Tribunal Criminal Tribunal for the Former Yugoslavia

Page 852

1 Monday, 30 January 2006

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.02 a.m.


7 JUDGE MOLOTO: Am I correct, Mr. Black, that you had finished your

8 leading?

9 MR. BLACK: That's correct, Your Honour, although I haven't

10 spoken with the witness I notice he has a chart and it may be in response

11 to the Chamber's question. Perhaps it would be appropriate to deal with

12 that before he starts his cross-examination. But I leave it in Your

13 Honour's hands since it was a Bench's question.

14 JUDGE MOLOTO: Mr. Theunens, do you have any further things to put

15 on the -- in evidence? Is this the document you want to put it?

16 THE WITNESS: Your Honour, there are two things. First of all

17 there is the chart you requested the first session which I sent to the

18 Prosecution an electronic version because I think it would be better if it

19 would be printed in colour so to make it more easy for you to see the

20 various functions. And then secondly, I understood that I didn't really

21 manage to explain the Posavina corridor to you on Friday so I looked in

22 my -- in documents I have at home this weekend and I found a map prepared

23 by UNPROFOR - I think it was in 1994 or 1995 - that depicts the corridor

24 in a much clearer way than I tried to explain on Friday. And if you want,

25 Your Honours, I can explain the legend and so on on the ELMO.

Page 853

1 JUDGE MOLOTO: Have you shown a copy of this map to -- has it been

2 shown to the Defence?

3 Mr. Black?

4 MR. BLACK: Your Honour, I have not seen it myself. I don't

5 believe it's been shown to the Defence, either.

6 JUDGE MOLOTO: Mr. Milovancevic, you haven't seen this document,

7 have you?

8 MR. MILOVANCEVIC: [Interpretation] No, Your Honour.

9 We have a problem. The Accused is not receiving interpretation.

10 JUDGE MOLOTO: I'm sorry about that. Can that be attended to

11 before we proceed? Okay.

12 With the help of the usher, may this be given to Mr. Black so that

13 you can lead your witness about that document, and the bar chart that the

14 Court asked for, please, if you may. Otherwise the Court will do that.

15 MR. BLACK: Thank you, Your Honour.

16 Examined by Mr. Black: [Continued]

17 Q. Mr. Theunens, good morning.

18 A. Good morning.

19 Q. Do you have another copy of this with you or is the only copy, as

20 far as you know?

21 A. This is the only copy I brought, Your Honours. I apologise for

22 the confusion but I gave a copy to the legal officer and asked for the

23 best way to proceed and I see now that we are going to put it in

24 evidence. But if you want I can explain on the ELMO, if that is

25 feasible.

Page 854

1 MR. BLACK: Your Honour, I would propose that we do just that.

2 I'll make sure if it's been sent to us that at the next break we have

3 colour copies to distribute to the Court and to the Defence. If you want

4 we can go ahead and he can explain it and maybe we can put this one in

5 evidence and give copies later.

6 JUDGE MOLOTO: Go ahead, Mr. Black.

7 MR. BLACK: Thank you, Your Honours. With the assistance of the

8 usher I'll hand this back to the witness and if you could please place it

9 on the ELMO.

10 And, Your Honours, I believe the best way to see this on the ELMO

11 is to press the video evidence button on the monitors.

12 Q. Mr. Theunens, looking to your right there at the map on the ELMO,

13 could you please explain what's shown here?

14 A. Your Honours, this map shows a section of northwestern

15 Bosnia-Herzegovina, which during the conflict became known as the Posavina

16 corridor. The map, and maybe you cannot see the legend but it's more to

17 the bottom, the map was prepared by the mapping survey of the United

18 Kingdom Ministry of Defence in 1995. It's indicated on the right bottom

19 corner, who provided also maps to UNPROFOR. On the map, the electronic

20 map, the times map on Friday I drew a line which more or less went from

21 Bijeljina, Brcko and then further to the west. Well, this was exactly the

22 location of the Posavina corridor. The red lines are the confrontation

23 lines between the warring factions whereby the area here, the so-called

24 Orasje pocket, that was on the Bosnian Croat, also known as HVO control in

25 the conflict, and then the territory south of this red line was in the

Page 855

1 control of the ABiH, the army of Bosnia-Herzegovina or Bosniak controlled

2 armed forces, and the corridor went in between these lines, from the east

3 Serbia to the west, Bosanska Krajina, so the western part of the Serb

4 Republic of Bosnia-Herzegovina as well as the territory or the entity

5 known as the SAO Krajina and subsequently the RSK. Just for your

6 information, the blue line is an UNPA border and this is the UNPA east so

7 sector east, which -- I mean, the southern part of sector east which

8 consisted of what we can't see on the map but in the northern part,

9 Baranja, and inside of that, eastern Slavonia and western Srem. So I just

10 brought this map to you, Your Honours, now to be more accurate in

11 describing the Posavina corridor to you.

12 JUDGE MOLOTO: Thank you, Mr. Theunens.

13 MR. BLACK: Your Honour, could this receive a number and be

14 admitted into evidence, please.

15 JUDGE MOLOTO: Mr. Milovancevic?

16 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.

17 JUDGE MOLOTO: Thank you. The document will then be admitted into

18 evidence and may it be given an exhibit number.

19 THE REGISTRAR: That will be Exhibit number 103, Your Honours.

20 JUDGE MOLOTO: Thank you very much. You may deal with the bar

21 chart, Mr. Black.

22 MR. BLACK: Thank you, Your Honour. And, again, I apologise for

23 the confusion about the copies. Does the Court have or does the Registry

24 have a copy of the bar chart? I don't have one.

25 Q. Mr. Theunens, perhaps, do you have it with you or what's the

Page 856

1 status of the bar chart?

2 A. The status, Your Honour, is that the chart is finished what I

3 prepared in colour and I don't have a colour printer so I understood from

4 Friday's session that I was allowed to send it to the Prosecution. So I

5 sent it this morning to the Prosecution and I assumed that they are in a

6 possibility to prepare colour copies which would make it easier to explain

7 it to you. I don't have a copy of it with me.

8 JUDGE MOLOTO: Okay. Is it possible that maybe during your

9 cross-examination or maybe during your re-examination, you might hand this

10 in?

11 THE WITNESS: Yes, Your Honour, the Prosecution now has a colour

12 copy. So whenever.

13 MR. BLACK: Your Honour, if I could -- as soon -- as soon as we

14 have those printed I can signal that to the Court. I'll stand up and

15 mention it and then we can deal with it either during cross examination

16 or, if you prefer, we can wait until redirect. However is easiest.

17 JUDGE MOLOTO: Okay. That's fine. When the copies are ready

18 we'll get the message from the parties. Is that --

19 MR. BLACK: That's all, Your Honour, thank you.

20 JUDGE MOLOTO: Thank you very much.

21 Mr. Milovancevic? The witness is yours.

22 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

23 Cross-examined by Mr. Milovancevic:

24 Q. Good morning, Mr. Theunens. I'm Predrag Milovancevic,

25 attorney-at-law, counsel for Mr. Martic, and on behalf of the Defence team

Page 857

1 I will be cross-examining you.

2 A. Good morning, Mr. Milovancevic.

3 Q. As the situation requires, we shall begin from the very beginning,

4 from your CV, and we will cover it very briefly.

5 I'm interested in only several brief issues. You stated,

6 Mr. Theunens, that you graduated from a military academy in Belgium; is

7 that correct?

8 A. That is correct, Your Honours.

9 Q. The military academy that you completed, is that the main military

10 school where officers of the Belgian army are schooled?

11 A. That is correct, Your Honours. And I could be more complete.

12 It's actually the only school where or the only academy where officers are

13 trained or at least as you would call it, professional officers.

14 Q. Did you understand my previous question? What I had in mind was

15 comparison with the education system in the former Yugoslavia, where in

16 addition to the military academy, there were also staff schools. For

17 example, various kinds of expertise could be acquired at these staff

18 schools. Did they not exist in Belgium in addition to the military

19 academy?

20 A. Yes, Your Honours. I think I misunderstood the question, then,

21 but at least in Belgium and at the time when I became an officer it was

22 rather difficult to be admitted to one of the, let's say, post-military

23 academy officer trainings. It existed. There was for example, there is a

24 school which we call the -- it's now called the Defence College but at the

25 time it was called the Royal Higher Military Institute. Some people call

Page 858

1 it even war school. And there basically three staff courses were given,

2 the first one what was something we called the short -- excuse me, the

3 first cycle, which was I think at the time when I attended it a three

4 weeks' or four weeks' course which was intended for lieutenants,

5 lieutenants to captains, to learn how to work in a battalion staff.

6 The second one I attended and the second one is mentioned in my CV

7 under the heading 3, summary of professional skills. The second one was

8 what we called among the military the second cycle, which is a one year

9 course or one school year, which is a senior officer candidate course so

10 where people who of the rank of captain or commandant, which is a Belgian

11 rank between captain and major, learn how to work in a brigade staff and

12 people from the army, of course, learn how to work in an army brigade

13 staff, people from the navy they learn -- the navy doesn't have brigades

14 but they learn how to work in a staff at a similar level in the navy and

15 the same for the air force.

16 After that, there is also what I would call the third cycle, which

17 is the senior staff course, which -- where people obtain -- where people

18 who are specially selected obtain what we call a staff degree or a staff

19 diploma. In French it would be Brevet d'Etat Major which is intended for

20 people with the rank of major or sometimes lieutenant colonel and there

21 they learn how to work in a corps or even a higher level staff. But again

22 there is no way how -- you cannot attend the third cycle without having

23 attended military academy and the same applies now also for the second

24 cycle, even though at the time when I joined the Belgian military, there

25 were also people who entered the military directly without having --

Page 859

1 excuse me, they entered the military directly and obtained an officer

2 degree without having attended the four or five year cycle at military

3 academy which I attended.

4 Q. In order to enroll into the third cycle, as you call it, in

5 addition to completing an undergraduate degree, did one also need a

6 certain experience, a certain number of years in service in the military?

7 A. I'm not so sure about the undergraduate degree. I didn't

8 translate the title I obtained in military academy into an English degree

9 or into a bachelor or a master because, and maybe you're aware of that, in

10 the European Union, I think it's the Bologna Decree, there are efforts

11 made to find or to standardise, I would say, university degrees between in

12 a bachelor level would generally be three years and a master's level which

13 would be four to five years. [French spoken] in French is a four-year

14 study plus then six months in armour school and I haven't been able to --

15 Q. I apologise, Mr. Theunens. I apologise for interrupting you. My

16 question was aimed at something else. I don't want to waste everybody's

17 time here. In order to enroll into a third cycle course, did one need a

18 certain experience, a certain number of years spent working as an officer?

19 A. Your Honours, when I saw the expression "undergraduate degree" I

20 think it was helpful to explain that to the court because it applies

21 directly to my experience. Now to answer the second part of the question,

22 years of experience applies to any course in the military. You could not,

23 for example, attend the second cycle I attended without having at least

24 ten years experience as an officer. Of course, it applies to the third

25 cycle, but there, because it's only a limited number of officers that

Page 860

1 attend, there is also a whole selection process. So in fact people,

2 officers who have finished the second cycle, after one or two years, they

3 can apply for the third cycle and then they have to undergo a selection

4 process.

5 Q. Can you tell us, then, now, in addition to the military academy,

6 which is a pre-requirement for an education of an officer, what other

7 levels have you completed?

8 A. Your Honours, as I explained, I finished the second cycle and this

9 is visible, if I could call it like the second cycle, it is visible under

10 the heading 3 of my CV under the title summary of professional skills.

11 And there it reads from September 1997 until July 1998 I attended the

12 staff course or senior officer candidate course at the Royal Superior

13 Defence Institute in Brussels.

14 Q. Thank you, Mr. Theunens.

15 I think that it was important to expand on the information

16 provided in the CV, which is not very extensive.

17 My next question pertains to a fact stated in your work

18 experience, where you say that you were commander in a tank unit. Is that

19 correct?

20 A. Indeed, Your Honours, from May 1998 [sic] until May 1990 when I

21 served in the second guides regiment with the Belgian armed forces in

22 Germany I was a platoon commander and particularly during the second year

23 I also --

24 JUDGE MOLOTO: Excuse me, did you say from May 1998 to May 1990?

25 THE WITNESS: Excuse me, Your Honours, May 1988 until May 1990.

Page 861

1 JUDGE MOLOTO: Thank you.

2 THE WITNESS: So I served as a platoon commander in the second

3 guides regiment in -- with the Belgian armed forces in Germany. During

4 the second year because my company commander was following courses, a

5 second language for French courses, to attend staff course, I had to

6 replace him at several occasions and also I -- doing a certain time period

7 I accomplished or carried out the tasks of a second commander of a

8 company.

9 MR. MILOVANCEVIC: [Interpretation]

10 Q. Is a tank platoon a basic armoured unit within the Belgian army?

11 Is that a basic and lowest tactical unit as it is, for examples in various

12 NATO countries?

13 A. Your Honours, you could describe it like that but actually when

14 you look at the ways how tank units are used, the company is actually the

15 smallest unit. We would rarely operate as a separate platoon because that

16 wouldn't make much sense from the armoured warfare point of view.

17 Q. Armoured units in which you served as an officer, were they three

18 partite or four partite? I'm asking you this because as far as I was able

19 to see it seems that the Warsaw Pact had four partite units composed out

20 of four elements and NATO countries usually had units composed out of

21 three elements.

22 A. Your Honours, I'm not sure whether I understand the question

23 correctly but a tank platoon, as it was in the regiment where I was

24 serving would consist of four tanks. A company would consist of three

25 platoons. That would mean 12 tanks plus then one tank for the company

Page 862

1 commander and we would actually call the company a squadron, and a tank

2 Battalion would then be -- would consist of three armoured companies,

3 i.e., 39 tanks and one tank for the battalion commander.

4 Q. Thank you, Mr. Theunens.

5 Let me just see if I understood you well. A tank platoon has four

6 tanks and a tank company has three platoons, so therefore it's a three

7 partite makeup. That's what I wanted to know, three times four means 12

8 tanks plus a command tank. Did I understand you well?

9 A. That's correct, Your Honours.

10 Q. The fact that from May 1988 to May 1990, you served as commander

11 of a tank platoon for one year and then after that, occasionally acted as

12 a commander of a tank company, did I interpret this right? Does this fact

13 mean that for one year, you were a commander of a unit which was composed

14 of four tanks and that occasionally, you acted as a commander of a unit

15 which has 12 or 13 armoured vehicles?

16 A. Your Honours, that's not entirely correct because there was no

17 clear division. In a sense that when I mentioned in my CV it was acting

18 commander of a tank company I remained platoon commander for two years

19 and, because I was the most senior platoon commander in that company, when

20 the company commander was not available, I was to replace him. And that's

21 common to any military procedure that when the commander isn't there, then

22 his deputy or an acting commander will replace him.

23 Q. Thank you, Mr. Theunens. I apologise if I misunderstood anything

24 you said previously. Now we have clarified this.

25 Can you please tell us, until what year did you serve as an active

Page 863

1 officer in command of a military unit, be it either a platoon or a

2 company, a tank one in this case?

3 A. Well, Your Honours, as is mentioned in my CV, in May 1990, the

4 battalion commander asked me whether I wanted to become his personnel

5 officer, so S1. And, okay, then I ceased to be a platoon commander and

6 also acting company commander.

7 Q. Is it true that following that, for one year, you were a commander

8 of the first year cadets at the polytechnics division?

9 A. Indeed, Your Honours, after having been a personnel officer on S1

10 in the second guides regiment I was called to return to the military

11 academy. The position to which I was assigned was a deputy commander of a

12 promotion, as we call it, so deputy commander of first years because there

13 was also a commander. However, I think it was in December or January of

14 that year, the commander decided to leave. He left the military. And

15 then I was appointed to replace him, so I stayed commander there of the

16 first -- that part of the first years until July or -- yeah, until July

17 or August. I think that was 1991, if I recall well. Excuse me, 1992.

18 Q. Mr. Theunens, can you tell us when did you stop serving in the

19 units of the Belgian armed forces, serving as an officer?

20 A. Your Honours, at this moment I'm still an officer in the Belgian

21 armed forces even though since the 28th of June 2001 when I started to

22 work here, I was seconded to the ICTY.

23 JUDGE MOLOTO: Is the short answer that you were an active member

24 until 2001?

25 THE WITNESS: Yes, Your Honour, I don't think that would be

Page 864

1 correct, Your Honours, because even though I'm not serving at the moment

2 theoretically I could always be called back.

3 JUDGE MOLOTO: But you're not active.

4 THE WITNESS: No, no, I'm not active but I'm not a reservist

5 either.

6 JUDGE MOLOTO: That's not the question. The question was were you

7 actively involved up until 2001.

8 THE WITNESS: Okay, Your Honours. That's correct, Your Honours.

9 JUDGE MOLOTO: Thank you.

10 MR. MILOVANCEVIC: [Interpretation]

11 Q. I don't know if we understood each other well. What I had in mind

12 was something stated in your CV, namely that in September of 1992, you

13 became an analyst for the Balkans, and you remained in that post until

14 June of 1999. This was a post within the Belgian General Staff.

15 A. Your Honours, that was not a post within the Belgian General Staff

16 but a post within the Belgian military intelligence and security service

17 which at that time responded directly to the Minister of Defence. There

18 has been a restructuring since I left, and now this -- the head of the

19 service is also an assistant Chief of Staff who responds to the chief of

20 defence military as well as the Minister of Defence. But all these

21 organisations, all the bodies I mentioned, are part of the armed forces,

22 Belgian armed forces, so as long as I stayed there I was still a member of

23 the Belgian armed forces. I would like to add that even though it was not

24 a combat unit but when I served in Sarajevo, from December 1998 until May

25 1999, I was in charge of what is called a national intelligence cell. I

Page 865

1 also had to command people even though not for combat tasks.

2 Q. Thank you, Mr. Theunens. Is it correct, then, that in September

3 of 1992 you stopped working as a command officer in the sense of combat

4 use of units and command of units, and that you moved into the area of

5 military intelligence and worked there as an officer once again, which is

6 a fact that we do not challenge?

7 A. Formulated this way, Your Honours, I mean the answer would be yes

8 or the answer is yes.

9 Q. Thank you, Mr. Theunens. We have now completed the part of the

10 cross-examination which deals with your CV, your work experience and so

11 on, and we will now turn to your expert report in this case.

12 In describing the purpose of this report, on page 2 of your

13 analysis, Mr. Theunens, do you state that the purpose of this report is to

14 analyse the role of the SAO Krajina Territorial Defence and the RSK

15 Territorial Defence as well as the role of the Serbian army of Krajina

16 during the conflict in Croatia from 1991 to 1995?

17 A. That's correct, Your Honours. That's one of the two purposes.

18 Q. In relation to this first aim, if we can call it so, was it your

19 task to also analyse the links between Milan Martic and these

20 organisations that we have just mentioned in the course of this conflict?

21 A. Yes, indeed, Your Honours but I saw, I mean I considered the links

22 between Milan Martic and these organisations as the second purpose of the

23 report or the second aim.

24 JUDGE MOLOTO: In fact, Mr. Milovancevic, doesn't it say so

25 expressly in his report, very first paragraph, the aim of there study is

Page 866

1 to analyse the role of the SAO Krajina, RSK TO and SVK during the conflict

2 in Croatia from 1991 to 1995, and the relations between Milan Martic and

3 these organisations throughout this conflict?

4 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. I will be

5 more specific in putting my questions. It was unintentionally -- it was

6 unintentional, the fact that this question was split into two parts.

7 JUDGE MOLOTO: It would be very helpful if you could do that.

8 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

9 Q. In order to attain the purpose or aim of this study, did you

10 divide this report into four parts, in such a way that parts 1 and 2 are

11 necessary in order to understand parts 3 and 4? You then go on to say

12 that it was not your intention to list in section 3 and 4 in detail the

13 operations of the armed forces in Croatia.

14 A. That's correct, Your Honours. Actually, I mentioned in this

15 introduction that this analysis was not intended as a detailed account of

16 all armed forces operations and more specifically I didn't analyse the

17 role of organisations known as ZNG, HV, and maybe other armed forces that

18 may have been involved in the conflict in Croatia between 1991 and 1995.

19 Q. In your opinion, is it possible, Mr. Theunens, to study and

20 analyse the role of one side in an armed conflict without simultaneously

21 studying and analysing the acts of the other side, its deployment, its

22 goals and tasks in specific missions?

23 A. Your Honours, I think that is very well possible because this is a

24 report on a certain topic and the topic has been explained. The role of

25 the SAO Krajina, RSK TO, and SVK so to study that role and analyse it and

Page 867

1 second aspect the linkage or the relations between Milan Martic and these

2 organisations. When you look around in libraries or on the internet you

3 will find plenty of studies both conflict analysis which will, of course,

4 look at the different parties but also studies on one specific party.

5 It's not a conflict analysis. It is focused on two specific topics and

6 even though at certain moments certain activities of the other side, if I

7 could call it like that, are mentioned, I don't think that they were

8 necessary -- I mean, I don't think a detailed study of the Croatian

9 positions, armed forces, intentions and other aspects are necessary to

10 understand how the SAO Krajina and RSK TO were established, how they

11 functioned, who supported them and what the role of Milan Martic was

12 between -- in organising, setting up and assisting these organisations,

13 and, more importantly, in commanding and controlling these organisations

14 where I would also like to add the SVK.

15 Q. I fully understood the aim of this report, and it is precisely as

16 you have just described it, Mr. Theunens, but my question was directed at

17 something else, Mr. Theunens. Is it possible to study the role of the SAO

18 Krajina Territorial Defence, the role of the TO of the Serbian Republic of

19 Krajina and its army during the conflict in Croatia without previously

20 establishing any cause and effect related issues, without establishing the

21 role and the influence of the acts of the other side in this conflict?

22 JUDGE MOLOTO: Wasn't that question answered? His question to --

23 the time you asked it the first time he said Your Honours I think that is

24 very well possible because this is a report on a certain topic and the

25 topic has been explained.

Page 868

1 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

2 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

3 MR. MILOVANCEVIC: [Interpretation]

4 Q. In order to attain the goal that you were facing, you have, as you

5 have explained to us, split this material into four sections, and there is

6 also an introductory part. You devoted your first chapter to the armed

7 forces of the SFRY or rather that was section 1. Section 2 were the armed

8 forces of the Republic of Serbia. Section 3 is Territorial Defence of the

9 SAO Krajina and RSK in 1991 to 1995. And section 4 is the SVK from May --

10 October 1992 to August 1995. Is this correct, Mr. Theunens?

11 A. That is correct, Your Honours. I'm just checking the time period

12 that applies to the -- to section 3 because I thought that it went from

13 1991 to 1992. And indeed, so I would like to make one small correction.

14 Section 3 covers the time period 1991 to 1992 because, as explained in the

15 report, in May 1992 and subsequently in October-November 1992, measures

16 were taken at the level of the RSK or the entity known as the RSK, to

17 transform the Territorial Defence into the SVK, the armed forces of the

18 entity known as Republic of Serbian Krajina.

19 Q. In section 2 of your analysis, which is entitled, "Armed forces of

20 the Republic of Serbia," you give a summary of the contents therein, which

21 is page 3 of your report, under item 2, armed forces of the Republic of

22 Serbia. Under item 3, duties of the president, Minister of Defence, and

23 Minister of the Interior in the Republic of Serbia; is that correct?

24 A. That's correct, Your Honours, and this is discussed on page 60 in

25 the English version of the report.

Page 869

1 Q. On page 57 in the English version, Mr. Theunens, in the summary

2 under item 1A, you say that this section describes the legislative

3 framework that applied to defence matters in the Republic of Serbia; is

4 that correct?

5 A. That is correct, Your Honours.

6 Q. Under item B of the summary, did you state that the 1990

7 constitution and the 1991 law of defence of the Republic of Serbia, that

8 under those pieces of legislation, the president of the republic commanded

9 the armed forces of the republic in peace and wartime?

10 A. Yes. That's correct, Your Honours and the underlying articles can

11 be found in the section 3 which starts with page 60 of the English

12 translation, or the English version, excuse me.

13 Q. Article 31 of the law of defence of the Republic of Serbia and

14 that is something you're analysing on page 57, where you state that it

15 underlines that the Territorial Defence of the Republic of Serbia was part

16 of the united armed forces of the SFRY; is that correct?

17 A. That's correct, Your Honours.

18 Q. Does the law on defence of the Republic of Serbia also state that

19 only the official bodies have the authority to arm, train, and equip the

20 armed forces?

21 A. That's correct, Your Honours, and I would like to add that this is

22 a particularly important part -- article, this Article 118, in light of

23 the existence of formations that became known as paramilitary or volunteer

24 formations which are discussed also in the second section of my report.

25 Q. Is Article 31 -- does Article 31 of 1991 defence law of the

Page 870

1 Republic of Serbia provide that the Territorial Defence in the Republic of

2 Serbia is a part of the united armed forces of the Socialist Federative

3 Republic of Yugoslavia?

4 A. Your Honours, I answered that question already. It's correct.

5 Q. Is it correct that the Territorial Defence of the Republic of

6 Serbia, as part of united armed forces of the SFRY Yugoslavia under the

7 constitution of the SFRY and Serbia came under the federal law?

8 A. Your Honours, I'm not sure what the word -- what the expression

9 "came under the federal law" means, if maybe that could be explained.

10 Q. On page 58 of your report, in the English version, the third

11 paragraph is where you say that the organisation, preparation,

12 development, and management of Territorial Defence within the united

13 defence system is carried out according to the constitution of the

14 Socialist Federative Republic of Yugoslavia, constitution of the Republic

15 of Serbia, and the federal law. Have you understood me now?

16 A. Yes, Your Honours. Thank you for the clarification. Indeed, that

17 is mentioned in Article 31 of the 1991 defence law of the Republic of

18 Serbia.

19 Q. On page 60 of your report in the English version, you state that

20 under Article 83, paragraph 5, of the 1990 constitution of the Republic of

21 Serbia, that the president commanded the armed forces in peacetime and

22 wartime; is that correct?

23 A. Indeed, Your Honour. This is paragraph 5 of Article 83 of the

24 1990 constitution of the Republic of Serbia.

25 Q. Is it correct that the armed forces mentioned in paragraph 5 have

Page 871

1 not been defined under the constitution, and I mean the constitution of

2 the Republic of Serbia, and that the Territorial Defence of Serbia is not

3 mentioned either?

4 A. Indeed, Your Honours, based on the research I did and the

5 documents I came across, that is a correct conclusion, which is also

6 mentioned in this particular section of the report.

7 Q. Isn't it correct that under Article 5 of the defence law of Serbia

8 which you mention on page 61, the organisation of the armed forces of the

9 Republic of Serbia shall be regulated in -- by special legislation?

10 A. Indeed, Your Honours, that's Article 5 of the 1991 defence law of

11 the Republic of Serbia.

12 Q. The special legislation which was to regulate the armed forces of

13 the Republic of Serbia, was it in fact enacted, Mr. Theunens?

14 A. Your Honours, I have -- doing my research, I have not come across

15 information that would allow to draw a conclusion or that would allow to

16 answer that question. The reason why I included certain aspects of the

17 legislation of the Republic of Serbia that apply to defence matters is

18 that as you can see in section 3 of the report, on the 1st of August 1991,

19 Milan Babic as president of the government of the SAO Krajina, with the

20 government, adopted a decision to apply the law of defence of the Republic

21 of Serbia on the territory known as SAO Krajina and it was only in

22 November 1991, if I recall well, that the SAO Krajina adopted its own

23 defence law, and this defence law is also discussed in section 3 of the

24 report.

25 Q. Thank you, Mr. Theunens. On page 62, do you say that Articles 113

Page 872

1 and 115 of the federal law of all people's defence from 1982 stipulated

2 that it was the SFRY Presidency that was in command of the Territorial

3 Defence?

4 A. That is correct, Your Honours.

5 Q. Can you tell us on the basis of what regulation or what was the

6 basis of your conclusion that the armed forces of the Republic of Serbia

7 which were not defined under the law, that these were, in fact, according

8 to you, the Territorial Defence forces?

9 A. Your Honours, if I remember well, and I'm trying to locate the

10 page in the report, there was mention in the law of defence of the

11 Republic of Serbia that was adopted on the 18th of July 1991, that as long

12 as armed forces of the republic were not defined, the TO was to serve as

13 the armed force of the republic. Now, even without this stipulation, it

14 was hard to imagine other armed forces for the Republic of Serbia except

15 for the TO and under certain circumstances the police.

16 Q. Mr. Theunens, I wish to refer you to page 57, which talks about

17 this part, where you say that the creation of the or rather that the

18 Territorial Defence forces make up the armed forces until such forces are

19 created.

20 A. M'hm.

21 Q. Is your answer yes?

22 A. Your Honours, I think I've answered the question.

23 Q. Can you explain how can the Territorial Defence, which is under

24 the SFRY defence system and commanded by the SFRY Presidency, where the

25 law on defence forces of Serbia was not enacted, where the Serbian

Page 873

1 constitution did not mention the Territorial Defence forces as the armed

2 forces of the Republic of Serbia, how can you draw the conclusion that the

3 TO was the armed force of Serbia in the face of all these factors which

4 existed?

5 A. Your Honours, during my work here I've also been involved in

6 interviewing witnesses for various trials and among these witnesses

7 including also suspects for various investigations and prosecutions, there

8 were former officials of the Ministry of Defence of the Republic of

9 Serbia, and they also mentioned when discussing these articles

10 Mr. Milovancevic has mentioned that there was an incoherence of what was

11 mentioned in the law on defence in the Republic of Serbia on one hand and

12 the federal legislation on the other hand.

13 I would also like to mention that, as you have seen from my CV, I

14 am not a legal expert. I have not spent much time on trying to find out,

15 dining my research I have not spent much time trying to find out what the

16 armed forces of the Republic of Serbia were at the time because that was

17 not the purpose of my report. As I mentioned in the introduction of the

18 report, sections 1 and sections 2 contain only that information that in my

19 opinion was required to be able to understand section 3 and section 4.

20 Whether the TO was the armed force of the Republic of Serbia, yes or no,

21 in my opinion, or at the time when I drafted this report, was not an

22 important issue.

23 Q. Article 31 of the law on defence of the Republic of Serbia, which

24 you mention on page 58 in the English version, at the very top, does it

25 not explicitly stipulate that the Territorial Defence of Serbia, as part

Page 874

1 of the united armed forces of Yugoslavia, protects independence,

2 sovereignty, territorial integrity, and constitutionally established

3 social structure of the SFRY and Serbia?

4 A. Indeed, Your Honours, that is correct. But all I can say is that

5 the law of -- the law of defence here mentions Territorial Defence,

6 whereas the constitution of the Republic of Serbia speaks about armed

7 forces.

8 Q. On page 64 of your report, in the section related to the duties of

9 the Minister of Defence, do you not quote article 9 of the law on defence

10 of Serbia from 1991 where you state that the duties of the Ministry of

11 Defence are the civilian protection and assistance in mobilisation, and

12 that the Ministry of Defence does not have command responsibility over the

13 Territorial Defence or the JNA -- over the Territorial Defence in Serbia

14 or the JNA?

15 A. Your Honours, indeed that is correct. That is what the law says

16 but I think if I'm --

17 Q. Thank you.

18 A. Your Honours I would like to finish my reply.

19 JUDGE MOLOTO: You may do so.

20 THE WITNESS: Your Honours, when you look in particular section 3

21 and 4, there are also examples or the evolution of the situation actually

22 shows that the law was one thing but the application of the law was

23 another thing, and that there may well have discrepancies at certain

24 instances between, on one hand, what is prescribed in the law and how

25 things should have been, and, on the other hand, how the law was applied

Page 875

1 and actually how things were.

2 MR. MILOVANCEVIC: [Interpretation]

3 Q. Did you not, under item 2, mention the provisions of legislation

4 under -- or rather of legislation in Serbia or did you in fact discuss

5 these discrepancies?

6 THE INTERPRETER: Interpreter's correction, in section 2, not item

7 2.

8 THE WITNESS: Your Honours, as is explained in the introduction of

9 the report, sections 1 and section 2 address legislation and regulations,

10 i.e. how things should be -- should have been. However in section 1, I

11 mentioned for example when addressing volunteers that notwithstanding the

12 laws that existed and that were quite clear and we just discussed Article

13 118 of the law of defence of the Republic of Serbia, that didn't allow

14 private persons or political parties to establish armed groups. In

15 section 1, I mentioned, for example, how the legislation that applied to

16 volunteers and was applied or not applied. So again, I didn't focus on

17 the discrepancies in relation to the armed forces of the Republic of

18 Serbia or the TO of the Republic of Serbia but I mentioned discrepancies

19 where they were more relevant, the level of volunteers, the evolution of

20 the goals of the SFRY armed forces, the evolution of the mission, I meant

21 to say, as well as the issues discussed in section 3 and section 4 of the

22 report.

23 Q. That was not my question, Mr. Theunens. My question was: At the

24 beginning of section 2, which is entitled, the armed forces of Serbia, do

25 you not, under item A say that this section describes the legislative

Page 876

1 framework that applied to defence matters in the Republic of Serbia,

2 whereas now you're discussing the practice, the [indiscernible] and

3 something completely different? Isn't that right?

4 A. Your Honours, I wouldn't say it's completely different. I think

5 there is an intimate relation between on one hand the law and on the other

6 hand what happened. And again, yes, indeed, I understood Mr. Milovancevic

7 asking me about certain articles of various laws and all I can answer is

8 that indeed the quotations Mr. Milovancevic makes correspond with the text

9 of the articles. Now, whether this also was the case in practice, that

10 may well be another thing.

11 Q. Article 10 of the Defence law of the Republic of Serbia from 1991,

12 which you mention on page 65 of your report, does it not say that the

13 Minister of the Interior does not have command responsibility over the TO

14 of the Republic of Serbia or the JNA?

15 A. Indeed, Your Honours, that is what is written in Article 10 of the

16 1991 law on defence of the Republic of Serbia.

17 Q. Have we not briefly now come to the conclusion that the SFRY

18 Presidency commanded the TO defence, that the Ministry of Defence of

19 Serbia had no command responsibility over the TO of Serbia, that the

20 Ministry of the Interior had no command responsibility over the TO of

21 Serbia, that the Serbian constitution does not mention the armed forces of

22 the Republic of Serbia or the Territorial Defence and that you, in section

23 2, assert that the Territorial Defence constituted the armed forces of the

24 Republic of Serbia? Is that clear, that that's in fact what you asserted?

25 JUDGE MOLOTO: Mr. Milovancevic, what in all that, which one do

Page 877

1 you want the witness to answer to? In all that long paragraph, when you

2 say, is that clear, that that's in fact what you said, what is clear?

3 MR. MILOVANCEVIC: [Interpretation] Yes. Precisely. I'm referring

4 to this last part, Your Honour, the question is rather long, but I

5 repeated what the witness stated and my question to him, whether he stood

6 by his position that the Territorial Defence of Serbia constituted the

7 armed forces of Serbia, and that the section 2 he wrote was in accordance

8 with the then valid legislation?

9 JUDGE MOLOTO: I'm still not clear what you're saying. You have

10 asked a question at paragraph 15 10 there. Have you not briefly now come

11 to the conclusion and it goes on and then you end up by saying, "Is that

12 clear?" Are you saying you are referring to the first part but the last

13 part? What about the first part?.

14 MR. MILOVANCEVIC: [Interpretation] Your Honour, if it will be of

15 assistance, I will rephrase the question.

16 JUDGE MOLOTO: Please do so.

17 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

18 Q. My question for the witness was: Based on the explicit provisions

19 of the legislation we just quoted, briefly stated, that the armed forces

20 of Serbia, under the Serbian constitution, under the SFRY constitution,

21 under the defence law of the SFRY from 1982 and under the defence law of

22 Serbia from 1991, that the armed forces of Serbia did not exist?

23 A. Your Honours, I'm confused by the question because do you ask me a

24 legal question or a question on how the situation was in reality? Because

25 if it's a legal question, then I would say, well, we looked at a number of

Page 878

1 articles and according to the law, indeed, there were -- there was no such

2 thing as armed force of the Republic of Serbia except for the TO.

3 However, if we look at how the law was applied and we have addressed

4 that --

5 Q. Thank you, Mr. Theunens. Thank you, Mr. Theunens. You have

6 answered my question.

7 A. But, Your Honours, I don't think I finished my answer, if you will

8 allow you me.

9 JUDGE MOLOTO: Finish your answer, please.

10 THE WITNESS: In section 1, again without going into details, the

11 issue of volunteers and paramilitary groups affiliated to political

12 parties in Serbia is, based on my analysis, a good example of the

13 situation where the law was not applied and also the issues developed in

14 sections 3 and 4 also demonstrate that the laws and the legislation was

15 not always applied as it had been defined.

16 JUDGE NOSWORTHY: Before we go on, Mr. Milovancevic, I think you

17 have to develop the art of breaking down your questions relating to a

18 particular piece of legislation individually. And in all fairness to the

19 witness, you do have to learn to distinguish between when you are stating

20 a provision of the law as contained in his evidence as against his own

21 conclusions that are drawn. When you proceed, I'd be grateful if you

22 could try and do that. Thank you.

23 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

24 Q. I had in mind the conclusion that Mr. Theunens drew on page 57,

25 item 1 b. under summary. Mr. Theunens very briefly gives a provision of

Page 879

1 the 1990 constitution and the 1991 law on defence of the Republic of

2 Serbia, saying that the president of the republic is the commander of the

3 armed forces of the Republic of Serbia in peace and wartime, and then he

4 goes on to give us his own conclusion, that until the creation of such

5 armed forces, the TO was to constitute these armed forces.

6 Q. Did you write this, Mr. Theunens?

7 A. Your Honours, I think I've answered the question extensively.

8 Q. Thank you, Mr. Theunens. In the introductory portion of your

9 report, did you explain that page 1 -- or rather that the section 1 and 2

10 were to serve as the material enabling us to understand sections 3 and 4?

11 JUDGE MOLOTO: Mr. Milovancevic, it looks like you're going into a

12 new point now. Are you going into a new point?

13 MR. MILOVANCEVIC: [Interpretation] Your Honour, we can have a

14 break now. I will have several more brief questions pertaining to these

15 issues and then we will turn to some other matters. I think this would be

16 a good time for a break and we can continue after the break.

17 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic.

18 The Court will adjourn for 30 minutes. We'll come back at quarter

19 to.

20 Court adjourned.

21 --- Recess taken at 10.18 a.m.

22 --- On resuming at 10.47 a.m.

23 JUDGE MOLOTO: Mr. Milovancevic, you may proceed.

24 MR. MILOVANCEVIC: [Interpretation] May I continue, Your Honour?

25 JUDGE MOLOTO: You may proceed, Mr. Milovancevic.

Page 880

1 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

2 Q. We ended before the break at the point where we were dealing with

3 section 2, Mr. Theunens. I have just a few more questions concerning that

4 section.

5 In the introductory part of your expert witness report, as well as

6 in the introductory part on page 57 of your report, you say that the

7 purpose of section 2 is to give the legislative framework that applied to

8 defence matters in the Republic of Serbia; is that correct?

9 A. That is correct, Your Honours.

10 Q. In the course of your testimony, when answering the questions put

11 to you by the Prosecution, did you state that you did not use in your work

12 witness statements?

13 A. That is correct, Your Honours.

14 Q. Am I quoting the provision of the Serbian constitution correctly

15 when I say that the constitution of the Republic of Serbia does not define

16 the armed forces of Serbia?

17 A. Are you referring to a specific article, Your Honours, or am I to

18 answer as such?

19 Q. I'm referring to page 60, where you mention Article 83 of the

20 constitution of Serbia, paragraph 5, wherein the chapter, president of the

21 Serbia, item 1, you say that the armed forces are not defined in the

22 constitution and that there is no reference in the constitution of the

23 Territorial Defence. Is this what you wrote?

24 JUDGE MOLOTO: Page 60. What article, Mr. Milovancevic? What are

25 you talking about there?

Page 881

1 MR. MILOVANCEVIC: [Interpretation] Your Honour, under item 3,

2 which is entitled "Duties of the President of the Republic of Serbia,

3 Minister of Defence, Minister of Interior," following under A there is the

4 president of Serbia and then a.(1) is a provision of Article 83 of the

5 constitution of Serbia and then following that, paragraph 5 is mentioned,

6 and then just before the quotation --

7 JUDGE MOLOTO: [Microphone not activated]

8 THE WITNESS: Your Honour, that's indeed what I wrote in the -- in

9 my report on page 60, English version.

10 MR. MILOVANCEVIC: [Interpretation]

11 Q. You speak of the legislative framework that has to do with the

12 defence matters of the Republic of Serbia. Did you really have the

13 legislative framework to claim what you claimed, namely that the

14 Territorial Defence of Serbia represents the armed forces of Serbia?

15 A. Your Honours, I think we are addressing this question for the

16 third or the fourth time, but all I can say is that the constitution of

17 the Republic of Serbia was adopted in September 1990. The articles I

18 mention in my report speak about -- use the term armed forces without

19 defining it. As I -- I stand by what I wrote in my report that the

20 articles of the constitution of the Republic of Serbia of September 1990

21 do not mention Territorial Defence. In this section 2, I also address the

22 law on defence of the Republic of Serbia which was adopted in July 1991,

23 so almost a year later, and there the articles I've included in section 2

24 of my report, they speak about Territorial Defence and I don't think,

25 maybe we could check it, but I don't think they mention the term armed

Page 882

1 forces. That's all I wish to answer to that question.

2 Q. Thank you, Mr. Theunens. We have concluded with section 2.

3 On page 66 of your expert witness report, Mr. Theunens, we have

4 section 3 of your report, entitled, "SAO Krajina Territorial Defence. In

5 parenthesis, 1991" is that correct?

6 A. Your Honours, that was a title that was provided initially -- or

7 included initially in the report that was filed in February 2005. I would

8 like to bring your attention to the corrigendum that was distributed at

9 the beginning of my testimony, it has the ERN for the English version,

10 04668250, 04668251, and there you will see that on the second page of the

11 corrigendum, that the title as it has been read out by Mr. Milovancevic

12 has to be replaced with section 3, SAO Krajina/RSK TO, and then between

13 brackets 1991-1992.

14 Q. Thank you, Mr. Theunens. It was not my intention to challenge the

15 title as such, because in the contents portion, the title quoted there is

16 precisely as you have just read it out to us. So I apologise to you for

17 this misunderstanding.

18 Under item A of the summary, you say that this section, meaning

19 section 3, deals with the changes within the Supreme Command at the outset

20 of the conflict in Croatia and the impact this had on the mission of the

21 JNA during the conflict in Croatia, is this correct?

22 A. That is correct, Your Honours.

23 Q. Given that you have mentioned the conflict in Croatia, can you

24 tell us who took part in the conflict and when the conflict erupted?

25 A. Your Honours, in the introduction of my report we discussed this

Page 883

1 morning, it is mentioned that my report is not a conflict analysis and

2 doesn't, whether it comes to also the topics I have discussed doesn't

3 intend to be a complete overview of all activities during the conflict.

4 So to answer the question I did not study the conflict in Croatia in

5 detail because that indeed would imply that it would also look at issues

6 related to Croatian forces, and this answer also implies that I didn't

7 analyse in detail when exactly the conflict in Croatia started.

8 Q. What you just said, Mr. Theunens, is written in the introductory

9 part and this is something that you have already stated. What I'm

10 interested in is whether, in drafting section 3 in its analysis, did you

11 assess the constitutional authorities and the JNA in view of their

12 participation in the conflict or did you perhaps use some other method?

13 A. Your Honours, what I did is I compared the constitutional mission

14 as it had been defined in the 1974 constitution and confirmed in the 1982

15 all people's defence law, and then I looked at a number of sources that

16 actually describes the role of the JNA during the conflict in Croatia.

17 The sources I used are mentioned in the beginning of section 3. They

18 include the book by develop Veljko Kadijevic, My View of the Break-up. I

19 also looked at the book by Borisav Jovic who was the outgoing president of

20 the SFRY Presidency in May 1991 but who stayed in the Presidency, his book

21 is called, "Last days of the SFRY." And then I also looked at

22 contemporaneous JNA documents or statements of the SFRY Supreme Command

23 staff, in order to come to a description of what the JNA actually did

24 during the conflict in Croatia.

25 Q. Do you state in item B, when talking about the constitutional

Page 884

1 mission of the SFRY armed forces, that starting in the summer of 1991,

2 following the JNA's withdrawal from Slovenia, the situation in Croatia

3 evolved in such a way that the role of the armed forces became less clear

4 from a military point of view?

5 A. That is correct, Your Honours.

6 Q. When giving such a conclusion, did you take into account the

7 development of the situation and events in Croatia? I'm referring to this

8 period of time that you're analysing.

9 A. Indeed, Your Honours, the sources I mentioned in my reply to the

10 previous question obviously discuss the situation in -- the development of

11 the situation in Croatia, because it's an inherent part in the change of

12 mission of the JNA.

13 Q. Does this answer mean that you did take into account the

14 development of the situation in Croatia during the conflict in Croatia?

15 A. Maybe I should be more clear. What I did was I took into account

16 or I used the information contained in the sources I mentioned to -- not

17 only to draft the section but also to understand how again these sources

18 saw the evolution of the situation in Croatia.

19 Q. Does this mean that the acts of the SFRY armed forces in Croatia

20 in 1991, in the summer of 1991, following the withdrawal of the JNA from

21 Slovenia, at the time when there was a conflict in Croatia, was something

22 that you took into account as acts of one armed forces without taking into

23 account the acts of the other side to the conflict, and that you have no

24 information about the acts of the other side?

25 A. Your Honours, that's an incorrect representation of the answer I

Page 885

1 gave to the previous question.

2 Q. On page 68 of your report, under the heading, "The SFRY armed

3 forces at the outset of the conflict in Croatia," or on the eve of the

4 conflict of Croatia, under item A you discuss the overall command and

5 control; is that correct, Mr. Theunens?

6 A. Indeed, Your Honours, the chart represents the structure as it

7 existed in peacetime. Of course, once one of the three states is being

8 declared, a state of emergency, a state of imminent threat of war or a

9 state of war, then as I have explained in the first section of the report,

10 certain changes would occur whereby, for example, the federal Presidency

11 would become the Supreme Command and the federal Secretariat for

12 national -- for people's defence, together with the General Staff would

13 become the staff of the Supreme Command, whereby the federal secretary for

14 people's defence, in this situation army general Kadijevic would become

15 the Chief of Staff of the staff of the Supreme Command.

16 Q. On the same page, page 68 of your report, do you state that on the

17 15th of May 1991, Stipe Mesic, the Croatian member of the SFRY Presidency,

18 who was supposed to take over the role of the president of the Presidency,

19 failed to obtain the necessary quorum from the other members of the

20 Presidency?

21 A. Indeed, Your Honours, and I would like to add that I also mention

22 in the footnote 201 the views Borisav Jovic, who was the outgoing chairman

23 of the SFRY Presidency, the views Borisav Jovic had on the circumstances

24 of the failure of Mesic to obtain the necessary quorum.

25 Q. The issue of the election of the president of Presidency, is it

Page 886

1 something that is regulated by the rules of procedure of that body, the

2 Presidency? Did you hear of such a document?

3 JUDGE MOLOTO: What document?

4 MR. MILOVANCEVIC: [Interpretation] Your Honours, I'm now referring

5 to the Presidency of the SFRY, which was a collective body. I simply

6 wanted to ask the witness whether he knew that the work and the

7 functioning of the Presidency of such a collective body was regulated by

8 an enactment, a type of a document that regulated rules of procedure, how

9 the votes were to be taken and so on.

10 Q. Does the witness know about this?

11 THE WITNESS: Your Honours, on -- in section 1, so on page 13 of

12 the English version, I only list a number of articles of the 1974 SFRY

13 constitution that deal with the Presidency. I didn't analyse the rules of

14 procedure or other aspects related to the Presidency in detail, because I

15 believed that it was outside of the tasking I received when starting to

16 compile this report or to draft this report.

17 MR. MILOVANCEVIC: [Interpretation]

18 Q. Is it true that you were aware of the fact that in order to elect

19 a president of the Presidency, a quorum is needed as well as a majority of

20 votes?

21 A. Your Honours, again I didn't analyse the rules of procedure, and I

22 think that in the context of the issues we are discussing, the information

23 mentioned in footnote 201, so at the bottom of page 68 of the English

24 version, is more relevant. According to what Borisav Jovic, who was -

25 again I mentioned it earlier - the outgoing chairman of the Presidency,

Page 887

1 and he was also a representative of the Republic of Serbia in the SFRY

2 Presidency, Jovic wrote in his published diary, and that's entry for 13th

3 of May, that he, Slobodan Milosevic, who was the president of Serbia,

4 Momir Bulatovic, who was the president of Montenegro, and Jugoslav Kostic

5 had agreed that Mesic could not be elected. I considered this entry more

6 important when discussing the evolution of the mission of the JNA than

7 rules of procedure which would have been addressed in section 1, i.e. the

8 de jure situation.

9 Q. Is it clear then, that following the voting process in the SFRY,

10 the voting of the attending members, Mr. Mesic did not have the necessary

11 number of votes?

12 JUDGE MOLOTO: Mr. Milovancevic, I don't want to interfere with

13 your line of cross-examination, but I thought that you put to the witness

14 a little earlier that Mr. Mesic couldn't even get a quorum. Am I right?

15 Mr. Milovancevic?

16 MR. MILOVANCEVIC: [Interpretation] Your Honour, I just put to the

17 expert witness, Mr. Theunens, the text on page 68, under the chart,

18 federal Presidency of the SFRY. The paragraph underneath it, beginning

19 with the words, "On 15th of May," continues on to say that Mr. Mesic was

20 not elected president of the Presidency because, as the witness says, he

21 failed to obtain the necessary quorum. What I'm trying to clarify is that

22 Mr. Mesic failed to obtain the necessary number of votes.

23 JUDGE MOLOTO: Mr. Milovancevic, I'm asking you my question once

24 again: Am I right to say that that paragraph you've just quoted says

25 Mr. Mesic didn't get a quorum?

Page 888

1 MR. MILOVANCEVIC: [Interpretation] Yes.

2 JUDGE MOLOTO: Now, if he didn't get a quorum, how can there be a

3 vote? There is no meeting. If there is no meeting the meeting can't take

4 place. Isn't that so? So the voting cannot take place.

5 MR. MILOVANCEVIC: [Interpretation] Your Honour, by your leave, I'd

6 like it say this. The witness just explained to us, by referring to

7 footnote 201, that he quoted the words of Borisav Jovic who, until then,

8 was president of the Presidency and was a Serbian member of the

9 Presidency. He said that four members of the Presidency voted against

10 appointment of Mr. Mesic and then I followed up on the explanation that

11 the witness gave to my question. I am not here to draw your attention to

12 the fact that the witness is legally unqualified to distinguish between a

13 majority of votes and a quorum.

14 JUDGE MOLOTO: Mr. Milovancevic, where in that footnote does the

15 witness say that that they couldn't get a vote, that the Presidency voted

16 against him? Where does he say that? Because all I see here is that he

17 says that they agreed that he could not be elected. I don't see where he

18 says that they voted against him or --

19 MR. MILOVANCEVIC: [No interpretation]

20 JUDGE MOLOTO: What is the interpretation of what Mr. Milovancevic

21 said?

22 MR. MILOVANCEVIC: [Interpretation] Your Honour, in putting these

23 questions, I only intend to get the witness's answer. That's to say

24 whether the SFRY Presidency elected Stjepan Mesic when his voting was to

25 be processed or not, and the witness answered that there was no quorum.

Page 889

1 However, to me, the important issue is whether the SFRY Presidency elected

2 Mr. Mesic when the time came for his election to take place or not.

3 JUDGE MOLOTO: Well, Mr. Milovancevic, if that's what you want to

4 do, then do it. Don't do what you have been doing. Because what you have

5 been doing is you are asking him questions which don't follow from the

6 document before us, number 1. Number 2, which don't follow ordinary

7 logic. Logic says if there is no quorum, there can be no meeting,

8 therefore there can be no voting. What's before us says that -- on the

9 footnote there, that the other people there agreed that Mesic shall not be

10 elected, could not be elected. There is no where where it says that they

11 voted against him. So put questions to the witness that are correct and

12 not misleading, please.

13 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour. It

14 was not my intention to put questions to the witness that would mislead

15 him.

16 JUDGE MOLOTO: That was the effect, Mr. Milovancevic.

17 MR. MILOVANCEVIC: [Interpretation] I am sorry and I will do my

18 best not to have this happen again.

19 JUDGE MOLOTO: Thank you.

20 MR. MILOVANCEVIC: [Interpretation] Thank you.

21 Q. On this same page, did you not write that after the intervention

22 of the European Union, Mr. Mesic was elected president of the Presidency

23 of Yugoslavia?

24 A. Your Honours, what I wrote is that Mr. Mesic assumed the position

25 or the post of president of the Presidency. Now, it was not part of my

Page 890

1 report to analyse the circumstances of the election or the appointment of

2 Mr. Mesic to the position of president of the SFRY Presidency.

3 Q. Mr. Theunens, my question was as follows: You said that after the

4 intervention of the European Union, Mr. Mesic assumed the post of

5 president of the Presidency of Yugoslavia. Now, is that correct?

6 A. Your Honours, I answered that question. It's implied in the

7 answer to the previous question.

8 JUDGE MOLOTO: It's not implied it's absolutely correct, that's

9 what he said there: "Mr. Mesic assumed the post of the president of the

10 Presidency."

11 MR. MILOVANCEVIC: [Interpretation]

12 Q. On page 69, do you state this is at the top of the page under item

13 2, that the federal secretary for people's defence, General Veljko

14 Kadijevic, did not recognise Mesic as the new Supreme Commander?

15 A. Your Honours, that is a conclusion based on what Kadijevic not

16 only wrote in his book in 1993, My View of the Break-up, but also when we

17 review the exhibit -- and I'm identifying the document -- the document

18 with 65 ter number 1850, also shows Kadijevic's views or his attitude

19 towards Mr. Mesic as Supreme Commander. Exhibit 65 ter 1850 is discussed

20 on page 77 of the English version.

21 Q. [Microphone not activated]

22 THE INTERPRETER: Microphone for the counsel.

23 JUDGE MOLOTO: Microphone, Mr. Milovancevic.

24 MR. MILOVANCEVIC: [Interpretation] I apologise.

25 Q. Below paragraph 2, when explaining why the secretary for people's

Page 891

1 defence did not recognise Mesic as the new Supreme Commander, do you not

2 give a quotation which says there were two reasons for this, Mesic could

3 not have any personal influence as president of the Presidency because

4 among other things he had already publicly compromised [as interpreted]

5 himself as the destroyer of Yugoslavia, and because of his attempts to

6 gain influence looked ridiculous, and that there were orders he issued

7 through the media and which the Supreme Command simply ignored?

8 A. Indeed, I think it's very serious when the Supreme Command

9 symbolised by General Kadijevic does not recognise his Supreme Commander.

10 That is clearly visible through the quotation you mentioned, the quotation

11 from Kadijevic's book in which Kadijevic expresses his views on Mesic.

12 Q. Is it true that Mr. Kadijevic in his book, which is Exhibit 1370,

13 explicitly states on page 35, in the B/C/S, you say that you read the

14 book, you should remember, that he says that at the end of 1989, the

15 events in Yugoslavia were practically in the hands of an international

16 players; is that correct? Do you remember that?

17 A. Your Honours, I did read General Kadijevic's book several times

18 but I don't recall what his exactly what is mentioned on page 35. So if

19 I'm to comment on page 35 I would like to have it in front of me. And

20 otherwise I can only say, well, that the book reflects Kadijevic's views.

21 Q. Having read the book, do you remember, I only mentioned one

22 sentence from page 35, rather than quoting the entire page, that on page

23 37, Kadijevic says that the attitude of the international community

24 towards the JNA had several stages, the first one was to have Stjepan

25 Mesic assume the position of president of SFRY Presidency with a view to

Page 892

1 having control over the army? Do you recall such an assertion by

2 General Kadijevic?

3 A. Your Honours, if I'm expected to comment on it, I would prefer to

4 have the English page in front of me. That would make it easier for me.

5 JUDGE MOLOTO: Without the --

6 MR. MILOVANCEVIC: [Interpretation] Is it possible?

7 JUDGE MOLOTO: Without the book before you, do you recall or don't

8 you recall that kind of fact?

9 THE WITNESS: Your Honours, from the book, one can conclude indeed

10 that not only Kadijevic but a number of people --

11 JUDGE MOLOTO: No, Mr. -- do you understand my question? My

12 question to you is without the book before you, are you able to recall

13 that statement that had been made to you and your answer is then I can

14 recall or I don't recall.

15 THE WITNESS: I don't recall.

16 JUDGE MOLOTO: You don't.

17 THE WITNESS: I don't recall the exact statement. I know the

18 general flavour of it, Your Honour, but I don't --

19 JUDGE MOLOTO: Thank you.

20 Proceed, Mr. Milovancevic.

21 MR. MILOVANCEVIC: [Interpretation]

22 Q. Do you recall, and this has to do with the part of the text you

23 quoted, which we heard a moment ago, which were the reasons why

24 General Kadijevic did not recognise Mesic, that in his book on the same

25 page that you quoted here, Mr. Kadijevic says, and this is under the same

Page 893

1 chapter, that this initial attempt by the representatives of the

2 international community --

3 THE INTERPRETER: Interpreter's correction, of the European

4 Community.

5 MR. MILOVANCEVIC: [Interpretation]

6 Q. To have Mr. Mesic assume the position of SFRY Presidency with a

7 view to assuming control over the army, drew to a close quite soon because

8 they realised that they could not have any control over the army?

9 MR. BLACK: Excuse me, Your Honour, I apologise for the

10 interruption. This shouldn't really be a memory test. He's asked now

11 twice to see the document. It's Exhibit 24 in evidence. I think the

12 witness ought to be allowed to see it, please.

13 JUDGE MOLOTO: Any response, Mr. Milovancevic?

14 MR. MILOVANCEVIC: [Interpretation] I tried to put questions this

15 way, Your Honour, because I thought that this would allow me to go through

16 the topics in a more rapid manner. If the witness were familiar with

17 this, especially with the matters on page 37.

18 The reason why I'm putting these questions is that the sense of

19 what I'm quoting right now was distorted and that's why I'm showing this

20 to the witness without presenting the book to him. If you agree with me

21 that we should present the witness with the document, then we could take

22 it page by page.

23 JUDGE MOLOTO: I'm not quite sure I follow your argument but you

24 understand that this is not a memory test for the witness. I'm not sure

25 whether -- are you questioning his memory on issues or are you questioning

Page 894

1 his -- the conclusions he drew given the information that he had before

2 him? I'm not quite sure what you are doing, Mr. Milovancevic.

3 MR. MILOVANCEVIC: [Interpretation] Your Honour, perhaps the

4 Registry should, and this has to do with the 65 ter Exhibit number 1370,

5 perhaps the Registry could show us page 37. This is Exhibit 24 admitted

6 in this case through the first witness. The reason I'm suggesting this is

7 that, on page 69, the witness quoted one part of Mr. Kadijevic's words in

8 such a way that the sense of what was said has been completely changed,

9 and this can be in fact seen only once we look at this page.

10 JUDGE MOLOTO: Which is why, then, you must allow that he be given

11 the page, sir. Can he be given the document, then? Then you can confront

12 him with the incorrect quotations. Then in which event then I should -- I

13 will -- the objection will be upheld. Provide the witness with the book,

14 Mr. Milovancevic.

15 MR. MILOVANCEVIC: [Interpretation] Your Honour, this exhibit has

16 been admitted, Exhibit 1370 has been already admitted as Prosecution

17 Exhibit 24.

18 JUDGE MOLOTO: Get it pulled out, Mr. Milovancevic. Let's see it

19 on the ELMO or wherever we can see it or in hard copy, and let the witness

20 get a copy of it right now.

21 MR. MILOVANCEVIC: [Interpretation] Exhibit 24, and could we look

22 at page 37 in the B/C/S?

23 JUDGE MOLOTO: I would imagine that the Bench will require the

24 English version also.

25 MR. BLACK: Your Honour, if it's any assistance, I have not

Page 895

1 identified the specific page in the English he's talking about but I think

2 it should start after 00362703, that being the ERN of the first page that

3 discusses the war in Croatia. If that gets us closer.

4 JUDGE MOLOTO: Thank you, Mr. Black.

5 MR. MILOVANCEVIC: [Interpretation] Your Honour, we have page 71 on

6 the screen in the B/C/S, whereas we need to find page 37, and then the

7 corresponding English page.

8 JUDGE MOLOTO: May we please get page 37 in the B/C/S on the

9 screen?

10 [Trial Chamber and registrar confer]

11 JUDGE MOLOTO: There is a request for the ERN number of the

12 particular page to be able to get to page 37, please. Can you give us

13 that, Mr. Milovancevic?

14 MR. MILOVANCEVIC: [Interpretation] Just a moment, please,

15 Your Honour.

16 [Defence counsel confer].

17 MR. BLACK: Your Honours, I believe that's 0035-9445; in the

18 B/C/S, it should be page 37.

19 MR. MILOVANCEVIC: [Interpretation] I thank my learned friend.

20 JUDGE MOLOTO: Thank you.

21 MR. MILOVANCEVIC: [Interpretation]

22 Q. Therefore, the entire passage, or rather the third passage from

23 the top on page 37 has to do with the issues I asked of the witness. In

24 the middle of this particular paragraph --

25 JUDGE MOLOTO: Mr. Milovancevic, do you think you can favour the

Page 896

1 Bench and those of us who don't know B/C/S with the correct page of the

2 English version?

3 MR. MILOVANCEVIC: [Interpretation] A moment, please, Your Honour.

4 This is page 00362655, the last paragraph, which goes on to the

5 next page, and I apologise for the delay.

6 JUDGE MOLOTO: Do you have -- you say 00362655, Mr. Milovancevic,

7 the last sentence?

8 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.

9 JUDGE MOLOTO: Thank you. Thanks.

10 MR. MILOVANCEVIC: [Interpretation] Therefore, the third paragraph

11 from the top on this page, which is page 37 in the B/C/S, commences with

12 Mr. Kadijevic's assessment of what the representatives of the European

13 Community's altitude toward the JNA was and their wish to have control

14 over it, which we discussed already.

15 Q. In the middle of the page, after the point where he says that the

16 activities aimed at having Mr. Mesic assume the position of the president

17 of the Presidency with a view to -- I apologise -- with a view to assuming

18 control over the army, which will make it impossible for the army to play

19 any sort of independent role, or a role aimed at Serbian interests, there,

20 Mr. Kadijevic says the following: "This phase ended quite soon because

21 they, just as Mesic did, realised that no control could be established

22 over the army. This was the case because of two reasons."

23 Therefore, is it correct, Mr. Theunens, that Mr. Kadijevic in his

24 book and the text that you quote here talks of two reasons why it was not

25 possible for the European Community to control the army through Mesic,

Page 897

1 whereas you present these two reasons as the reasons for which purportedly

2 General Kadijevic did not recognise Mesic? Are these two different

3 things?

4 A. Your Honours, I would like to bring us back to my report. The

5 issue we were discussing was Stipe Mesic assuming the chairman of the SFRY

6 Presidency as was normally intended to. All I tried to do is to focus on

7 that. I didn't study the role of the international community in the

8 conflict in 1991 prior to the deployment of UNPROFOR because then at least

9 from analytical point of view, I wouldn't only use Kadijevic's book. I

10 think the key issue in this section here is that indeed I used Kadijevic's

11 book but I also looked at other sources and, in particular, JNA --

12 contemporaneous JNA documents from 1991, to find whether Kadijevic's views

13 were corroborated or not whether it comes to the evolution of the mission

14 of the JNA.

15 Now, what Kadijevic alleges in relation to the responsibility or

16 the role of the international community in the events in Croatia in 1991,

17 I'm in no position whatsoever to comment or to discuss that because this

18 is only one source. In analysis you don't work with just one source, you

19 look at several sources. You look at the credibility, the reliability of

20 the source, excuse me, the credibility of the information and you compare

21 it and then you come to that assessment but it's not just one source.

22 Q. Is it controversial that Mr. Kadijevic says in this book that

23 Mesic had no authority because he was trying to issue orders to the army

24 through the media?

25 A. Your Honours, the passage on page 69 in the English version of my

Page 898

1 report tries to explain the attitude Kadijevic had towards Mesic. I think

2 the paragraph there is quoted from Kadijevic's book is quite clear. Now,

3 obviously there will be other passages in Kadijevic's book where he

4 addresses his feelings towards Mr. Mesic but again that was outside the

5 context of this report. In my opinion, the passage quoted on the top of

6 page 69 is sufficient to understand the relation or - excuse me - the view

7 Kadijevic as a Chief of Staff of the Supreme Command has on Stipe Mesic

8 who was the Supreme Commander.

9 Q. Thank you, Mr. Theunens. Are you aware of the fact that in

10 February 1991, on the 20th of February 1991, the then Republic of Croatia

11 decided to secede from Yugoslavia and took a decision to the effect that

12 all of the -- all of Yugoslavia's laws ceased to have any validity on its

13 territory?

14 A. Your Honours, I'm aware of the overall developments at the time

15 but I'm not aware of this specific decision.

16 Q. Are you aware that a referendum on the independence of Croatia and

17 its secession from Yugoslavia was held in Croatia in 1991?

18 A. Your Honours, I am aware of a referendum for independence in

19 Croatia in 1991, as I am also aware of similar referendums or referendum

20 on the territory known as the SAO Krajina. Sorry, I have to add, with

21 obviously other questions than the questions that were asked in the

22 Croatian referendum.

23 Q. On the previous page, page 68, did you not state that Stipe Mesic

24 was elected or rather assumed the post of president of the Presidency at

25 the intervention of the European Union? And that he assumed the role on

Page 899

1 the 1st of July, although the referendum for the secession of Croatia had

2 already been held?

3 A. Your Honour, referendum -- the referendum that was held in Croatia

4 was not subject of my report, and in the context of the issue that was

5 being discussed here, the overall command and control over the SFRY armed

6 forces, I didn't consider that essential at that time. And I didn't

7 consider it essential in that context, I apologise.

8 Q. Are you familiar with the statement Mr. Mesic gave in late October

9 1991 upon leaving Belgrade and going to Croatia, to Zagreb? The statement

10 read as follows: "I have accomplished my mission. Yugoslavia is no

11 more."

12 A. Your Honours, I have heard that statement quoted quite often but I

13 don't recall exactly whether he really made it. I would have to see the

14 statement, from my point of view, and when he made it.

15 Q. Mr. Theunens, do you know that at the time when Mr. Mesic was

16 appointed president of the Presidency of Yugoslavia, and he was a member

17 from Croatia, he was a Croat, Ante Markovic was the federal Prime

18 Minister, Budimir Loncar was foreign minister, both of them were Croats,

19 head of the federal security services was also a Croat, Zdravko Mustac?

20 A. Your Honours, I remember that Ante Markovic was the federal Prime

21 Minister. The other people, I don't recall exactly what their duties

22 were.

23 Q. These facts showing that the top offices of the state leadership

24 of Yugoslavia were held by members of -- from a republic which was

25 engaging in a secession, did you take them into account when analysing the

Page 900

1 reasons for the steps taken by the federal secretary of people's defence,

2 General Kadijevic?

3 A. Your Honours, I'm not in a position to agree with the statement

4 made by Mr. Milovancevic according to which allegedly all the top offices

5 of the state leadership of Yugoslavia were being held by members of a

6 republic which was engaging in a secession. I didn't analyse nor did I

7 study the makeup of the various bodies of, be it political, military, at

8 the SFRY level prior to summer 1991. It may well be correct. What I know

9 for what the military is concerned that is that in particular after summer

10 1991, so from September 1991 onwards, the command positions, in particular

11 for operational groups for the corps and related levels were all held by

12 officers of Serbian or Montenegrin ethnicity. I have to add to that that

13 many non-Serbs left or were removed.

14 Q. Do you remember the parts of General Kadijevic's book, namely the

15 text on page 38, which is on page 20 of the English version, where he says

16 that there was an attempt of the European Community to assume control and

17 influence over the JNA via Ante Markovic, federal Prime Minister, who was

18 a Croat? [No interpretation].

19 A. Your Honours, we addressed this question a bit earlier. My report

20 does not analyse the role of the European Community or other international

21 actors in the conflict in the former Yugoslavia during the first half of

22 1991. In case I were to analyse this role, of course, I would look at

23 Kadijevic's book but I would also look at publications or statements by

24 representatives of the European Community at that time and other sources.

25 I think it would be imprudent from an analytical point of view to draw

Page 901

1 conclusions only basing myself on one source, and at this stage I can

2 only -- at this moment I can only look at one source. So I can't answer

3 that question.

4 Q. In order to assess the military and political role of the JNA, as

5 well as the acts of the military leadership, namely General Kadijevic, is

6 it important to analyse political, military, and any other situation,

7 including security situation, in the former Yugoslavia and in Croatia? Or

8 did you analyse that situation solely through written material?

9 A. Your Honours, there are, I think, 300 references in the document,

10 so in my report, 300 written sources that have been used and as we

11 explained in the beginning of my examination, they can basically be

12 categorised in four groups: We have legal documents, constitutions, laws,

13 mainly SFRY and RSK. Secondly there are military documents from --

14 doctrinal documents, regulations, as well as situation reports, more

15 specifically for latter half of 1991 and the events between 1992 and 1995,

16 as well as orders from JNA officers, VJ, from JNA, VJ, SAO Krajina, RSK

17 TO, as well as SVK. It is obvious -- and excuse me, to continue, next

18 group of documents are open sources, most of the time open sources from

19 SFRY origin. These documents were analysed with the goal of the report in

20 view i.e., studying the establishment and the role of the SAO and RSK TO

21 and SVK in the conflict in Croatia and the relation between these

22 organisations and Milan Martic. I believe that in doing so, I did my

23 utmost best to find the best compromise to a document that is complete but

24 it is also still manageable. We have as I mentioned 300 references used.

25 I do think that these references cover or assist me in achieving the goal

Page 902

1 I tried to achieve and, of course, it will be up to the Chamber to decide

2 whether the goal has been achieved or not.

3 Q. Thank you, Mr. Theunens. On page 70 of your report, do you

4 discuss that in early October 1991, the Presidency of the SFRY was reduced

5 to the representatives of Serbia, Montenegro, Vojvodina, and Kosovo, and

6 that, as such, it took a decision to declare the state of an imminent

7 threat of war in October of 1991? Do you say that?

8 A. Indeed, Your Honours, and the references for this comments in the

9 report can be found in the footnotes 208 and 209 which are Official

10 Gazettes of the SFRY and later FRY.

11 Q. Can you tell us how this came about and why was the SFRY

12 Presidency reduced, as you termed it? How this came about?

13 A. Your Honours, I didn't include that in my report, but I can refer

14 to the diary of Borisav Jovic who describes in detail how, from summer

15 1991, various not only members of the Presidency but also people who are

16 not part of the Presidency but at parallel meeting structures are being

17 set up. He calls it the group of 6 and the group of 6 is for example

18 mentioned in subparagraph 3 on page 69. I also remember that open sources

19 report in great detail about the changes in the Presidency because some

20 people don't attend any more or cannot attend or don't wish to attend, but

21 again I didn't study the circumstances that led to this situation.

22 I also wish to add that early October an amendment was adopted to

23 the rules of procedure of the SFRY Presidency by a number of members of

24 the SFRY Presidency, or maybe it could also have been adopted much earlier

25 but anyway an amendment was adopted that allowed to take decisions with a

Page 903

1 smaller number of members present than used to be the case before.

2 Q. Is it true that at the time, on the eve of October 1991, a

3 representative of Slovenia, Mr. Denovsek, representative of Croatia, and

4 the president, Mr. Mesic, representative of Macedonia, Mr. Tupurkovski,

5 and the representative of Bosnia-Herzegovina, Mr. Bogicevic all left the

6 Presidency?

7 A. Your Honours, that is possible but I didn't study that in detail.

8 Q. Do you know that these four members of the Presidency, who left

9 the Presidency, Mesic, Drnovsek, Tupurkovski, and Bogicevic were all

10 representatives of the republics engaging in an unconstitutional secession

11 from Yugoslavia, or simply republics engaging in secession from

12 Yugoslavia?

13 A. Your Honours, I will give the same answer. I'm not a political

14 nor a legal expert. I didn't address these issues in my report so I

15 cannot answer on this question.

16 Q. It is clear that you're neither a political nor a legal expert,

17 Mr. Theunens. I didn't claim anything otherwise, but I would like you to

18 answer my question, which is: Such political changes, did they influence

19 and were they able to influence the acts of the federal secretary of

20 people's defence and other members of the Presidency, and if so, how could

21 they influence them?

22 A. Your Honours, in reading Kadijevic's book, it is obvious that he

23 has very strong views on what should be done, what could have been done.

24 He expresses also very strong views on the attitude of a number of members

25 of the Supreme Command, but I don't know to what extent Kadijevic's

Page 904

1 behaviour was influenced by certain events or not. I would

2 also like to refer to the few excerpts I included of the book by

3 Jovic because he gives the political side of the story. And based on what

4 Jovic says especially from August 1991 onwards, there were many meetings

5 between Jovic, Milosevic, political side, and on the other hand, Kadijevic

6 and Adzic, which would indicate that the normal procedures whereby the

7 military leadership carried out instructions given by the political

8 leadership are more or less being applied even though it's not really the

9 de jure political body that is giving these instructions to the military

10 leadership.

11 JUDGE MOLOTO: Mr. Milovancevic, would this be a convenient point?

12 MR. MILOVANCEVIC: [Interpretation] Your Honour, I think this would

13 be a good time for a break. Thank you.

14 JUDGE MOLOTO: Thank you very much. Court adjourns and reconvenes

15 at half past 12.

16 --- Recess taken at 12.02 p.m.

17 --- On resuming at 12.31 p.m.

18 JUDGE MOLOTO: Before we proceed, Mr. Milovancevic, may we just

19 deal with housekeeping matters?

20 It's just become to our notice that Friday the 3rd of February

21 may be available to sit in Courtroom II in the morning. I thought I must

22 find out from Mr. Milovancevic how much longer he thinks he will be with

23 this witness. Should we take that day just in case we need it or

24 shouldn't we?

25 Mr. Milovancevic?

Page 905

1 MR. MILOVANCEVIC: [Interpretation] Your Honour, this is a very

2 specific question and my answer will depend on the witness and his answers

3 to my question. It is a bit difficult for me at this stage to assess the

4 length of my cross-examination but I believe it should take three days in

5 all.

6 JUDGE MOLOTO: In that event, maybe it may be advisable to take

7 the day, if everybody is available on that day. Would you be available,

8 Mr. Milovancevic, on the 3rd?

9 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.

10 JUDGE MOLOTO: You say fine --

11 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.

12 JUDGE MOLOTO: Thank you very much.

13 Mr. Black?

14 MR. BLACK: We would also be available, Your Honour.

15 JUDGE MOLOTO: Everybody else, I would imagine.

16 Okay, we will then book that day. That would be in Courtroom II,

17 not in Courtroom III, and that will be at 9.00 in the morning. We will

18 confirm that with the relevant people who are responsible for scheduling.

19 Thank you very much.

20 Coming back to your cross-examination, Mr. Milovancevic, looking

21 at the transcript of the 26th of January, when the witness was being led

22 by his counsel, he indicated that he dealt with a number of pages from

23 this book that we have been talking about this morning, and it's not quite

24 clear from the record whether the entire book was admitted into evidence

25 because at some stage what the Bench said, it's indicated here that the

Page 906

1 microphone had not been activated, it seems safe to accept that only the

2 pages that he referred to were admitted, because he says that, "I will

3 start with the B/C/S version, it is between the ERNs" and he mentions them

4 000359489 and 00359499, and the English version corresponds with those

5 pages. It doesn't seem as if the entire book was admitted. If you're

6 going to be referring to other pages would you like to have those pages

7 admitted?

8 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. Perhaps the

9 entire book should be admitted. Perhaps that's easier, to be admitted as

10 an exhibit.

11 JUDGE MOLOTO: Mr. Black, any comments?

12 MR. BLACK: I'd have no objection to that, Your Honour. Hopefully

13 we've specified the relevant portions from our point of view.

14 JUDGE MOLOTO: Okay. Very well then, then the entire book is

15 admitted and may it be given an exhibit number, the pages that were given

16 an exhibit number, 24, maybe now the book may be given another number.

17 MR. BLACK: Your Honour, could I make a suggestion? I think that

18 the way it works in e-court is that the whole book was already in there

19 and it's in such a way that it might be easier just to keep the same

20 number but admit all pages. It's just a suggestion, Your Honour.

21 JUDGE MOLOTO: Thank you, Mr. Black.

22 JUDGE HOEPFEL: Excuse me, I'm just asking myself. The book is on

23 e-court, the whole book already.

24 MR. BLACK: That's correct.

25 JUDGE HOEPFEL: It seems to have the necessary numbers as it is.

Page 907

1 MR. BLACK: I believe it does. Perhaps the Court officer can

2 confirm.

3 [Trial Chamber and registrar confer]

4 JUDGE MOLOTO: Okay. Thank you very much. I've just been

5 corrected. The whole book is already into the evidence -- admitted into

6 evidence as Exhibit number 24. You may proceed, Mr. Milovancevic.


8 Cross-examined by Mr. Milovancevic: [Continued]

9 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

10 Q. Mr. Theunens, we left it off on page 80 or rather 70 of your

11 report, paragraph 4, which deals with early October 1991, when, as you

12 stated, the Presidency declared the state of an imminent threat of war on

13 the territory of the SFRY as of the 1st October 1991. In your opinion,

14 from a military point of view, were there any reasons in place for such a

15 decision to be taken?

16 A. Your Honours, I think actually it was the body that decides about

17 this declaration of imminent threat of war that should be asked this

18 question because I -- again I didn't analyse their motives, the reasons

19 why they took the decision, so I cannot really comment on that.

20 Q. In your opinion, was the fact that some members of the Presidency

21 had left the Presidency a bit earlier, one of the reasons for taking such

22 a decision? Did it have any impact on the fact that this decision was

23 taken?

24 JUDGE MOLOTO: Mr. Milovancevic, the witness has just said that he

25 didn't investigate the motives of the participants in the decision-making.

Page 908

1 How can he answer this question? It's the same question phrased

2 differently.

3 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

4 Q. Are you familiar with General Spegelj, Mr. Theunens? Do you know

5 of the person?

6 A. Yes, Your Honour. I'm familiar with General Spegelj and his role

7 in the conflict.

8 Q. How come you are familiar with his role when you stated that you

9 did not study the role of the Croatian side?

10 A. Your Honours, these are in my view two different things. It's not

11 that because Martin Spegelj was a Croat and that he did certain things in

12 the conflict I learned of while being involved in interviewing him as a

13 witness for the Milosevic case, that this means that suddenly I have a

14 view or I should have a view on what the Croatian side as such did.

15 Spegelj was not the only Croat involved in the conflict.

16 Q. Was Mr. Spegelj a Minister of Defence in the Republic of Croatia

17 in 1991? Are you aware of this?

18 A. I don't remember exactly, Your Honours, which duties he occupied

19 in 1991.

20 Q. Do you remember whether he occupied any position in the armed

21 forces of Croatia at all in 1991?

22 A. Your Honours, I think he was involved in providing weapons to --

23 I'm not sure whether it was the ZNG or any other armed force of Croatia.

24 Q. In January 1991, did the SFRY Presidency take a decision to the

25 effect that all those who had obtained weapons illegally be deprived of

Page 909

1 those weapons, the illegal formations?

2 A. Indeed, Your Honours, that's correct, and that applied to all the

3 six constituting republics of the SFRY.

4 Q. Do you know that on the 1st of March 1991, the special police

5 forces of Croatia made an incursion into the police station in Pakrac?

6 A. I assume, Mr. Milovancevic is speaking about the municipality of

7 Pakrac in Croatia. Now, again I haven't studied as I mentioned earlier,

8 the role of the special police forces of Croatia or any other forces in

9 Croatia, but I found the phrasing a bit particular that you speak about an

10 incursion of a police force of Croatia into a police station on its own

11 territory.

12 Q. On the 1st of March 1991, because of the events in Pakrac, did the

13 JNA intervene? That was the reason why I put the earlier question, not

14 just because of the Croatian special police force?

15 A. Your Honours, I remember that the Croatian -- that the JNA

16 intervened in the area even though, as I haven't studied the situation in

17 Pakrac specifically, I cannot -- I'm not in a position to say why the JNA

18 intervened and what the goal was of the JNA in intervention. And the

19 reason I say that because I've written -- I read several accounts of the

20 events in Pakrac and they don't always come to the same conclusions.

21 So -- and this is also something actually I explained in the report, that

22 initially, the official role of the JNA was represented as trying to

23 separate the conflicting parties, most often these were on one hand

24 Croatian police and on the other hand SAO Krajina or SAO Western Slavonia

25 or the SAO Slavonia, Baranja, Western Srem. Some have declared

Page 910

1 police forces with the latter, I mean Serbian self-declared police forces

2 taking over certain police stations in a number certain of areas, the

3 Croatian police wanting to re-establish Croatian authority, and then the

4 JNA intervening to separate the parties. In a number of areas, like, for

5 example, Borovo Selo which is outside the context of this report, because

6 it -- Borovo Selo is located in Eastern Slavonia, volunteers from Serbia

7 were involved in creating the incident or provoking the incident and the

8 JNA intervention more or less consolidated the Serb control over these

9 police stations on the territory of Croatia, I mean in Borovo Selo at

10 least.

11 Q. On the 1st of March 1991, did the special police force fire upon

12 the JNA in Pakrac?

13 A. Your Honours, I've seen several accounts on the events in Pakrac.

14 It may be reported in one of these accounts that the special police force

15 of Croatia fired upon the JNA but I didn't analyse this incident so I'm

16 not in a position to answer this question.

17 Q. Are you aware of the fact, Mr. Theunens, that between the 12th and

18 the 15th of March 1991, the Presidency of the SFRY held a meeting at the

19 suggestion of the -- of the Secretariat for National Defence with a

20 proposal that a state of emergency be declared?

21 A. I am aware of this meeting of the Presidency, Your Honours.

22 Q. The suggestion coming from the top military leadership to the

23 effect that a state of emergency be declared, was it in fact refused by

24 the SFRY Presidency?

25 A. Your Honours, I know that the request was refused but I don't know

Page 911

1 why it was refused because the question suggests that it was refused

2 because it came from the top military leadership, and I don't know that.

3 Q. Perhaps you've misunderstood my question, Mr. Theunens. And I'll

4 repeat it to you, or you have distorted it. My question to you was the

5 following: The proposal of the top military leadership for a state of

6 emergency to be declared, was it refused? I didn't ask anything more or

7 anything less than that.

8 JUDGE MOLOTO: The answer was yes, it was refused.

9 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

10 Q. The proposal from the top military leadership for a state of

11 emergency to be declared, does it also contain a statement that a civil

12 war had already broken out in Yugoslavia, and did this not come only 12

13 days after the armed conflict in Pakrac?

14 A. Your Honours, that may well be possible but I don't recall the

15 exact phrasing of the top military leadership proposal.

16 Q. Do you know that on the 1st of April, the Presidency session was

17 on the 15th of March when the proposal for an emergency state was refused,

18 that on the 1st of April, another conflict occurred in Plitvice between

19 the Croatian police forces and the local Serb population?

20 A. Your Honours, according to my recollection the events in Plitvice

21 took place at the end of March 1991 but it also may be early April, and

22 I'm not sure whether there was a conflict between Croatian police and the

23 local Serb population or whether the conflict was between Croatian police

24 and Serbian or let's say self-declared or members of a local Serb police

25 force.

Page 912

1 Q. Did the JNA intervene in Plitvice in order to separate the two

2 conflicting parties at the proposed -- at the request of the SFRY

3 Presidency?

4 A. Indeed, Your Honours, I recall the JNA intervening. Now, I'm not

5 100 per cent sure of the outcome of the intervention, whether the

6 intervention of course the two parties were separated but whether Croatian

7 authority was restored over Plitvice, as it is located in Croatia, or

8 whether actually the local Serb police stayed in power. I don't recall

9 exactly the outcome.

10 Q. You already mentioned this, but on the 2nd of May in Borovo, were

11 there armed conflicts between on the one hand armed Serbs and on the other

12 armed Croatian forces?

13 THE INTERPRETER: Interpreter's correction, in Borovo Selo.

14 THE WITNESS: Your Honours, this conflict -- I mean, the incidents

15 involved are not addressed in my report but I had to conduct research into

16 these matters due to my work for the Seselj case here at the ICTY. There

17 were indeed serious incidents on the 1st and 2nd of May in Borovo Selo

18 between armed Serbs, both local Serbs as well as Serbs from Serbia who had

19 gone to the area, as well as members of the police of the Republic of

20 Croatia and not armed Croatian forces.

21 MR. MILOVANCEVIC: [Interpretation]

22 Q. Did the JNA intervene in Borovo Selo to separate the two sides and

23 thus in fact saved the Serbian -- the Croatian police officers?

24 A. Your Honours, indeed the JNA intervened to separate the two sides

25 but I don't know what effect that intervention had on the situation of the

Page 913

1 Croatian police officers.

2 Q. Do you know that on the 25th of June, Slovenia and Croatia

3 one-sidedly declared their -- unilaterally declared their independence

4 from Yugoslavia, and you have to know that what happened on Borovo Selo

5 was on the 1st and 2nd of May?

6 A. Your Honours, maybe I misunderstood the question but the link

7 between the events in Borovo Selo on one hand and the declaration of

8 independence of Slovenia and Croatia on the other hand is not clear to me.

9 Q. I will put a more specific question to you. I was merely trying

10 to point out to the time difference of a bit over a month, that's to say

11 that more than a month later, the declaration of Croatia's and Slovenia's

12 independence took place. I did not want to point to any cause or link

13 between the two so in fact did you know that on the 25th of June, Slovenia

14 and Croatia declared their independence from Yugoslavia?

15 A. Indeed, Your Honours, on the 25th of June 1991, Slovenia and

16 Croatia declared their independence.

17 Q. Thank you, Mr. Theunens.

18 After Slovenia declared its independence and took control over

19 the -- of borders, did the JNA intervene in Slovenia immediately after?

20 A. Indeed, Your Honours, again this is not subject of my report but I

21 know from the various sources, mainly open sources I consulted while

22 working at ICTY, that indeed a number of JNA units intervened in Slovenia,

23 even though it was not really clear what these JNA units tried to achieve

24 and also indeed what the aim of this intervention was.

25 Q. In the course of your work, did you come across the decision of

Page 914

1 the federal executive council presided by Ante Markovic, to send 1.000

2 soldiers to Slovenia on that occasion?

3 A. Your Honours, I don't remember seeing that decision. Again,

4 because it's mainly also because it's outside the scope of my report,

5 which focuses on SAO Krajina TO and RSK TO and SVK and the relationship

6 between these armed organisations and Milan Martic.

7 Q. In view of your last answer, did you analyse in great detail

8 day-to-day decisions of the top leadership concerning the engagement of

9 the JNA and the change of its objectives, as you term them in your

10 report?

11 A. Your Honours, from the executive summary and also from the start

12 of this section, you see that based on the research I did and which was

13 focused on the conflict in Croatia, this change in objective became most

14 visible in summer 1991, so actually at the end of summer 1991 is after the

15 event in Slovenia. That is why I didn't include the events in Slovenia,

16 nor any decisions on the role of the JNA prior to summer 1991 in my

17 report.

18 Q. Did armed conflicts break out in Slovenia in June, after the JNA

19 managed to establish the authority of Yugoslavia along its borders?

20 A. Your Honours, there was indeed an armed conflict in Slovenia but

21 as I've tried to explain earlier, these events are not the subject of my

22 report, so it is hard for me to answer detailed questions about these

23 particular events in Croatia -- in Slovenia, I apologise.

24 Q. Thank you, Mr. Theunens. My question was merely whether armed

25 conflicts broke out in Slovenia, nothing more. I hope we've understood

Page 915

1 each other.

2 After the conflicts were concluded, did the Presidency of the SFRY

3 adopt a decision to withdraw JNA forces from the territory of Slovenia in

4 order to avoid any further clashes and victims?

5 A. The -- Your Honours, the SFRY Presidency indeed adopted such a

6 decision. Now, to withdraw the JNA from the territory of Slovenia. There

7 were probably several goals for that decision, and indeed coming back to

8 the questions Mr. Milovancevic asked earlier, the outcome of the crisis in

9 Slovenia could be seen as a first indicator in the change of the JNA's

10 mission, based, of course -- I mean the change which was based or which

11 was a result of the instructions given by the political leadership, the

12 SFRY Presidency, and others, as I have mentioned, quoting from Jovic's

13 book, so others involved in giving instructions and orders to the military

14 leadership.

15 Q. Therefore, after all of these events, the Presidency of the SFRY

16 took a decision to declare a state of imminent threat of war on the 1st of

17 October 1991. This is uncontested, is it, Mr. Theunens?

18 A. Your Honours, it is uncontested that the decision was taken on the

19 1st of October, but I am not aware of the exact reasons, the motives, why

20 the reduced Presidency decided to declare a state of imminent threat of

21 war on the territory of the SFRY.

22 Q. Do you believe that the Presidency of the SFRY, which adopted such

23 a decision, had the necessary powers to do so?

24 A. Your Honours, that is a legal question. All I've included in the

25 report is the decision as such, as it was published. I mentioned also

Page 916

1 earlier during my cross-examination that at one moment in time, amendments

2 were adopted, I'm not sure whether it was to the constitution or to the

3 rules of procedure for the SFRY Presidency whereby the number of members

4 that was required to take a decision was reduced and I also mentioned that

5 the decision, based on the information I have, was taken by a reduced

6 number of members of the SFRY Presidency.

7 Q. You have just told us that you studied the rules of procedure of

8 the Presidency, number of members, and voting procedure and so on.

9 However, when I asked you about Mr. Mesic you claimed not to have read

10 the rules and not to be familiar with these procedures. Which of the two

11 is true?

12 A. Your Honours, I think my answers were both clear. First of all,

13 and I repeat here, I didn't study the rules of procedure. However, when

14 doing research on the decision of the -- on the decision of the

15 declaration of the imminent state of war, I came across a document and I'm

16 not sure whether it was an amendment to the rules of procedure or the

17 constitution, according to which the number of members that were required

18 to take a decision was reduced. I think there is a clear difference in

19 these two answers.

20 Q. Given that you, as a military expert, are involved in studying

21 international laws of war and international law, you have to have at least

22 an elementary knowledge of the two. Are you familiar with the decision of

23 the International Court of Justice which in essence recognises the right

24 of federal authorities to -- regardless of the secession crisis, they

25 assume their jurisdiction and their authorities in the entire territory of

Page 917

1 the country? This was the decision of the International Court of Justice

2 pertaining to the South African union dated the 18th of July 1966,

3 paragraph 32. This decision states that to invoke -- invoking the rights

4 and protection of interests is something that only the holders of the

5 title in the international law are entitled to.

6 A. Your Honours, whether I'm a military expert or not, I think that's

7 something Your Honours should decide, based on the report. Now, the other

8 part of the question, it's really impossible for me to answer this because

9 it's clearly a legal question which has no relation with my report.

10 JUDGE MOLOTO: Mr. Milovancevic, once again I don't want to

11 interfere with your cross-examination but, you know, the way you have been

12 asking questions, you can only get the kind of answer that you have just

13 got now, and unfortunately you are not dealing with the issues that are

14 before the Court. I'd just like to point that out to you, that right from

15 the start of this case, I've just found you to be going just along the

16 case and not on the case. I'm not quite sure what your defence is. I've

17 surmised what I think your defence is from the way in which you conduct

18 your defence but unfortunately, the way you have structured your defence

19 makes you ask questions which most of the time I cannot see the relevance

20 of. I just want to ask you to at least try to stay with the issues: Did

21 Mr. Martic do the things that are alleged in the charges or didn't he do

22 them?

23 MR. MILOVANCEVIC: [Interpretation] Your Honour, with your

24 permission, I would like to say that the strategy of the Defence is

25 affected by the strategy of the Prosecution which speaks of the joint

Page 918

1 criminal enterprise. In order to analyse the joint criminal enterprise,

2 we have to delve into the issues covered by Mr. Theunens, namely the role

3 of the Presidency, the role of the federal Secretariat of people's

4 defence, the acts of all parties and armed forces. This is a very broad

5 topic which covers numerous events, and sometimes it is very difficult to

6 stick to specific facts, concrete facts, or those that are clearly visible

7 and obvious. However, I will bear in mind your instructions, Your Honour.

8 Thank you.

9 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

10 MR. MILOVANCEVIC: [Interpretation]

11 Q. On page 71, Mr. Theunens, you state that the 14th corps withdrew

12 to the area of Prijedor, Derventa, Zenica in Bosnia-Herzegovina while the

13 31st Corps withdrew to Serbia, after the JNA pulled out of Slovenia; is

14 that correct, Mr. Theunens?

15 A. That is correct, Your Honours, and this comment is based on

16 Exhibit 65 ter number 1223 which is a document from the SSNO dated 25th of

17 July 1991.

18 MR. MILOVANCEVIC: [Interpretation] Could we be shown on our

19 screens Exhibit 1223, precisely the one mentioned by Mr. Theunens? Can

20 this be put on the screen, please?

21 [Trial Chamber and registrar confer]

22 JUDGE MOLOTO: Mr. Milovancevic, the Court officers are not able

23 to find the document on the particulars you've given. Are you able to

24 give an ERN number?

25 MR. MILOVANCEVIC: [Microphone not activated]

Page 919

1 THE INTERPRETER: Microphone, please, for counsel.

2 MR. MILOVANCEVIC: [Interpretation] B/C/S number is 00606845,

3 00606849. The English version is 00606850, 00606853.

4 Your Honours, if it's difficult to find this document, we can come

5 back to this later on, in order to avoid any further delay. I can

6 continue with my questions now.

7 JUDGE MOLOTO: Okay. Very well, then. We'll continue and may the

8 legal officers be trying to find it in the meantime.

9 [Trial Chamber and registrar confer]

10 MR. MILOVANCEVIC: [Interpretation]

11 Q. On page 71 of your report, Mr. Theunens, you state facts

12 concerning the structure of the 5th military district, and you say, or

13 rather this is what the chart shows, that the headquarters of the 5th

14 military district was in Zagreb, that it covered the 10th corps, the 31st

15 Corps, the 13th corps headquartered in Rijeka, another one headquarters in

16 Varazdin, 329th Armoured Brigade, and another one headquartered in

17 Ljubljana; is that correct, Mr. Theunens, that this is how you described

18 it?

19 A. That is correct, Your Honours.

20 Q. Is it true that these military units, large military units of the

21 5th military district and precisely the 31st Corps headquartered in

22 Maribor and another one headquartered in Ljubljana, were they withdrawn

23 from the territory of Slovenia in accordance with the decision that we

24 have mentioned?

25 A. Your Honours, I can only talk about the document which is now

Page 920

1 visible on the screen, this order number 51-1 from the SSNO dated 25th of

2 July 1991, according to which orders were given to withdraw the 31st Corps

3 from mayor bore as well as to withdraw the 14th corps from Ljubljana so

4 indeed these JNA units according to the order withdrew from Slovenia, even

5 though if I remember well, the withdrawal operation took several weeks or

6 even months to be finalised.

7 Q. Based on the book of Mr. Kadijevic, my view of the break-up, do

8 you remember that he spoke of the fact that the formations of the JNA

9 which were withdrawing from Slovenia pursuant to the order of the

10 Presidency of the SFRY were attacked during their withdrawal and their

11 weapons seized in Croatia?

12 A. Your Honours, I would have to see the page in the book of

13 Kadijevic. I recall that he writes about it but I don't recall the exact

14 details of what -- of the events Kadijevic describes, and to what extent

15 weapons were seized, all the weapons, some weapons. It's a very broad

16 statement which is basically impossible to comment on.

17 Q. Your answer is quite sufficient. Thank you, Mr. Theunens.

18 In this chart shown on page 71, at the top of the chart, you say

19 that the 5th military district was headquartered erred in Zagreb and that

20 following August 1991, it was partially deployed to Slunj; is that

21 correct?

22 A. That is correct, Your Honours, because at the latest at the end of

23 August, Croatians started to block or erect barricades in the vicinity of

24 JNA barracks and garrisons, and a number of barracks and garrisons were

25 therefore prematurely withdrawn or others were withdrawn later on after

Page 921

1 negotiations.

2 Q. Are you familiar with the fate of the 32nd Varazdin corps

3 mentioned on this chart of the 5th military corps? It was commanded by

4 General Vlado Trifunovic.

5 A. Your Honours, I know from my work here that the situation of the

6 32nd Corps in Varazdin was very difficult because the barracks were

7 blocked and I wouldn't use the expression besieged but I will just

8 summarise the situation there was very difficult, and that the General

9 Trifunovic at one moment decided to surrender. His decision to surrender

10 was taken very badly in -- by his superiors in the JNA and therefore at a

11 later stage a trial against General Trifunovic took place, and I think

12 recently or a few years ago, Trifunovic was -- or the proceedings against

13 Trifunovic were dropped and he was released.

14 Q. Can you tell us who blocked the barracks of the 32nd Corps

15 headquartered in Varazdin? Which forces did that?

16 A. Your Honours I use the expression Croatians because I'm not sure

17 which forces were involved and to what extent also maybe civilian

18 population was involved but it could have been ZNG, Croatian police, maybe

19 some civilians, maybe some volunteers. Again, I haven't studied the

20 blockade of the JNA barracks in Varazdin in detail.

21 Q. Thank you, Mr. Theunens, that's sufficient.

22 Are you familiar with the fact given by General Spegelj that by

23 taking the 32nd Corps of the JNA in Varazdin, a large amount of weaponry

24 was confiscated as well, tanks, armoured vehicles, ammunition, cannons and

25 so on, and also a large amount of equipment?

Page 922

1 A. Your Honours, I'm not familiar with Spegelj -- with General

2 Spegelj's specific comment on the takeover of the barracks of the 32nd

3 Corps in Varazdin.

4 Q. Do you know that by taking the facilities of the 32nd Corps of the

5 JNA in Varazdin, or rather that this took place in September or in the

6 second half of September of 1991?

7 A. Your Honours, the blockades of barracks in Croatia became -- I

8 won't use the expression generalised but it became part of a more

9 concerted effort from the Croatian side from the end of August 1991

10 onwards. Still, I don't recall exactly when the barracks of Varazdin --

11 when the blockade there started, and when Trifunovic surrendered the

12 barracks.

13 Q. Do you know anything about the fact that the 265th Mechanised

14 Armoured Brigade of the JNA in Bjelovar also fell into the hands of

15 somebody else in the second half of September 1991?

16 A. That's possible, Your Honours. As I mentioned from the end of

17 August onwards, several JNA barracks and garrisons in -- on -- in Croatia

18 were blocked by Croats.

19 Q. I'm asking you about the barracks in Bjelovar because, at the

20 time, a huge amount of weaponry was also seized, tanks, trucks, over 100

21 trucks, over many tonnes of ammunition and so on. Did you hear of this

22 information, Mr. Theunens?

23 A. Your Honours, I didn't hear about the barracks in Bjelovar

24 specifically but it's obvious that when a barracks were surrendered or

25 taken over otherwise, that there is a distinct possibility to acquire for

Page 923

1 those who take the barracks as a distinct possibility to obtain weapons,

2 ammunition, and other military equipment, even though there are clear

3 regulations within all armed forces to destroy all equipment when there is

4 a risk that it may fall or that it will fall in the hands of the enemy. I

5 remember that in that time period, General Adzic issued an order to

6 prevent military equipment, JNA equipment, from falling into the hands of

7 the Croats and gave instructions, gave orders for the destruction of such

8 equipment, but I'm not sure whether I included it in my report.

9 Q. Do you know anything about the losses of the JNA in terms of

10 military equipment, ammunition, and weapons? Do you know anything even

11 roughly about their losses during that period of time, September through

12 December of 1991?

13 A. Your Honours, when mentioning September through December 1991 that

14 is actually the time period when the armed conflict in the disputed areas

15 or the disputed parts of Croatia becomes generalised so ammunition will be

16 used, military equipment will be used, there will be losses, of course; I

17 mean, it's unavoidable. There were indeed cases where Croats who besieged

18 barracks took over equipment and ammunition. There are also examples of

19 JNA units handing over equipment and ammunition to local Serbs. So the

20 word "losses" covers several aspects.

21 Q. When you judged the acts of the JNA and its military leadership in

22 1991, given the situation, did you also take into account the fact that

23 Croatian forces seized about 200.000 automatic rifles of -- and other

24 small arms, 500 tonnes of ammunition of all calibres, 500 tonnes of

25 antitank mines, 2.000 tonnes of antipersonnel mines, about 240 tanks and

Page 924

1 320 armoured personnel carriers? Did you take this information into

2 account and are you familiar with this information at all?

3 A. Your Honours, I didn't judge anyone in my report because, first of

4 all, it's not my task. Secondly, I described the role of certain groups,

5 organisations and individuals, I don't think that there are any judgements

6 included. Now, secondly, I would have to see, when it comes to the

7 figures you have listed, Mr. Milovancevic, I have to -- I would have to

8 see the document. Now, at first glance, the amounts seem quite

9 significant because -- I mean, I come from tanks. Like, 240 tanks, I don't

10 doubt it, but for me it seems like a huge number because it's more than

11 the Belgian armed forces. Of course, the Belgian armed forces are not

12 relevant in this context but it's a -- quite a huge amount. I would say

13 that without wanting to drag it on, but if Croatia had this equipment and

14 the personnel to use the equipment, I think that the outcome of the

15 conflict in 1991 would have been significantly different. But, again, I

16 haven't -- I don't have your source in front of me so I would have to look

17 at that and also look at other sources.

18 JUDGE MOLOTO: Mr. Theunens, could you please just try to confine

19 yourself to the answering the question? What you have said is of very

20 great political interest, but not absolutely on the point.

21 MR. MILOVANCEVIC: [Interpretation]

22 Q. The data I just gave you, Mr. Theunens, is the data coming from

23 Mr. Spegelj, the Minister of Defence of Croatia. This information was

24 publicly available.

25 We can now turn to the next section.

Page 925

1 JUDGE MOLOTO: Do you remember, Mr. Milovancevic, that the witness

2 indicated that he hadn't studied Croatia and the military personnels of

3 Croatia in any detail.

4 MR. MILOVANCEVIC: [Interpretation] Yes, that's right, Your Honour.

5 I'm not asking the witness anything about the Croatian armed forces and

6 personnel. All I'm trying is to put to him the losses of the JNA in the

7 territory of Croatia at the time when it was a regular legal armed force

8 in its own territory, attacked by illegal armed formations. I am putting

9 these questions because I believe that in order to assess the acts of the

10 JNA, the state leadership and the military leadership, one had to consider

11 very relevant the situation on the ground. I believe that it was of

12 utmost importance. I also think that this assessment cannot be made only

13 on the basis of papers, meaning various orders, instructions and so on.

14 May I proceed, Your Honour?

15 JUDGE MOLOTO: Yes, please do, sir.

16 MR. MILOVANCEVIC: [Interpretation]

17 Q. Mr. Theunens, on page 72, under item 3, which is

18 entitled, "Evolution of the mission of the JNA during the conflict in

19 Croatia," you discuss these matters precisely. In doing so, you quote the

20 words of army General Veljko Kadijevic or rather his point of view that he

21 presented in his book, "My view of the break-up," is that right,

22 Mr. Theunens?

23 A. Your Honours, Kadijevic's book is one of the sources I consulted

24 to describe this evolution. When you look further down in the report,

25 on -- from page 76 onwards, I also quote from other sources and they may

Page 926

1 well statements by Kadijevic but those were then statements he made when

2 he was still federal Secretary for People's Defence. I've also included

3 orders or statements from General Adzic, like on page 78, and again

4 another order by Kadijevic on the page 80, together with the book by

5 Borisav Jovic or certain excerpts of that book we discussed earlier.

6 Q. Do you wish to say that Mr. Kadijevic in his book explains the

7 mission and the objectives of the armed forces of the SFRY during the

8 conflict in the SFRY?

9 A. Mr. Kadijevic, in -- or General Kadijevic in his book gives his

10 analysis of the evolution or what he calls the evolution, I think he even

11 used the expression"radical change" -- "radically changed mission" and

12 what I tried to do is to compare that source. So Kadijevic's book which

13 was published in 1993 with the evolution on the ground, evolution on the

14 ground for which I have used orders and statements I just quoted, so

15 orders and statements made in 1991. I've also compared the situation as

16 it existed on the 23rd of November 1991, when a cease-fire agreement was

17 signed in Geneva between Mr. Tudjman, Mr. Milosevic and General Kadijevic,

18 compared all these sources and reports with the book of Kadijevic and I

19 tried to summarise that in this part of my report.

20 Q. On the issue of the role of the armed forces, or rather the role

21 and the objectives of the SFRY during the conflict in Yugoslavia, do you,

22 as a military expert, distinguish between what is the constitutional

23 definition of the role of the armed forces and the specific war objectives

24 and tasks, including political objectives, that are determined and defined

25 for any army?

Page 927

1 A. Indeed, Your Honours. In a sense, I didn't compare them as such

2 to come to a -- I will rephrase that.

3 What I did was I listed first the constitutional mission, as it

4 has been listed in section 1, and then, as I explained, I consulted

5 various sources, the ones that I discussed between page 72 and page 80,

6 and, okay, I came to a conclusion which basically reflected the sources

7 mentioned between page 72 and page 80, and this conclusion -- according to

8 this conclusion the goal of the JNA during the conflict in Croatia

9 changed, at the latest in summer 1991.

10 Q. Could we please show page 93 in B/C/S and page 60 in the English

11 of Exhibit 24 on our screens?

12 While this is being done, does Mr. Kadijevic in his book say that

13 in his opinion, in March of 1991, the best option for the JNA was to rely

14 on those political forces in the federation and those nations which wished

15 to continue living in Yugoslavia while peacefully parting with those who

16 wanted to leave?

17 A. That is correct, Your Honour. That's indeed what Kadijevic says

18 but I believe in the English translation it's on page 61, so on the next

19 page. Page 61 of his book. It is more or less in the middle of this

20 third paragraph. More or less the middle of the page.

21 Q. Did this political and military assessment, in your opinion,

22 require a change in the missions and tasks of the armed forces of the

23 SFRY?

24 A. I'm not sure I understood your question but I would say if you

25 agree with the peaceful parting as Kadijevic mentions it on this page

Page 928

1 then, of course, the mission would be adjusted but that would be a result

2 of negotiations and talks between all the peoples of a peaceful solution.

3 Now, if you choose for a military way to achieve or implement this goal,

4 then again, yeah, that would, of course, have implications for the

5 constitutional goal of the SFRY armed forces.

6 Q. Did you not -- did you say a while ago that Croatia opted for the

7 military option, blocked JNA barracks, attack them, and engaged in open

8 military conflict?

9 A. Your Honours, there are a lot of developments in 1991. Page 61 of

10 Kadijevic's book refers to the situation in March 1991, before Pakrac,

11 before Plitvice, examples Mr. Milovancevic mentions, and the blockade of

12 the barracks happens a number of months later. It becomes more organised,

13 end of August, course of September 1991. And it is also what is shown in

14 the report at the -- the change in the mission becomes most visible after

15 summer 1991.

16 Q. Can you please take a look at paragraph 2 on page 93 of the text

17 that's before you, where Mr. Kadijevic talks of the third stage. Could

18 you please read the entire paragraph from that point on for us?

19 A. You mean page 93 of the English version or --

20 Q. That's in the B/C/S, page 93.

21 A. And --

22 JUDGE HOEPFEL: Page 60.

23 THE WITNESS: Are we now on page 60 on the e-court?

24 MR. MILOVANCEVIC: [Interpretation]. I apologise. I have page 93

25 before me. That's in B/C/S.

Page 929

1 JUDGE MOLOTO: When you have found the page, can you just let us

2 know so that we can be on the same page, literally?

3 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour.

4 That's page 49 in the English version.

5 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

6 MR. MILOVANCEVIC: [Interpretation]

7 Q. Can you read out for us the second paragraph from the top, the

8 third stage or phase commences up to the end of the paragraph, please.

9 JUDGE MOLOTO: Say that again? How does the paragraph start in

10 English? Is it in its attitude towards Yugoslavia?

11 MR. MILOVANCEVIC: [Interpretation] My colleague told me that this

12 was the last paragraph on page 49. I apologise. In the B/C/S it's the

13 first paragraph whereas in the English version, it's the last paragraph.

14 I apologise.

15 MR. BLACK: I believe the paragraph begins, "The third phase began

16 when Germany," and continues from there, but I also note that we are about

17 to run over time.

18 JUDGE MOLOTO: I also noticed that.

19 MR. BLACK: Thank you, Your Honour.

20 JUDGE MOLOTO: Carry on.

21 MR. MILOVANCEVIC: [Interpretation]

22 Q. Can you read the text for us, Mr. Theunens?

23 A. Yes, I can, Your Honours. "The third phase began when Germany

24 acting through the European Community openly took over management of the

25 Yugoslav crisis, compelled Slovenia and Croatia to accelerate their

Page 930

1 secession by having them apply force, while at the same time preparing the

2 civil war in Bosnia-Herzegovina with a double aim: To make the final fall

3 of Yugoslavia so violent and brutal that it would never return to the

4 stage of history again, and to provide a good excuse for striking a

5 political and military blow against Serbia in order to defeat and

6 humiliate it, cut it down to the size of a Belgrade pashadom and teach it

7 a lesson once and for all. At the beginning of this phase, the armed

8 forces task radically changed and was to, first, defend the Serb nation in

9 Croatia and its national interest; two, pull JNA garrisons out of Croatia;

10 three, gain full control of Bosnia-Herzegovina with the ultimate aim of

11 defending the Serb nation and its national rights when the issue arose;

12 four, create and defend the new Yugoslav state of those Yugoslav nations

13 that desire to be part of it, meaning in this phase the Serb and

14 Montenegrin nations, the basic conflict -- the basic concept for

15 deployment of the armed forces was thus adjusted to this modified task."

16 JUDGE NOSWORTHY: I'm sorry, before you go on, what does pashadom

17 mean? There is a reference to a Belgrade pashadom, what does it mean,

18 from the witness, please.

19 THE WITNESS: Your Honours, there must be a historical explanation

20 for the word pashadom but I'm not aware of that one. But I assume

21 Kadijevic means that in his view, Germany wants to reduce Serbia to a kind

22 of mini state around Belgrade. According to Kadijevic, of course.

23 MR. MILOVANCEVIC: [Interpretation] In view of the time,

24 Your Honour, I would wish to put a short question to the witness and then

25 we could adjourn for the day. I believe that was the schedule, unless I'm

Page 931

1 mistaken.

2 JUDGE MOLOTO: Please do that.

3 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

4 Q. The armed actions taken by Croatia in the process of secession,

5 did they affect the conduct and acts of the JNA and the SFRY leadership in

6 this period?

7 A. I think, Your Honours, this is a very complicated question. All I

8 can say is that a conflict, an armed conflict always involves two parties,

9 and the behaviour of each party has an impact on the behaviour of the

10 other party. It's like action and reaction. Now, to what extent this

11 theoretical description I just gave applies to the situation in Croatia, I

12 think a detailed analysis of the events between -- I would even say 1980

13 and 1990 would be necessary in order to -- and 1991, would be necessary in

14 order to be able to provide an answer to that question. It's not as

15 simple as Mr. Milovancevic tried to put it here, in my view.

16 JUDGE MOLOTO: Is that it, Mr. Milovancevic?

17 MR. MILOVANCEVIC: [Interpretation] That's all for today,

18 Your Honour, by your leave.

19 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. Court

20 adjourns to tomorrow at 9.00, same court.

21 --- Whereupon the hearing adjourned at 1.52 p.m., to

22 be reconvened on Tuesday, the 31st day of January,

23 2006, at 9.00 a.m.