q.   Do you -- your own -- and I'm directing this towards you

17     personally:  Do you consider yourself an expert in high-level command and

18     control issues?

19        A.   I consider, Your Honours, that I'm able to discuss and provide

20     professional conclusions on the issues I have addressed in the report.

21        Q.   That's not my question, sir.  My question, quite simply, and I

22     will read it back to you again, is:  Do you consider yourself an expert

23     in high-level command and control issues?

24        A.   Well, then I would like to know what criteria am I to apply.

25        Q.   Let's see -- let me go back to something else and you can tell me

Page 12233

 1     what criteria you applied because what we'll do is, we will bring up

 2     1D62-0001.

 3             And what this is, is it's the draft article that you talked to us

 4     about yesterday.

 5             MR. KEHOE:  Unfortunately, there has not been a translation of

 6     this to date, Mr. President.

 7        Q.   But this is the draft article that you wrote, Mr. Theunens, the

 8     role of military expertise in laying and defending criminal charges.

 9             You recognise that, don't you?

10        A.   Indeed, Your Honours, I do.

11        Q.   And that is the article that you were discussing yesterday on

12     direct examination with my learned friend?  Yes?  You have to --

13        A.   That's correct, Your Honours.

14             MR. KEHOE:  Let me turn to page 6 of this document.

15             Under the heading, Role of military expertise during the trial

16     phase.  If we can go to the next page.

17        Q.   I just want to give you the reference point in this,

18     Mr. Theunens, so when we talk about implementation -- if we just scroll

19     that up a little bit.  And you note that the OTP generally calls two

20     types of military experts, external military experts and internal or

21     in-house military experts.  External military experts are specialists in

22     particular military aspects of a case which require detailed technical

23     knowledge and expertise, like, for example artillery, sniper or logistics

24     experts.

25             Now artillery.  You recognise that the Office of the Prosecutor

Page 12234

 1     has retained an outside expert for artillery issues, do you not?  In this

 2     case.

 3        A.   Yes, I have heard of that.

 4        Q.   Let us go to the next portion which we were talking about.  Other

 5     external experts that you describe in your article.  Senior officers with

 6     high-level command and control experience and in brackets you have

 7     brigadier, commander or more senior, and preferably operational

 8     experience in a zone of conflict.

 9             Now in your article, why did you say that you're looking for

10     somebody at a -- excuse me, a brigade commander rank or higher to discuss

11     high-level command and control issues?  Why did you include that in your

12     article?

13        A.   Because my article tries to describe my experiences -- I mean,

14     the experiences or the things I have seen being done in the ICTY and in a

15     number of trials, depends a bit of the nature of the trial, but I'm

16     familiar with trials where both Prosecution as well as Defence called a

17     General to testify on very specific command and control issues whereby

18     this -- this General would address, again, very specific issues, not

19     referring to the volume or not being -- basing himself on the volume of

20     material I reviewed in order to address a very specific command and

21     control aspect.

22        Q.   Isn't it a fact, Mr. Theunens, that the reason why a senior

23     officer needs to be called is because you wrote that you want somebody

24     with high-level command and control experience.  Isn't that right?

25        A.   Your Honours, I do not determine who the Prosecutor calls or not.

Page 12235

 1     I believe that the approach that is -- that has existed in -- what has

 2     been applied in a number of trials, i.e., that have you a General who

 3     comes and explains how it should have been, on that command level,

 4     together with an in-house analyst who is hired -- who is asked to review

 5     the material is an efficient approach but that is just my personal

 6     observation.

 7             Again, I do not determine who is being called by whom.

 8        Q.   Well, sir, if you are here to address command and control issues

 9     in your report, do you know why the Office of the Prosecutor is calling a

10     separate expert or has a separate expert on their witness list to address

11     command and control issues?  Do you know why?

12        A.   Well, the logical answer would be that you better ask the person

13     who decides about that.

14        Q.   Well, let us continue on here, that we've established that you

15     were not a senior officer, that you don't have high-level command and

16     control experience, and that you have not had operational experience in a

17     zone of conflict, have you?  And the operative word there is "operational

18     experience" in a zone of conflict.  Maybe you can explain to the Chamber

19     what you first meant by operation and then explain why you don't have it.

20        A.   Now I am confused because --

21        Q.   Let me read -- go back to your article.  When you're looking for

22     an expert -- you write in your article, when you're looking for an expert

23     to talk about command and control issues, you're looking for a high-level

24     command and control senior officer preferably with operational experience

25     in a zone of conflict.

Page 12236

 1             JUDGE ORIE:  Let me be -- Mr. Kehoe.

 2             MR KEHOE:  Yes, Your Honour.

 3             JUDGE ORIE:  Let's first ask the witness, because I think that

 4     was part of his earlier answer.

 5             Have you expressed in this article what your wishes would be if

 6     you would be in charge of conducting a trial or have you described here,

 7     that's at least how I read it, what is done by the OTP in the ICTY?

 8     That's how I read it.

 9             Mr. Kehoe, earlier you said you want this and you want that.  I

10     refrained from commenting at that moment.  But let's be clear on what the

11     witness describes here.  That is apparently a practice in which he

12     observes and this is the only part I've read.  So I have not read the

13     whole of it.  So if there's anywhere else, then please lay a foundation

14     for whether this is what the witness would do.

15             Yes?

16             MR. KEHOE:  Yes, Your Honour.

17             If I might have a minute.  Yes, one second.

18                           [Defence counsel confer]

19                           [Prosecution counsel confer]

20             MR. KEHOE:  The difficulty, Your Honour -- and I go back to the

21     answer by Mr. Theunens about why certain things are done a certain way,

22     Mr. Theunens responded that I should go ask the OTP.  And, that of

23     course, is somewhat circular given the fact that he is saying that is in

24     fact how it should be done when --

25             JUDGE ORIE:  He doesn't say how it should be done.  He says what

Page 12237

 1     is done.  That's what he describes here, isn't it?  Is there anything

 2     this is what the OTP should do or does it say what is usually done?

 3     Which is not the same.

 4             MR. KEHOE:  I agree --

 5             JUDGE ORIE:  Let's not -- let's focus on.  Refraining from any

 6     further comments, I just want you to be very precise on what -- on the

 7     basis of what you show at this moment to the witness and that is the only

 8     thing the Chamber sees to -- to refrain from telling the witness what he

 9     wants, where he describes what is done, that if the witness says, This is

10     done, the why, please ask those who make these decisions, that is not to

11     avoid an answer.  That is not part of this article.  The witness does not

12     describe what should be done but what is is done.  At least that is what

13     I read at this moment, and your question is based -- apparently on a

14     different understanding.  And if there is a possibility that one would

15     disagree on what is written there, then we should first of all seek

16     clarification from the witness, what he intended to describe here.

17     Whether it's normative or whether it is a description of what is the

18     practice what is usually done.

19             Please proceed.

20             MR. KEHOE:  Yes, Your Honour.

21        Q.   And going back to my earlier question, Mr. Theunens, do you know

22     the reason why the OTP retained outside experts on, for instance, command

23     and control issues?

24             JUDGE ORIE:  Mr. Waespi.

25             MR. WAESPI:  Yes, I object.  What is the relevancy to --

Page 12238

 1             JUDGE ORIE:  Well, if the witness would know then he could tell

 2     us.  What, then, for conclusions to draw is a different matter.

 3             If you know why the Prosecution acts, as you describe it does,

 4     please explain to us what the basis of your knowledge and explain why

 5     they do it.  If you know.

 6             THE WITNESS:  Yes, Mr. President.  Also to clarify the previous

 7     question, there is a footnote number mentioned at the end of the sentence

 8     that was quoted by Mr. Kehoe.  It's footnote 36.  And if we scroll down

 9     in e-court, we will indeed see that this observation I make is based on

10     what has been done in a number of other trials, like the Strugar trial,

11     Hadzihasanovic, and so on and so on.

12             To come back now to the last question, and that can actually be

13     found on the next page of the article, that is that on the one hand,

14     again based on my observations, the OTP wishes to introduce military

15     evidence in an organised and an efficient manner, in order to facilitate

16     the Trial Chamber's task in evaluating that material, my understanding

17     again from looking at a number of trials and my own experience in this

18     organisation, is that in-house analysts can be used for that purpose.  In

19     addition to that, the Office of the Prosecutor also considers it's useful

20     that in some military trials use is made of external experts in the area

21     of technical expertise, like artillery or sharpshooter, as well as

22     command and control.

23             MR. KEHOE:

24        Q.   My question, sir, and I will go back to it, is:  Do you know the

25     reasons why the OTP retains outside experts, for instance, for command

Page 12239

 1     and control issues?  The question was why, not the fact that they do it.

 2     Why?

 3        A.   I don't want to be impolite.  But it's -- I think the Senior

 4     Trial Attorney together with his trial attorneys determines which witness

 5     to call and what evidence to present, and they're better placed than me

 6     to determine why or not a witness, including external command and control

 7     experts, should be called or not.

 8        Q.   In your conversations with the Senior Trial Attorneys for the

 9     OTP, have they discussed with you that you did not have the

10     qualifications to render an expert opinion on high-level command and

11     control issues and that was the reason why they hired an outside expert?

12             JUDGE ORIE:  These are two questions, Mr. Theunens.  The first

13     one is whether it has been discussed with you that you did not have the

14     qualification to render expert opinion on high-level command and control

15     issues.

16             Was that discussed with you?

17             THE WITNESS:  No, Mr. President.  That was not discussed.

18             JUDGE ORIE:  If that was not discussed, was it communicated to

19     you what the reason was that the OTP would hire an outside expert,

20     apparently on those matters?

21             THE WITNESS:  These motives were not explained to me or these

22     reasons were not explained to me, Your Honours.

23             JUDGE ORIE:  Thank you.

24             Please proceed, Mr. Kehoe.

25             MR. KEHOE:  I'm going to go into a different issue.  I don't know

Page 12240

 1     if you --

 2             JUDGE ORIE:  I think then we first should have a break.

 3             After the break, Mr. Russo, you will be the first one to address

 4     the Court.  How much time, I earlier asked three or five minutes but if

 5     you want to choose for four or six, then --

 6             MR. RUSSO:  I feel I can do it in three to five, Your Honour.

 7             JUDGE ORIE:  Thank you very much.  We'll have a break.  We'll

 8     resume at 10 minutes past 4.00.

 9             Mr. Theunens, you're not expected back -- two times five minutes,

10     ten minutes.  You can arrive a bit later.

11                           [The witness stands down]

12                           --- Recess taken at 3.47 p.m.

13                           --- On resuming at 4.15 p.m.

14             JUDGE ORIE:  Before I give an opportunity to Mr. Russo, the

15     Chamber has considered how much time it would grant to the Defence on the

16     matter we are dealing with at this moment, and the Chamber came to the

17     conclusion that the same time as Mr. Waespi took on expertise and

18     methodology should be given to the Defence, and then for the Defence as a

19     whole.  I don't know whether you discussed among yourselves which Defence

20     team would deal with what.  From the history, it appears that the Cermak

21     Defence has not addressed the matter of qualification in -- last January.

22     The Markac has joined whatever the Gotovina Defence had raised in

23     relation to the qualifications of the witness.  The Chamber has,

24     therefore, considered the positions taken by the parties in the past.

25     The Chamber has also considered the way in which the cross-examination is

Page 12241

 1     conducted at this moment and came to the conclusion and we still need the

 2     exact time that for the Defence as a whole, that the same time would be

 3     available -- as Mr. Waespi took.

 4             Mr. Kay.

 5             MR. KAY:  Without interrupting, Your Honour, just one matter.  I

 6     was going to be dealing with these matters in my cross-examination of

 7     this witness because I considered it a matter at large in to these

 8     matters that the Court is addressing now.

 9             JUDGE ORIE:  Yes, of course we should make a difference between

10     the qualifications as an expert whether or not we could accept the report

11     or whether it could be considered to be an expert report, and of course

12     another matter is whether an expert has drawn solid conclusions on the

13     basis of the material he had or whether, perhaps, he had not all the

14     material available which, of course, would be in part of the

15     cross-examination.  This is not any way to suggest that parties would be

16     excluded to address the issue of methodology or expert knowledge in

17     relation to the elements of the, report but, of course, what we did,

18     until now, is we dealt with it on a rather general basis, although now

19     and then an example arises.

20             MR. KAY:  I can deal with the issues, in fact, now rather than

21     later.  It makes more sense to me, now that we're dealing with it this

22     way, to put my issues before the Court --

23             JUDGE ORIE:  If they are issues of a general nature and if

24     they're different from what the Gotovina Defence has raised and will

25     raise, then, of course, we -- the Chamber has considered the matter on

Page 12242

 1     the basis of what submissions were made in the past.  And there were no

 2     specific submissions in which the -- at least by the Cermak Defence, no

 3     specific submissions saying he does not qualify as an expert which seems

 4     to be one of the central issues in the Gotovina Defence's submissions,

 5     and joined by the Markac Defence.

 6             So I -- we'll consider --

 7             MR. KAY:  Yeah.

 8             JUDGE ORIE:  -- whether -- of course if you want to raise issues

 9     of expert knowledge, qualifications, but not to say he doesn't qualify as

10     an expert to present the report, but the way he has done his work is not

11     good or should be challenged or on the basis of insufficient material

12     which he was insufficiently aware of, that of course are matters which

13     are not a direct attack to the qualifications of Mr. Theunens as an

14     expert and there, of course, there is a different position by the Cermak

15     Defence compared to the Gotovina Defence.

16             MR. KAY:  Methodology we always viewed as being a rather

17     different matter, and being phase two, we're dealing with both matters at

18     this stage, but methodology was something that we were very conscious of

19     as being a matter to be addressed with this witness.

20             JUDGE ORIE:  Yes, and methodology is not a matter which is

21     specifically mentioned in 94 bis where only the qualifications of the

22     witness as such are mentioned, where the parties are expected to express

23     themselves.

24             We will further consider, but we want to put limits to the time

25     especially on the qualifications as an expert.

Page 12243

 1             MR. KAY:  I'm crossing off issues that I would have raised any

 2     way that Mr. Kehoe has dealt with, but there are other matter that may

 3     still not be addressed by him which could be dealt with.

 4             JUDGE ORIE:  Yes.  Then, of course it would be appreciated -- I

 5     don't have the exact time at this moment the time Mr. Waespi -- you took,

 6     Mr. Waespi.  The registry is preparing the relevant data for me.

 7             MR. KEHOE:  Just on the timing score, and I appreciate the

 8     Chamber's concerns regarding timing, and I have consulted with my learned

 9     friend Mr. Kay to avoid that duplication, and we -- during the break

10     we've agreed that I was not going to into something because he said that

11     he was going to go into it, so ...

12             JUDGE ORIE:  Yes.  Until now, Mr. Waespi has taken 1 hour and 44

13     minutes, dealing with these matter, well, let's say the second subject.

14     And you have used until now, Mr. Kehoe, 45 minutes on the matter.

15             MR. KEHOE:  Yes, Your Honour.

16             Mr. Mikulicic.

17             MR. MIKULICIC:  Yes, Your Honour.  For the record, I think I will

18     deal with a topic that  wouldn't be dealt by Mr. Kehoe or by Mr. Kay.

19     This is the topic of the special police and therefore I will need, let's

20     say, around ten minutes on that topic.

21             JUDGE ORIE:  Mr. Kehoe, perhaps we -- let's be very practical.

22     How much still -- how much time would you still need?

23             MR. KEHOE:  Your Honour, frankly, I think I would probably need

24     at most 15 minutes and then I'm not discussing the discipline issue on

25     that score, which is Mr. Misetic's issue and I think he has got 10

Page 12244

 1     minutes.

 2             JUDGE ORIE:  So less than half an hour.

 3             MR. KEHOE:  Yes, Your Honour.

 4             JUDGE ORIE:  Less than half an hour.  Mr. Kay, could you give us

 5     -- if you want do raise any methodology of a general character at this

 6     moment, how much time you would need for that.

 7             MR. KAY:  I could deal with my matters in 20 minutes.

 8             JUDGE ORIE:  In 20 minutes.

 9             And Mr. Mikulicic, you said you would need ...

10             MR. MIKULICIC: Ten minutes, Your Honour.

11             JUDGE ORIE:  Ten minutes.  That approximately fills the hour

12     which would, on the basis of what the Chamber in mind would still be

13     available to the Defence but now split up among the various Defence

14     teams.

15             Mr. Russo.

16             MR. RUSSO:  Thank you, Mr. President.  Given the pace at which

17     events transpired yesterday and the Court's ultimate decision to ask

18     Mr. Theunens to produce the draft reports of his expert report, the OTP

19     is seeking some clarification on the Chamber's position.  It's the OTP's

20     understanding that the Court's position was expressed in two areas.  The

21     first being that the OTP does not have an obligation to disclose drafts

22     of expert reports, which, of course, we're not taking issue with.

23             The second position was that a party who retains an expert to

24     prepare a report for trial has no claim or propriety interest over the

25     drafts of that expert if the expert themselves are willing to provide the

Page 12245

 1     reports.  In other words, irrespective of any claim that could be made by

 2     the party retaining the expert, that the expert themselves have the right

 3     to produce the report if they wish to.

 4             JUDGE ORIE:  Let me first deal with the first one.

 5             OTP does not have an obligation to disclose drafts of expert

 6     reports which were not taken issue with.

 7             The Chamber has not ruled on any obligation to disclose, as a

 8     matter of fact, since this witness has -- has told the Chamber that he

 9     has no problems whatsoever to share previous versions of his expert

10     report with whomever, I would say, as a matter of fact, that the motion

11     filed is moot and --

12             MR. MISETIC:  We will withdraw it, Your Honour.

13             JUDGE ORIE:  You'll withdraw it.  So there is no ruling on that.

14             Yesterday you may remember, Mr. Russo, that the Chamber said that

15     on the basis of what was presented, that the Chamber decided that it

16     could not give an order to disclose.  And that might give you some clue

17     as that it may depend quite a bit, on many circumstances, whether, at a

18     certain moment, there would be a duty to disclose.  On the basis of what

19     we heard yesterday, the Chamber could not conclude that there was such an

20     obligation, which would have resulted in an order by the Chamber to

21     disclose that material.

22             Now, that's the first area.  You said the second position was

23     that a party who retains an expert to prepare a report for trial has no

24     claim or propriety interest over the drafts of that expert and you said

25     if the expert themselves are willing to provide the reports.

Page 12246

 1             In other words, irrespective of any claim could be made by the

 2     party retaining the expert, that the expert themselves have to try to

 3     produce -- it's not entirely clear what you meant in the second point.

 4             MR. RUSSO:  Your Honour, in the OTP's understanding the Court

 5     sought from the witness whether the witness would have any difficulty in

 6     providing the drafts of his report, the witness indicated that he

 7     wouldn't have any difficulty doing that and the Court subsequently asked

 8     him to that.

 9             The Court's question to the witness of whether or not he would

10     and then the subsequent request that he do produce the draft reports

11     presupposes that the witness has the right and/or authority to, in fact,

12     give that report to the Court.  That was my intention, that seeking

13     clarification of the fact that it is the position of the Chamber that

14     irrespective of any claim that the Prosecution may wish to make that the

15     expert has a right, in and of himself, to offer that report to whom he

16     wishes.

17             MR. MISETIC:  May I, Your Honour?

18             JUDGE ORIE:  Yes, Mr. Misetic.

19             MR. MISETIC:  My position would be that we're now in the realm of

20     hypotheticals because, with all due respect, I don't think it is an issue

21     that we can make a blanket statement about all experts.  There is -- this

22     is a quite -- an area of the law that there may be an issue with

23     non-testifying experts, for example, that are retained by one side or the

24     other, not for the purpose of testifying in the trial, where a party may

25     in fact have a right to preclude the expert from surrendering something

Page 12247

 1     to the other side.  So before we get into, really, hypothetical

 2     situations that later on could be used for whatever purpose, I think it

 3     might be wise at this point --

 4             JUDGE ORIE:  [Overlapping speakers] ...

 5             MR. MISETIC:  Unless we're talking about on the stand.

 6             JUDGE ORIE:  I think we could -- but I have to consider that with

 7     my colleagues.  Apparently the issue Mr. Russo raises is whether a party

 8     by inviting an expert, ask him to write a report, whether that party is

 9     in a position to prohibit the expert to give earlier versions of his

10     report if he himself has no problem in providing these earlier versions.

11     So whether there is such a level of control by the party who hires an

12     expert who, of course, still is independent because he will form his

13     opinion on the basis of his -- of his qualifications as an expert and not

14     on the basis of instructions, as far as the content is concerned, by the

15     party that hires him.  And I think the matter you wanted to raise is

16     whether a party can say, I hired this expert.  The expert is willing to

17     give an earlier version but now I, party A or party B, I now tell this

18     expert that he couldn't do that, and from what I understand is that you

19     would deny such a power by the party that has hired that expert.

20             MR. RUSSO:  Actually, Your Honour, we're seeking the Court's

21     clarification that that is in fact the Court's position, and if it is,

22     that it would clearly apply to both parties and we would be, certainly,

23     happy with that.

24             JUDGE ORIE:  Yes.  The Chamber will consider.  I'm not making any

25     further observations on the matter --

Page 12248

 1             MR. RUSSO:  Yes, Your Honour.

 2             JUDGE ORIE:  -- although I think I could -- I think I said

 3     yesterday a few things that might even complicate matters a bit more

 4     than --

 5             MR. MISETIC:  May I --

 6             JUDGE ORIE:  -- as it stands in accordance with the -- how you

 7     presented it.

 8             Mr. Misetic.

 9             MR. MISETIC:  I again -- I think that there's no written motion

10     pending and the underlying facts aren't clear.  And there is an issue

11     that has not yet been discussed in front of the Chamber with respect to

12     another witness, so I would like to avoid the situation where the

13     Trial Chamber says, for example, we can contact the witness independently

14     to try to get the drafts and that that might somehow later be used as an

15     argument that the OTP then wouldn't have an obligation to produce it

16     themselves to the extent they had it.

17             So, without getting into all sorts of different hypothetical

18     scenarios, I suggest that we work out amongst ourselves the issue with

19     respect to the next expert witness to come, and if there is a problem,

20     then the party can file a written motion and ask for relief from the

21     Trial Chamber.

22             JUDGE ORIE:  Yes.  And of course Mr. Russo is always entitled to

23     seek guidance from the Chamber, but preferably to be done in a written

24     submission.  I see now what you apparently are seeking.  There are, as I

25     said, the matter may be even a bit more complex than you presented it.

Page 12249

 1     Then of course, the Defence will have an opportunity to respond.  Another

 2     way of dealing with the matter is that -- not to seek guidance but just

 3     to head for the next expert and see where we are with that expert.

 4             But I leave it up to you whether --

 5             MR. RUSSO:  I appreciate that, Your Honour.

 6             JUDGE ORIE:  Yes.

 7             If there's no matter, then I would like Mr. Theunens to be

 8     escorted into the courtroom again.

 9             MR. RUSSO:  In that case, Your Honour, I would seek permission to

10     be excused.

11             JUDGE ORIE:  Yes, of course you are, Mr. Russo.

12                           [Prosecution counsel confer]

13                           [The witness entered court]

14                           [Trial Chamber confers]

15             JUDGE ORIE:  Mr. Theunens, we'll continue.

16             Mr. Kehoe.

17             MR. KEHOE:  Yes, thank you, Mr. President.

18        Q.   Mr. Theunens, I'd like to talk you about your part 1 of your

19     report which is your -- you described it as the de jure portion of your

20     report.  And I believe you described, and I don't have the exact

21     terminology, as a compilation of laws and regulations from the Republic

22     of Croatia as well as the Croatian army.  Is that accurate on a general

23     level?

24        A.   Indeed, Your Honours.

25        Q.   Now you, yourself, have never studied law, have you, other than

Page 12250

 1     taking a course at the academy?

 2        A.   Your Honours, I don't believe that you need a law degree to

 3     understand things like a constitution or Law on Defence --

 4        Q.   Excuse me, sir.  I asked you a question.  I asked you have you

 5     studied law?

 6        A.   Your Honours, I'm trying to answer the question.

 7             MR. KEHOE:  Your Honour, I ask that the witness answer the

 8     question.

 9             JUDGE ORIE:  Let's ...

10             Yes.  The question was whether you never studied law, have you,

11     other than taking a course at the academy.

12             This question allows you to, first of all, tell us whether you

13     had -- whether you followed any other courses apart from the course you

14     took at the academy; and, second, also allows you to explain to us

15     whether in any other way you familiarized yourself with matters directly

16     related to the law.

17             THE WITNESS:  Your Honours, what I described yesterday as the

18     course in law covered several years, so there was law in the first year,

19     second year, third year, and fourth year.  And also in staff course we --

20     the brigade level course, we had courses on law of armed conflict, so I

21     believe I am qualified to analyse constitutions, defence laws and related

22     legislation.

23             MR. KEHOE:

24        Q.   Mr. Theunens, are you not a legal expert, are you?

25        A.   Your Honours, if you allow me, a defence law, a constitution is

Page 12251

 1     intended for the citizens of a country.  A defence law is intended for

 2     military personnel, in particular for officers.  I don't expect that all

 3     the citizens of a country have a law degree, but still they are supposed

 4     to understand the constitution.  The same applies to --

 5             MR. KEHOE:  Is [Overlapping speakers] ...

 6             JUDGE ORIE:  No, Mr. Kehoe.  You are asking -- by these questions

 7     you are asking for these kind of answers.

 8             MR. KEHOE:  No, no.

 9             JUDGE ORIE:  Yes, you are, Mr. Kehoe.  The witness is entitled to

10     answer the question, although if you could keep it brief ...

11             THE WITNESS:  I apologise, Mr. President.

12             My understanding is it that a defence law is intended for

13     military personnel and that at least the officers, whatever their

14     educational background may be, are in a position to understand the

15     obligations and duties that are established by the defence law.

16             JUDGE ORIE:  Please proceed, Mr. Kehoe.

17             MR. KEHOE:

18        Q.   If I can show you a piece of your testimony, sir, of -- that you

19     gave in the Martic case at page 1011, line 18.

20             MR. KEHOE:  And if I could show it via Sanction, Your Honour.

21        Q.   On line 18, did you tell the Martic Chamber that:  "I am not a

22     legal expert"?

23        A.   Yes, that's indeed -- that is what the transcript says.

24        Q.   And that's a fact, isn't it?

25        A.   It is as it is written.

Page 12252

 1        Q.   Now you made a decision on laws to include in your report and not

 2     include in your report even though you have no legal expertise.  Isn't

 3     that correct?

 4        A.   If the question is that I made a selection of laws and

 5     regulations, then the answer is correct, I made such a selection.

 6        Q.   And you made that selection without being a legal expert, and

 7     after you made that selection of laws, you then applied facts to those

 8     laws to write your report.  Didn't you?

 9        A.   Your Honours, as I tried to explain, it is my view that one

10     doesn't have to be a legal expert in order to understand a constitution

11     or a defence law and in order to analyse to what extent these legal

12     provisions were applied or not during a military operation.

13        Q.   So, suffice it to say, the Trial Chamber should just get a bundle

14     of these documents that are selected as well as any supporting material

15     and it is up to the expertise of the Trial Chamber, as opposed to your

16     commentary, to make that assessment of the applicability of those laws to

17     those facts.  Isn't that the way the Trial Chamber should be handling

18     this situation?

19             JUDGE ORIE:  Mr. Kehoe, I do not expect the witness to tell this

20     Court how it should handle certain issues.

21             Let me remind you that at various, various, various occasions

22     legal texts were put to witnesses who, from what we know of those

23     witnesses, certainly had far less legal education, legal experience,

24     nevertheless, they were asked without any hesitation to tell us what it

25     meant, what the implications were, et cetera, et cetera.

Page 12253

 1             Now this witness has explained to us what courses he took in law

 2     and also explained to us some knowledge in specific fields of law and

 3     then to say, Are you a legal expert?  That's the same as to ask someone,

 4     Are you an expert in music?  And then he will say, I am or I'm not,

 5     depending on whether he plays piano or flute, because he is not an expert

 6     in playing the flute.  And if you would have asked Arthur Rubenstein

 7     whether he was a very good piano player he might denied that. Others

 8     would not.  That means that it's a matter of judgement to some extent,

 9     what this Chamber is interested in, to know on what -- how the witness

10     developed knowledge, skills or experience which allows him to assist the

11     Chamber in better understanding certain matters.  And that is not by

12     saying, Are you a legal expert?  It's a yes or no, that is a

13     simplification which is not -- is not substantially assisting the Chamber

14     in making the judgement on whether it should or should not accept the

15     assistance of an expert who offers his skills, his knowledge or his

16     experience to the Chamber.

17             MR. KEHOE:  And I appreciate your guidance, Mr. President.  I

18     merely address paragraph 29 of Your Honours' -- of the Chamber's ruling,

19     where Your Honour wanted a delineation of matters that were opinions

20     offered by the witness as opposed to fields of expertise.  And I take it

21     from paragraph 29, as it plays into paragraph 25, that there was a clear

22     demarcation in the Chamber's mind between those two areas, and that was

23     the reason I was exploring.  I understand that pieces -- that items have

24     been given to other witnesses for explanation and I would assume, absent

25     a specific expertise in many cases, that will be rendered to be an

Page 12254

 1     opinion or a position of that witness.

 2             JUDGE ORIE:  Therefore it is certainly important to know whether

 3     Mr. Theunens specialized in the law of taxation or other legal matters in

 4     the past, but to say, Are you a legal expert is so broad.

 5             Let not spend more time on this.  You may continue, Mr. Kehoe.

 6             MR. KEHOE:  Yes, Your Honour.  But I was merely addressing that

 7     particular matter, but to go into this particular area more specifically,

 8     and we are talking about the area of discipline, I will turn it over to

 9     Mr. Misetic.

10             JUDGE ORIE:  Mr. Misetic.

11             MR. MISETIC:  Thank you, Mr. President.

12                      Cross-examination by Mr. Misetic:

13        Q.   Good afternoon, Mr. Theunens,

14        A.   Good afternoon, Mr. Misetic.

15        Q.   Mr. Theunens, with respect to military discipline, have you ever

16     published anything on the topic of military discipline?

17        A.   No, Your Honours.  The only thing I did outside of, obviously, my

18     duties as an officer was that a couple of months ago I gave a lecture in

19     the OTP to interns on the role of the military in establishing the

20     rule of law.

21        Q.   But that topic didn't deal specifically with the issue of

22     military discipline?

23        A.   Well, if you consult literature on the role of the military in

24     relation to establishing the rule of law, you will -- one of the first

25     things that every -- whether it is academicians or a professional officer

Page 12255

 1     will comment, is that only disciplined forces can be used to establish

 2     the rule of law, and that, therefore, an understanding of military

 3     discipline is quite essential in that context.

 4        Q.   Have you -- in addition to this seminar for interns have you ever

 5     lectured or otherwise spoken in public about the issue of military

 6     discipline?

 7        A.   I spoke very often -- I'm sorry for the transcript.

 8             I spoke very often to my soldiers when I was a platoon commander

 9     as well as to my officer cadets about the importance of discipline and

10     why they had to do certain things, which, at first glance, didn't seem

11     pleasant or appropriate or agreeable in their view, and obviously that

12     was related to the enforcement of discipline.

13        Q.   I'm talking more about in an academic or professional capacity.

14     Have you lectured or spoken in public on the issue of military

15     discipline?

16        A.   No, I have not, Your Honours.

17        Q.   With respect to your role as a platoon commander, do you have any

18     specific knowledge about military discipline that the average Belgian

19     platoon commander doesn't have?

20        A.   Well, I would hope that all officers, be it Belgian or for

21     whatever country, have an understanding of military discipline, but I

22     have no particular talents in that area that anybody else have.  To the

23     extent that I can judge the knowledge of my fellow officers.

24        Q.   Can you tell us or identify any texts within the last ten years

25     that you have read that deal primarily with the issue of military

Page 12256

 1     discipline.  And I'm not talking about texts that relates to the issue;

 2     I'm talking about texts that primarily deal with the issue of military

 3     discipline.

 4        A.   You will find a number of footnotes in my report that deal with

 5     that issue.  For example, I think FM 100-5, the US regulation operations,

 6     addresses the concept of disciplined operations.  It is addressed in

 7     Part 7 of the report.

 8        Q.   I made a mistake.  I should have been more specific.  I'm talking

 9     about academic studies, academic publications, law review articles,

10     anything in the area of academia dealing primarily with the issue of

11     military discipline?

12        A.   Your Honours, that I believe that because we have a different

13     background that my answer will be -- I mean, is obviously different.  I

14     don't expect to find -- I'm sorry, I will rephrase it.

15             My understand it that I prefer to read a military regulation on

16     military discipline instead of an academic article because my experience

17     is that military regulations are much more practical and --

18             JUDGE ORIE:  Mr. Theunens, may I stop you there.

19             The question that was put to you was a very factual question,

20     whether you had read material over the last ten years, if Mr. Kehoe [sic]

21     would like that know what you may have read instead and whether you

22     considered it to be more -- a better use of your time to read other

23     things is another matter.  The question was a very factual one.  Could

24     you please answer the question.

25             MR. KEHOE:  Judge, I object to being confused with Mr. Misetic.

Page 12257

 1     I'm much better looking.

 2             MR. MISETIC:  Not as much as I object, Your Honour.

 3             JUDGE ORIE:  Yes.  I see how alert our transcriber is who said

 4     [sic].  So it learns as how we can rely on those assisting us.  I will

 5     give it some more nights of sleep.  It is a good or a bad thing for you,

 6     Mr. Kehoe, to be addressed as Mr. Misetic or for you, Mr. Misetic, to be

 7     addressed as Mr. Kehoe.

 8             I, however, would like to be addressed as the Presiding Judge.

 9     If there is no confusion about that.

10             Could you answer the question.

11             THE WITNESS:  Yes, Your Honours, I apologise for the initial

12     digression.

13             In order to prepare this lecture on the rule of law, I did indeed

14     read a number of articles which were published, for example, in the US

15     Military Review.  There were also articles from Parameters, which is

16     another American military magazine which is intended for mainly senior

17     officers.  And I haven't checked the material before coming here, but if

18     you want I can bring it for the next break.  There are academic articles

19     on the aspect of the importance of military discipline in relation to the

20     enforcement of the rule of law by military forces.

21             MR. MISETIC:

22        Q.   Yes, if could you.

23             MR. MISETIC:  And Mr. President, if could I ask that the witness

24     provide that.

25             JUDGE ORIE:  If the witness is willing to bring them, that would

Page 12258

 1     be appreciated, Mr. Theunens.

 2             THE WITNESS:  It would just imply, Your Honours, that I am

 3     allowed to go to my office during the break.

 4             JUDGE ORIE:  Mr. Kehoe -- Mr. Misetic.

 5             MR. MISETIC:  Yes, that's no problem.

 6             JUDGE ORIE:  You may fetch them at your office.

 7             Please proceed.

 8             MR. MISETIC:  Thank you, Mr. President.

 9        Q.   Mr. Theunens, when is the first time that you began to study the

10     Croatian Code of military discipline from 1995?

11        A.   The first time must have been in -- the first time must have been

12     in January 2007.  Right after receiving the tasking for the compilation

13     of this report.

14        Q.   Did you get any assistance from anyone in interpreting the

15     Croatian Code or is that strictly your interpretation of the Code based

16     on your reading?

17        A.   I did not receive assistance from others in -- for me when

18     reading the -- and interpreting and analysing the 1992 Code of

19     Discipline, Croatian Code of Discipline.

20        Q.   Did you go to Croatia and do your own investigation of the

21     Croatian archives to find documents on the issue of military -- Croatian

22     military discipline?

23        A.   No.  I did not, Your Honours.  And I can explain if you want why.

24        Q.   Sure.

25             JUDGE ORIE:  If -- if Mr. Misetic is interested to hear your

Page 12259

 1     explanation, and he apparently is.

 2             Please proceed.

 3             THE WITNESS:  Well, in my position whereby the Prosecution team

 4     had asked me to compile a report, it was also made clear that I would not

 5     part of the investigation and that if I had certain requirements in

 6     relation to documents, I could express them towards the two military

 7     intelligence analysts working on the case.  And that is what I did.  And

 8     I mentioned an example yesterday.  During my searches I did not come

 9     across a specific Croatian military regulation dealing with the

10     implementation or the international laws of war.  And that was one of the

11     questions I raised with my two colleagues because they were going to the

12     archives or were participating in the drafting of requests for assistance

13     to the government of Croatia.

14        Q.   Is it fair to say then that your understanding of Croatian

15     military discipline is limited to the documents that are actually in the

16     possession of the Office of the Prosecutor?

17        A.   That is correct, Your Honours.  I wish to add that when I

18     reviewed decisions on military discipline to impose disciplinary measures

19     or sentences or appeals there -- the reference were always made or there

20     were often references made to the code of discipline and that was

21     actually the code I was reviewing.

22        Q.   With respect to -- and you correct me if I'm wrong, but if I

23     understood you correctly yesterday, where there were gaps in the

24     documentation of the Office of the Prosecutor on Croatian law, you turned

25     to other sources to try to reconstruct that specific area of the law, for

Page 12260

 1     example, the law of the Socialist Federal Republic of Yugoslavia or US

 2     military law.  Is that correct?

 3        A.   Your Honours, I would replace the word "law" by "military

 4     regulations," and then the observation is correct.  I quoted from SFRY

 5     law on All People's Defence maybe in introduction but not as a

 6     replacement for Croatian law.  I did quote from SFRY armed forces

 7     regulations as well as US military regulations when there was a gap, but

 8     also to show the universal character of the Croatian military regulations

 9     I had.

10        Q.   And finally, where you used SFRY or US regulations to fill in

11     gaps, in some cases those gaps are because there was no Croatian law at

12     the time, and in other cases it's because there may have been another

13     Croatian law but you didn't have access do it.  Is that correct?  I'm

14     sorry, regulation.  I stike the law part.

15             So let me rephase the question.  Where there were gaps, you

16     filled those -- those gaps, from your perspective, could have been either

17     because there was no Croatian regulation on that point or there was a

18     Croatian regulation but you didn't access to it in the Office of the

19     Prosecutor.  Correct?

20        A.   That's correct, Your Honours.

21        Q.   Thank you.

22             MR. MISETIC:  Thank you, Mr. President.

23             JUDGE ORIE:  Mr. Kay.

24             MR. KAY:  Thank you, Your Honour.

25             JUDGE ORIE:  Mr. Theunens, you will now be cross-examined on this

Page 12261

 1     issue by Mr. Kay, who is counsel for Mr. Cermak.

 2                           Cross-examination by Mr. Kay:

 3        Q.   A few details, first of all, please, Mr. Theunens.  When was the

 4     date that you started your work on this case?

 5        A.   If I remember well, in December 2006, but I don't remember the

 6     exact date.  I had an informal meeting with Douglas Marks Moore and

 7     Alan Tieger about possible support to this case, and then in January, I

 8     started -- I mean, we discussed the 10- and the 17-point taskings.  I

 9     started to work on the report.  My work in this case is limited to the

10     work on the report.

11        Q.   So that would be from January 2007.

12        A.   That is correct.

13        Q.   Just looking at documentation that you were given, were you given

14     a copy of the indictment?

15        A.   I was not given a copy of the indictment but I decided myself to

16     read the indictment just to understand the time-frame, the events, and

17     other issues I considered relevant.

18        Q.   You mentioned the Defence pre-trial briefs.  Did you see the

19     Prosecution pre-trial brief?

20        A.   I checked again the documents on my desk last evening and indeed

21     had a copy of the Defence pre-trial brief which I read, and also a copy

22     of the Office of the Prosecutor pre-trial brief, but I have no precise

23     recollection to what extent I read the last document.  I remember reading

24     the first document.

25        Q.   You told us you were part of the military analyst team and that's

Page 12262

 1     the group that you work with in the Office of the Prosecutor, is it?

 2        A.   The situation as developed over the years,Your Honours,

 3     initially -- and we are still on paper a team but in fact each analyst is

 4     assigned to a trial team, whereby we may talk to each other, of course,

 5     in order to learn from each other's experience, but I must say that my

 6     interaction with the other members of the team was rather limited.  And

 7     if you want, I can explain why.

 8        Q.   Please do.

 9        A.   First of all, well, have I been very busy working also on other

10     trials.  Also because of the specificity of the Gotovina, Cermak, Markac

11     case, I only interacted with the two analysts, Dai Morris and

12     Andrei Shakhmetov, who, as I explained, are the military analysts for

13     this case.  And I'm -- if you want I can readdress the interaction.  They

14     provide me with spreadsheets.  I asked them whenever there was mention

15     made of an archives mission, I provide them with a list of documents I

16     would like to have.  And it could be that I asked them some practical

17     questions about availability of translations or similar issues.

18        Q.   You told us that you hadn't interviewed witnesses.  Had those

19     other members of the team interviewed witnesses of the Prosecution in

20     this case?

21        A.   I assume -- I believe they did, Your Honours.

22        Q.   And did you know what interviews they took part in?

23        A.   I mean, over the years we have obviously spoken to each other and

24     I heard that in the past, for example, Dai Morris participated in

25     interview missions.  I'm not sure about his role in those, whether he was

Page 12263

 1     actually interviewing or just assisting, and I have no clear recollection

 2     of whom he exactly interviewed or participated in the interview of.

 3        Q.   Did you know what the content of those interviews revealed?

 4        A.   No, Your Honours, I do not know.

 5        Q.   The scope of your report, would you agree, is on the structure of

 6     the armed forces of the Republic of Croatia in 1995 with periods prior as

 7     being relevant?

 8        A.   Just a small addition, Your Honours, the answer is yes.  But

 9     based on my review of the Croatian legislation, the special police is not

10     identified as a component of the Croatian army as such, or Croatian armed

11     forces, and therefore I wish to add that I also reviewed the structure,

12     role, mission, command and control of the special police.

13        Q.   That was going to my second question.  I deliberately separated

14     the topics. It also included the structure of the civilian parts of the

15     Croatian government.

16        A.   Your Honours, I spoke about -- I speak about command and control

17     over the armed forces which obviously points at the Supreme Command,

18     i.e., the president.  I also address the minister and Ministry of

19     Defence.  And in relation to police, I have provided minimal background

20     information on the Ministry of Interior and the other police forces and

21     have focussed my attention in the report on the special police.

22        Q.   You also addressed the issue of the civilian authority in Knin.

23     Is that right?

24        A.   Indeed, Your Honours.  I addressed the role of General Cermak as

25     the commander of the Knin garrison between the 6th of August and around

Page 12264

 1     November.  And if you want I can specify the end date, November 1995.

 2     And my conclusion in that context is that General Cermak was not only the

 3     garrison commander but exercised powers one would normally expect from

 4     purely civilian authorities.

 5        Q.   The documents that you considered for the scope of your report on

 6     those three broad headings, and I was deliberately not specific as we are

 7     just dealing with general issues at this stage, was based upon documents

 8     in the possession of the Office of the Prosecutor.  Is that right?

 9        A.   That is correct for -- for -- let's say for 95 per cent.  As I

10     also -- in particular these American military regulations, I looked for

11     information on the Internet and had that material then introduced in

12     evidence, and then, after my activity, it became available to the Office

13     of the Prosecutor.

14        Q.   Dealing with the scope, then, and the methodology, your

15     methodology relies upon what you acquired as knowledge during your

16     research.  Is that right?

17        A.   No, Your Honours, that is not right.  The methodology I applied

18     and I explained also in -- relies on the knowledge I knew before joining

19     the Office of the Prosecutor, which was in 2001, and also on the

20     knowledge I acquired before starting this report, which was in

21     January 2007.

22        Q.   You didn't have any pre-existing materials that form the bulk and

23     substance of this report, did you?

24        A.   If you mean that I didn't have a kind of personal set of -- of

25     documents dealing with the issue, dealing with the issues covered in the

Page 12265

 1     report, then it is correct.  But I just want to make a distinction

 2     between having physical documents and having prior knowledge or expertise

 3     of a certain topic.

 4        Q.   This is the first time that you've addressed the issues within

 5     the scope of your report during your career.  Is that right?

 6        A.   No, Your Honours.  Certain aspects of my report I also had to

 7     address or I also addressed while working as a military information

 8     officer in the UNPROFOR/UNPF headquarters, in particular during the

 9     months of August and September 1995.  And some aspects I also addressed

10     in a different form, not in an expert report but doing briefings, written

11     assessments I prepared while working for the Belgian Ministry of Defence.

12        Q.   I'm not talking here about the old JNA regulations or anything

13     like that.  The purpose of my question concerns those -- the scope of

14     your report as it applied to the Republic of Croatia, which is why I

15     summarized the areas as I did.

16             Putting it in the round, would it be right to say that the laws

17     and regulations that have been produced by you in your report, as well as

18     the orders, decisions, other paper documents that are footnoted in your

19     report, were put before you for the first time after you started your

20     study in January 2007.

21        A.   Your Honours, if you allow me, the question is very broad in

22     general.

23             I remember -- just to give you an example, I remember that I was

24     serving in the UNTAES, United Nations Transitional Administration in

25     Eastern Slavonia, between July 1996 and May 1997, I was requested about

Page 12266

 1     the military information officers of the -- of our subordinate battalions

 2     as well as members of the military command whether I could compile a kind

 3     of guide on the political and military structure of Croatia.  And then

 4     indeed I contacted members of political affairs office in the UNTAES

 5     headquarters as well as civil affairs in order to obtain, for example,

 6     copies of the constitution, documents in relation to military structure.

 7     I had access to Croatian military magazines, for example.  There may have

 8     been some regulations but obviously not to the extent as I had now.  And

 9     I used that information to draft a kind of a basic guide on political and

10     military structures in Croatia, which was reviewed by the competent

11     people in the political affairs department in the UNTAES headquarters

12     before we -- before it was sent to the battalions that were part of the

13     UNTAES peacekeeping force.

14             That is just -- I'm sorry that I am so extensive, Your Honours,

15     but it's just a example to show that I have worked on these issues prior

16     to joining the ICTY.

17        Q.   Would you agree those are very general documents and the

18     documents as well as internal orders and commands, documentation that has

19     been produced through units, battalions, brigades, institutions, were not

20     materials that you had ever seen before?

21        A.   Your Honours, it is correct that I had not seen, for example, the

22     specific attack order, Kozjak 1995 by the Split Military District, but I

23     wish to draw your attention to the fact that these documents are

24     established in accordance with certain templates, and I was familiar with

25     these templates from my training in the Belgian military.

Page 12267

 1             Some of these documents, from the question of template, layout

 2     and concept, I also had seen and analysed during my activities on other

 3     cases.  I knew, for example from my work in Belgium, what a war diary is

 4     why it is important, even though we give it another name.  Now, I know,

 5     for example, from my work in the Vukovar trial that the war diary, there

 6     of the Guards Brigade, is an essential piece of evidence for that case.

 7     Well, that assisted me in assessing and understanding the important of

 8     the war diary and the operations diary of the Split Military District

 9     during Operation Storm, prior to and during Operation Storm.

10        Q.   Those are very general documents that are well known.  Your

11     expertise was not of a general nature but of a specific nature for the

12     purpose of this report, wouldn't you agree?

13        A.   I'm not sure I understand the question.

14        Q.   I'll put limb two of the question then.

15             Essentially these documents were being produced to you for the

16     structure of this report, and you were learning, on the job, about the

17     inner workings of the Croatian armed forces and the civil and political

18     structures.

19        A.   Your Honours, the answers I have given to previous questions, in

20     my view, show the opposite.  And I will try to rephrase it as it is --

21     including my public CV.  If at a certain moment in time I'm appointed to

22     provide the daily -- the Balkan section of the daily intelligence

23     briefing to the chief of Defence Staff in Belgium and the members of the

24     Defence staff, well, I have been appointed because somebody considered me

25     able of addressing not only -- of not only providing the briefing but

Page 12268

 1     also addressing the questions the chief of Defence Staff may have.  And

 2     these questions well, cannot be answered if one had not a sound

 3     understanding of the political and military background to the conflict as

 4     well as the -- for example, the role and attitude of the international

 5     community to the conflict.  So again it is not on January 2007 that I

 6     discovered -- in January 2007 that I discovered that there was a Croatian

 7     army, that there was a special police, that there were garrisons and they

 8     have an operational diary.

 9             When I read the -- and it's Exhibit P71, for the first time and I

10     saw the entry, like, working meeting, I knew exactly what it was.  In a

11     sense that I had participated in such meetings not only in UNPROFOR but

12     also when I was stationed in Germany and I understand -- I understood the

13     importance of such a meeting, what is being said, what is not being said

14     and why, and also the importance of -- of the comments made by the

15     commander.  And I'm just using that as an example but I can go into many

16     more details, if you want me to.

17        Q.   There's no issue that you can produce, collect and identify

18     documents that are given to you, Mr. Theunens.  That's not -- not the

19     issue.  The issue is whether you are an expert on the matters

20     sufficiently to advise the Court, that you know enough about those

21     subjects within the scope of the report or whether you were learning

22     those detailed matters whilst on the job.

23             You came with a certain level of knowledge, experience, no doubt

24     about it, and have been to the basic courses within the Belgian military

25     and the basic training, and you have been an analyst, you've been -- as

Page 12269

 1     you describe, but it's about the Croatian system, which the issue is

 2     here, as to whether your -- the methodology, putting documents before

 3     you, you were learning about the structure on the job.

 4        A.   I will -- I'm afraid that I will be repetitive but I want to

 5     emphasise that it was not just about that somebody put documents in front

 6     of me.  It is correct that I received spreadsheets but I also -- I did my

 7     own searches, and it's difficult to say but my guess would be that at

 8     least 30 per cent of the documents that are included in the report are

 9     documents that I found myself.  I didn't check for each and every

10     document whether it was included in a spreadsheet or not.  That was not

11     my concern.  My concern was to determine whether the document was

12     relevant.  That relevancy was established by me only based on the

13     methodology I applied.  The methodology implies previous knowledge.

14             Again, if I give briefings in UNPROFOR to the Force Commander,

15     and in case of serious developments to the Special Representative of the

16     Secretary-General, and I'm designated for that, it was not me, myself,

17     who decided that.  I assume that those who decided to -- I'm just

18     stopping for the transcript.  That those who decided to appoint me in

19     order to give those briefings knew what they were doing.

20             I'm not familiar with the criteria they applied, but I think it

21     is relevant for the Court to know that.

22             MR. KAY:  I have no further matters.

23             JUDGE ORIE:  Thank you Mr. Kay.

24             Mr. Mikulicic.

25             MR. MIKULICIC:  Thank you, Your Honour.

Page 12270

 1                           Cross-examination by Mr. Mikulicic:

 2        Q.   [Interpretation] Good afternoon.

 3             JUDGE ORIE:  Mr. Mikulicic is counsel for Mr. Markac, and he will

 4     now cross-examine you on this area.  Please proceed.

 5             MR. MIKULICIC:

 6        Q.   [Interpretation] Good afternoon, Mr. Theunens.

 7        A.   Good afternoon, Mr. Mikulicic.

 8        Q.   From your CV and from what you've stated here we were able to see

 9     that in the course of your education you attended courses, various

10     courses in Belgium and elsewhere.

11             However, I did not find anywhere that you attended a course or

12     that have you any specific knowledge on the issue of the special police

13     force.  Is that right?

14        A.   Your Honours, I believe there two components in the question.

15     The first is whether I attended a particular course on the Croatian

16     special police, and there the answer is no.

17             The second component is whether I had knowledge of the special --

18     or have knowledge of the special police.  Without entering, again, in

19     what we discussed in closed session yesterday, I can state that I had

20     knowledge of the doctrine, mandate, role, missions, deployment, and

21     related issues of the Croatian special police prior to joining the ICTY

22     in June 2001.

23        Q.   You've also told us that you attended several courses in physics

24     and chemistry and that, nevertheless, you do not consider yourself to be

25     an expert in these fields.

Page 12271

 1             Do you consider yourself to be an expert in the field of the

 2     special police?

 3        A.   Your Honours, it is is not up to me to determine whether I am an

 4     expert or not.  I believe that I have, over the years, both outside the

 5     ICTY as well as during my stay here, acquired sufficient knowledge and

 6     understanding of the Croatian special police in order to address the

 7     issue, the issues that are covered in my report.

 8        Q.   Mr. Theunens, when I asked you whether you considered yourself to

 9     be an expert, I was referring to Mr. Waespi's question earlier today at

10     page 47, line 12, who asked [Previous translation continues] ... [In

11     English] ... expertise to go into the civilian structures.

12             [Interpretation] Your answer was [Previous translation continues]

13     ... [In English] ... obviously from my work at ICTY, I did not have that

14     expertise.

15             [Interpretation] Will you agree with me that the special police

16     force is part of the Ministry of the Interior and a civilian structure as

17     a category?

18        A.   Your Honours, the special police is indeed part of the Ministry

19     of Interior.  It is organised along military lines.  Military ranks are

20     used, at least for the senior hierarchy, and based on my review and

21     analysis of the documents, it is used as a special military force for

22     particular operations.  At least during and after Operation Storm.

23             JUDGE ORIE:  Mr. Mikulicic, I have some difficulties in finding

24     your reference to page 47.  Was that today or was that yesterday?

25             MR. MIKULICIC:  It's 19th of November.  Yesterday.

Page 12272

 1             JUDGE ORIE:  Yesterday, yes.

 2             MR. MIKULICIC:  Page 47, line 11 till 18.

 3             JUDGE ORIE:  Thank you.

 4             MR. MIKULICIC:

 5        Q.   [Interpretation] If my understanding is correct, Mr. Theunens,

 6     though you do not feel to be an expert as far as civilian structures go

 7     and even though the special police force is part of civilian structure,

 8     nevertheless you consider yourself to be an expert enough to provide an

 9     expertise on the issue of the special police.  Is that correct or is that

10     contradictory?  What is your position on that?

11        A.   No.  I think that you summarize what I'm trying to say and I

12     don't see a contradiction in that.

13        Q.   Very well.  Have you ever read, Mr. Theunens, any professional

14     study on the issue of the special police, the purpose, structure, and use

15     of the special police units in peacetime and in combat?  If so, can you

16     please list them.

17        A.   I assume that the question addresses documents or studies which

18     are not referred to my report?

19        Q.   I should like to receive an answer on the knowledge you

20     previously had on the issue of the special police before writing the

21     report.  Have you ever read an article, book, or a specific study on the

22     purposes and uses of the special police?  If so, can you please state

23     which.

24        A.   Your Honours, before joining the ICTY, while I was working for

25     the Belgian Ministry of Defence, I reviewed information that covers the

Page 12273

 1     question asked by Mr. Mikulicic.  In addition, I -- during the

 2     time-period I served in UNPROFOR as well as UNTAES, we had access to

 3     local -- I mean to Croatian press, including military magazines and also

 4     other magazines that addressed specifically -- I remember articles that

 5     specifically addressed the role of the special police.

 6        Q.   Do you mean to say, Mr. Theunens, that you base your expertise on

 7     the newspapers articles you've read concerning the role of the special

 8     police?

 9        A.   Mr. Mikulicic, I would like to refer you to the first part of my

10     answer.

11        Q.   Have you personally written a study on the role and purposes of

12     the special police?

13        A.   Your Honours, I believe that the -- the earlier document I

14     mentioned, the one I compiled while serving in the UNTAES mission, on the

15     civilian and military structures in Croatia also addressed special

16     police.

17             While I was a member of the Belgian armed forces I also gave

18     the -- I call it the intelligence or the background briefing to the newly

19     appointed ECMM observers who were sent for deployment.  And obviously

20     during that briefing I didn't only cover political -- general political,

21     historical, military aspects but also special police, even though it was

22     in general terms.

23        Q.   Initially, you told us that in several cases before this Tribunal

24     you appeared as an expert witness.

25             Have you ever appeared as an expert witness before this Tribunal

Page 12274

 1     or any other Tribunal to testify on the role of the special police?

 2        A.   No, Your Honours.  This will or this would be the first time.

 3             MR. MIKULICIC:  I have no further questions, Your Honour.

 4             JUDGE ORIE:  Thank you, Mr. Mikulicic.

 5                           [Trial Chamber confers]

 6             JUDGE ORIE:  We'll take the break now, and after the break we'll

 7     then continue, Mr. Waespi, third portion, substance of the expert's --

 8     expert's report.

 9             We'll resume at ten minutes to 6.00.

10                           --- Recess taken at 5.29 p.m.

11                           --- On resuming at 5.56 p.m.

12             JUDGE ORIE:  Mr. Waespi, please proceed.

13             MR. WAESPI:  Thank you, Mr. President.  First of all, I saw that

14     Mr. Theunens brought some books and, I think, articles with him that

15     might relate to these disciplinary Articles my colleague Mr. Misetic

16     requested.

17             JUDGE ORIE:  Is that what you brought, Mr. Theunens?

18             THE WITNESS:  Indeed, Mr. President.

19             JUDGE ORIE:  Yes.  I don't know -- the problem with books is

20     never not to give to someone but to get it back.  That's the experience

21     of all of us.  Now what would you like to do, to copy the titles or just

22     have a look at it or ...

23             MR. MISETIC:  Yes, Your Honour.  And I will hand them back before

24     the end of the day.

25             JUDGE ORIE:  Then it's even under judicial supervision that the

Page 12275

 1     books are returned.

 2             MR. MISETIC:  Correct, Your Honour.

 3             JUDGE ORIE:  Would you be willing to give them to Mr. Misetic?

 4             THE WITNESS:  I must say -- I mean, if you'll allow me, the first

 5     book is very interesting in this context.

 6             JUDGE ORIE:  Yes, yes.  Now, the draw the attention of the one

 7     being more of specific interest than the other and ...

 8             Then, Mr. Waespi, please proceed.

 9             MR. WAESPI:  Thank you, Mr. President.

10                           Examination by Mr. Waespi:  [Continued]

11        Q.   The first topic I would like to address is command and control

12     and military discipline.

13             MR. WAESPI:  If the report could be brought up, which is now

14     P1013, marked for identification.  And I'm interested in the executive

15     summary, page 22, English, and I think it is the second translation, page

16     B in B/C/S.

17        Q.   Now you discuss command and control and military discipline in

18     paragraphs 3 to 5 and 18 of this executive summary, and there one can

19     find references to the body of the report.

20             Now I'd like to discuss these two issues together because they

21     are related.

22             In relation to military discipline, in paragraph 18 of your

23     summary you offer the following opinions.  And that's the second

24     sentence, third line, and I quote:  "In 1995, a legal system to enforce

25     military discipline and military justice exists within the Croatian armed

Page 12276

 1     forces."

 2             And the last sentence in this paragraph 18, it's on the next page

 3     in the English.  I quote:  "A review of the correspondence between the

 4     Split MD Command and its subordinate units shows that the discipline

 5     system described here above is enforced by Major-General Ante Gotovina in

 6     his zone of responsibility prior to Operation Storm/Oluja."

 7             Now I'd like to explore the basis for these conclusions, but let

 8     me first ask you:  Do you stand by these two conclusions?

 9        A.   Yes, Your Honours, I stand by these two conclusions.

10        Q.   Let's first look at the four documents, you call them

11     regulations, that outline the doctrine.

12             MR. WAESPI:  And the first document I would like to look at, and

13     hopefully, Your Honours, you have the list of topics and exhibits I'm

14     going to discuss in front of you.  This is -- it's called tab 8.  This is

15     65 ter 3049.

16             JUDGE ORIE:  Mr. Waespi, the Chamber has nothing in front of it

17     which is still -- still has the status of 65 ter documents.  If it's not

18     in any way either marked for identification or admitted into evidence, so

19     if -- I've seen that list of ten and then 17, but I think they were

20     neither marked or [Overlapping speakers] ...

21             MR. WAESPI:  No, that is a different topic.  I had sent around,

22     about a week ago, to Defence counsel and, indeed, Chamber's staff a list

23     of topics and documents to be used by the OTP in live testimony of

24     Reynaud Theunens.  And I had anticipated that it would be given to

25     Chambers.  I apologise for ...

Page 12277

 1                           [Trial Chamber and legal officer confer]

 2             JUDGE ORIE:  The Chamber received it.  You can proceed.  We will

 3     have it on our screen in a minute.

 4             MR. WAESPI:  Thank you very much, Mr. President.  It's a useful

 5     document because it --

 6                           [Trial Chamber confers]

 7             JUDGE ORIE:  Please proceed.

 8             MR. WAESPI:  Thank you, Mr. President.  It's useful because it

 9     refers to the footnotes and the page numbers of the expert report, in

10     which each of the exhibits I'm going discuss live is mentioned.

11        Q.   So this first exhibit -- can you very, very briefly without going

12     into substance explain, Mr. Theunens, what this regulation is about.

13        A.   Your Honours, this is the July 1993 defence law of the Republic

14     of Croatia.  A defence law establishes or defines the armed forces,

15     command and control over the armed forces, command and control within the

16     armed forces, as well as addresses aspects of the duties of military

17     personnel and also the structure of the armed forces.

18        Q.   Thank you.  Let's move to Article 49.

19             MR. WAESPI:  And this is page 39 in e-court, English, and page 18

20     in B/C/S.

21        Q.   Now, can you tell us what are the principles of command and

22     control based on your review of the materials and your expertise in the

23     Croatian army.

24        A.   Your Honours, Article 49 defines two principles for command and

25     control in the Croatian armed forces; namely, unity of command, which

Page 12278

 1     means that there is only one commander at a time; and the second

 2     principle, the obligation to carry out decisions, commands and orders of

 3     a superior.  And of course, the obligation to carry out decisions implies

 4     that people, I mean subordinates, are held accountable for their

 5     implementation of this order, which can be seen in the second

 6     paragraph of this Article.

 7        Q.   Thank you, Mr. President [sic].  If we could move to Article 39,

 8     which means a little bit backwards.

 9             Can you explain the significance of Article 39, if anything, as

10     it relates to command and control.

11        A.   Your Honours, this Article relates to command and control to --

12     to the extent that when members of the armed forces carry out combat

13     operations, according to this Article they shall always and under all

14     circumstances observe the rules of the international laws of war and the

15     humane treatment of the wounded enemy and prisoners and the protection of

16     the population, as well as other rules of this law -- laws.

17             And it is connected to an article which I have discussed in the

18     section under command and control which states that orders that result in

19     crimes -- or may result in crimes shall not be implemented.

20        Q.   Thank you, Mr. Theunens.

21             MR. WAESPI:  Mr. President, I'd like to exhibit this document.

22     It's a fairly large document, I think about 100 pages, but we believe it

23     is an important document which I'm sure the Defence might go into it as

24     well.

25             So rather than limiting myself to the few Articles, my suggestion

Page 12279

 1     would be to have it admitted as such.

 2             JUDGE ORIE:  The expectation expressed by Mr. Waespi a realistic

 3     one.

 4             MR. KEHOE:  Theoretically, I mean, I have no problem putting the

 5     law into evidence, Your Honour.  It's -- I'm not sure the relevance of

 6     most of it, but be that as it may, we have no objection to it coming in.

 7             MR. MIKULICIC: Yes, in that particular situation I could join my

 8     colleague from the OTP.

 9             JUDGE ORIE:  Yes.  So no objections.

10             Of course, we always try to keep the exhibits of a size which

11     makes it manageable and not to destroy too much of our woods.

12             There is no objection.  I invite the Prosecution to further

13     consider with the Defence whether we really need 100 pages, if we are

14     invited to pay attention only to three or four of them.

15             Therefore, for example, to consider whether the title page and

16     perhaps one or two pages to put matters in context or perhaps often

17     legislation also has a table of contents to, for example, have the table

18     of content and the specific articles.

19             Would you please consider that, Mr. Waespi.

20             For the time being, no objection.

21             Could we hear from you within, let's say, still this week whether

22     a reduced version.  Otherwise, it slips out of our mind.

23             Madam Registrar, we already admit into evidence this document,

24     which will be given what number.

25             THE REGISTRAR:  It will be given Exhibit number P1116,

Page 12280

 1     Your Honours.

 2             JUDGE ORIE:  P1116 is admitted into evidence.

 3             MR. WAESPI:  Thank you, Mr. President.

 4        Q.   Let move to D32.  These are the service regulations of the armed

 5     forces, and I'd like to have Article 4 displayed.

 6             My first question is:  How does this document relate to the

 7     previous one?

 8        A.   Your Honours, the service regulations in the HV, but also in

 9     other armed forces, are more detailed than the defence law.  Of course

10     they have to be coherent, I mean the different documents, but here you

11     will find very detailed information in relation, for example, to

12     relations between members of the armed forces, aspects of, organisation

13     for example, of barracks, garrisons, specific duties of commanders, and

14     so on.

15        Q.   Thank you, Mr. Theunens.  Now what is the significance, if any,

16     of Article 4 to command and control?

17        A.   Article 4, Your Honours, lists the duties of a commander.  They

18     can be grouped in a number of categories covering training and combat

19     readiness, discipline, as well as logistics, and, yeah, preparation of

20     the armed forces.

21             When you look at the Article, the third bullet stipulates that

22     commanders of units in institutions of the Croatian army are responsible

23     for military discipline.

24        Q.   Thank you, Mr. Theunens.  Let's move to the third regulation, and

25     that's a new document, 65 ter 5690, and I'd like to go to Article 241.

Page 12281

 1             Can you again let us know, first, how that relates to the

 2     previous document?

 3        A.   As the cover page mentions, Your Honours, this is an amendment to

 4     the service regulations which we've seen before, and this amendment is

 5     intended to cover the Guards Brigades.  The Guards Brigades are defined

 6     in this amendment, as well as the duties of the members of Guards

 7     Brigades, the duties of commanders of Guards Brigades, in particular in

 8     the area of international humanitarian law.

 9        Q.   Now Article 241, what -- what's the significance?

10        A.   Your Honours, Article 241 defines the Guards Brigades.  As the

11     Article states, Guards Brigades are the professional component of the

12     Croatian armed forces.  The Article also defines or establishes that

13     Guards Brigades are equipped with the most sophisticated weapons and

14     equipment and also that particular requirements are imposed on the

15     personnel of Guards Brigades, not only the commanders but also soldiers

16     and -- yeah, all of them.

17        Q.   Let's go to Article 245.  Does that give a foundation what you

18     called particular requirements for the members and commanders of the

19     Guards Brigade?

20        A.   Indeed, Your Honours.  These requirements are explained in the

21     first -- or described in the first five lines of this Article 245.  For

22     example, on the third line we see that the profile of a Guards Brigade

23     member is a combination of high intelligence, physical endurance,

24     self-control, initiative, self reliance, and strong will.

25             In the third paragraph of the Article, the duties of guardsmen,

Page 12282

 1     i.e., that is a general term for members of the Guards Brigade, are

 2     addressed.  And for example the last two bullets or the last -- excuse

 3     me, the -- not the last but the one just before on page 5, states that

 4     members -- or that a guardsman should be an example to the other armed

 5     forces and, okay, has a duty to behave or to act with exemplary

 6     behaviour.

 7        Q.   And briefly, and we heard a lot of testimony about that, which

 8     units, if any, of the Guards Brigade were part of Operation Oluja?

 9        A.   In relation -- I assume your question is in relation to the Split

10     Military District?

11        Q.   That is correct.

12        A.   So two Guards Brigades operated under the command of

13     General Gotovina during Operation Oluja.  The first one is the 4th Guards

14     Brigade, which was the establishment Guards Brigade of the Split Military

15     District.  The second one was the 7th Guards Brigade which, even previous

16     to Operation Storm, was at times subordinated to the Split Military

17     District Command, and during the conduct of Operation Storm was again

18     subordinated to the Split Military District, even though organically it

19     belonged to another Military District.

20             MR. WAESPI:  Mr. President, I would like to tender this document.

21             JUDGE ORIE:  I hear of no objections.

22             Madam Registrar.

23             THE REGISTRAR:  Your Honours, that will be Exhibit number P1117.

24             JUDGE ORIE:  P1117 is admitted into evidence.

25             MR. WAESPI:

Page 12283

 1        Q.   And the last of these four regulations is an exhibit already,

 2     P1007, Code of Military Discipline.  And here I'm interested in

 3     Article 26 specifically.  And this is page nine, English, and page four

 4     in B/C/S.  And the Article reads as follows:  "Commanders authority to

 5     initiate disciplinary proceedings against offenders who are not members

 6     of his unit if such measures are required for the purposes of maintaining

 7     order and discipline.  Commanders of units, institutions and garrisons,

 8     barracks, camps, medical institutions, ship, port, et cetera, shall issue

 9     disciplinary measures to offenders who are not members of their organic

10     unit if such measures are required for maintaining order and discipline."

11             What is the significance, if any, of this Article?

12             JUDGE ORIE:  Mr. Misetic.

13             MR. MISETIC:  Your Honour, I just wish to note that Article 26

14     still does not have a complete translation and I think we went through

15     this with a witness, Botteri, who was here.  There is a word missing in

16     the English translation.

17             JUDGE ORIE:  I must be quite frank with you, I don't remember

18     that detail.  If I know what the missing word is, and I take it,

19     Mr. Waespi, you would accept that, then please help us out, Mr. Misetic.

20             MR. MISETIC:  There is in the English -- or in the original if

21     you look -- if we can scroll over, please, Madam Registrar, to the right,

22     so can I -- yes.  The -- yes, to the right, please.  Fourth line, the

23     phrase begins "ako" and it is:  [Interpretation] If they are required and

24     necessary [Previous translation continues] ... [In English] ... appear in

25     the English translation.  All that appears in the English is "necessary."

Page 12284

 1             JUDGE ORIE:  [Overlapping speakers] ... now it rings a bell.

 2     "Are required" and then apparently from what Mr. Misetic tell us, and now

 3     it rings a bell that we dealt with the matter, that the English

 4     translation most likely would have to read "are required and necessary

 5     for maintaining order and discipline."

 6             MR. MISETIC:  Yes.  I don't know how the interpreters or how the

 7     translation service would strictly interpret that word, but my

 8     understanding is there is a sense of urgency in the word "nuzne."  Thank

 9     you, Mr. President.

10             JUDGE ORIE:  I don't know how vital it is for your question, but

11     could you answer the question that was just put to you, Mr. Theunens.  If

12     need be it will be repeated.

13             THE WITNESS:  Mr. President, I remember the question.  I believe

14     this is an essential Article, and I want to emphasize that it is not so

15     much a duty that is imposed on the commander but also a privilege that is

16     given to him, because it means that if he is operating with his organic

17     forces in his zone of responsibility and a member of another unit commits

18     a violation of discipline, be it serious or not serious, he has the right

19     to act.  The right to act is essential because if he has no possibility

20     to act against the violation, and there is an Article in the Code of

21     Discipline that shows the importance of or why military discipline

22     exists, and if you allow me that is in Article 7, which is on English

23     page number 3, which I believe will better explain my answer.

24             JUDGE ORIE:  If it would assist you then could it be on the

25     screen.  Article 7.  You said that was page ...

Page 12285

 1             THE WITNESS:  English page 3.

 2             JUDGE ORIE:  Page 3.

 3             THE WITNESS:  It's Article 7.

 4             JUDGE ORIE:  It will soon appear.

 5             THE WITNESS:  Your Honour, it is sufficient if we see Article 7.

 6             Your Honours, the Article explains the three aims of disciplinary

 7     measures.  First of all, what is described as reforming the offender,

 8     i.e., make it clear to him or her that they have committed an offence and

 9     that therefore measures are taken in order to prevent repetition by the

10     same offender.

11             Secondly, educating other members of the armed forces because,

12     of, course soldiers live in close groups.  Military units operate very

13     closely together.  There's something which is known as -- I mean, at a

14     higher level esprit de corps, but there needs to be some kind of cohesion

15     in the unit which is essential for a unit to function.

16             And thirdly, upholding the interests and discipline of the armed

17     forces.

18             So if a commander sees that members of the military who are not

19     part of his unit but still in his zone commit a violation of discipline,

20     it is in his interest to have discipline restored as soon as possible or

21     at least measures taken as soon as possible in order to restore

22     discipline because otherwise there is a risk that the members of his own

23     unit may engage in a similar activity.  Because again -- and you notice

24     that when you're operating in direct connection or a direct relation with

25     soldiers, when you allow an individual soldier to come late, the next day

Page 12286

 1     the whole platoon will come late.  When you allow a soldier, for example,

 2     to be unshaven or in an untidy uniform in the morning at the gathering,

 3     the next day most of them will do the same.

 4             So, again, the commander has an interest in enforcing discipline

 5     not only among his own troops but also among other troops that are acting

 6     or operating in his area in close presence of his own soldiers.

 7        Q.   Let's move to Article 106, which is on page 25 in the English

 8     e-court version, and page 10 in B/C/S.

 9             This Article says that and I quote:  "During wartime decisions on

10     breaches, violations of military discipline shall be made immediately and

11     not later than 24 hours from the moment of finding out."

12             What's the significance, if any, of this to command and control?

13        A.   Your Honours, again it highlights the responsibility of the

14     commander.  And of course in war, troops are operating under pressure.

15     Certainly goals have to be met.  I mean, objectives have to be reached.

16     There needs to be discipline in order to be able to implement these

17     objectives or reach these goals that have been imposed by the superior

18     commander.

19             Article 106 has to be seen together with Article 105 because

20     Article 105 talks about offences which are the -- as we can see in

21     Article 6 of this Code of Discipline, offences of the more serious

22     violations, whereas Article 106 talks about minor breaches, i.e., the

23     less serious, yeah, breaches or violations of military discipline.  And

24     that is also explained in my report on page 169 in the English version,

25     this distinction.

Page 12287

 1             MR. KAY:  Your Honour, just one matter.  Looking at Article 106,

 2     I can't see it on the transcript, but my printed copy refers to minor

 3     breaches.  I don't think Mr. Waespi read that out and I think it is

 4     important on this technical matter where we're not summarizing general

 5     documents.  I have been guilty of that in the past for speed, but this of

 6     a technical nature to have the record right on that phrase.

 7             MR. WAESPI:  Yes, I apologise, and I'm grateful for that to my

 8     learned friend.

 9        Q.   Let me ask you one last question on this Article 106, about the

10     time-frame.  What is the significance, if any, of the fact that these

11     decisions have to be taken immediately and not later than 24 hours?

12        A.   The most obvious reason for this is obligation, Your Honours, is

13     that during wartime, well, events are happening 24/7.  They are happening

14     continuously.  It's not like in peacetime where, during the day, from

15     8.00  to 5.00, troops are in the barracks or maybe conducting an exercise

16     and then they go home.  Here they're operating continuously, and because

17     of this continuity there is a need to act urgently in case of violations

18     of discipline.

19             MR. MIKULICIC:  Your Honour, I'm sorry to interrupt.  For the

20     sake of the precision, I think the witness should be asked whether the

21     wartime has been proclaimed in Croatia at that time.

22             JUDGE ORIE:  I'm asking myself whether this is a matter to be

23     raised in cross-examination or -- but perhaps, Mr. Waespi, it would be --

24     we would be better able to follow the testimony of this witness if we

25     would know whether there's an issue there whether the formal proclamation

Page 12288

 1     of a time of war is relevant for this Article.  So you're invited to

 2     explore the matter.

 3             MR. WAESPI:  Thank you, Mr. President.

 4             MR. MIKULICIC:  I mean, this is connected with the implementation

 5     of the law.

 6             JUDGE ORIE:  Well, we'll hear from the witness or it may become

 7     clear to us on the base of the questions what the issue exactly is.

 8             Please proceed.

 9             MR. WAESPI:  Thank you, Mr. President.

10        Q.   Do you know whether Article 106 applied during the time prior and

11     during Operation Oluja?

12        A.   Your Honours, at this moment I do not remember whether a state of

13     war was formally declared in Croatia or was formally existing in Croatia

14     at the time of Operation Storm.  I remember that it existed at times in

15     1991.  I remember that it had been lifted sometime I believe at the end

16     of 1991, but I'm not -- I don't remember at this stage whether it had

17     been reimposed in 1995.

18             So in strict sense, if the state of war had not been declared,

19     then one could argue that these two articles do not apply.  Still

20     military measures that would correspond with the declaration of a state

21     of war, and I mean by that an increase in combat readiness as well as

22     mobilisation of units, such measures were indeed taken during

23     Operation Storm -- excuse me, prior to Operation Storm.  They are

24     discussed in the second part of the report, and from that I would

25     conclude that even if formally the Articles may well not have applied,

Page 12289

 1     that the commander had all interests -- I mean the commanders at all

 2     levels had all interests in abiding by the provisions of these Articles

 3     during Operation Storm.

 4        Q.   Thank you, Mr. Theunens.  Let's move on now to the implementation

 5     of this doctrine.

 6             The next document is again an admitted document, P1020.  This is

 7     a document dated 6 March.  Can you briefly, without going into substance,

 8     characterize the document?

 9        A.   Your Honours, this document is an example of the implementation

10     of Article 26 of the 1992 Code of Military Discipline.  We see that

11     General Gotovina forwards a report of the 72nd Military Police Battalion,

12     i.e., the military police battalion of the Split Military District, in

13     relation to a traffic violation committed by a member of the 7th Guards

14     Brigade.  We see that Gotovina forwards that report to the commander of

15     military post 3112 in Varazdin which corresponds with the commander of

16     the 7th Guards Brigade.

17        Q.   And is there a relationship to Article 26 we just discussed a

18     moment ago?

19        A.   Indeed, Your Honours.  The 7 Guards Brigade is not an

20     establishment or an organic unit of the Split Military District.  It

21     belongs to the Bjelovar Military District, which is located in

22     northwestern Croatia.  And because General Gotovina assesses or judges

23     that this is not an urgent matter or not of urgency in order to maintain

24     order and discipline in his zone of responsibility, he forwards the

25     matter to the commander -- to the organic commander of the perpetrator

Page 12290

 1     but he asks him, i.e., he asks the commander of the 7 Guards Brigade to

 2     keep the commander of the Split Military District informed of the

 3     measures he has taken.

 4        Q.   Thank you, Mr. Theunens.

 5             Let move to the next document, a new one, 65 ter 5575.

 6             This is a report on a traffic offender, signed by commander

 7     Brigadier Ivan Korade, dated 25th April 1995, and it's addressed to the

 8     Split Military District Command, legal affairs department.

 9             What is the significance of this document, if any, Mr. Theunens?

10        A.   Your Honours, this is the reply of the commander of the 7 Guards

11     Brigade to the request of General Gotovina expressed in the previous

12     document, and Brigadier Korade informs General Gotovina of the

13     disciplinary measure he, i.e., Korade, has taken following the traffic

14     violation and the report filed by the 72nd Military Police Battalion

15     for the traffic violation committed by a member of the 7 Guards Brigade.

16             MR. WAESPI:  I would like to tender this document, Mr. President.

17             MR. MISETIC:  Your Honour, I'm not still sure of the foundation

18     for why this is being put in the context of Article 26.  So ... I mean,

19     with that caveat I ... if we could get some more foundation.  I mean,

20     Article 26, as far as I understand the witness's testimony thus far, is

21     the commanders of the Split Military District could issue discipline

22     against subordinated units.  I don't see where that is taking place and

23     if that's the proposition I would ask for more foundation on this.

24             MR. WAESPI:  Your Honours --

25             JUDGE ORIE:  Mr. Waespi, yes, if you are willing, of course, we

Page 12291

 1     could --  there's no clear objection against but it might assist the

 2     Chamber if would you follow the suggestion made by Mr. Misetic.

 3             MR. WAESPI:

 4        Q.   Yes, please, Mr. Theunens, can you explain the relationship

 5     between this document and Article 26.

 6        A.   Indeed, Mr. President.  When I read out the second line of

 7     Article 26, I'll start with the first line.  It stated:  Commanders of

 8     units and so on shall issue disciplinary measures to offenders who are

 9     not members of their organic unit if ... and so on, and then the

10     conditions are explained, whether it is an urgent matter or not.

11             Here we have an offender who is not a member of an organic unit

12     of the Split Military District.  The 7 Guards Brigade is not an organic

13     unit of the Split Military District.  It is temporarily subordinated to

14     the Split Military District at the time of the -- of this violation, but

15     it is not an organic establishment unit.

16             From the organic point of view -- I'm sorry for the English.  The

17     7 Guards Brigade belongs to the Bjelovar Military District which is

18     located in northwestern Croatia along the border with Hungary.

19             MR. MISETIC:  Your Honour, my objection remains.  The question

20     is:  Did General Gotovina issue a disciplinary measure to the

21     subordinated unit?  You know, my objection is to the foundation and I

22     still haven't heard the answer -- it is clear that is being offered for

23     that purpose, but where's the disciplinary measure by General Gotovina?

24             JUDGE ORIE:  Mr. Waespi, was it just meant as an example of

25     reporting and to what extent does that follow within the scope of

Page 12292

 1     Article 26.  That apparently is the issue.  It has been explained by the

 2     witness now that at least the matter deals with someone who is not a

 3     member of an organic unit of the Split Military District.  Now --

 4             MR. MISETIC:  Yes, Your Honour.  I'm just reminded to make a

 5     further objection.  This isn't on the 65 ter exhibit list either.  I

 6     don't have a problem with it if, in fact, it can be explained how

 7     referral to a different Military District falls under Article 26 as if

 8     General Gotovina is issuing discipline.  But if it's not, then I don't

 9     see why it should be added to the 65 ter list or why admitted into

10     evidence.

11             JUDGE ORIE:  Mr. Waespi.

12             MR. WAESPI:  Well, first of all, I'd like -- we have indicated in

13     our list, as we agreed, that the documents that are in italics, you know,

14     would be new and I would obviously make an oral application to add it to

15     the 65 ter list.  Second, it is our position that General Gotovina

16     exercises jurisdiction, disciplinary jurisdiction over these members

17     that are temporarily assigned to their units, and that is an example of

18     that exercise.  And I don't want to give evidence but that's what the

19     witness explains.

20             JUDGE ORIE:  Apparently it's a first step of reporting, which

21     might lead to -- or is that misunderstood, Mr. Waespi?

22             MR. WAESPI:  That's correct.  It is up to him what he does.  But

23     that is within his perogative to deal and his duty to deal --

24             JUDGE ORIE:  At least that is how Mr. Ivan Korade looks at it,

25     apparently -- yes.

Page 12293

 1             MR. MISETIC:  [Overlapping speakers]...Mr. Korade looks at that

 2     now?

 3             THE WITNESS:  Excuse me, Your Honour --

 4             JUDGE ORIE:  Enclosed please find a copy --let me just take time

 5     to read the whole of the document.

 6             If you would give me time.

 7             MR. MISETIC:  Yes, I'm sorry, Your Honour.

 8             JUDGE ORIE:  Yes, apparently the Split Military District Command

 9     is informed about a disciplinary measure which has been imposed upon a

10     member of the 7th Guards Brigade.  That's apparently what the document

11     says.

12             Now, Mr. Waespi, the issue raised by Mr. Misetic is whether this

13     is a relevant document for the Prosecution's position, that the

14     Split Military District Command, to whom this information was sent, was

15     competent to exercise disciplinary powers over this non-organic unit

16     that.  Apparently --

17             MR. MISETIC:  My position is this, Your Honours.  And I believe

18     we went through this once, although not with this specific document but

19     with a prior witness who was actually personally involved in this, that

20     what has happened here, and you can read it on its face, is that a report

21     is submitted to the Split Military District by the military police.  It

22     is not ordered by General Gotovina, it is referred to a different section

23     of the Croatian army and then is asked to report back as to what measure

24     is taken.

25             I don't see how that's interrelated to Article 26 of a commander

Page 12294

 1     issuing discipline against a subordinated unit, and so my objection is to

 2     the lack of foundation to support that assertion with this witness.  If

 3     they can explain how this is a disciplinary measure as opposed to simply

 4     a referral to the proper authority to take discipline, then that's a

 5     different issue.

 6             JUDGE ORIE:  Perhaps -- usually we ask the witness to leave the

 7     courtroom if we discuss these kind of matters, but in the present

 8     circumstance it might be a very good thing that he hears it.

 9             You see that the relevance of this document is in dispute between

10     Prosecution and Defence.  Could you help us out, Mr. Theunens.

11             THE WITNESS:  I will try, Mr. President.  It would be helpful if

12     we could see Article 26.  I don't know whether that is technically

13     feasible.

14             JUDGE ORIE:  At the same time, if we could have a look at it.

15     But if you already start explaining, apparently you have Article 26 on

16     your mind.

17             THE WITNESS:  Indeed, Mr. President.  The second paragraph of

18     Article 126 states that in situations where an officer under paragraph 1,

19     i.e., the non-organic commander, has decided that it is not necessary

20     that an offender who does not belong to his unit be immediately punished,

21     the matter shall be forward to the offender's superior officer to deal

22     with.

23             So again, summarizing Article 26, Article 26 states that the

24     commander can take disciplinary measures against members of non-organic

25     units.  This -- in case there is an urgency to take disciplinary measures

Page 12295

 1     or to have these disciplinary measures taken, he can do it himself.  If

 2     he considers, i.e., the commander, that the matter is not urgent, he can

 3     refer it to the organic commander of the offender.

 4             So here, this is obviously not an urgent matter.  I mean the

 5     traffic violation, it does not affect order and discipline in the

 6     Split Military District.  So Gotovina, the non-organic commander, decides

 7     to forward to the organic commander, i.e., the commander of the 7th

 8     Guards Brigade.

 9             I hope that that explains the matter.

10             MR. WAESPI:  If can I add, Mr. President.

11             JUDGE ORIE:  Yes, as long as you don't give evidence, Mr. Waespi,

12     please.

13             MR. WAESPI:  It's just a follow-up of the previous document we

14     looked at.  It's the reporting back to P1020 so even in itself, and

15     there's been no objection to 1020 -- the foundation is laid, if you want,

16     from a formalistic point of view.

17             MR. MISETIC:  And the fact that P1020 was introduced, the

18     opposite proposition was put forward which is part of why I'm now

19     surprised that the counterproposition is being offered by the

20     Prosecution.

21             JUDGE ORIE:  Let's -- for the time being.  This document will be

22     marked for identification.  We'll look at it and see whether there 's

23     sufficient relevance to have it admitted into evidence.

24             Madam Registrar, was a number already assigned.  I think it was

25     not.  No.  Could you please do it.

Page 12296

 1             THE REGISTRAR:  Your Honours, that would be Exhibit number P1118,

 2     marked for identification.

 3             JUDGE ORIE:  And it keeps that status for the time being.

 4             Please proceed.

 5             MR. WAESPI:  Thank you, Mr. President.

 6        Q.   Let's move on to P1014.

 7             Can you briefly explain what the document is about and the

 8     significance, if any?

 9        A.   I believe this is just 1014 not P, but maybe I'm wrong.

10        Q.   I think it is a P.

11        A.   I apologise.  I'm sorry.

12             This is an another implementation of Article 26 whereby, here,

13     the non-organic commander considers that the violation of discipline by

14     members of a unit which is temporarily subordinated to him is of such a

15     seriousness that he has to take the disciplinary measures immediately.

16             The non-organic commander is General Gotovina.  The unit which is

17     temporarily subordinated, i.e., a non-organic unit, is the 2nd Infantry

18     Battalion of the 9th Guards Brigade.  This unit is also known under the

19     name Termiti [phoen]and has also been known before as the 84th Guards

20     Battalion.  This is not mentioned in the document but ...

21             So this document states:  We are sending you enclosed orders on

22     disciplinary measures imposed by the Split Military District commander to

23     the following members of the HV 2nd Infantry Battalion of the 9th Guards

24     Brigade.

25             So Split Military District commander is the non-organic commander

Page 12297

 1     who has this unit, 2nd Infantry Battalion of the 9 Guards Brigade,

 2     temporarily subordinated to him.  The 9 Guards Brigade belongs normally

 3     to the Gospic Military District.  We can alos see that from the heading

 4     in the top left corner.  And in the attachment, we can see -- which is

 5     actually the third English page --

 6             JUDGE ORIE:  This document has been uploaded in e-court with two

 7     pages.  From what I have -- if we are talking about the same document.

 8             THE WITNESS:  Yeah.

 9             JUDGE ORIE:  Let me just check.

10             THE WITNESS:  This is the right document, yeah.

11             JUDGE ORIE:  This is the right document.  Yes.  That's another

12     one we just had.

13             Please proceed.  You said the third page.

14             THE WITNESS:  Yeah, but this is the right page now because it is

15     it probably uploaded than the form I have it in.

16             When we go to the last page of this document we see that it is

17     signed by General Gotovina, commander of the Split Military District.  He

18     submits it to a number of people, including the 9 Guards Brigade, to the

19     attention of the 2nd Infantry Battalion of the 9 Guards Brigade.

20             When we move back now to the first page, we see from the contents

21     that General Gotovina has imposed a disciplinary measure against a member

22     of the 9th -- excuse me, of the 2nd Battalion of the 9 Guards Brigade,

23     and this disciplinary measure imposed by Gotovina can be found in the

24     middle of the page.  It is the disciplinary measure of military detention

25     for duration of ten days.

Page 12298

 1             In my view, this is an implementation of Article 26 because the

 2     commander of the Split Military District has imposed a disciplinary

 3     measure against a member or an offender of a unit which is not an organic

 4     unit of his for a violation of discipline he considers important and for

 5     which he considers that it's -- yeah, that it is important to take urgent

 6     measures.

 7        Q.   Let's go to the next document, a new one, 65 ter 2425.  And it's

 8     a document dated 20th July 1995.

 9             What's the significance again, Mr. Theunens, of this document?

10        A.   Your Honours, this is an example of the implementation of the

11     discipline system as well as also of the implementation of what is

12     described as the concept of situational awareness, which is discussed in

13     my report.  That is that the commander obviously is responsible for the

14     implementation of discipline, and in order to make sure that he takes

15     care of that obligation, he, the commander of the Split Military

16     District, requests his units to provide him with data, with information

17     on the number of disciplinary procedures and measures they have taken or

18     undertaken during the first half of 1995.

19             On the second page of the document, of the English document, you

20     can find the addressees.  The units are identified by their military post

21     number, and, for example, the fifth in the row, 2233, is the military

22     post number of the 72nd Military Police Battalion, indicating that the

23     72nd Military Police Battalion is an organic unit of the Split Military

24     District.

25             The later pages in the document provide the template and the

Page 12299

 1     references for the information the subordinate units of the

 2     Split Military District have to provide to the Split Military District

 3     Command.

 4        Q.   Thank you, Mr. Theunens.

 5             MR. WAESPI:  I would like it tender this document, Mr. President.

 6             JUDGE ORIE:  I hear of no objection.

 7             Madam Registrar.

 8             THE REGISTRAR:  Your HonourS, that will be Exhibit number 1119.

 9             JUDGE ORIE:  P1119 is admitted into evidence.

10             MR. WAESPI:  And perhaps, Mr. President, one more document before

11     the break.  This is --

12             JUDGE ORIE:  Could I ask you about one of the previous documents.

13     They're always juggling with page numbers, et cetera.

14             The documents in which we find the ten days of military

15     confinement I think that was the ...

16             MR. WAESPI:  I think P1014.

17             JUDGE ORIE:  Yes.  I see that there's an English translation of

18     two pages whereas the original is seven pages.  There must be something

19     wrong there.

20             MR. WAESPI:  Yeah.

21             JUDGE ORIE:  It consists of several documents.  It looks as if a

22     letter announces three cases and that we find three two-page documents in

23     which, at least in one of them, disciplinary measure is imposed, but

24     there is in e-court supposed to be a second translation which is not

25     there, apparently.

Page 12300

 1             Mr. Waespi, I'm not by -- for pleasure, establishing my image as

 2     a bookkeeper.

 3             MR. WAESPI:  Yes, I will check overnight the status --

 4             JUDGE ORIE:  Yes, please do so.

 5             MR. WAESPI:  I think the next document will be P1013.

 6        Q.   This is an existing exhibit already.  Again, based on your

 7     analysis, review of the materials, what's the significance of this order

 8     dated 29th August 1995?

 9        A.   Your Honours, this set of documents is an example of the

10     commander of the Split Military District using his authority as the

11     Military District Commander to order measures in view of establishing

12     criminal responsibility.  It has to do with the illegal occupation of

13     public housing or flats.

14             On the first page, in paragraph 1, we can see that the commander

15     of the Split Military District orders to appoint a commission for

16     investigation consisting of a number of members, including the deputy

17     commander of the 72nd Military Police Battalion.  The commander of the

18     Split Military District then, in paragraph 2, determines the tasks of

19     this commission.

20        Q.   Let me ask you about the front page again.  It states that the

21     order was given pursuant to an order of the chief of the Croatian army

22     Main Staff.

23             Now, could Mr. Gotovina have issued this order on his own right

24     or does he have to -- did he issue it pursuant to -- to -- did he have to

25     wait for the authority given by his superior to issue this order?

Page 12301

 1        A.   Your Honours, such a conclusion cannot be drawn from this

 2     document, but it is my understanding of the review of the other material

 3     that indeed the commander of a Military District has the authority to

 4     establish, for example, such commissions.

 5             MR. MISETIC:  Objection.  Lack of foundation, Your Honour.  Nor

 6     was this disclosed in the expert report or at any other time by the

 7     Prosecution in 800 pages of material.

 8             JUDGE ORIE:  Mr. Waespi, I take it that the lack of foundation

 9     relates to the second part of the answer not the first part of the answer

10     where he says we cannot draw any conclusions from this document.

11             MR. MISETIC:  Yes, Your Honour.

12             JUDGE ORIE:  Could you further explore on what the

13     understanding --

14             MR. MISETIC:  Your Honour, I still have an objection to him

15     offering an opinion -- in 800 pages -- we are using direct now to go into

16     opinions that are not in an 800-page report.  I have an objection to the

17     lack of disclosure.

18             JUDGE ORIE:  I haven't got the 800 pages so in my mind to know

19     for sure that not such a thing appears anywhere.

20             Mr. Waespi, would you please --

21             MR. WAESPI:  I can ask him.  Yes.

22             JUDGE ORIE:  -- address the matter.

23             MR. WAESPI:

24        Q.   What 's the basis for you to say that the commander of the

25     Military District had the authority to establish such commissions,

Page 12302

 1     irrespective of being ordered by his superior to do so?

 2             JUDGE ORIE:  And perhaps the first question whether you expressed

 3     any such an opinion at any place in your expert report.

 4             THE WITNESS:  Your Honours, I base this conclusion on -- I think

 5     it is in the collection of documents here --

 6             JUDGE ORIE:  Let's -- let's -- Mr. Misetic, what is your problem,

 7     apparently?

 8             MR. MISETIC:  I'd ask that he answer your question first,

 9     Your Honour.

10             JUDGE ORIE:  Yes.  The first question was whether such a

11     conclusion appears anywhere in your expert report.

12             THE WITNESS:  No, Your Honours.  The conclusion does not appear

13     as such in the expert report.  I have not addressed specifically or have

14     not mentioned specifically that a Military District Commander can

15     establish a commission to investigate disciplinary issues.

16             MR. MISETIC:  I still have the objection then, Your Honour.  I

17     believe there is plenty of other material to cover without covering areas

18     that have not been disclosed to the Defence.

19             JUDGE ORIE:  Mr. Waespi.

20             MR. WAESPI:  Well, the materials have all been disclosed.  I'm

21     quite certain.

22             JUDGE ORIE:  Yes.  But apparently the issue for Mr. Misetic is

23     that if on the basis of disclosed material you could draw conclusions

24     other than those we find in the report, that that should not be the

25     subject because then the conclusion is not disclosed in the expert

Page 12303

 1     report, and I take it that many of the underlying documents would allow

 2     for conclusions of a totally different kind on matters.

 3             That apparently is the issue.

 4             MR. WAESPI:  Well, I think it is our position that there are

 5     areas or questions that this expert can address, or understand, without

 6     following each and every single opinion in -- in his report.  That's just

 7     natural.  And we believe that if the proper foundation is laid that he

 8     says, you know, what's the material he bases his -- or the doctrine he

 9     bases an opinion upon, that is sufficient to address the issue.

10             JUDGE ORIE:  The Chamber will consider the matter but not today.

11             Whether this is a question you may answer, Mr. Theunens, you'll

12     hear from us tomorrow.

13             THE WITNESS:  Okay.

14             JUDGE ORIE:  Same instruction as yesterday; you should not speak

15     with anyone about the testimony whether already given or still to be

16     given.

17             MR. MISETIC:  I want to be sure that --

18             JUDGE ORIE:  Mr. Theunens, Mr. Misetic wants to return publicly

19     to --

20             MR. MISETIC:  On the record.

21             JUDGE ORIE:  On the record, yes.  Meanwhile, I think copies have

22     been made with the approval of the Trial Chamber we understood your

23     permission to hand that over to the Prosecution that they were also able

24     to copy it.  If that is misunderstood, please tell us.

25             We'll then adjourn until tomorrow, 9.00 in the morning, in this

Page 12304

 1     same courtroom, I.

 2                            --- Whereupon the hearing adjourned at 7.05 p.m.,

 3                           to be reconvened on Friday, the 21st day of

 4                           November, 2008, at 9.00 a.m.