Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4842

1 Wednesday, 12 July 2000

2 [Open session]

3 [The witness entered court]

4 [The accused entered court]

5 --- Upon commencing at 9.53 a.m.

6 JUDGE MUMBA: Good morning. The registrar, please call the case.

7 THE REGISTRAR: [Interpretation] IT-96-23-T and IT-96-23/1-T, the

8 Prosecutor versus Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic.

9 JUDGE MUMBA: Again this morning the Trial Chamber is unable to

10 sit at 0930 hours. The administration is still having problems with their

11 regiments for bringing in the accused.

12 Yes, Mr. Prodanovic, you have something to say?

13 MR. PRODANOVIC: [Interpretation] Your Honour, we acted on your

14 suggestion and we had a meeting with our learned colleague, Mr. Dirk

15 Ryneveld, with respect to what we wish to tender into evidence, and we

16 agreed that everything, according to your ruling of the 3rd of July,

17 should be tendered into evidence, that is, that part of the expert opinion

18 on which examination is allowed, and also to tender into evidence the

19 parts that are in annex B, numbers 6, 8, 13, 24, 27, 29, 31, 33, 39, 49,

20 50, 51, 52, 54, 55, 62, and 63.

21 Finally, yesterday we looked at the tape where the first war

22 commander mentioned the names of the war commanders. After that place,

23 there is another place where he mentions the names of the commanders who

24 were actually in command at the time he was giving the interview, and he

25 did not mention the name of the accused.

Page 4843

1 I discussed this with Mr. Ryneveld, and I only wish to inform you

2 that this also exists on the tape.

3 JUDGE MUMBA: We're wondering, is that also being tendered? Do

4 you wish to have that part of the tape tendered as well?

5 MR. PRODANOVIC: [Interpretation] Yes, Your Honour, we also wish to

6 tender that part of the tape into evidence. I understood that the entire

7 tape had been tendered into evidence yesterday.

8 JUDGE MUMBA: Are you talking about the tape where we had only

9 part of it, where we were trying to say whether or not the whole part

10 translated should be admitted? Is that the tape you're talking about?

11 Can I have the number, Madam Registrar? What was the number of

12 the tape?

13 THE REGISTRAR: [Interpretation] D90.

14 JUDGE MUMBA: Yes. Is that D90? You're saying that there is

15 another part after that interview we listened to yesterday which doesn't

16 mention the name of the accused.

17 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. Yes, after

18 that.

19 JUDGE HUNT: We will need a transcript in English of what was

20 said. We haven't been shown it. I don't know what you want us to do with

21 it if it's all being tendered.

22 MR. PRODANOVIC: [Interpretation] Your Honour, we have brought that

23 part of the tape and we can show it, and then you will see what it's

24 about.

25 JUDGE MUMBA: Yes, because we should view that part of the tape,

Page 4844

1 and the transcript as well. Do you have the transcript in English?

2 Let's hear from the Prosecution, first of all, about the admission

3 of the other document and annex B and the numbered paragraphs or

4 documents.

5 Mr. Ryneveld.

6 MR. RYNEVELD: Yes, thank you, Your Honour.

7 My learned friends and I met pursuant to your suggestion, as we

8 have been meeting on a regular basis.

9 I might say that what my friend has indicated to the Court are the

10 documents that the Prosecution takes the position that they are both --

11 both no objection with respect to authenticity or with respect to

12 relevance. So those matters, we say, are admissible, per se.

13 The difficulty we had, and I might just indicate this for the

14 benefit of the Court, is that when you look at the report and you look at

15 the exhibits, one would hope that the numbered 1 through 63 would be

16 footnotes to the actual report so that it would be easy to see which of

17 those 63 documents were, in fact, contained in the admissible portions of

18 the report itself. Unfortunately, after number 6, the footnoting stops,

19 so you do not know what relevance or -- I'm sorry, where the document is

20 supposed to support the report itself, if you know what I'm getting at.

21 The footnote isn't referred to in the document itself.

22 So we went through each document and my friend has correctly

23 indicated the numbers that we have no objection with respect to, either

24 its authenticity or relevance.

25 JUDGE HUNT: Mr. Ryneveld, I understand your difficulty with that,

Page 4845

1 but I want to make it very clear that the decision which the Trial Chamber

2 gave did not purport to deal with the whole of the report. It dealt only

3 with those passages to which you had taken a specific objection. We made

4 no ruling about the other parts; in particular, the annexes or whatever

5 they were called. So there should be no misunderstanding on the part of

6 either side that we have excluded anything else other than the material we

7 specifically excluded, and there were certain parts which we said

8 specifically were admissible or relevant notwithstanding the Prosecution

9 objection.


11 JUDGE HUNT: So there's a great deal of that report about which

12 there's been no decision by the Tribunal.

13 MR. RYNEVELD: Yes. You have ruled inadmissible those portions

14 that the Prosecution objected to and the Court ruled upon. The balance of

15 the report, we take no objection to. We take objection to the remainder

16 of 1 through 63 that are not contained within the numbers that my friend

17 has enumerated, either for purposes of authenticity or relevance.

18 I have indicated to my friend in our discussion this morning that

19 he's listed the numbers of the exhibits or attachments, whatever you want

20 to call them, footnotes, to the report that we do not object to; however,

21 I indicated to him that it was for them to persuade the Trial Chamber,

22 should they wish to, as to the relevance of the remainder of them that

23 we've just indicated that we are objecting. That doesn't mean that you've

24 ruled on whether or not -- so he understands, and I made that clear in our

25 discussion this morning, you're asking my position and my position is:

Page 4846

1 "These numbers are both relevant and authentic. The balance of them, if

2 you wish to submit them, it's up to you to persuade the Trial Chamber."

3 JUDGE HUNT: That wasn't from what Mr. Prodanovic said, so that's

4 why I wanted to raise it. But there is one document that I want to have

5 some discussion about that I'd like to return to if I may, and that was

6 this document signed by the crisis staff commander directing an inquiry or

7 investigation into the destruction of the Czar's mosque.

8 At the time, the objection was taken by your colleague,

9 Ms. Uertz-Retzlaff, and she said, "We think it's irrelevant. It's the

10 timing, and this mosque is not of relevance." And when I asked

11 Mr. Prodanovic what its relevance was he said, "As far as I'm able to

12 gather, the indictment contains some general allegations, and the Defence

13 is of the opinion that this document could have relevance." Now, with all

14 due respect to both counsel, neither of that helped us very much.

15 What has been drawn to my attention is a statement by the Trial

16 Chamber in its judgement in Blaskic which talks about systematic

17 character, and at paragraph 203, what the judgement seems to be saying,

18 it's not altogether clear, is that when you come to a systematic attack,

19 there must be the existence of a political objection -- objective, I'm

20 sorry, a plan pursuant to which the attack is perpetrated; or an ideology,

21 in the broad sense of the word, that is, to destroy, persecute, or weaken

22 a community. Now with all due respect, I'm not sure I entirely agree with

23 it, but I don't think that this is the occasion where we debate whether it

24 is correct or not.

25 But with a statement like that, that there has to be some

Page 4847

1 political plan, would not this instruction to carry out an urgent

2 investigation, and the statement, "Burning somebody else's objects never

3 was a honour to a Serb," would that not go at least some distance to

4 meeting any suggestion by the Prosecution that there was a plan, a

5 political objective or a plan?

6 MR. RYNEVELD: As I understood, and I'm having to rely on my

7 memory here, as I understood my co-counsel's objection at that particular

8 time on the issue of relevance was that this referred to a -- apparently

9 the Czar's mosque, which was not one of the mosques referred to in the

10 evidence. It was something entirely different.

11 JUDGE HUNT: I know that, I know that. That's the basis on which

12 the objection was taken --


14 JUDGE HUNT: -- and the basis on which I put it to Mr. Prodanovic,

15 and his response was it referred to something in the general allegations.

16 But we are not concerned about what points were taken by counsel. We have to

17 work out whether it's admissible, and I'm only looking at it from the

18 point of view of what may happen later subsequently when things look very

19 different. And if somebody says, well, that's a statement by a Trial

20 Chamber as to what has to be demonstrated to show systematic character,

21 it's at least arguable, is it not, that this would be relevant to meet any

22 suggestion that there was a plan. And I emphasise, I don't necessarily

23 agree with what was said in Blaskic, but this is not the occasion to

24 determine it.

25 MR. RYNEVELD: No. My recollection further is that upon the

Page 4848

1 Prosecution having taken objection and without the Court ruling on the

2 matter, my friends actually withdrew Exhibit 12 or this document D82, or

3 whatever. They may wish to reconsider that. But my discussions this

4 morning were, was that if I recall correctly, this was at one point named

5 D82 for identification or something, and my friends withdrew it from the

6 trial Court's consideration.

7 JUDGE HUNT: No doubt, no doubt because -- I'm not sure whether

8 they did withdraw it, but no doubt they succumbed, if I may put it that

9 way, to the force of both the objection and our attitude. But we haven't

10 been given any assistance. Somebody has now given us that assistance, and

11 I think we have to look at it afresh. It will be a matter for

12 Mr. Prodanovic if he wishes to retender it. But I thought, seeing that we

13 were into these attachments, this was the time to deal with it.

14 MR. RYNEVELD: In light of your honour's comments, I would have to

15 acknowledge that there is at least on the face of the document some

16 potential relevance which is subject to argument with respect to weight,

17 and perhaps ought to be admitted and ought to be dealt with by counsel in

18 our closing arguments.

19 JUDGE HUNT: Yes. That's my view, frankly.

20 MR. RYNEVELD: And mine, upon reflection. Thank you.

21 JUDGE MUMBA: Mr. Prodanovic?

22 MR. PRODANOVIC: [Interpretation] I have no objections, Your

23 Honour. We thought that that document was relevant and had some force,

24 which is why we tendered it, but perhaps it was not the right moment to do

25 so, for it to appear admissible. As far as I have been able to

Page 4849

1 understand, you asked me whether -- what its relevance was. I tried to

2 explain; that's all I can say. But we thought it was admissible, and it

3 still is, in our view. As regards its importance, we have not changed our

4 standpoint, but we simply complied with your attitude.

5 JUDGE MUMBA: Do you wish to tender it now in view of all that has

6 been discussed?

7 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. It is already

8 marked in this annex.

9 JUDGE MUMBA: I'm wondering about the last sentence. Is it among

10 this?

11 MR. RYNEVELD: It is among the 63. It's actually number 12, but

12 number 12 was specifically one of the matters which was not agreed to by

13 the Prosecution until I rose to my feet in discussion with the Trial

14 Chamber.

15 JUDGE HUNT: It has been given a number, has it?


17 THE INTERPRETER: Microphone, please.

18 JUDGE MUMBA: Madam Registrar, can we have the number formally now

19 that it's admitted?

20 THE REGISTRAR: [Interpretation] It's document D82, Defence Exhibit

21 D82.

22 JUDGE MUMBA: Thank you.

23 JUDGE HUNT: Is that all that there is about the documents?

24 JUDGE MUMBA: Can we see the part of the tape, the part you say

25 that there was another statement where the name of the accused was not

Page 4850

1 mentioned.

2 We have the transcript of that part, or we will depend upon the

3 interpretation?

4 MR. PRODANOVIC: [Interpretation] The interpreters don't have a

5 transcript. They do not have a transcript, Your Honour. I was not sure

6 that it would come up, but mostly names are mentioned.

7 THE INTERPRETER: The interpreters apologise, but they cannot

8 interpret without a transcript.

9 JUDGE MUMBA: I think we can deal with this later because I don't

10 think we necessarily need this witness to be around. I think it's better

11 for you to deal with the transcript so the interpreters can have it. We

12 can have it done later.

13 MR. PRODANOVIC: [Interpretation] You are right, Your Honour. I

14 think that that is the best solution. Perhaps we could deal with it on

15 Monday.

16 JUDGE MUMBA: Yes, and it's important that you check the

17 transcript properly with the tape, the segments that you want the Trial

18 Chamber to listen to, okay?

19 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour.

20 JUDGE MUMBA: We are just saying that when you deal with the

21 transcript, please work with the interpreters so they can also check so

22 that we don't have a problem during the proceedings.

23 MR. PRODANOVIC: [Interpretation] We shall comply with your

24 instructions, Your Honour.

25 JUDGE HUNT: Mr. Ryneveld, there's another matter that I want to

Page 4851

1 raise with you, and it does deal with the cross-examination of this

2 witness.

3 Yesterday you were asking him some questions about whether he had

4 any reports of an attack by any Serb force upon a Muslim village, and his

5 response at page 4830 was, "I don't know that they," that is the Serbs,

6 "attacked Muslim villages. I know that throughout 1992 they defended

7 themselves from Muslim attacks, and also that they were defending

8 themselves while encircled."

9 Now, you then went on and cross-examined him as to whether -- the

10 reality of that, in effect. There is no doubt going to be a big argument

11 as to whether "attacks" means the same in the General's mind and in our

12 mind when we're talking about attacks upon civilian populations, but he

13 later said at page 4838 whilst you were still cross-examining him on that

14 answer, "I was not allowed today to present on a map how the operations

15 went from day to day which would show the dynamics of what happened."

16 Now, there may be some misunderstanding here. Our ruling was, we

17 are not concerned with who started the war, and we're not interested in

18 the history of the war because it's completely irrelevant to anything we

19 want to determine. But I do not think that the General would be denied

20 referring, not so much to the dynamics of what happened, but of what he

21 had been told, if it is necessary to explain what he meant when he said

22 they, in effect, merely defended themselves from Muslim attacks.

23 Now, I think that it should be made expressly clear that if he

24 wants to explain what he meant, he would be entitled to refer to the fact

25 that, as he has indeed referred, to the fact that the Muslims were

Page 4852

1 attacking various villages. So if he comes back to explain that, our

2 ruling does not prevent him from doing so, provided it is merely to

3 explain what he meant by "they were defending themselves."

4 MR. RYNEVELD: Thank you for that clarification, Your Honour. It

5 was clear that the witness was of the impression that he was not permitted

6 by some ruling, which Your Honour has now clarified was not the ruling.

7 Whether or not I ought to invite him to do that in my cross-examination or

8 whether my friends may want to take that up in re-examination-in-chief --

9 I'm sorry, re-examination, is another issue, but --

10 JUDGE HUNT: Well, why I was concerned was because you said to him

11 then, "No, sir. No. No. In response to my question, I don't want this

12 to be an opportunity for you to do in cross what you weren't allowed to do

13 by the Chamber in chief."


15 JUDGE HUNT: That's why I thought I should raise it now.

16 MR. RYNEVELD: Yes, thank you. I think both my friends and I are

17 now aware of that, and we'll see how it plays out. Thank you. If those

18 are all the matters, might I continue with my cross-examination?

19 JUDGE MUMBA: I'm afraid I don't think we have the numbers, the

20 formal numbers for the parts of the report that are admissible and the

21 annex B and the number of the documents from the registrar. I think we

22 forgot to have the formal numbers.

23 THE REGISTRAR: [Interpretation] This document will be marked D91,

24 Defence Exhibit D91, and the registry would like to have the whole of the

25 document in order for there not to be any confusion about the parts of the

Page 4853

1 document that have been admitted by the Chamber.

2 JUDGE MUMBA: Yes, it being understood that according to our

3 order, those that are struck out will remain struck out, even though the

4 whole document has to get in for practical purposes.

5 Yes, we can proceed.

6 MR. RYNEVELD: Thank you, Your Honour.


8 [Witness answered through interpreter]

9 Cross-examined by Mr. Ryneveld: [Continued]

10 Q. Now, Professor Radinovic, at the close of yesterday's proceedings

11 we had reached the stage of my cross-examination where I believe I asked

12 you if you know to what use the facility known as KP Dom in Foca was put

13 to, and I don't recall what your answer was. Perhaps we could start there

14 again.

15 Are you familiar with the facility known as KP Dom in the town of

16 Foca?

17 A. Yes, I do.

18 Q. And do you know what use was put to that facility during 1992 and

19 1993?

20 A. Yes, I know. I know what the facility was used for before the

21 war. I think the answer is understood.

22 When the war broke out, yesterday in the presentation of my expert

23 report, I started talking about how the military operation started in

24 Foca, and I said that on the 8th of April, the Muslims let soldiers get

25 hold of weapons, and they searched for them so that they could enter the

Page 4854

1 Serbian village overlooking the facility. So the military operation

2 started on the 8th of April because the Muslims let the prisoners out and

3 they let them get hold of weapons and they allowed them to get hold of the

4 predominant building overlooking Foca.

5 So the building was used for those who had been convicted, to

6 serve their sentences. When the military operation started, in the Foca

7 prison there were still about 30 people serving their sentences from

8 before the war, 30 or 40, and they were both Muslims and Serbs. This

9 group was not all just one ethnicity, it was mixed.

10 In the time up to September 1992, the KP Dom was under the

11 supervision of the military police organs in Foca, and according to my

12 research, there were 460 detainees there of Muslim ethnicity and they were

13 those who were found to be in possession of weapons. They were there for

14 questioning, for their identity to be established, and to be checked to

15 see whether they had committed any war crimes. So there were 460 of them,

16 according to my research, and I am talking about the number I have managed

17 to discover.

18 From September 1992 onwards, the prison was in the area of

19 responsibility of the Herzegovina Corps, they were in charge of it, and

20 this was an operational unit of the army of Republika Srpska whose zone of

21 responsibility was from the border between Bosnia-Herzegovina and Croatia,

22 overlooking Dubrovnik, as far as Visegrad. So this whole area of Eastern

23 Herzegovina was the area of responsibility of the Herzegovina Corps, and

24 Foca was in that area. So it was the Herzegovina Corps that was in charge

25 of the prison.

Page 4855

1 From 1993, it was the judiciary organs that took charge of the

2 prison and it was no longer the military or the military police organs

3 that were in charge of it. That's what I know about that prison.

4 Q. Thank you. So just to be clear, you acknowledge that from April

5 to September 1992, it was controlled by Serb military forces, is that

6 correct, the KP Dom?

7 A. Military police, yes.

8 Q. Yes. And the detainees in that facility were largely Muslim?

9 A. Yes, Muslims who were found to have weapons at that time.

10 Q. Sir, are you familiar with the fact that both Foca High School and

11 the Partizan Sports Hall were also detention facilities in Foca?

12 A. No, I am not familiar with that fact. I know there were

13 collection centres, and I draw a distinction between the two.

14 Q. All right.

15 A. There were other collection centres as well. In civil wars,

16 unfortunately this is the practice, a frequent practice. The civilian

17 population is left without homes. Buildings are torched. Military

18 operations take place in built up areas, there is destruction, and the

19 civilian population has to be accommodated, put up some where. Since

20 these are very poor areas, it was very hard. People lived a very hard

21 life even when there was no war. So during wartime, they had to be

22 provided with accommodation, even if it was very poor, at a very poor

23 level.

24 So they were not detention centres, they were centres to

25 accommodate people without homes.

Page 4856

1 Q. You mentioned in your answer, sir, that it wasn't only the Foca

2 High School and Partizan Sports Hall but other facilities as well. Are

3 you including something like Buk Bijela or the Kalinovik High School in

4 that "other areas" as well?

5 A. Well, I can agree there were a number of such facilities, not only

6 in Foca but in other places as well. Yes, I think.

7 Q. Sir, you don't agree with my categorisation of a detention

8 centre. Would you agree with me that people were brought there under

9 military escort? They didn't arrive there voluntarily, they were brought

10 there.

11 A. In wars of this kind, in civil wars which have a religious and

12 ethnic nature, if the army is not involved, there would be a lot of

13 revenge, many conflicts, and the civilian population would be far worse

14 imperilled if they were not escorted by soldiers. So I think it is not a

15 criminal act if soldiers take civilians to a certain collection centre and

16 escort them in order to protect them. In this kind of conflict, that is

17 the biggest security they can offer them.

18 Q. So the simple answer to my question is, yes, they were brought

19 there by soldiers; correct?

20 A. No. I don't know whether they were brought there by soldiers. I

21 don't know. I wasn't there, on the spot, so I cannot answer your question

22 with certainty. I cannot say either yes or no. But I allow for the

23 possibility that that's how it was done, and I think that was the best way

24 to do it. Not to allow the population to move around spontaneously when

25 there are military operations going on and to enter an area where a

Page 4857

1 military operation is being conducted, to go through minefields and to be

2 imperilled in this way, or to be possibly exposed to revenge from people

3 whose nearest and dearest were killed in this civil war.

4 So that was the biggest protection for them. Had I been there,

5 that's how I would have conducted myself, and I would have controlled the

6 way people behaved towards civilians, and the best way to control this is

7 with soldiers.

8 Q. Do you agree, sir, that the people that were kept at those

9 facilities that I've named, the Foca High School, the Partizan Sports

10 Hall, the Kalinovik school, Buk Bijela, were civilians, they were largely

11 women and children?

12 A. I have to say again that I was not an eyewitness. I do not have

13 any personal knowledge of this but it could have happened.

14 Q. All right.

15 A. I am a military expert and not a police expert, nor did I

16 investigate this aspect of the matter. I simply dealt with the

17 organisation of the army, the origins of the conflict, the nature of the

18 conflict, how the conflict was conducted and its consequences. And I

19 focused on the nature of command responsibility, and that's what was

20 discussed yesterday.

21 Q. All right, sir. Let's move on to an area that you did actually

22 give us the benefit of your opinion on in your report.

23 You're at least prepared to agree, I take it, that tens of

24 thousands of Muslims in the Foca municipality vacated the area resulting

25 in the fact that Foca was ultimately made up almost entirely of Serbs?

Page 4858

1 A. I put forward the ethnic composition of the population of Foca

2 before the conflict, that is, as of 1991, and I never said that they were

3 expelled. I simply said that they moved away. They were not expelled,

4 they moved away.

5 Q. No, I understand that, sir. I'm referring to paragraph 31 of your

6 report, at page 4671 of the numbered transcript. I've just basically

7 paraphrased what you said, but let me read the sentence in paragraph 31 to

8 you: "Municipality of Foca was abandoned in an organised way by some

9 10.000 inhabitants of Islamic faith. They mostly left for the Raska

10 region in Macedonia. Another 10.000 inhabitants left for Gorazde during

11 the fighting for the villages of the Foca municipality --"

12 THE INTERPRETER: Could you slow down a little bit when reading.


14 Q. In paragraph 31, that is what you said; is that correct?

15 A. No, I didn't say -- unfortunately, the translation is bad. I said

16 that the Muslim population left in the direction of Gorazde, Sandzak, and

17 Montenegro. Novi Pazar, Rozaje, and Podgorica were mentioned.

18 MR. RYNEVELD: Unfortunately, my binder hit the button so I didn't

19 get translation. Excuse me one moment while I check the transcript.

20 Q. All right. The fact remains, sir, not exactly the location which

21 they went, but you agree that tens of thousands of Muslims left Foca

22 municipality?

23 A. I should like to ask you to allow me to explain my view with

24 respect to the moving out of the population. I wanted to do that

25 yesterday and I'd like to do it today.

Page 4859

1 Had it been the expulsion of the population, they would not have

2 gone to the territory of a state which is the matrix state of the Serbian

3 people; that is to say, a large portion of the Muslim population went

4 precisely to the Federal Republic of Yugoslavia, to Novi Pazar, to Rozaje,

5 and to Podgorica.

6 So on the basis of that I can conclude, I do conclude that it was

7 not expulsion of any kind or forcible abandoning but it was the

8 displacement and movement of the Muslims who felt jeopardised and

9 threatened in Foca because it was under the control of the Serbian

10 authorities. They thought they would be safer outside that territory and

11 so they left.

12 This occurred throughout the territory of Bosnia-Herzegovina.

13 Every time one entity came into power, whether Serbs, Muslims, Croats, or

14 whatever, the other population would move out. This is not, of course,

15 desirable, but it was not forcible expulsion in any way. It was that

16 people went where they thought they would feel and be safer.

17 My expert opinion and findings show that there was no plan or

18 forcible expulsion but that the people left of their own accord. Of

19 course I don't wish to say that they would have wanted to leave Foca, but

20 they thought that they would be safer elsewhere, and they chose the

21 regions where they thought they would be more secure.

22 So what I want to say is that they were not deported in any way.

23 That was what I wanted to point out.

24 Q. The purpose of the exercise, Professor Radinovic, was that they

25 leave, and that's what happened; isn't that true?

Page 4860

1 A. You could have asked me that straight away and I would have said

2 yes.

3 Q. You also are prepared to allow, apparently, that another 10.000 or

4 even more Muslims, for one reason or another, left their homes, their

5 property, their lives, their families, their villages in the surrounding

6 municipality of Foca during about the same time; isn't that true? These

7 people left everything they had behind.

8 A. That's true, just as the Serbs did from Gorazde, from Sarajevo,

9 from Konjic, from Jablanica, from Capljina, and from the whole Krajina

10 region, from Petrovac, from Grahovo, from Glamoc, from Jajce, from Gornji

11 Vakuf, Bugojno, Kupres, Livno. There are no Serbs there any more, you

12 know. Unfortunately, that is a fact which we must bear in mind when we

13 think about civil wars and when we're dealing with civil wars.

14 Q. Well, let's just move on to that, if we may, sir.

15 The process of transformation for Foca municipality, I think

16 you'll agree with me, was roughly a 50/50 ethnic mix -- perhaps a slightly

17 larger Muslim mix than a Serb mix, based on your estimates -- but let's

18 assume it's 50/50. You've just told us that in the municipality of Foca,

19 there are almost no Muslims left, are there? You agree with that?

20 A. Yes.

21 Q. The fact of Foca being almost entirely Serb was celebrated by the

22 renaming of Foca to Srbinje; isn't that true?

23 A. Yes, that's correct.

24 Q. So it was regarded as a good thing for the Serbs?

25 A. Well, why shouldn't an ethnical group name towns which are closer

Page 4861

1 to its own traditions.

2 Q. It was a big deal renaming Foca to Srbinje; right?

3 A. Well, for me that was nothing special.

4 Q. Yes.

5 A. According to our tradition, we tend to change the names of streets

6 every 20 years, we change the name of towns. It's nothing out of the

7 ordinary in the Balkan tradition, nothing extraordinary or with any

8 negative connotation, specially.

9 Q. I see. Well, then, maybe you could assist me, sir, in telling me

10 what "Srbinje" means. Is there a meaning to the word "Srbinje," if you

11 had to translate it for me?

12 A. Well, the etymology of the word is a national one, that is to say,

13 a town which is a Serbian town, Srbinje, like a patronym which refers to

14 the nation and group that inhabits it.

15 Q. I suggest to you, sir, that with the naming of Srbinje, it's like

16 saying "mission accomplished"; isn't that true?

17 A. No.

18 Q. Okay.

19 A. No, that is not how I see it.

20 Q. Okay.

21 A. Because up until September it was a mixed population. The Muslims

22 were there right up until September in Foca. Had anybody wanted to say

23 that this was a sign that things had been completed, they would have done

24 so earlier on. But that was not the case, and I personally feel that that

25 is not the meaning of that step. It was just the renaming of the town and

Page 4862

1 stating symbolically that now it is a town which is within the territory

2 of the political entity called Republika Srpska. That is what it denotes

3 for me.

4 Q. Thank you.

5 A. Whether they could have done without that, yes, I think they could

6 have. But I don't see that it has any special meaning.

7 Q. That's fine, sir. Now, staying with paragraph 31 at the moment

8 and moving on to paragraph 32, at pages 4670 and 4671 of your report, I

9 understand, sir, that you allow in your report that the living conditions

10 in the collection centres were not especially good. That's how you phrased

11 it. Is that right?

12 A. I was fairly mild, because I think that it was very bad. I think

13 they were bad, poor, in the whole of Bosnia-Herzegovina at the time, which

14 is understandable when there's a war being waged.

15 Q. So you allow now that that was somewhat of an understatement?

16 A. Yes, but not only because we are dealing with collection centres.

17 The situation generally was very difficult.

18 Q. Now, I would just like to know, sir, since you commented on it in

19 your report, where did you get your information for that part of your

20 report? In other words, what source material did you base that opinion

21 on? About the collection centres, just to be clear.

22 A. Well, I received data from -- in the command of the Herzegovina

23 Corps, that is to say, in their records, their documents, the documents

24 they have at that disposal, that the Herzegovina Corps had in its

25 possession while the war was going on. And I personally toured the

Page 4863

1 collection centres which the federal republic of Yugoslavia had

2 established on its own territory for taking in refugees and displaced

3 persons, and a collection centre of this kind existed in Subotica, for

4 instance. And I as an authorised representative of the federal government

5 and a military expert of the federal government was a member of a

6 delegation which toured those centres. And even if they did do their

7 best, and whatever you do to try to ensure the necessary conditions,

8 conditions are always worse than they would be in one's hometown and in

9 one's own home. And this is especially true in regions where such

10 conditions and facilities do not exist, and especially regions which are

11 at war or which have been the locality of war conflicts. So you don't

12 have everything you need to satisfy the normal requirements of the

13 population.

14 Of course, I did a lot of reading. I read books, I followed the

15 media, I listened to the stories of accounts told by others. And those

16 under me were in the commands of the Herzegovina Corps, he was my

17 subordinate officer when, before the war, a large part of that command --

18 the command cadre were pupils of mine, they were my subordinates, and I

19 had occasion to speak about the problems they faced in their areas of

20 responsibility, and they were always fully conscious of the fact that the

21 living conditions were very difficult. So it wasn't difficult for me to

22 draw that conclusion.

23 Q. All right. Well, let me ask you a couple of questions based on

24 your last response. You said you toured some facilities. Did you tour

25 the facilities in Foca? You either did or you didn't.

Page 4864

1 A. No, no.

2 Q. You say that you did some reading of documents and accounts told.

3 Were those the accounts told by the inmates of these facilities in Foca?

4 A. No. No, unfortunately not.

5 Q. No. These Corps documents, the Herzegovina Corps documents, did

6 you have a number of those available to you?

7 A. Well, I spent time in the -- at the Herzegovina Corps and was able

8 to study them on the spot. I spent some time there and studied them, and

9 they are whole analyses and studies, not only the odd document.

10 Q. And was that for the purpose of the preparation of this report

11 that you studied those?

12 A. [No interpretation].

13 Q. And are they among the 63 attachments that you provided to this

14 report?

15 A. No. It is my document, it is my expertise -- makes up one

16 document.

17 Q. So would it be fair to say, sir, that this information that you

18 used to formulate your opinion has not been footnoted or appended to your

19 opinion; in other words, it's not in the 63 tendered documents that form

20 part of the Exhibit 91 that we've just heard about?

21 A. I did not mention the documents in the footnote for that

22 conclusion because I did not attach specific weight to them, and that is

23 the sole reason why I did not quote them in my footnotes. I didn't think

24 that I needed to prove the fact that conditions were hard, that that was a

25 self-evident fact.

Page 4865

1 Q. Now, you were not --

2 MR. RYNEVELD: I'm sorry, I see my friend on his feet.

3 JUDGE MUMBA: Mr. Kolesar.

4 MR. KOLESAR: [Interpretation] Your Honour, I have noticed that in

5 the transcript on 22nd line, the answer was not recorded in the LiveNote.

6 The question by my learned colleague on line 22, the question is not in

7 the LiveNote on the page which we're looking at now, on the monitor, line

8 22.

9 JUDGE HUNT: His answer was "da," a "da" as I understand it means

10 "yes," but either the microphone wasn't on, or the interpreter missed it.

11 JUDGE MUMBA: Yes, we can proceed.


13 Q. Now, just so that we're clear, you did not have available to you

14 the accounts of any of the detainees, of any of these detention facilities

15 or collection facilities, as you prefer to call them, in the Foca region?

16 A. No. No, I did not.

17 Q. Sir, wouldn't you agree with me that the quality of your opinion

18 is only as good as the information upon which it is based?

19 A. Yes, I can agree with you there.

20 Q. So just in general terms, if the underlying information for your

21 opinion turns out to be incorrect, that would -- your opinion may also,

22 therefore, be adversely affected; isn't that true, just as a general

23 statement?

24 A. Well, I don't think I could -- even if I did have an insight into

25 this aspect of the problem as you have raised it, even if this were wrong,

Page 4866

1 this would not affect the professional quality and well-founded quality

2 and public character of the documents and my expertise with respect to the

3 military aspects of the problem and the command responsibility of

4 Dragoljub Kunarac.

5 Of course, for the fate of people, I don't want to marginalise

6 what happened to them and anything linked to their fate and destiny; that

7 is highly important. But for my own expertise, within that context,

8 within the context of my expertise, it did not have any great specific

9 weight, and that is why I considered that it was not necessary to

10 elaborate, because the expertise would then probably have 5.000 pages

11 which would be too much, and it would not serve its purpose. So I did pay

12 attention to the heart of the matter, to what is the core of my expertise,

13 that is to say, military action and command responsibility.

14 Q. I understand your answer, sir, I just don't see how it was

15 responsive to my question about whether as a general statement, you would

16 agree or would not agree, that if the information upon which your opinion

17 is based is erroneous, that that would adversely affect your ultimate

18 opinion?

19 A. I accept what you're saying conditionally, highly conditionally on

20 the conclusion you draw, and I sincerely hope that that does not refer to

21 my own expertise.

22 Q. I see. It might apply to others, but not to you; is that what

23 you're suggesting?

24 A. What I'm saying is that does not refer to my opinion because

25 my opinion on the merits of the case are based on the relevant documents

Page 4867

1 and the fact that in compiling my report, I used, can I say immodestly, my

2 enormous experience and the references that were available to me.

3 Q. All right, sir. Let me just ask a couple of simple questions.

4 Were you aware at the time of the preparation of this report that people

5 were crammed into classrooms and smaller rooms or a single larger hall

6 without adequate beds or mattresses upon which to sleep?

7 A. I once again repeat that that was not the subject of my

8 expertise. I did not write a study on the social and medical,

9 epidemiological aspect of the displaced population in Foca. What I did

10 write about was an expertise on the topic of the army and military

11 operations and the command responsibility of Dragoljub Kunarac.

12 Q. Thank you, and we'll get to that, sir, I assure you. I'm asking

13 some specific questions about what information you had and what you didn't

14 have. Could I ask you a question: Were you aware of those facts, or were

15 you not aware of those facts?

16 A. I was aware of those facts, yes.

17 Q. All right. Were you also aware, in part of your report, that

18 there were no hygiene facilities or inadequate hygiene facilities; for

19 example, one toilet for many, many people, no hot water for washing? Were

20 you aware of that?

21 A. Yes, I was aware of that.

22 Q. You were aware that the food was hopelessly inadequate?

23 A. That's how all the people lived.

24 Q. So the answer is "yes"?

25 A. Everybody lived like that. Yes.

Page 4868

1 Q. Now, you indicate, sir, that -- again, I'm quoting from paragraph

2 32, that there was, "No difference regarding personal liberties because

3 the citizens without any control were free to go out of the buildings and

4 do their errands in the city." Where did you get that information from?

5 A. I received that information from the commander of the Herzegovina

6 Corps and his subordinates, subordinate officers who are distinguished

7 officers of the Yugoslav People's Army. They were that before. And when

8 I did my expertise, they had retired or were still within the command of

9 the Herzegovina Corps, and officers of that rank and distinction I had no

10 reason not to believe.

11 Q. Just so that we're clear, the basis upon which you provided that

12 opinion was on the basis of documents provided to you by Serb authorities;

13 is that fair to say?

14 A. From the command of the Herzegovina Corps. Why should we refer to

15 it as the Serb authorities? The command of the Herzegovina Corps of the

16 army of Republika Srpska, that is the full, complete answer to your

17 question.

18 Q. Thank you. Would you -- I think you agreed with me earlier,

19 yesterday, that that equates to being largely Serbian people who are part

20 of that group you just -- the long mouthful. I'm not wrong in calling

21 them Serbs, right?

22 A. Which group? I didn't understand.

23 Q. Back to the transcript because I can't remember the whole thing.

24 The command of the Herzegovina Corps of the army of Republika Srpska, is

25 it fairs to call those people the Serb authorities?

Page 4869

1 A. Ah, yes, yes.

2 Q. Good. Then you'll pardon me if I refer to them as Serbs, and if I

3 do, you'll understand that I'm referring to those authorities, okay?

4 Now --

5 A. No. I only wanted as a soldier to specify my answer and to answer

6 in more precise detail, and for me it is more precise to say "the command

7 of the Herzegovina Corps of the army of the Republika Srpska" rather than

8 the "Serb authority," which is an amorphous term, whereas this other title

9 in full tells you exactly who it is.

10 Q. All right. When you made that reference in your report, were you

11 referring to such facilities as the Partizan Sports Hall, KP Dom, Foca

12 High School, et cetera? When you say, "There is no difference regarding

13 personal liberties because the citizens, without any control, were free to

14 go out of the buildings and do their errands in the city," are those the

15 facilities that you had in mind when you made that statement?

16 A. No, I didn't have the KP Dom in mind.

17 Q. Okay.

18 A. That is an institution --

19 Q. Okay.

20 A. -- in which freedom of movement is restricted to a certain

21 degree. Collection centres are facilities where you can move around

22 freely, although there must be a certain amount of supervision because

23 undesirables could enter the place.

24 Q. So you are aware, sir, that the women and children in the

25 collection centres, as you call them, were, in fact, guarded by soldiers

Page 4870

1 or policemen?

2 A. Well, I wasn't on the spot, I wasn't there, but that can be

3 assumed, yes, that they supervised the place to prevent any undesirables

4 from entering the collection centres.

5 Q. Would you allow that these guards would also prevent the inmates'

6 comings and goings?

7 A. A certain regime of control certainly did exist but not to prevent

8 them, no.

9 Q. You're not suggesting, are you, sir, that there was no control on

10 their access or egress from this facility, their comings and goings?

11 A. No, I said that there was some control, yes. A certain regime of

12 control did exist, but no absolute prohibition of movement.

13 Q. Just before the break, sir, I just have a couple more questions

14 about this area. You opine in, again, paragraph 32 of your report at page

15 4670 that there was no harassment of the population in the collective

16 centres.

17 Were you aware at the time of the providing of this opinion of the

18 numerous complaints by the women and girls detained in these centres that

19 they were constantly taken out, raped, and sexually abused?

20 A. I have to repeat in my answer to your question that that is not

21 the subject of my expertise. The regime in the collection centres, the

22 relationship towards the population in the collection centres, that is not

23 the subject of a military expertise. That should be the subject of

24 another type of expertise. And therefore, in answer to your question, I

25 can only give you an improvised answer on the basis of a general opinion,

Page 4871

1 but as I say, that problem is not one that I researched, except for the

2 fact that I was in principle informed, and, in general terms, I knew the

3 situation.

4 So there's no point in going on talking forever and ever, so just

5 ask me something within the realm of my expertise and for which I received

6 accreditation from this august institution.

7 Q. It's about to happen, sir. I told you I just had a couple more

8 questions before the break in this area, and then we're moving right into

9 command responsibility, okay? Just bear with me for two more questions.

10 You were aware of the reports --

11 A. Yes. Yes, you can.

12 Q. -- and you dismissed them because you concluded that there was no

13 harassment of the population in the collective centres; is that right?

14 A. I didn't say I dismissed them, whether I dismiss them or did not

15 dismiss them. I just said that it wasn't within the scope of my research

16 interests as a man of my profession and qualifications. I accepted to

17 undertake a task, and I set the subject for accomplishing my task. And I

18 elaborated this project or study and focused on the areas which were the

19 subject of my research, and for that I collected documentation, I used my

20 knowledge and experience, I talked to other experts, and compiled and

21 formulated this conclusion in that way. So I did not dismiss or not [sic]

22 dismiss, as you asked me. Quite simply, it was not the subject of my

23 research.

24 Q. Yet you chose to give that opinion, did you not?

25 A. I gave that opinion because I am convinced of it, but it does not

Page 4872

1 have any specific weight in my expertise.

2 Q. Thank you, sir.

3 MR. RYNEVELD: I see the time. Might this be a convenient time

4 for a break?

5 JUDGE MUMBA: Yes. We'll break off now and continue the

6 proceedings at 11.30 hours.

7 --- Recess taken at 11.02 a.m.

8 --- On resuming at 11.33 a.m.

9 JUDGE MUMBA: Cross-examination continues.

10 The Prosecution, please.

11 MR. RYNEVELD: Thank you, Your Honours.

12 Q. Professor Radinovic, as promised, we're going to turn to command

13 responsibility next.

14 Turning, then, to annex A of your report, and just so that

15 everybody's aware of the pages, I have it as 4666 and backwards, let's

16 start off with something I'm sure that you and I won't have any

17 disagreement about and that's the opening statement in that paragraph,

18 which is I understand that you assert that "command responsibility depends

19 on the position an individual occupied in the military hierarchy and the

20 status he enjoyed on the basis of his position." That's what you said.

21 THE INTERPRETER: There was no audible response from the witness.

22 JUDGE MUMBA: The witness wasn't heard. Can you please repeat

23 your answer. The interpreters didn't catch your answer.

24 A. Yes.


Page 4873

1 Q. Sir, you also suggest that the rank of a corporal is the rank of a

2 soldier but not an officer. You've indicated that as well.

3 A. Yes.

4 Q. Would you not agree, sir, that among a group of soldiers, absent

5 the presence of any officers as you define them, the senior person or the

6 assigned leader would have command responsibility for that group?

7 A. But that has to be explicitly determined. The person has to be

8 nominated by name. The person to whom command responsibility is delegated

9 has to be named explicitly by his superior.

10 Q. That superior could be someone like a brigade commander?

11 A. It could.

12 Q. You accept that?

13 A. Yes.

14 Q. Thank you. We'll get back to that issue, sir, but let's get to

15 some more general areas first and we'll just work up to that.

16 I suggest to you, sir, that a common feature of armies throughout

17 the world is that at each level of command "a commander is accountable to

18 his superiors for the actions and omissions of the formation, unit, or

19 subunit that he commands and of the individuals of which it is composed";

20 is that not true?

21 A. Yes.

22 Q. Now, at page 4662, in paragraph 10, I understand, sir, that you

23 accept that Mr. Kunarac was appointed commander of a reconnaissance group;

24 is that correct?

25 A. No. Every time he is appointed commander of the reconnaissance

Page 4874

1 group, the composition of the group is only temporary. There is no

2 permanent setup; it is established ad hoc every time. Dragoljub Kunarac

3 always commands a different group depending on what the group is supposed

4 to do. Its composition is decided upon on that basis, so it is always a

5 different composition; that is to say, this is not a unit.

6 Q. Well, sir, just so that I'm clear, in your actual report you

7 referred a number of times to the fact that Mr. Kunarac was appointed a

8 commander of a reconnaissance group; is that right?

9 Let me help you. Do you have your report with you? Let me just

10 read to you the opening sentence --

11 A. I do, yes.

12 Q. -- of paragraph --

13 A. I know the report. But if you want me to, I can get it out.

14 Q. If you know the report, and I'm sure you do, sir, perhaps we can

15 save time. I'm just going to read you a couple of sentences. The first

16 sentence I'm going to read to you is your opening sentence of paragraph 9,

17 on page 4663, which reads: "On the basis of his appointment for a

18 commander of a reconnaissance group, it is easy to conclude there can be

19 no talk here of a command responsibility within a well-regulated,

20 hierarchical military system as defined in the previous text."

21 You said that, and you refer there to his appointment of a

22 commander of a reconnaissance group; correct?

23 A. Yes. Yes.

24 Q. Opening sentence in paragraph 10: "In view of the fact that

25 Dragoljub Kunarac was appointed commander of the reconnaissance group and

Page 4875

1 not a commander of a reconnoitring platoon or reconnoitring detachment in

2 itself leads to two conclusions which are very significant for the

3 assessment of the nature of his responsibility."

4 I pause there. Again you say, "In view of the fact that he was

5 appointed commander of a reconnaissance group ..." again you said that.

6 You're nodding your head, for the record, meaning yes to both my

7 questions.

8 A. I'm confirming it by my words, too.

9 Q. Thank you. Now, my learned friends brought to your attention

10 during the course of evidence in-chief what has been referred to as the

11 battle order, and it was in fact Exhibit 2 in these proceedings. You're

12 familiar with that document?

13 A. Yes.

14 Q. And of course, you had seen that battle order prior to the

15 preparation of this report, had you not, sir? Again, nodding your head.

16 A. Yes, yes, yes.

17 Q. Do you accept the fact that it refers to the Independent Zaga

18 Detachment and purports to give clear orders to that unit?

19 A. Yes. I accept that it is mentioned in the document, in the

20 document, but not in the formation of the tactical group Foca.

21 Q. Now, sir, this is a document that, just by reading the title, it's

22 from the commander of the Foca Tactical Group, is it not?

23 A. Yes.

24 Q. And the commander of that tactical group was Colonel Marko Kovac,

25 correct?

Page 4876

1 A. Yes, yes, yes.

2 Q. And you've indicated that this is a, from your point of view, is a

3 good battle order in terms of its use of the appropriate designations of

4 what -- if you were teaching the class in how to prepare a battle order,

5 it does all the things it's supposed to do?

6 A. I said that the order contained all the elements that a

7 well-defined order is supposed to contain. Some categories, of course, I

8 would have put differently, and some categories were not used properly,

9 but it does contain all the elements that an order is supposed to contain.

10 Q. Well, then, let's turn to page 3 of the English version, and page

11 4, as I understand it, in the B/C/S version that you have had reference

12 to. It is an order to the command post of the Ustikolina barracks, and it

13 says in the second line -- I'm sorry, the second, shall we say, bullet or

14 hyphenated paragraph, "The Independent Zaga Detachment shall take part in

15 mopping up settled areas in the direction of the 5th Battalion attack."

16 You're familiar with that?

17 A. Yes.

18 Q. I suggest to you, sir, that that order refers to the Independent

19 Zaga Detachment and gives clear orders to that unit?

20 A. Yes.

21 Q. Now, would that not be indicative of the fact that this unit or

22 detachment referred to by Mr. Kunarac's nickname, Zaga, was part of the

23 military structure and was subordinate to the higher command authority?

24 A. I shall answer that very conditionally. For that task, yes, but

25 only for that task, because that detachment -- the word "detachment" was

Page 4877

1 used there. But this is not a unit in that sense of the meaning as I

2 defined it yesterday when I was answering the question as to what a

3 Territorial Defence detachment was. When I said Dragan Jovanovic.

4 This is not a well-defined detachment in the sense of a group that

5 a Zaga always commanded when a group was established. That unit did not

6 exist as a unit that belonged to the permanent setup, as a unit whose

7 permanent commander, Mr. Kunarac, would be, or a unit that would be part

8 of the organisational establishment. In that case, the appropriate

9 officer; in this case, it would be Dragoljub Kunarac who would have

10 operative command.

11 This was an ad hoc group. This is where mines had to be

12 deactivated, where troops were supposed to move, and that is why he

13 established Zaga's group. And he used the category "detachment," but it

14 is actually a group. That is my answer. And this is of crucial

15 importance for assessing command responsibility.

16 Q. Well, perhaps we should deal with that issue, sir, because I do

17 think that you were asked about that in-chief by both my learned

18 colleagues for the Defence, Mr. Prodanovic, as it related to the

19 Independent Zaga Detachment, and by Mr. Kolesar in regard to the paragraph

20 above it relating to the first Independent Dragan Nikolic Detachment.

21 Do you recall that evidence yesterday?

22 THE INTERPRETER: No audible --

23 A. Yes.

24 Q. Well, let's, if I just may, examine your answers yesterday in the

25 context of what you've said today.

Page 4878

1 Unfortunately, the --

2 THE INTERPRETER: The interpreters note the answer was "yes."

3 MR. RYNEVELD: Thank you.

4 Q. Unfortunately, I don't have line references because I had to -- I

5 got a transcript, but I don't have line references, but what I have you

6 having said on page 12 of the printout of your evidence yesterday is that

7 you said: "Checking all the documentation when I was writing this expert

8 opinion, in the units of the Foca Tactical Group of the Foca Brigade, I

9 did not find anywhere that in the establishment there was a permanent unit

10 as an element of the establishment structure. There was no reconnaissance

11 unit, there was only a reconnaissance group, and there is an essential

12 difference between a reconnaissance group and a reconnaissance unit."

13 Okay, you said that.

14 Then at page 21 of the portion that I printed out, there was a

15 question from Mr. Prodanovic referring to a question that I had put to

16 Mr. Nogo, and Mr. Prodanovic repeated my question and the answer, and then

17 asked your position. It goes as follows: In response to the following

18 question, "Is there any difference as far as the authority of command or

19 the chain of command if the commander is included as a lance corporal

20 instead of an officer?" That was the question. The answer of Mr. Nogo

21 is, "Responsibility is responsibility. It is the same for all. Every

22 rank bears its own responsibility. If someone is the commander of a

23 certain unit, then he is responsible for that unit." Question, "Is that

24 your position, too?" Answer, "Regrettably, no. I have already answered

25 that question in my previous answer. So in order to have someone become

Page 4879

1 commander of a unit, there has to be a unit in the first place. There is

2 no unit here. There is no responsibility of that sort."

3 Do you remember being asked those questions and giving those

4 answers?

5 A. Yes, yes.

6 Q. Then, sir, still under examination-in-chief, I believe you were

7 asked by Mr. Kolesar about page 4 of the Serbian version which corresponds

8 to page 3 of the version in English: "There is mention of an independent

9 detachment, the Dragan Nikolic Detachment. So how come there is mention

10 of an independent detachment, and what is an independent detachment as a

11 military unit?" That was the question. And your answer is recorded, but

12 you, about halfway through your answer, say, "So I am referring to a

13 detachment as a unit that existed in the establishment."

14 I suggest to you, sir, that in your answer to Mr. Kolesar, you

15 have equated the word "detachment" with the word "unit" have you not?

16 A. I did as far as the Dragan Jovanovic or Nikolic Detachment is

17 concerned. In response to Mr. Kolesar's question that pertained to the

18 independent detachment Dragan Jovanovic or Nikolic, I can't remember now,

19 but the Independent Unit -- the Independent Detachment Zaga did not exist

20 as a unit, whereas the Dragan Jovanovic -- is Jovanovic the name?" -- did

21 exist in the structure of the tactical group, but Zaga's did not exist as

22 a unit. That is why I gave a differentiated answer to this question.

23 There is not a permanent unit called the Zaga Detachment in this

24 tactical group. There is only a group Zaga, and groups are not units.

25 That is the core of my answer.

Page 4880

1 The commander of the group is the commander only while the group

2 lasts, but since the group is formed ad hoc for a certain assignment, then

3 it lasts for as long as the assignment takes. Then they report back, then

4 the group is disbanded, and the group no longer exists.

5 Q. Bear with me for a moment, sir. Let's just look at the document

6 itself, this battle order. Let's just look at the face of the document.

7 Would you agree that on the face of the document there is no distinction

8 between the 1st Independent Dragan Nikolic Detachment, in its description,

9 from the Independent Zaga Detachment? They are both referred to as

10 detachments; correct?

11 A. Correct.

12 Q. You accept that for the Dragan Nikolic Detachment, that is a unit,

13 and you've given your reasons yesterday.

14 A. Yes. Yes. Yes.

15 Q. But you do not accept that the same description of the word

16 "detachment" refers to a unit as so far as Zaga or Kunarac's unit is

17 concerned?

18 A. I do not accept it. You know why? Because I researched the

19 documentation of the entire Herzegovina Corps, and I did not find in that

20 tactical group a Zaga Detachment as a permanent unit. I only found it as

21 a group; a group, not a detachment. In this order, the word "detachment"

22 is used and I believe that there is a mistake in the term used. I did not

23 base my findings only on this order. I studied this, I researched this.

24 Q. Sir, would you agree with me that this document is as much a

25 document for study as any of the other documents that establish the group

Page 4881

1 or a unit? Why is this one wrong?

2 A. Because this document was written on a single day. A formation

3 book, an establishment book, is created for eternity, and that is where

4 the composition of all units is. The Zaga Detachment does not exist

5 there, in the permanent establishment, if you understand what I'm saying.

6 There is an establishment book in the Herzegovina Corps where it exactly

7 says which units comprise the tactical group, what a tactical group

8 consists of. And in that book it does not say the "Zaga Detachment," it

9 says the "Zaga Group."

10 It is even colloquially written. This person wrote the Zaga

11 Detachment but it would have to say "reconnaissance group." Dragoljub

12 Kunarac is head of this reconnaissance group when it is set up, but it is

13 set up from one case to another, always differently. That is my answer.

14 It is not a unit, it is a group, and that is this fine distinction

15 which is very meaningful for me in the command sense.

16 Q. Let me see if I've got this straight. Somewhere in documents to

17 which you have had access, i.e., some book, this book refers to the Dragan

18 Nikolic Detachment as a permanent unit?

19 A. Yes. Yes.

20 Q. The Zaga Detachment is also referred to in this book but --

21 A. No.

22 Q. -- just hear me out, hear out my question -- but it's referred to

23 in the book by the word "group"; correct?

24 A. No, not Zaga. It says "reconnaissance group." The person who

25 wrote this knows that Kunarac commands it so he probably wrote it, the

Page 4882

1 Zaga Detachment. But what does exist is a reconnaissance group that was

2 commanded by Dragoljub Kunarac when it was set up.

3 Q. It's because of the way in which that book refers to these two

4 units or groups that you come today with the opinion that one is permanent

5 and the other one is not permanent; is that fair? Is that a fair

6 restatement of what you've been telling us?

7 A. I did not come here with an opinion just like that. I studied

8 this very carefully, and that is how I came to this conclusion. I looked

9 at these documents carefully. And establishment books are there to remain

10 as archives, as relevant documents. Orders are destroyed. This order

11 that we have here, this order of the commander of the tactical group, that

12 is a working paper, that is not even preserved. After a certain period of

13 time it is destroyed, whereas establishment books are put in archives and

14 conserved as documents.

15 Since in these documents I did not find the Zaga Detachment, for

16 me there is no such detachment as a permanent unit, according to which a

17 commander has command responsibility. That is my answer.

18 Q. Well, then, sir, this book that you are relying on for your

19 opinion, you realise how important that evidence was to your opinion?

20 You're aware how important a document like -- if you're relying on that

21 document, you realise how important that document would be to support your

22 opinion; is that correct?

23 A. Of course. Of course.

24 Q. Where is a copy of that document in regard to the 63 footnotes

25 that you provided? Did I miss it somehow?

Page 4883

1 A. A copy of that document cannot be found anywhere. This is a

2 strictly confidential document that is kept in the Corps archives. But an

3 excerpt from that establishment book can be obtained, and this can be

4 seen.

5 Q. But you chose not to attach an extract or a copy of that book to

6 footnote the very underpinning of your expert opinion in this report; do I

7 understand that correctly?

8 A. If I were to attach all the documents, I would have had to have an

9 enormous truck, I would have to attach everything that I had studied so

10 far.

11 Q. But, sir, that document is pretty central to your position that

12 this was a non-permanent group and that that's the reason why there is a

13 distinction for Mr. Kunarac to have either command responsibility or not

14 have command responsibility; isn't that what I understand your evidence to

15 be?

16 A. I was very clear. In the book there is the reconnaissance group

17 as a group, there is no detachment. So in the establishment there is the

18 reconnaissance group, there is no Independent Detachment Zaga. That is my

19 position, that is my conclusion.

20 Q. I understand that, sir. Let's just move on from that. I just

21 want to understand the basis for your distinction, and you've now

22 explained that to us. It's on a document that you've seen but we don't

23 have; correct?

24 A. Yes.

25 Q. Okay. Let's look at a document that we have seen, the battle

Page 4884

1 order. This is a document that does exist. It's clear that the

2 Independent Zaga Detachment was, in July of 1992, from the 7th of July

3 onwards, bound by the order in this document, Exhibit 2; correct?

4 A. Yes.

5 Q. It refers to the Independent Zaga Detachment in the same terms as

6 it refers to the Independent Dragan Nikolic Detachment; correct?

7 A. [No audible response]

8 Q. And you assume that there must have been an error in the writing

9 of this document to have given them both the same terminology; correct?

10 A. I do not assume. I know.

11 Q. So you're inviting this Court to accept that this was a mistake by

12 the commander?

13 A. Yes.

14 Q. Okay. Well, sir, you agree that this is a direct order from

15 Colonel Kovac to the leader of the Independent Zaga Detachment, and we all

16 agree that's Mr. Kunarac; correct?

17 A. Yes.

18 Q. So you would also, then, agree for the purposes of this question

19 that the leader of the Independent Zaga Detachment, Dragoljub Kunarac,

20 that his unit or detachment is getting direct orders from the battalion

21 commander himself?

22 A. Of the tactical group, that's the commander of the tactical

23 group?

24 Q. Kovac.

25 A. Yes, the tactical group, not battalion.

Page 4885

1 Q. Sorry. Thank you. I'm sorry. He's getting direct orders from

2 Colonel Kovac.

3 A. Yes.

4 Q. Yes.

5 A. In this case, yes. But there were cases when he was attached to

6 other units and it was they that gave him his task.

7 Q. We'll get to that. Just bear with me as I go through what I'm

8 trying to figure out in a logical way, because I have to understand what

9 you're telling me and why.

10 Now, would you agree that by looking at the face of this document,

11 Exhibit 2, just so we're clear, that this is more than merely an isolated

12 task with a fixed duration?

13 A. Battle orders are issued exclusively for a single assignment.

14 Commands at the tactical level do not issue directives covering a

15 prolonged period of time but only specific tasks, specific orders for a

16 specific action. That is the tactical level of command and not the

17 strategic level.

18 Q. We have to look at this document in its entirety to understand

19 what the objective of the battle order is, when it takes effect and when

20 it ceases; isn't that correct? You have to look at the whole document.

21 A. Yes. Yes.

22 Q. Would you agree with me, sir, that this is an ongoing assignment

23 until the objective has been reached?

24 A. I agree but only within the scope of the task contained in that

25 order.

Page 4886

1 Q. To put a broad brush on this document, the idea of this is to give

2 instructions to liberate Gorazde; correct? These are specific orders to

3 specific units to do specific things to accomplish the objective, to use

4 his language, I believe it was, to liberate Gorazde; right?

5 THE INTERPRETER: There was no audible response.

6 A. Yes.

7 JUDGE MUMBA: Witness, please remember that we don't use sign

8 language. You have to give us an audible answer.

9 THE WITNESS: [Interpretation] I apologise. I understand.


11 Q. Now, Gorazde was never, to use the expression, "liberated" by the

12 Serbs, was it? It remained in Muslim hands throughout the conflict.

13 A. Yes.

14 Q. So in that sense, the objective of this battle order was not

15 achieved, was it, sir?

16 A. That's correct.

17 Q. So this is an ongoing order until that objective is achieved.

18 A. No.

19 Q. Where is the end date?

20 A. I answered that question yesterday. Tactical actions last for a

21 brief period and they are not limited by time. There are no time limits.

22 You cannot liberate Gorazde in one afternoon. If you set a goal that is

23 unrealistic, then it is not realised. But that order pertains to only one

24 action and no more.

25 Q. The battle order does not give an end date, does it?

Page 4887

1 A. No. No.

2 Q. So it's a matter of argument, then, between us as to how long it

3 takes effect, is it not?

4 A. Yes.

5 Q. Can you suggest how long it was to take effect?

6 A. I do not know how long that one was supposed to be valid. I know

7 how I would issue an order were I to issue it.

8 Q. That's not my question.

9 A. I apologise, then. There is no need for me to answer, then. But

10 of course --

11 Q. So you said I don't know. You don't know how long this was

12 supposed to take effect.

13 I suggest to you that the objective is clear, the assignment is

14 clear, and it's a standing order until the objective is achieved, and

15 therefore it's an ongoing battle order. What do you say about that

16 suggestion?

17 A. I say that it is not so, because what you have just said goes

18 against the doctrine, not only the doctrine of the army of the Federal

19 Republic of Yugoslavia, but it runs counter to the doctrine of any army in

20 the world. No where in any army does the commander of a tactical group --

21 and a tactical group is at a level of command, at brigade level -- no

22 where in the world does he issue an ongoing standing order because he does

23 not have this kind of authority.

24 Documents of a permanent nature can only be issued at the

25 strategic level. Tactical commands issue only short-term orders for only

Page 4888

1 a single task, which means that the tactical group -- the Foca Tactical

2 Group planned to unblock Gorazde and issued an order only for that

3 action. Since the goal was not achieved, the document does not have a

4 permanent value. It is valid only for as long as that action was taking

5 place.

6 According to what I saw in the documents when I was studying them

7 for this expert opinion, this action was actually not carried out, because

8 no where in the documentation of the Herzegovina Corps did I find a single

9 battle report by a subordinate unit telling the commander of their

10 tactical group who gave them the order about how they performed the task,

11 and that is an obligation of subordinate units.

12 Since I did not find this kind of document, I considered that it

13 was not carried out at all. Why, I really cannot say. I did not manage

14 to find Colonel Kovac to ask him that because I think I do not know where

15 he is.

16 Q. Well, sir, let me just ask you a couple of other questions. This

17 document was prepared --

18 THE COURT REPORTER: Excuse me, Your Honour, can we stop for a

19 second.

20 JUDGE MUMBA: Can you wait for the reporters while they deal with

21 something.

22 MR. RYNEVELD: I'm sorry.

23 JUDGE MUMBA: Yes, we can proceed.

24 MR. RYNEVELD: Thank you, Your Honour. My apologies, I didn't

25 notice. Are we ready to proceed? I don't want to start before -- thank

Page 4889

1 you.

2 Q. Now -- excuse me.

3 In these documents that you researched, these were documents that

4 were in the control of -- again, pardon my use of the word "Serbian

5 authorities," you understand what I mean, the military forces to which

6 Colonel Kovac belonged. Do you understand what I'm saying? These were

7 documents supplied to you by the Serbian authorities, correct?

8 A. No. I studied them in the command of the Herzegovina Corps on the

9 spot.

10 Q. Right. And those documents were under the control or in the

11 possession of what I call Serbian forces, correct?

12 A. Yes.

13 Q. And the battle order number two or Exhibit 2 that we've been

14 referring to, that, too, would be a document that would be authored by and

15 in the control of Serbian forces?

16 A. Yes.

17 Q. In any of those documents that you looked for, did you ever see

18 another order countermanding or putting an end to Exhibit 2?

19 A. No, no.

20 Q. So your opinion is based on the fact that there was an absence of

21 reports indicating what was done in compliance with this order; is that my

22 understanding?

23 A. Yes, yes.

24 Q. Well, sir, in the absence of an order being countermanded or

25 expressly stopped, for lack of a better word, how can you assume that this

Page 4890

1 order wasn't an ongoing or standing order?

2 A. Because I know, according to the doctrine and according to the way

3 in which the commanders and leaders that I trained were trained, commands

4 at the tactical level do not issue standing orders, but only specific

5 orders for a specific action.

6 Q. I see. Well, sir, let's just look in a different aspect of this

7 battle order, if we may. I suggest to you that it's clear from this

8 battle order that Zaga's unit was not limited to being just a

9 reconnaissance unit, was it?

10 A. It was only a reconnaissance detachment.

11 Q. Sir, I suggest to you that it specifically tells them that they're

12 supposed to take part in mopping up settled areas in the direction of the

13 5th Battalion's attack. That's something different than reconnaissance,

14 is it not?

15 A. No, no, no, it's not. It's not a different thing. Zaga's group,

16 as I said yesterday, and I answered these questions yesterday, Zaga's

17 group participated in clearing the terrain of mines, minefields, booby

18 traps, explosive devices, unactivated rockets it found, minefields, it

19 marked pathways that were safe, and that was all part of the group's task.

20 Q. I suggest to you, sir, that in the context of what Zaga's

21 independent detachment was requested to do, it was mopping up of settled

22 areas, but that includes making the place safe for the army to follow

23 behind, that includes collecting the inhabitants who might still be

24 there. For example, if there were pockets of resistance, snipers,

25 wouldn't that also be included in mopping up?

Page 4891

1 A. No.

2 Q. No. I suggest to you that mopping up with respect to Dragan

3 Nikolic Detachment, it says, "Shall take part in the liberation and mop-up

4 of Ilovaca village." Would you agree that for the Independent Dragan

5 Nikolic Detachment, it would include securing the area and making it safe,

6 not just mines?

7 A. I explained yesterday what in the military doctrine of Yugoslavia

8 that mopping up means, that mopping up means clearing the terrain of mines

9 and explosive devices, various kinds of shells that were unexploded, and

10 especially booby traps; that mopping up does not imply, according to our

11 doctrine, collecting civilians. It does not imply that. And I am

12 convinced that when the commander issued this task to have the terrain

13 mopped up, that's what he meant, because they were supposed to go ahead of

14 the battalions attacking in those directions, and for them to be able to

15 attack, someone had to clear the terrain of mines and explosive devices

16 or, at least, mark those places and mark and organise routes they could

17 take to avoid those obstacles so as not to have a lot of casualties due to

18 mines. And that is what the task of these groups or detachments as the

19 terminology was used in the order was.

20 That's according to the doctrine, according to the doctrine, the

21 way they were taught, the way I taught them, and the way we regulated it

22 in our doctrinal documents. I personally think that there is no reason

23 for me not to believe that that was the context when they used the term

24 "mopping up" in this order.

25 Q. Sir, we've heard evidence about Mr. Kunarac's training and

Page 4892

1 expertise as someone used to dealing with mines and removing booby traps,

2 et cetera. I appreciate that Mr. Kunarac was an expert in that particular

3 field, and that's why he was the leader of this, this group named after

4 him. That's clear, isn't it? Nodding your head.

5 A. I assume so, yes. That could be the reason. That's how it was

6 called, but I think the term was not used properly. I allowed that it was

7 so.

8 Q. All right. Now, you've already made distinction between the

9 Independent Zaga Detachment and the Independent Dragan Nikolic

10 Detachment. Did I understand you correctly yesterday to say that the

11 Independent Dragan Nikolic Detachment was a paramilitary, or what -- I'm

12 sorry, it was a different kind of detachment than the Zaga Detachment in

13 terms of its composition of individuals?

14 A. Of course that's what I said yesterday. The Dragan Nikolic

15 Independent Detachment was a permanent unit, and it was a platoon unit, a

16 platoon-level unit, and it was a permanent part of the establishment of

17 the tactical group. Kunarac's group was set up anew every time he was

18 given a task. So his task was to clear the terrain of mines, and he would

19 choose suitable men to carry out that task. If he had to penetrate behind

20 the enemy lines and reconnoitre, then he would set up a different group.

21 So there was no unit for this kind of assignment, but Kunarac

22 formed a group every time he was to go on an assignment. That is the

23 difference.

24 Q. I'm talking about the experience and training and makeup of the

25 people of those various detachments. It's clear that Mr. Kunarac was an

Page 4893

1 expert.

2 Was there any evidence to suggest to you that the Dragan Nikolic

3 Unit or Detachment had experts trained in mine clearing or mine laying or

4 deploying -- or in that particular field? They were just troops, weren't

5 they? They weren't a reconnaissance unit, sir.

6 A. No. No, they weren't. They were not a reconnaissance unit.

7 Q. Well, then, why in heaven's name do you expect that the Dragan

8 Nikolic Detachment would be involved in mopping up if they didn't have any

9 personnel trained in mopping up, if mopping up means getting rid of land

10 mines?

11 A. Sir, every soldier in the Yugoslav People's Army as part of his

12 general training, which lasts for a month and a half, has to be trained to

13 handle weapons, to handle mines and explosive devices, and has to learn to

14 deactivate a mine or an explosive device. So that every soldier who is

15 trained in the JNA was trained to do this, and every unit of ours was able

16 to do that.

17 But specialists were specially trained in the pioneers units,

18 engineering units, and reconnoitering units. They had special training.

19 But every soldier could do all of that, and that kind of task could be

20 given to any unit. Of course, the tasks would be performed much better by

21 units specially trained for that kind of task, but it is not outside the

22 doctrine that the Independent Dragan Nikolic Detachment got that kind of

23 task.

24 Kunarac's group was much more effective in that and did it much

25 better. It took them less time. They could do it with less risk, more

Page 4894

1 efficiently, because they were experts in this and had a group leader who

2 chose his own group.

3 Q. So you're not prepared to allow from your -- I take it from your

4 answer that "mopping up" includes finding out pockets of resistance,

5 arresting persons of the enemy, and that's not part of mopping up?

6 A. No, that's not part of mopping up. And if such a task were to be

7 given, other people would do it because there are people trained for

8 that. Those are the military police. They are trained for that kind of

9 task, certainly not soldiers on the ground.

10 Q. And if there were other persons giving evidence of that nature to

11 this Tribunal, you would disagree with their opinion?

12 A. Of course I would disagree with that kind of opinion.

13 Q. All right, let's move on.

14 Sir, did you mean to imply in your report that because the

15 soldiers that were part of Mr. Kunarac's group were not accommodated in

16 official military barracks, that somehow that made a difference to the

17 command responsibility issue? Did you mean to imply that?

18 A. No, it does not have any direct connection to command

19 responsibility. But when evaluating the possibility of control outside

20 the combat task, one has to bear in mind that control is far less

21 efficient if the army is not accommodated in barracks, if soldiers are not

22 in barracks which are easily controlled, because if they spend nights

23 outside barracks, there is a possibility that they will do things they

24 would not do were they under control in barracks, and that is why I

25 mentioned that.

Page 4895

1 Q. Yes. And just so that everybody is clear about where you

2 mentioned that, I'm looking at page 4658, and although this is not a

3 numbered paragraph, it is part of the succeeding paragraphs following

4 number 14 on the previous page. It says, and I'm going to read from it,

5 "It is certain that Dragoljub Kunarac did not have any direct or indirect

6 command responsibility for the deeds and the eventual offences of the

7 soldiers after their return from assignment. Further to the above stated,

8 there were also the following reasons." And the first of those reasons

9 you provide, sir, reads, "Those involved were soldiers, volunteers, who

10 did not have a permanent accommodation in the military barracks but,

11 during the times between assignments, were resting at their own homes with

12 friends and acquaintances, if they were not Foca inhabitants or those from

13 its immediate vicinity."

14 So you can understand why I asked the question. Are you meaning

15 to imply there that because they weren't in military barracks, that

16 somehow was a valid reason why Kunarac would not have direct or indirect

17 command responsibility for them? You now have set that straight, and

18 you're not saying that's the reason at all?

19 A. No, no. I only said that is one of a number of reasons and facts

20 that make the behaviour of soldiers outside the combat task more

21 difficult.

22 Q. Yes. So when it says it's a reason, you didn't really mean it as

23 a reason, more as a consideration, correct?

24 A. It's only one of the additional circumstances which are not

25 central to the evaluation of command responsibility.

Page 4896

1 Q. Because it's true, isn't it, sir, in times of war, that soldiers

2 find accommodation where they can find it? For example, they often

3 occupied the homes of the people they detained or drove out?

4 A. I cannot answer that question because I do not want to admit that

5 the regular army could have done that. I did not train them to do that.

6 I did not train officers to do that, and I simply cannot believe it

7 because I believe a soldier's profession to be a highly ethical one, so I

8 cannot accept this.

9 Q. Let me see if I get your answer straight, sir, that because this

10 isn't the way you would have trained your men, and because it's not the

11 kind of conduct that you would have expected from Serb soldiers, you can't

12 believe it happened. Is that it?

13 A. I didn't do any research on this; this was not the subject of my

14 interest. I can only say that at the time my expert opinion refers to,

15 there were not enough barracks in Foca to accommodate all the soldiers

16 there, and so some soldiers did have to sleep in houses with friends, with

17 relatives, especially those who were not from the area. And some of the

18 buildings were used to accommodate soldiers, others were not. Some were

19 elsewhere. And I simply cannot accept that Serb soldiers lived in the

20 houses of people they had detained. I simply can't believe it.

21 Q. Okay.

22 A. That would have been the highest degree of immorality of soldiers,

23 and in my view, the soldier's profession is an ethical one, so I cannot

24 accept this.

25 Q. I think I understand your position, sir.

Page 4897

1 Sir, assuming for the purpose of this question that Mr. Kunarac

2 knew where to find his men, and assuming that he did, in fact, go to visit

3 them from time to time to find them for assignment, would you not find,

4 sir, that the fact that he knew where to find them to give them their

5 orders, to accompany him on, say, these combat duties, and actually

6 visited them at their places of residence, isn't that a significant

7 feature to the issue of whether or not he had command responsibility?

8 A. For me, I would turn the thesis around. For me it is more

9 important whether he had his unit with which he commanded always, towards

10 which he always had permanent command responsibility, rather than where

11 he -- whether he knew where each of the soldiers lived. For me as a

12 military expert, the essential fact is whether Dragoljub Kunarac had a

13 unit towards which he had permanent command responsibility.

14 In view of the fact that, according to my findings, he did not

15 have such a unit, whether he knew where the soldiers lived, each soldier

16 lived, or whether he knew this, who his co-fighters were, that is

17 irrelevant for this Court because a unit, as such, did not exist.

18 Q. That's much like because since soldiers were trained not to do

19 immoral things, therefore, they couldn't have done them. Isn't that sort

20 of a similar kind of logic you're applying to that, sir?

21 Actually, I withdraw the question. That's argumentative. I

22 withdraw the question. Sir -- no, I --

23 A. Well, let me answer, if you do not withdraw the question.

24 Q. Well, sir --

25 JUDGE MUMBA: No, no. Counsel has withdrawn the question so you

Page 4898

1 don't have to answer it. Wait for the next question.

2 A. Yes, thank you.

3 MR. RYNEVELD: Thank you.

4 Q. Let's move to an area where I assume that you and I are going to

5 be in agreement. During the time of war, armed conflict, a soldier is a

6 soldier 24 hours a day, is he not?

7 A. In these wars, unfortunately that is not how it is.

8 Q. Oh, so we disagree. All right. Explain why, please.

9 A. Because these are civil wars, civil wars. Imagine, if you will --

10 of course, for Western doctrine this is inconceivable -- that a war can be

11 waged without a state of war being proclaimed. The Republic of Serbia did

12 not proclaim a state of war ever on its territory. The army was outside

13 the State budget. It was supplied by the territory on which it lived and

14 was located without any form of budget. This would be inconceivable, of

15 course, for a normal order, but this is a civil war.

16 As a state of war was not proclaimed, the leaders and commanders

17 had absolutely no possibility whatsoever of forcing in any way whatsoever

18 soldiers to be present all the time in their units. So in that type of

19 military organisation and establishment, volunteerism played a significant

20 role and therefore we had the constant problem faced by the Serbian army,

21 and the armies of the other two entities to a lesser extent; namely, what

22 happened was that the lines that were held, the demarcation lines between

23 the two conflicting parties, people would go off home for the weekend, for

24 example; that was one of the problems. And that was one of the volunteer

25 aspects upon which this army was formed. They were not professionals;

Page 4899

1 they were not soldiers doing their military service, doing their time.

2 They were police armies and armies formed on the basis of volunteers.

3 They came because they considered it to be their patriotic duty.

4 When a problem arose in their family or when the land had to be

5 tilled, when they had to take their children to school, enrol them for

6 school, then he would either report for duty or not report for duty, and

7 that was a problem for the commanding cadres as well. This is something

8 that did happen frequently in the army of Republika Srpska and something

9 that happened in the area controlled by the Foca Tactical Group as well.

10 Q. You mean to suggest, sir, that if someone volunteers to join the

11 army that he isn't subject to all the rules and regulations and military

12 law governing the soldier who has now joined the army, whichever army it

13 is that he's joined? Are you suggesting that?

14 A. No, I don't say that. I just say that it is difficult to

15 establish control, a complete system of control over a volunteer army.

16 Q. Well, a volunteer army, sir, is still bound by its own rules, and

17 if you breech the rules you are subject to punishment, are you not?

18 A. Yes, yes, yes.

19 Q. So at least at law, military law, a soldier during time of war was

20 a soldier 24 hours a day. He didn't have, "You work from 8 to 12," or

21 there weren't shifts.

22 A. No, there are not shifts according to the law, but in actual fact

23 shifts did exist in the field.

24 Q. You can't say, "Well, I'm taking the weekend off" if you weren't

25 permitted that by your commander?

Page 4900

1 A. The commander had no possibility of preventing somebody who had

2 come on a volunteer basis to leave on a volunteer basis. There were no

3 legal regulations or mechanisms which enabled him to do that without the

4 declaration of a state of war.

5 Q. Weren't soldiers obliged to follow the orders of their leaders?

6 A. Yes. But if they didn't, what happened then? The commander or

7 leader had no way of forcing him to obey those orders.

8 Q. So you're making a distinction between what you viewed as a

9 practical difficulty as opposed to a legal order of chain of command and

10 responsibility and obeying?

11 A. No, I'm just indicating the difficulties that arose in ensuring

12 the system, the functioning of the system of command.

13 Q. Sir, at law, military law, according to the regulations, whatever

14 that bundle of material was that counsel and I agreed to apply to these

15 proceedings, a soldier who joined the Serbian army was obliged to follow

16 the rules and orders of his commander, was he not?

17 A. Yes.

18 Q. And theoretically at least, there was a punishment for

19 non-compliance with such an order, in theory?

20 A. Yes, yes.

21 Q. What you're saying to us is, from your experience, that you

22 thought that some commanders had difficulty in exercising this because the

23 men could disobey and he had no way to control them; is that correct?

24 A. Partially, yes. Yes. Because this volunteer army is an army in

25 which there is a fluctuation more than in the regular type of army.

Page 4901

1 Q. Could a commander not put someone on report or report them to a

2 higher authority in order to take disciplinary action? Whether he chose

3 to do it or not is a different issue. But could he not, according to law

4 do that?

5 A. Yes, he could.

6 Q. So there was a structure set up.

7 A. That's right, yes.

8 Q. Whether individual commanders chose to follow that structure is

9 another issue; is that correct?

10 A. Yes.

11 Q. All right. So getting back to the rules as they apply to

12 everyone, soldiers were soldiers, at least in theory, 24 hours a day?

13 A. Well, no. Unfortunately, they were not always that, no.

14 Q. Did you appreciate the distinction I made between theory? I

15 realise people have to sleep. But technically speaking, people weren't

16 given, "Okay, you're a soldier from Monday to Friday." You're a soldier

17 for the entire duration when you sign up, aren't you?

18 A. That relates to the professional soldier. To volunteers who come

19 voluntarily stay voluntarily or leave voluntarily, and as this is a

20 volunteer composition, the members of that volunteer composition can leave

21 in the same way that they came, voluntarily; whereas in a regular army, of

22 course, they would have to follow a soldierly code of conduct.

23 Q. Could they leave without threat of punishment?

24 A. Yes.

25 Q. Sir, let's break it down into little pieces. Must a soldier not

Page 4902

1 always be available for duty?

2 A. Well, I said we were dealing with volunteers in this case.

3 Volunteers come and report -- come to defend their mother country when

4 they think that that country has been jeopardised. Once they feel they

5 have fulfilled mission, they leave, they leave the unit, and then go and

6 look after their family. That was something that occurred frequently in

7 the army of the Republika Srpska, and I think the same thing happened in

8 the other two entities as well.

9 Q. Sir, in order to be fair to you, I'm going to suggest -- I've got

10 a number of more questions and we will probably be continuing until after

11 the break. I'm going to be asking you, perhaps during the break if you

12 would be able to look at those rules and regulations that counsel have

13 agreed upon applied and show us after the break where it is in these

14 regulations it says that volunteers can come and go as they please and

15 aren't subject to the same rules. Could you maybe undertake that for us

16 during the break and we'll just move onto something else, because I do

17 want to return to that. I just want to be fair to you and give you some

18 time.

19 A. Thank you for being fair towards me. I'm also trying to be fair.

20 Documents like that don't exist. The documents don't exist. Documents on

21 the establishment of the army exist, but I am telling you what kind of

22 army it was. It was an army which was established upon the principle of

23 volunteerism.

24 Q. Well --

25 A. According to that principle, problems arose in its functioning;

Page 4903

1 that's what I'm trying to say. Not documents which release a soldier and

2 say that he can go off whenever he feels like it.

3 Q. So if I understand you correctly, the fact that you're a volunteer

4 and you join this army, you've got some special privileges that other

5 soldiers might not have and these special privileges are you don't have to

6 obey; is that it?

7 A. No, no. No, that's not it. They must respect the rules while

8 they're in the army, while they're in the unit, while they're holding

9 their positions. But I'm just telling you that you must bear in mind the

10 fact that they joined the army as volunteers, and when they considered

11 that they had fulfilled mission as volunteers, they then went to carry on

12 their normal, regular duties, without which they could not have a

13 livelihood, because they had no material remuneration at all except for

14 the basic needs to survive. They had nothing to keep their families

15 with. The army did not have a budget either but relied on local sources.

16 So those are the specific features that prevailed and which made

17 it incumbent upon us to view the whole complex of responsibility from the

18 actual side as it was in practice and not only theory. I'm just

19 indicating a problem -- the problems which arose in the daily run of

20 things if we wish to have an unbiased assessment of the situation and of

21 responsibility as such.

22 Q. You're asking this Chamber to accept your word for that because

23 there are no documents that you can point to that support the position

24 you've just been giving us for the last 15 minutes; is that correct?

25 A. No. All I want to do is to draw your attention to the facts -- to

Page 4904

1 the facts, not to my -- that is to say, that Republika Srpska never

2 proclaimed a state of war on its entire territory during that time. That

3 is a fact.

4 Q. Well, let's just take this one step further. I understand that

5 your position is that these soldiers could more or less come and go as

6 they pleased, that because they were volunteers they weren't on duty and

7 didn't have to show up for combat assignments if they weren't available;

8 is that correct?

9 A. According to doctrine and based on practice, you cannot perform

10 wartime mobilisation if a state of war has not been declared. You have no

11 legal grounds for mobilising a unit and taking it to the front lines

12 unless you have declared war, proclaimed a state of war.

13 Later on, in 1993 and 1994, young men who were of military age

14 served their military service in the army of the Republika Srpska, and the

15 units did have a portion of their military contingent from that

16 composition. They were soldiers who were permanently there and they

17 behaved accordingly. However, the other men were recruited on the basis

18 of being volunteers, because as you didn't have a state of war you weren't

19 able to recruit them. So this volunteer section, once they felt the need

20 to leave, could leave and did do so.

21 Q. So your position is once you volunteer and join an army, you are

22 not necessarily bound by all the regulations of that army; is that right?

23 A. You keep interpreting me but you're not understanding what I'm

24 saying. Look at it this way: Take a commune, a municipality, by way of

25 an example. That municipality has the territory it covers. On that

Page 4905

1 territory it has its military unit. That military unit is made up of an

2 officers cadre, not from that territory but partially, and the other

3 portion is from that area. The men, the composition of the men is made up

4 of young men serving their military service from this region and a smaller

5 part from outside this region; but mostly it is populated by the people

6 living in the area whose families and households and property, land, is in

7 the area, and they have volunteered to defend that region.

8 So that is a typical, popular militia-type army. It is not a

9 professional army in your sense of the word.

10 Q. I think that you've told us that a number of times now, sir, and I

11 will leave the point. I think I understand what you're saying.

12 Now, are you saying as well that the obligation to obey would

13 included adherence to all of the military rules and regulations, including

14 those dealing with the Geneva Conventions and the treatment of civilians?

15 In other words, if you're a volunteer, you still have to --

16 A. Yes.

17 Q. -- conduct yourself like a soldier; right?

18 A. Yes, yes.

19 Q. So even if you're a volunteer along this sort of non-written

20 distinction you've made, you accept the fact that volunteers still have to

21 obey military rules and regulations as if they were regular soldiers?

22 A. Yes. When they're in the units, of course.

23 Q. Sir, again in your opening paragraph: "Command responsibility is

24 the responsibility of a superior officer for the deeds committed by his

25 subordinates over whom he has and exercises complete control." You stand

Page 4906

1 behind that?

2 A. Yes.

3 Q. You accepted in your report that Mr. Kunarac was appointed

4 commander of a reconnaissance group. Paragraph 8.

5 A. Yes.

6 Q. Sir, as a military organisation, the JNA, the organisation of

7 which you were a General, was extensively regulated by written documents;

8 correct?

9 A. Yes.

10 Q. And the same holds true for the VRS?

11 A. Not only for the army of Republika Srpska but for all the three

12 entities. All of them in 1992, for the most part, used the legal

13 regulations of the Yugoslav People's Army.

14 Q. Right.

15 A. And its doctrine.

16 Q. These regulations cover virtually every facet of military

17 organisation and structure; that's true as well, isn't it?

18 A. Yes.

19 Q. For example, the regulations governing military law, command and

20 staff functions, and military operations are governed by written

21 documents. Nodding your head meaning yes?

22 A. Yes, yes.

23 Q. I take it, then, that these regulations are authoritative.

24 A. Yes.

25 Q. As I also understand it, sir, all exceptions to the regulations

Page 4907

1 are stated within the regulations themselves.

2 A. Well, no, that problem of a volunteer army is not, because the

3 regulations of the Yugoslav People's Army, the JNA, were devised when it

4 was thought that there would never be a civil war. So these are not

5 provisions for a militia-type army during civil war but for the regular

6 army defending the country from an external aggressor.

7 Q. Let's put the issue of the volunteer army on the shelf for a

8 moment and we'll return to it. All other exceptions to the regulations

9 would be contained in the regulations themselves. "Except for the case of

10 blah, blah, blah, this will be the case"; right?

11 A. Yes, yes, of course. Yes, yes.

12 Q. So there are no exceptions to rules except those exceptions that

13 the rules themselves set forth; isn't that true?

14 A. Yes, yes.

15 Q. As a senior legal military strategist and tactician, not to

16 mention a retired Lieutenant Colonel -- General, you are familiar with all

17 these regulations, are you not?

18 A. Yes.

19 Q. Now, the duties of a commander with respect to the conduct of his

20 subordinates are set forth in the military regulations, are they not?

21 A. Yes.

22 Q. And these regulations provide that the responsibility of a

23 commander for the conduct of his subordinates "begins the moment he had

24 failed to undertake all the necessary steps within his powers to prevent

25 and obstruct the perpetration of war crimes or crimes against humanity";

Page 4908

1 is that right?

2 A. Yes, yes.

3 Q. Now, Professor, are there any exceptions to those regulations?

4 A. No.

5 Q. Well, then, Professor, can you please point to the section in the

6 regulations that says that functional commanders are not responsible for

7 the actions of their subordinates?

8 A. I did not say that, nor can I point that out, but the function of

9 commander has responsibility only as for as long as that function lasts,

10 his function of commander. And I stated that the function of Kunarac was

11 temporary in nature because the group itself was established ad hoc. That

12 is that fine distinction.

13 Q. So there's no exception in the regulations that says a

14 functional --

15 A. No.

16 Q. -- commander doesn't have responsibility for his subordinates,

17 correct?

18 A. No, there is not.

19 Q. Just like there is no exception in the regulations or any other

20 military document for -- that says that volunteer soldiers aren't bound by

21 all the rules and regulations, correct?

22 A. Yes.

23 Q. Is it not true, sir, that good order and discipline among the

24 troops is important for the success of all military operations?

25 A. Yes, of course. I know that very well.

Page 4909

1 Q. And it's fair to say, then, I take it, that one of the most

2 important duties of any commander, regardless of his rank, is the

3 maintenance of good order and discipline within the rank and file of the

4 soldiers in his unit?

5 A. Yes.

6 Q. Because the rule of law plays a very important part in maintaining

7 good order and discipline, does it not?

8 A. Yes.

9 Q. Thus, it's crucial that all military regulations be followed?

10 A. Yes.

11 Q. And the same is true of all aspects of military law, including the

12 provisions that incorporate command responsibility, correct?

13 A. Yes.

14 Q. Well, sir, if we look at it that way, isn't it true that with

15 respect to command responsibility, it makes no difference whether Kunarac

16 held a functional position or a command position, does it?

17 A. Ah, that is an essential difference, and I was trying to explain

18 that to you all this time, but you don't seem to want to listen.

19 Q. Oh, I do, sir, but anyway, let's not argue about it. Maybe --

20 would you agree that he would still have a duty to maintain good order and

21 discipline among his troops?

22 A. He doesn't have his troops. He has troops only when he is on

23 assignment, and during the time he is on assignment, he is duty-bound and

24 responsible for their behaviour. After that, he has no responsibility or

25 duties vis-a-vis them. That is the difference between functional

Page 4910

1 responsibility and command responsibility.

2 MR. RYNEVELD: Your Honour, I note the time. I see it's about two

3 minutes to one. I'm about to embark on a totally different area. I can

4 start if you wish, but I wonder whether this might be a convenient time to

5 break.

6 JUDGE MUMBA: Yes. We can stop here, and we will rise and

7 continue in the afternoon at 1430 hours.

8 MR. RYNEVELD: Thank you, Your Honour.

9 --- Luncheon recess taken at 12.58 p.m.

















Page 4911

1 --- On resuming at 2.30 p.m.

2 JUDGE MUMBA: Good afternoon.

3 We proceed with our cross-examination, Mr. Ryneveld.

4 MR. RYNEVELD: Thank you, Your Honour.

5 Q. I'd like to move to a different area, if I may, Professor

6 Radinovic. From what we know about Mr. Kunarac's role, whatever that was,

7 would you agree that he held a rather special and unique position in light

8 of his training?

9 A. He played a very specific role. Whether it's a special one or not

10 is something different, but he had a specific role in terms of carrying

11 out military tasks.

12 Q. Well, people of Mr. Kunarac's skill and training were few and far

13 between, were they not?

14 A. Well, they're not that rare. We have quite a few men with that

15 kind of training.

16 Q. So if there were evidence that there weren't that many men of his

17 training, that would be a surprise to you?

18 A. Well, I know that there are quite a few of such men. I know that

19 they're not rare.

20 Q. All right. I won't argue with you about it. Would you agree with

21 this, then, that Mr. Kunarac, just when you look at even the battle order,

22 would you agree that he had some unusual, special privileges that other

23 soldiers or corporals would not hold within the usual military structure?

24 Would you agree with that?

25 A. Well, he had that role, not as a corporal, but as a person trained

Page 4912

1 for such tasks, so in principle, I agree.

2 Q. Yes. And in some respects in his unique role, he had more rights

3 than, say, an officer would in a normal military structure, did he not?

4 A. If one is to give privileges at different levels, then one has to

5 have a comparable person. He had privileges only enjoyed by a commander

6 of a group. He did not have any greater privileges than any other group

7 commander, and only within the set of tasks that he was assigned.

8 Q. Well, sir, would a normal officer have the right to select members

9 of his own group?

10 A. Every officer who would be in his position would select his own

11 group according to the nature of the task that he was assigned.

12 Q. Would that also apply to, say, someone who was in charge of an

13 artillery group, or an armoured division, or -- he can't select his own

14 members, can he? He takes the men that are assigned to him.

15 A. If we are talking about tactical groups, about artillery groups

16 for support, then they are established from amongst the units that are

17 available.

18 The group of Mr. Kunarac was always formed on the basis of the

19 task, the assignment, that was given. It was the task that dictated the

20 composition of the group, as well as the time that that group would spend

21 under Kunarac's command.

22 Q. I'm not sure you've answered my question. As a matter of fact,

23 I'm fairly sure you haven't. Would you agree that other commanders would

24 not have the right to select the members of their group; they would be

25 assigned members without a choice of their own?

Page 4913

1 A. I answered the question the way I understood it. Excuse me,

2 please.

3 Kunarac had the possibility to choose, and for my answer, that is

4 the most important thing in this particular context. He was given a task,

5 and he would choose the group according to the task that he was given. If

6 he was given a reconnaissance task, then he would choose people who could

7 collect intelligence about enemy troops. If it had to do with the

8 reconnaissance of mining and explosive devices, then he would choose men

9 trained for that. If this involved a certain risk of clashing with the

10 enemy in the enemy rear, then he would choose men who could give him

11 security.

12 Kunarac could always choose his group. Of course he could

13 propose --

14 Q. Yes.

15 A. -- he could propose, and commanders and commanding officers could

16 deny him what he asked for, but he had the right to propose. He did not

17 have the privilege of deciding with perfect autonomy who would be in the

18 group. He had the privilege of proposing who would be in the group, and

19 in principle, these proposals were accepted because these proposals were

20 well conceived.

21 Q. The purpose of my question, sir, was not so much what Mr. Kunarac

22 could do; we've already established that. The purpose of the question was

23 to ask you whether a commander of, say, an artillery unit or an armoured

24 division would have the same privilege of being able to select their

25 members. I suggest to you the answer to that question is no, they do not.

Page 4914

1 A. Well, I suggest to you not to compare a reconnaissance group to a

2 division. These are things that cannot be measured. Of course one cannot

3 choose who is going to be in his division, but as far as scouts for a

4 reconnaissance group are concerned, there are quite a number of people

5 from among whom one could select.

6 Q. All right, let's move on. Have we at least agreed that a

7 reconnaissance expert or a mine-clearing expert were very important people

8 to any military organisation?

9 A. Yes, they are important, of course.

10 Q. And in the case at bar, we've got this expert reporting directly

11 to a colonel and receiving orders directly from him, according to Exhibit

12 2, the battle order.

13 A. If that is a question, the answer is yes. But may I just tell you

14 one more thing? Perhaps it is important for these proceedings.

15 Reconnaissance groups, not units, are the beginning of

16 reconnaissance in the army of Republika Srpska. By 1994, units had

17 already been built up, established, and then there were reconnaissance

18 units as part of the permanent establishment. There was no need for

19 groups any more.

20 Q. Okay. Did you read Mr. Kunarac's statements to the investigators

21 of the Office of the Prosecutor prior to preparing your expert report?

22 A. I did.

23 Q. Both statements --

24 A. Part of the statements that were in the archives of the office

25 that engaged me.

Page 4915

1 Q. Just so that we're clear, there were two statements, one dated

2 March 13th and the other one April 22nd. You read both statements, did

3 you?

4 A. Yes, yes.

5 Q. And you will recall from his April 22nd statement, I take it,

6 saying words to the effect of, "If you look at me as a person who is in

7 charge of such a duty, as a person who can tell a fellow soldier, 'You

8 will do this and I'll do that,' then I accept that I was a commander of

9 such a unit. But I received my orders from the commanders on high levels,

10 brigade commanders and such."

11 Do you recall reading something along those lines in Mr. Kunarac's

12 statement?

13 A. Yes, I read that. I read that.

14 Q. Okay. And later in that same statement he says, "For the command

15 of the brigade, I would come there before and after --"

16 THE INTERPRETER: Could you slow down reading, please.

17 MR. RYNEVELD: Thank you.

18 Q. "For the command of the brigade, I would come there before and

19 after every mission. Before the mission I would get my orders, I would

20 receive my mission, and after the completion of the mission, I would

21 report to the person who gave me those orders."

22 You remember reading that?

23 A. Yes.

24 Q. Also in those statements, sir, there are all kinds of references

25 to the fact that Mr. Kunarac actually exercised command authority, are

Page 4916

1 there not, de facto command authority?

2 A. No.

3 Q. Well, did you see the many references to the words "my men"? For

4 example, on pages 12 and 13, when he spoke about him being the commander

5 of a special unit but not paramilitary, and where his men lived when not

6 in the field, do you remember that? He referred to them as "my men."

7 A. I read all of that.

8 Q. Okay.

9 A. But you will allow that Mr. Kunarac can get confused with his

10 terms, and that he does not express himself in precise terms. In his

11 statements I did not read that he claimed that he had a unit of his own,

12 and this fully coincides with my expert opinion and insight into relevant

13 documents about that.

14 Q. All right. Well, let's get specific. On page 14 of that

15 statement, and I'm referring now to the transcript, "I commanded, I issued

16 all the commands in the field." You remember seeing that?

17 A. Yes, yes.

18 Q. You also remember reading him having indicated that he would often

19 drop by where his men lived, visit them, see if they needed anything,

20 agree on something, assist the wounded or something. Do you remember

21 reading that?

22 A. Yes.

23 Q. Would you not agree, sir, that in principle, those are all the

24 kinds of actions one would expect of a de facto commander?

25 A. No.

Page 4917

1 Q. No.

2 A. It could be so, but no, not fully, not consistently.

3 Q. It's not inconsistent with the actions of a commander, is it, sir?

4 A. No, but a commander -- actually, this is consistent with the

5 behaviour of friends and acquaintances, not a commander. A commander does

6 not go to visit people where they sleep and does not discuss things with

7 him, a commander -- with them. A commander issues orders.

8 This looks to me like friends, acquaintances, fellow fighters. So

9 of course when the group was disbanded, Kunarac did not lose all contact

10 with the members who were on his group, his friends, colleagues,

11 acquaintances, fellow fighters, et cetera. He engaged some of them

12 several times, which means that they were in contact, but that does not

13 mean that they were his men.

14 Q. Well, then, let's look at some other statements he made, sir, and

15 see whether that might affect your opinion.

16 Do you recall his reference on the second page numbered seven of

17 that statement, they came in separate numbers, finding out that a person

18 posed as him, and that he then went -- when he went -- by going to

19 Partizan Sports Hall. In other words, let me rephrase that. He found out

20 that someone -- he said that he found out that someone had gone to the

21 Partizan Sports Hall and had posed as him. Do you remember reading about

22 him finding out about that?

23 A. Yes.

24 Q. He said in his statement, "I lined up my men and told them that

25 whoever did this, that I personally was going to execute them, and they

Page 4918

1 knew me well."

2 There's a reference to "my men," and he's lined them up. Is that

3 consistent with the actions of someone who is in charge?

4 A. No.

5 Q. No.

6 A. No.

7 Q. All right. Later in the same interview, second side, second tape,

8 side A, he refers to speaking to someone referred in these proceedings as

9 DB. He took her to the house, which we now find out was a house called

10 Ulica Osmana Djikica number 16, to confront the occupants of that house,

11 and for her to point out her attackers. He said, "And I then issued a

12 military order for all men to leave, and I only left one at the entrance

13 of the house. I issued him an order to not allow anyone to enter the

14 house."

15 Fairly clear language, is it not, sir?

16 A. That can be interpreted in different ways. You are interpreting

17 it that way, but I interpret it as the position of a man who has a

18 reputation and authority, and when his authority was smeared, then he

19 wanted to confront the people knowing that he did not do that. That is

20 how I interpret it. Everything that he says is derived from his

21 reputation, his personal reputation as an asserted soldier for combat

22 tasks, and he is doing that on the basis of that reputation, not on the

23 basis of command function.

24 Q. Sir, if those men obeyed that order, would you not agree that it

25 appears that Mr. Kunarac believes he is their commander and they believe

Page 4919

1 he is their commander, and everybody acts in accordance with that belief;

2 isn't that true?

3 A. It doesn't seem that way to me.

4 Q. Okay. Now, sir, accept for the purpose of this question that this

5 house, number 16, which is near the Aladza mosque, in the town of Foca,

6 accept that that is not out on the field, that that is at a time when the

7 men are at the place where they reside and not out in the field. Let's

8 accept that for a moment, shall we? Do you not find it strange that

9 Mr. Kunarac is issuing military orders to his men at the place where they

10 are staying, not out in the battlefield?

11 A. Yes, that, indeed, seems strange to me because he does not have

12 that kind of authority. The men who he issued orders to were not

13 duty-bound to carry that out. He thought that he enjoyed a reputation

14 with them and that he had authority over them, but that is not derived

15 from his command relationship. Whether he did that in fact, in the field,

16 you have to check that out with him. I just know that that is not derived

17 from his status in command, and as far as I know, he did not do that -- he

18 could not do that.

19 Q. I only have about two or three more questions of you, sir.

20 Would you agree, though, this conduct that he recounted to the

21 investigators that I've just read to you, that that is consistent with the

22 action of a commander who is exercising command authority over his men

23 even away from the battlefield?

24 A. No, that is not the way I took it and that is not the way I take

25 it. I do not doubt that it was so if Mr. Kunarac said that. I simply

Page 4920

1 think that this was overstepping authority and that he was not entitled to

2 such authority. I think that he was aware of his position in military

3 hierarchy. And all requests towards some persons that he was in official

4 contact with, that is to say, who had been members of his group at some

5 point in time, were based on personal authority only but not on authority

6 of command.

7 Q. Well, sir, we also see in the balance of the statement that

8 Mr. Kunarac was aware of the allegations that were made by various

9 detainees, including these women, both against himself and against the

10 soldiers under his command and control, and from the balance of his

11 statement, it's clear that he was aware that there were allegations of

12 serious violations of the law of armed conflict against both he and his

13 men. And he failed to report the matter to the headquarters of the Foca

14 Tactical Group.

15 If that is, indeed, so, by his failure to take proper action, was

16 he not in violation of his duty and thereby would render himself

17 criminally responsible for the violations?

18 A. If that is your question, my answer is in the negative. No.

19 Kunarac was not commander of a unit but of a group that is disbanded the

20 very moment they return from an assignment. From that moment onwards, he

21 has no authority whatsoever over the members of groups that he headed, and

22 he also has no obligations towards them either.

23 Q. And that is your objectively held view, is it, sir?

24 A. Yes.

25 Q. Thank you.

Page 4921

1 MR. RYNEVELD: I have no further questions.

2 JUDGE HUNT: Before you sit down, Mr. Ryneveld, you have had the

3 advantage which we have not of reading the material that has now been

4 agreed to be admitted from the General's report.


6 JUDGE HUNT: Is there anything in it which gives us any idea of

7 the organisation and the operation of the other independent detachment,

8 the Dragan Nikolic Detachment?

9 MR. RYNEVELD: To my recollection, and I should perhaps confer

10 with my colleague before I answer, but to my personal recollection, I do

11 not recall anything that sets out the operation of the group. There is

12 reference to it but it doesn't -- none of the material that I recall gives

13 us any assistance.

14 JUDGE HUNT: And you don't think that it's important for us to

15 know anything about it?

16 MR. RYNEVELD: I didn't say that, Your Honour.

17 JUDGE HUNT: Well, what do we know about it?

18 MR. RYNEVELD: Might I just confer with my colleague to see

19 whether, perhaps, I've overlooked a reference to one of the documents. We

20 went through them again last night but I just want to make sure.

21 [Prosecution counsel confer]

22 MR. RYNEVELD: Then perhaps what I might do -- let me answer your

23 question. Our collective recollection is there is nothing in the

24 documents that have been provided that is of assistance. So perhaps what

25 I ought to do, I'll take this opportunity to invite Professor Radinovic,

Page 4922

1 since he has indicated that he has made a search of the documentation that

2 was available to him.

3 Q. Are you in a position, sir, to provide through counsel the

4 documents upon which you rely that differentiates between the Independent

5 Zaga Detachment and the Independent Dragan Nikolic Detachment? You said

6 that material was in a book somewhere. Are you at some stage able to

7 provide the documentation upon which you based your opinion?

8 A. I told you that if I were to give you all the documents to see, I

9 believe that this would be a very large amount of documents, and for most

10 it would be very difficult ground to tread. I studied lots of these

11 materials on the basis of my own personal experience and knowledge.

12 The third thing I wish to propose in relation to this question is

13 to bear in mind the fact that these are documents that are not accessible

14 to the public, nor can they be part of public communications.

15 Fourthly, I can give a promise in principle that I will try to

16 meet your request, but I cannot promise that I can do so because I'm not

17 sure that I will be able to get approval for that. And when is also

18 something that I cannot promise either. I have to travel there myself to

19 ask and to see possibly what might be submitted. But I cannot promise you

20 and promises should be kept.

21 Q. Sir, you appreciate the dilemma that we're in. We have your bald

22 assertion that there is a distinction between those two detachments, and

23 you say that you came to that conclusion because of documents available to

24 you and not to us. You're asking this Chamber to accept your opinion

25 without the source for that opinion on a matter that is quite clearly in

Page 4923

1 issue between the parties. Do you understand the dilemma?

2 A. I understand your dilemma. But may I just correct your question.

3 I did not say that there are two detachments. There's only one. There is

4 no Zaga Detachment. So for two days now that's been the story I've been

5 telling.

6 The person who made the order probably used the wrong term. There

7 is no Zaga Detachment, there is only a reconnaissance group. And probably

8 the person who wrote the order -- it's not the commander who writes the

9 order; the commander signs it but an operative man writes it out -- he

10 probably bore in mind Zaga and his group and he called it the Zaga

11 Detachment. So this was colloquial but not a precise military category in

12 terms of terminology.

13 There is no need for me to search for this. There are no two

14 detachments, so there's no need for me to go into all of this. There are

15 not two detachments. There is no Zaga Detachment.

16 Q. But you say that there is a Dragan Nikolic Detachment and that

17 somehow, if I remember correctly, that it is described differently than

18 the Zaga Group, then, is that what you're saying, in the book or documents

19 that you based your opinion upon?

20 A. I repeat once again: I did not say let alone write that there is

21 a Zaga Detachment. On the contrary. I've been trying to make myself

22 understood all the time. I would like you to understand that there is no

23 Zaga Detachment. There is a group that Zaga commanded when he was

24 carrying out an assignment.

25 Q. Do you know what the makeup of the Dragan Nikolic Detachment was?

Page 4924

1 A. At this point in time I cannot tell you the details, but like any

2 other detachment -- that is to say, I said that it was based on partisan

3 traditions and that it was a form of territorial military organisation and

4 establishment with highly reduced equipment of a platoon type.

5 Q. It was an intervention platoon, was it not?

6 A. Not an intervention platoon, no. It's like this: In armies of

7 this kind, intervention platoons don't exist. For different types of

8 intervention, units are used which are free at the time. In combat

9 operations, the elements of a combat system are established, and one of

10 the elements of a combat system are what we call tactic reserves for

11 tactical levels. It is those reserves which are used for all alternative

12 assignments which can occur within the frameworks of a general combat

13 operation in one of the jeopardised axis at the front, when the enemy

14 appears by surprise, anything that cannot be foreseen ahead of time.

15 When these orders are written -- that is to say, these orders are

16 written and not enough attention is paid to precise military expression,

17 and you give an epithet to somebody which they do not carry by

18 definition. But they are used for intervention and then the term sort of

19 lingers on as being an intervention platoon. So in military

20 establishment, no category of intervention units exists.

21 Q. Okay.

22 A. It is a category of new types of armies which exist in European

23 armies, in NATO, the Rapid Deployment Forces. But this did not exist in

24 our army, particularly not in the army of Republika Srpska.

25 Q. Would these documents that you reviewed in coming to your opinion

Page 4925

1 disclose how big a platoon this detachment was, who its commander was, and

2 who its members were?

3 A. It does not say who those commanders were in those books, it just

4 says, "Organisation composed of" such and such. So this is not personal

5 formation and establishment, the names and surnames. Just the

6 organisational composition.

7 Q. So you would not --

8 A. Organisational establishment, so I couldn't tell you that. No.

9 No, I really couldn't. You cannot see that from books, from -- you can

10 see it from the battle reports, combat reports, but I have not come across

11 any combat reports speaking of that detachment, that is to say, reporting

12 on having accomplished an intervention assignment of that type. I have

13 never come across anything of that kind.

14 Q. Did you come across anything to suggest that a man called Dragan

15 Nikolic was the commander of that group at one time?

16 A. No. No, I did not.

17 Q. Did you see anything in the materials you read that Brane Cosovic

18 was a commander of that unit at one time?

19 A. No, I did not. I did not because I didn't study the personal

20 composition. I was interested in the military situation around Foca, and

21 I was interested in the organisational and establishment setup of the

22 units, the dynamics of operations and the command responsibility of

23 Dragoljub Kunarac. I didn't look into the command responsibility of

24 either Brane Cosovic or Dragan Nikolic because that was not the subject of

25 my expertise and the task I was given, and that's why I did not pay

Page 4926

1 attention to that.

2 Q. So you couldn't tell us who the commanders were, and you couldn't

3 tell us who the members are; you can really tell us precious little about

4 that group, I take it?

5 A. Well, I said that I did not do research into the command

6 responsibility of Dragan Nikolic but Dragoljub Kunarac. And if you want

7 me to tell you that, about that, I'm afraid I can't. I don't know. But

8 if this Trial Chamber wants me to compile a new expertise on Dragan

9 Nikolic's command responsibility, after a certain amount of time, no doubt

10 I will be able to present my expert opinion on that subject, too. But I

11 just researched the command responsibility of Dragoljub Kunarac.

12 MR. RYNEVELD: I believe, in light of those questions, there's

13 very little more that I need to ask at this point. Thank you.

14 JUDGE MUMBA: Any reexamination, Mr. Prodanovic?

15 MR. PRODANOVIC: [Interpretation] Your Honour, I just have one

16 question for Mr. Radinovic.

17 Re-examined by Mr. Prodanovic:

18 Q. You were informed, Mr. Radinovic, that Major Muhamed Nogo

19 testified with respect to these facts and circumstances?

20 A. Yes.

21 Q. He had the order of the 7th of July, that was accessible to him,

22 and he discussed that order during his testimony here. In his expert

23 opinion, he says he answered the question of what is -- what a detachment

24 is. The question was asked by the Prosecution. He said that a detachment

25 is a formation numbering between 400 to 500 people.

Page 4927

1 Asked directly -- to my direct question here whether Major Nogo

2 allows for the possibility of error in the order, because from the

3 evidence put forward it would emerge that Kunarac at no moment in time had

4 more than 15 men at his disposal, but nonetheless, the detachment is a

5 formation numbering between 400 to 500 men; when I asked him this,

6 Mr. Nogo did not give me a direct answer to my question.

7 Now, my question to you, Mr. Radinovic, is as follows: Did the

8 army of Republika Srpska take over the laws governing the army from the

9 laws that existed in the former JNA?

10 A. In 1992, yes.

11 Q. My next question is the following, in those laws and regulations,

12 is there the term "detachment" by way of establishment of formation?

13 A. No, except in the case of Territorial Defence. The laws governing

14 the Yugoslav People's Army do not contain the term "detachment" as an

15 establishmental category. It just -- it exists only within the frameworks

16 of Territorial Defence.

17 The detachment in the Yugoslav People's Army is an element of

18 combat establishment in the combat system. I am sorry that I can't

19 explain to you a professional term that we use. That is to say,

20 detachments in the Yugoslav People's Army are of temporary formation, are

21 temporary formations, which are grouped as elements of the combat system

22 for a given battle. For example, artillery units for anti-armoured combat

23 combined with engineers units, with rocket units, and self-propelled

24 artillery, form anti-armoured detachments for anti-armoured combat within

25 the frameworks of one combat operation, one assignment. Furthermore, the

Page 4928

1 engineers units combined with other units make up detachments for

2 maintaining communications. They form detachments -- and other forms of

3 detachments, all of which are temporary formations and not an established

4 formation. They are ad hoc organisations only for one particular

5 assignment.

6 In the Territorial Defence system, detachments are talked about

7 that can be composed of platoons, that is to say, two or more platoons,

8 that means 50 to 60 people. They can take the form of companies when they

9 can have between 80 to 120, up to 150 men, and a detachment can also be an

10 element of the manoeuvreing forces of Territorial Defence. But in 1992,

11 the army of the Republika Srpska, as it was developed then, the detachment

12 could not have had the amount of men that the expert witness said. There

13 were far fewer men because it was a burgeoning, fledgling army.

14 Q. Does that confirm the conclusion that it was an error in using

15 that term, in using the term "detachment," "battalion," or whatever?

16 A. When we're talking about Mr. Kunarac, without a doubt, that was an

17 error.

18 Q. Thank you.

19 MR. PRODANOVIC: [Interpretation] I have no further questions of

20 this witness, Your Honour.

21 JUDGE MUMBA: Mr. Kolesar? You want to put some questions to the

22 witness?

23 MR. KOLESAR: [Interpretation] Yes, Your Honour, two brief

24 questions.

25 Re-examined by Mr. Kolesar:

Page 4929

1 Q. Yesterday during the examination-in-chief I based my questions on

2 the order of Colonel Kovac dated the 7th of July, and on that occasion, in

3 answer to my question, you responded with respect to the Independent

4 Dragan Nikolic Detachment, and on the occasion once again you explained

5 what mopping up means in military terminology, and liberating, the terms

6 "mopping up" and "liberating."

7 Let me remind you on the same page of the B/C/S text under point

8 6, it states the insurance and combat activities -- "security of combat

9 activities," and among things you said, "The other units with their own

10 forces elaborate passages through minefields and the establishment of

11 control services in passage through them."

12 During the cross-examination here today you gave an answer when a

13 question was raised with respect to this second group. I'm not going to

14 call it detachment, I'm going to call it group. Can you elaborate on that

15 and clarify this question? Have I understood you correctly? In addition

16 to the special activities of the Dragan Nikolic Detachment and the

17 reconnaissance group, in a special chapter it is commanded how the combat

18 activities are to be performed.

19 I did not read the duties of the engineering units, but I just

20 read you one sentence.

21 A. There are different types of security and operations. There is

22 intelligence security, security proper, engineering support, logistics

23 support, and so on. So engineering support is just one form of support

24 and security that is provided.

25 Leaders and commanders in offering support and reinforcing their

Page 4930

1 units in the section that we call "Support and Security," as I say,

2 support their own units in the bulk of their action, and that was done by

3 the commander of the brigade when the Zaga Detachment was active in the

4 direction of that particular battalion. He did this with the Nikolic

5 detachment as well.

6 And there he expresses his own focal point, whereas he orders

7 everybody else to exercise support and security relying on their own

8 forces, because all the soldiers who also just were trained have been

9 trained for that particular task as well. And as the forces are limited

10 anyway, then he leaves it up to them to fend for themselves and do the

11 best they can in any given situation because the commander cannot do

12 anything more. He can only support the others.

13 Q. Thank you very much.

14 Let us take the hypothesis that on the terrain there were

15 paramilitary units. Can the paramilitary units enter into the command of

16 the tactical group for a concrete combat operation or in general terms?

17 A. That is a contradiction -- that is to say, a paramilitary unit, it

18 is not a military unit. The commander issues orders to military units, to

19 elements of his own organisation and establishment and those attached to

20 him. So the act of command is exercised through an order; orders are

21 given to one's own units and units attached to you. Nobody else is

22 included in these orders, only those that make up an organic part or are

23 attached through an order of a superior officer, superior commanding

24 officer.

25 So all the units within this order or within the tactical group

Page 4931

1 cannot be paramilitary, term paramilitary units; they are military units.

2 Q. Thank you. My next question, religious buildings, whether they

3 are Catholic, Orthodox, or whatever other religion, during certain

4 situations during combat, can they be considered military targets ever?

5 A. That is what actually takes place in actual fact. No commander

6 has any -- that is to say, the regulations do not limit what can be a

7 target and what cannot. Many things are implied, of course, and are

8 understood. Of course, a military target can only be or should only be a

9 military facility or a facility used for armed action by the enemy side,

10 the conflicting side.

11 In any facility or building is used to fire from, and if enemy

12 action is launched from that building or facility, then the object is to

13 neutralise it, and so soldiers are trained to do this with as less

14 destruction as possible. But we must eliminate that nest. We have to

15 neutralise it; otherwise, people will lose their lives, and lives is the

16 worth.

17 Q. That's what I thought. For example, if you have a sniper's nest

18 on the top of an Orthodox church, would that be a legitimate target?

19 A. Well, I would target it, yes.

20 MR. KOLESAR: [Interpretation] Thank you, I have no further

21 questions.

22 JUDGE MUMBA: Mr. Jovanovic, any questions?

23 MR. JOVANOVIC: [Interpretation] No, Your Honour, thank you.

24 JUDGE MUMBA: Thank you, Witness, for giving evidence to the

25 Tribunal. You are now free, and you are released.

Page 4932

1 [The witness withdrew]

2 JUDGE MUMBA: Yes, Mr. Kolesar?

3 MR. KOLESAR: [Interpretation] Your Honours, before I call the next

4 Defence witness, and they are medical experts, I should like to inform you

5 of a matter.

6 As can be seen from the programme we presented to the Tribunal and

7 the registry, these medical experts, of whom there are three, in the

8 examination-in-chief will take up seven and a half hours of trial time.

9 We are lagging behind our schedule, and if we start the

10 examination-in-chief of these witnesses, there will be problems, and the

11 problems will be the following; that is to say, we planned that these

12 medical experts conclude their testimony today, and they have

13 accommodation for today and travelling documents for tomorrow.

14 The Witnesses and Victims Unit has informed us that they are not

15 able to ensure accommodation for these witnesses for the following week.

16 That is one point. On the other hand, if they were to go home tomorrow

17 and return on Sunday, this is technically not feasible, either, because

18 they have visas valid for 15 days but only single entry visas, which means

19 if they leave Holland, they would not be able to come back on -- reenter

20 on Sunday. And finally, these individuals are university professors.

21 They have their own schedules and responsibilities at home, and are

22 therefore not in a position to postpone their regular duties.

23 If we were to start their testimony -- the testimony of the first

24 witness, as they are -- represent a group, I am sure that we will go on

25 into Monday and Tuesday, counting the time necessary to cross-examination.

Page 4933

1 So the witnesses who were planned for Monday and for next week, they have

2 already received visas and airline tickets, and they should be in the

3 Hague by Saturday or Sunday.

4 As these are expert witnesses, I should like to put the situation

5 before you, and it is our proposal, that we leave these -- let these

6 witnesses go and be recalled later on. Of course, the decision is up to

7 you, but I should like -- I put this request forward, which is governed by

8 the objective situation and feasibility, and we were not able to do much

9 about it.

10 So that is our request and suggestion. Thank you, Your Honours.

11 [Trial Chamber confers]

12 JUDGE MUMBA: Mr. Kolesar, the Trial Chamber would like to know

13 whether, besides these three medical experts, the other witnesses you

14 indicated are available for Monday. Would we have witnesses for the next

15 two weeks, for instance, apart from the three medical experts?

16 MR. KOLESAR: [Interpretation] We have prepared a list of witnesses

17 for next week and the week after that and, objectively speaking, we expect

18 to see next week six witnesses, that is what we plan, and I think they

19 will take up our time.

20 JUDGE MUMBA: And then the week after next week, do you have a

21 proposed list? Because we have two weeks more for July.

22 JUDGE HUNT: That's assuming it will take two weeks for you to get

23 new visas, you see? Do you know how long it will take?

24 MR. KOLESAR: [Interpretation] Your Honour, I can't give you an

25 exact answer to that question. The staff of the embassy frequently -- we

Page 4934

1 have to frequently wait a long time. So I'm not sure whether in the space

2 of two weeks they will be accorded visas. They are not always expedient

3 enough, if I might use that term.

4 In answer to your question for the last week, let me say that we

5 plan to have eight witnesses. Witnesses testifying next week arrive

6 tomorrow. So I don't think for purposes of economy we should spend two

7 more days here with the other witnesses. That would not be very

8 economical, and of course we always have to bear that in mind, bear the

9 economics of it in mind as well.

10 [Trial Chamber confers]

11 JUDGE MUMBA: Yes, Mr. Kolesar, we appreciate the difficulties we

12 find ourselves in. We have run behind schedule, as you have said.

13 For the three medical experts, it's up to the Defence to arrange

14 for their coming back, most probably in September, since they too have got

15 schedules to reshuffle for their normal occupations. As long as we have

16 other witnesses for the next two weeks, for the next hearing days before

17 the end of July, that will be all right with the Trial Chamber.

18 Like it has been this week, it's difficult to assess how long

19 witnesses will take because, as you have seen, we've been starting rather

20 late in the mornings so that is part of the problem. So as much as

21 possible we would like to have witnesses for next week and the following

22 week so that we don't spend even half an hour without witnesses, as much

23 as possible. So since you have already arranged further witnesses, we can

24 go ahead and hear them from next week. The order really doesn't matter in

25 which they come as long as we have witnesses who are on their list.

Page 4935

1 So the three medical experts will be rescheduled perhaps for

2 September so that we're sure -- since we're sure we'll be sitting from the

3 11th, I think, we should be able to hear them all at a go.

4 The other problem we have is that the Trial Chamber has received

5 an official report from the Office of the Registrar regarding the

6 videolink in Podgorica for the two Defence witnesses. There are concerns

7 regarding safety and also logistical support. As you know, the Tribunal

8 does not have an office in that part of the Balkans. We have been advised

9 that it's easier for the relevant offices and authorities to arrange for

10 videolink testimony in Banja Luka, for instance, or in Sarajevo, in the

11 other parts of the country where the Tribunal has offices and facilities.

12 So the Trial Chamber would like to ask the Defence to discuss with

13 the Prosecution which would be the most suitable location for the two

14 Defence witnesses, as we have already said that advance arrangements have

15 to be made for this type of testimony to avoid adjournments and a waste of

16 trial time.

17 In view of this report from the Registrar's Office, the decision

18 of the Trial Chamber regarding the videolink is hereby suspended until the

19 parties are able to agree on a convenient place for the testimony from the

20 two Defence witnesses.

21 MR. KOLESAR: [Interpretation] Your Honour, may I just have a

22 moment to confer with my colleagues.

23 JUDGE MUMBA: Yes, please.

24 [Defence counsel confer]

25 MR. KOLESAR: [Interpretation] Your Honour, we have taken notice of

Page 4936

1 your suggestion and we will regulate this with the Prosecution and the

2 Registry.

3 JUDGE MUMBA: Yes, but I would like to point out that the

4 Prosecution really would be acting in a matter of assisting the Defence

5 with these arrangements, as well as the Office of the Registrar.

6 MR. RYNEVELD: I appreciate that. To my understanding, either

7 location would be acceptable; I believe that either office is in a

8 position. So whichever they prefer, I'm sure that we can do our utmost to

9 attempt to facilitate that insofar as we have any control over it.

10 JUDGE MUMBA: Thank you very much. Any other matters? Any other

11 matters from the Prosecution before we close?

12 MR. RYNEVELD: No, thank you, Your Honour.

13 JUDGE MUMBA: The proceedings for today are adjourned. We shall

14 continue our trial on Monday, at 0930 hours.

15 --- Whereupon the hearing adjourned at 3.30 p.m.,

16 to be reconvened on Monday, the 17th day of July,

17 2000, at 9.30 a.m.