Page 20641
1 Thursday, 12 December 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.37 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours.
8 This is the case number IT-09-92-T, the Prosecutor versus
9 Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 The Chamber was informed that the Prosecution wanted to raise a
12 preliminary matter.
13 Mr. Groome, before you do so, could I ask you whether it's of
14 such urgency that we have to deal with it right away or that it could
15 wait until after we have heard the evidence of Mr. Theunens?
16 MR. GROOME: Your Honour, it does relate to the evidence of
17 Mr. Theunens, and it does relate to the redirect examination that we will
18 conduct.
19 JUDGE ORIE: Yes. Then please proceed.
20 MR. GROOME: Your Honours, good morning. And I thank you again
21 for adjourning the redirect of Mr. Theunens. It has given us an
22 opportunity to consider the cross-examination and its implications for
23 how we proceed.
24 Mr. Weber has prepared his redirect examination and will address
25 the specific challenges made to Mr. Theunens's evidence during the
Page 20642
1 cross-examination.
2 I want to begin my submission by tendering the report. There
3 could be no need to rehearse the extensive discussions and guidance
4 regarding the first part of the report. I have carefully considered the
5 guidance and all of the relevant factors and have prepared a second
6 redacted version of the report. This is somewhat different from the
7 first redacted report that we had proposed. Over the last two days, we
8 have once again carefully reviewed the first part of the report. We have
9 redacted additional material, material which Mr. Weber amply covered in
10 direct examination. We have unredacted some material related to
11 General Kadijevic's role and authority and the Vance Plan, two topics
12 dealt with in some detail on cross-examination.
13 So at this time the Prosecution tenders or would ask the Chamber
14 to replace the current report that's now been given the exhibit number
15 P3029 MFI with a new redacted version of that report, the 65 ter number
16 is 28612a.
17 I would inform the Chamber that there was a technical problem
18 this morning in uploading the English version of that report. That
19 should be resolved in the next hour and a half, but I would ask the
20 Chamber to rule on that at this point.
21 JUDGE ORIE: Mr. Ivetic.
22 MR. IVETIC: I don't have an issue with the Prosecution replacing
23 one redacted version with another. That's, I think, within their
24 prerogative. I do still maintain an objection as to the admissibility of
25 this report as an expert report. I think the cross-examination has
Page 20643
1 raised serious issues as to whether this gentleman is an expert,
2 including the criteria that their own former chief military analyst
3 specified for experts being the same rank or higher with similar command
4 experience as the target accused.
5 I propose, therefore, that the MFI status remain and that the
6 Chamber consider the evidence given and yet to be given before making a
7 determination as to whether the report can be accepted into evidence as
8 an expert report. Thank you.
9 JUDGE ORIE: Yes.
10 Mr. Ivetic, apart from the former chief military analyst which
11 said that experts should be of the same rank or higher with similar
12 command experience, is there any legal authority to support that
13 position, I mean the Chamber, so that we can orient ourselves on any case
14 law on the matter or any --
15 MR. IVETIC: I don't --
16 JUDGE ORIE: -- specific legal writings.
17 MR. IVETIC: On that particular matter, there is none. As to
18 whether a military analyst can be considered an expert witness, there is
19 case law. From the Prosecutor versus Milutinovic, the decision as to
20 Philip Coo, disqualifying him --
21 JUDGE ORIE: Yes, that has been raised several times.
22 MR. IVETIC: Raised, yes.
23 JUDGE ORIE: I was asking specifically for that aspect.
24 MR. IVETIC: I'm not aware of any, Your Honour.
25 JUDGE ORIE: Yes. Thank you.
Page 20644
1 Mr. Groome, of course the -- it's uploaded now. The
2 65 ter number you mentioned may replace the version of the expert report,
3 especially part 1 as it was uploaded until now and as it was MFI'd, I
4 think. But of course, the Chamber will need some further time to
5 consider admission also now after having heard Mr. Ivetic's objections.
6 MR. GROOME: That's understood, Your Honour.
7 JUDGE ORIE: Yes. Then I have a relative --
8 MR. GROOME: Your Honour --
9 JUDGE ORIE: Yes?
10 MR. GROOME: There is still a bit more to my submission. I
11 apologise.
12 JUDGE ORIE: Yes, then I'll -- please proceed.
13 MR. GROOME: The second part of the my submission relates to the
14 evidence cited in the report.
15 The Mladic Defence has made a general challenge to the
16 methodology of the report, Mr. Theunens's use of an analytical
17 methodology referred to as the intelligence cycle. He has made this
18 challenge through his questions and by tendering into evidence a
19 scholarly article from Professor Hulnick that questions the reliability
20 of the intelligence cycle as a methodology and suggests that it is likely
21 to result in a mischaracterisation and misunderstanding of the underlying
22 source material.
23 The Defence case, as I understand it, is that the Chamber must
24 not rely on or must place little weight on the contents of the report and
25 what it says about the evidence cited in the report.
Page 20645
1 I have spent the last two days giving careful consideration to
2 this, the guidance, the Chamber's often expressed preference for the
3 Prosecution to tender a minimum number of documents to establish its
4 case. The Chamber has instructed us to review the bar table motion
5 related to military documents and provide notice about which document --
6 documents we still intend on tendering and to do that seven days from
7 today. We will do that, but I want to be frank with the Chamber in that
8 we will still be tendering a substantial amount of this evidence,
9 documentary evidence directly related to the acts and conduct of
10 Mr. Mladic, documents which go to core elements of his responsibility.
11 We will do so for the following reasons.
12 The issue now squarely before the Chamber is whether
13 Mr. Theunens's expert report, which relied solely on the intelligence
14 cycle for its analysis of evidence, is reliable. The only way for the
15 Chamber to adjudicate this issue is to review the evidence which
16 Mr. Theunens drew his conclusions from.
17 The Chamber itself, during the examination of Mr. Theunens,
18 expressed the importance of and its intention to look at the underlying
19 documents when assessing Mr. Theunens's evidence. This occurred in the
20 context of Mr. Ivetic's objection at transcript page 20344, that it would
21 be improper for the Chamber to rely on the evidence of Theunens alone
22 with respect to background factual issues.
23 The Chamber responded to Mr. Ivetic by stating:
24 "In the evaluation of evidence, of course, the Chamber will not
25 just rely on what the witness says but also the documentary, on the
Page 20646
1 documents underlying what the witness expressed as his expert opinion."
2 This expression of the Chamber's approach with respect to the
3 determination of background factual matters makes it all the more
4 imperative for the Prosecution to adduce the underlying documentary
5 evidence which directly establishes the criminal liability of
6 General Mladic. The orders he signed, the reports he received. The
7 Prosecution considers that this expression by the Chamber correctly
8 reflects the Prosecution's position as well as the ample jurisprudence on
9 this matter.
10 As set out in some detail in our 31st of October, 2013,
11 submission, Mr. Theunens's expert report facilitates the Chamber's
12 understanding of the evidence. It is not intended as a substitute for
13 it, nor is it a legal alternative to evidence required in making
14 essential findings of criminal liability in this case.
15 It is also difficult for me to imagine a judgement that in
16 significant part cites as a basis for a factual finding the report of
17 Mr. Theunens and what he said about unadmitted evidence, a judgement
18 without reference to the source evidence itself because it was never
19 tendered by the Prosecution. It is difficult for me to imagine that the
20 Appeals Chamber would place its imprimatur on a judgement that took this
21 approach. And I can't imagine the Appeals Chamber would excuse my
22 failure to discharge my statutory duty to tender evidence sufficient to
23 establish Mr. Mladic's responsibility.
24 So again we will carefully review the documents in that bar table
25 and again file the notice as instructed, but it is likely it will still
Page 20647
1 be a substantial number of documents. I accept that the Chamber may
2 decline to admit some or all of this evidence. I simply ask that it be
3 done on the basis of legal principles and criteria applicable to the
4 admission of evidence and that undue focus not be placed on the number of
5 documents.
6 Finally, Your Honours, the Chamber asked us to consider
7 redactions to P3011, marked for identification. That exhibit is
8 entitled: "The Law on the Army," and dated 1 July 1992. It is the actual
9 law governing the Army of the Republika Srpska and sets out the essential
10 command relationships and operational mechanisms of the army. It is
11 signed into law by Radovan Karadzic and is perhaps one of the most
12 important documents in the Prosecution's case.
13 It is cited by each of the military experts and even other
14 experts as well. In fact, it is cited by Mr. Theunens over 35 times in
15 his report. The Prosecution maintains its position that the entire
16 document should be admitted into evidence. I appreciate that it is
17 54-and-a-half pages long, but given its central importance I believe it
18 requires its admission into evidence in total unredacted.
19 Thank you, Your Honours.
20 And Ms. Stewart informs me that 28621a is now properly uploaded
21 into e-court.
22 JUDGE ORIE: Thank you, Mr. Groome.
23 I'd like to make already the following short observation. When
24 you refer to what the Chamber expressed on page 20344, that, of course,
25 was in the context of what was challenged at that moment by Mr. Ivetic,
Page 20648
1 that was about defence plans, specific identified portions of the report.
2 But we'll further consider the matter.
3 Apart from that, you also made some observations about -- let me
4 just have a look. Well, we'll have a look at what documents you still
5 deem fit to be tendered. Of course, the Chamber will, as given as its
6 guidance earlier, that to the extent the evidence is challenged, and you
7 referred especially to the methodology and the challenge to the -- the
8 cycle being a wrong approach, the intelligence cycle to be a wrong
9 approach, leading to misinterpretation of the underlying evidence. Of
10 course, the Chamber will also consider to what extent this general
11 theoretical position has been substantiated in relation to specific parts
12 of the report; that is, to explain to the Chamber why this methodological
13 flaw, as presented by the Defence, would have its -- had its effect on
14 the conclusions drawn by this witness.
15 I leave it to that at this very moment.
16 [Trial Chamber confers]
17 JUDGE ORIE: Mr. Ivetic, although the Chamber understood
18 Mr. Groome primarily -- since you objected to the admission of the newly
19 redacted report, since -- although Mr. Groome, in the view of the
20 Chamber, mainly announced what he's going to do and why he's going to do
21 that, which is usually not a matter on which I would seek a response by
22 the Defence, but if nevertheless if you would like to bring anything to
23 our attention in this context, please don't hesitate to do so.
24 MR. IVETIC: No, Your Honour. I agree with your analysis. I
25 don't think a response is required to what Mr. Groome has said.
Page 20649
1 JUDGE ORIE: Yes. Thank you for that.
2 Then, I'm looking at the clock now already. Reason is that I
3 have a -- an agenda on procedural matters which will, it's my estimate
4 that it will take anything between 40 and 50 minutes to deal with
5 entirely. I don't want to do it now because Mr. Theunens asked to be
6 released as quickly as possible. I just raise it for the parties that if
7 they would need so much time for the re-examination and perhaps then
8 again further examination by the Defence, that we would not have that
9 40 to 45 or 50 minutes left, that it would inevitably result in at least
10 to have a hearing tomorrow. I just inform the parties about this.
11 MR. GROOME: Your Honours, may I assist the Chamber for
12 scheduling purposes. Mr. Weber anticipates that his redirect examination
13 will take approximately 45 minutes.
14 JUDGE ORIE: Okay. Then there is a fair chance that depending on
15 what the Defence will then claim as time still needed, there is a fair
16 chance that we would deal with all the procedural matters today as well.
17 Let's move forward and ask Mr. Theunens to be escorted into the
18 courtroom.
19 [The witness takes the stand]
20 JUDGE ORIE: Good morning, Mr. Theunens. I again remind you that
21 you are still bound by the solemn declaration given at the beginning of
22 your testimony, and I also would like to inform that everyone in this
23 courtroom expects your testimony to be concluded today.
24 THE WITNESS: Thank you, Your Honours.
25 JUDGE ORIE: I hope you as well.
Page 20650
1 THE WITNESS: Indeed.
2 MR. WEBER: Good morning, Your Honours.
3 JUDGE ORIE: Mr. Weber will now reexamine you.
4 Please proceed, Mr. Weber.
5 MR. WEBER: Thank you.
6 WITNESS: REYNAUD THEUNENS [Resumed]
7 Re-examination by Mr. Weber:
8 Q. Good morning, Mr. Theunens.
9 A. Good morning, Mr. Weber.
10 Q. On Tuesday, at transcript pages 20561 to 63, the Defence asked
11 you about your reference to General Kadijevic's published memoir. During
12 this examination, the Defence challenged that your conclusions were based
13 on what it claimed to be your sole reliance on this document as a single
14 source of your opinions. At page 20563, you indicated that you did not
15 rely on this single source but you also had contemporaneous documents,
16 including General Kadijevic's orders and guidelines.
17 First, do I understand correctly that General Kadijevic's
18 published memoir is one of many sources that you reference in relation to
19 your analysis of the transformation of the JNA between 1991 and 1992?
20 A. That is correct, Your Honours.
21 Q. As part of this analysis, I'd like to ask you more specifically,
22 do you also reference General Kadijevic's contemporaneous directives and
23 orders?
24 A. Yes, I do. And I think it's also good then to put all the
25 material or all the references you have mentioned now in context with the
Page 20651
1 specific military documents, including those of the 9th JNA Corps
2 covering the -- the relevant time-period; i.e., the latter half of 1991.
3 Q. In reaching your conclusions on the transformation of JNA, do you
4 also rely upon orders from Blagoje Adzic, the published daily notes of
5 Borislav Jovic, and the decisions from the SFRY Presidency in addition to
6 the materials you've just mentioned?
7 A. Yes, I do. And when it concerns, because you also talk about
8 transformation in 1992 or the first month of 1992, I refer to the
9 documents issued by the 2nd Military District and its subordinate units.
10 Q. Did you also analyse as part of this section materials related to
11 General Mladic, including his closing speech and tasks for the commanders
12 of the 9th JNA Corps on 15 January 1992?
13 A. Yes, I do, Your Honours. And this is footnote -- I mean, there
14 is an excerpt in footnote 420 in part 1 of the report.
15 MR. WEBER: Your Honours, based on the challenge by the Defence,
16 the Prosecution in accordance with the Chamber's guidelines now tenders
17 the related materials. The additional materials being tendered relate to
18 the transformation of the JNA. The ones from General Kadijevic are
19 65 ter 08303a, 17330, 03845, 17332, and 14349. The additional materials
20 from Blagoje Adzic, Borislav Jovic, and the SFRY Presidency being
21 tendered are 65 ter numbers 08267, 08568a, 07239, 14389, and 17333. In
22 addition to this, we tender General Mladic's 15 January 1992 9th Corps
23 closing speech and tasks, which is uploaded under 65 ter 17334. We're
24 tendering all these as public exhibits.
25 JUDGE ORIE: You refer to 11 exhibits. We would invite
Page 20652
1 Madam Registrar, first of all, to reserve 11 numbers now, and then to
2 prepare a short list in which these numbers appear. The numbers to be
3 reserved, Madam Registrar, will be?
4 THE REGISTRAR: Numbers P3078 up to and including P3088,
5 Your Honours.
6 JUDGE ORIE: These numbers are reserved and Madam Registrar will
7 prepare a list.
8 Mr. Ivetic, any objections to these source materials on which the
9 witness relies in relation to the, if I could say so, the Kadijevic part
10 of the cross-examination?
11 MR. IVETIC: The Defence takes no position since it's in relation
12 to the guidelines of Your Honour. We take no position and make no
13 additional objections.
14 JUDGE ORIE: Yes. Then once the numbers are assigned, these
15 11 exhibits are admitted into evidence.
16 Mr. Weber, please proceed.
17 MR. WEBER:
18 Q. On Tuesday, at pages 20564 to 20581, the Defence examined you
19 about the Vance Plan and whether or not actions were taken to circumvent
20 it. During this examination, you were shown a document from
21 General Mladic which appears to date sometime in early January 1992.
22 MR. WEBER: For the record, this document is now Exhibit D451.
23 Q. At transcript page 20575, the Defence claimed that this document,
24 which includes details of the Vance Plan, gives "a better picture of
25 where General Mladic stood in relation to the Vance Plan and its
Page 20653
1 success." Before we discuss some additional materials, do you recall
2 your related testimony in this document?
3 A. Yes, I do, Your Honours.
4 Q. Did this January 1992 document show that General Mladic had
5 specific knowledge and awareness of the terms of the Vance Plan?
6 A. Yes, it did, Your Honours.
7 Q. At page 20579, the Defence attempted to have you confirm that
8 this document, in fact, shows that General Mladic seemed to support the
9 Vance Plan rather than trying to subvert it. You responded that one has
10 to be careful in drawing conclusions from one document, and then you
11 referred us to additional materials from General Mladic at footnote 585
12 of part 1 of your report.
13 Before discussing the additional examples that you've referred us
14 to, could you please tell us when UNPROFOR was deployed to monitor the
15 implementation of the Vance Plan?
16 A. Your Honours, the resolution --
17 JUDGE ORIE: No, if I'm --
18 THE WITNESS: Sorry.
19 JUDGE ORIE: Sorry to interrupt you. I'm still trying to find
20 exactly on page 2579 that one has to be careful in drawing conclusions
21 from one document. Let me -- 579. Yes. Yes, but I'm still looking at
22 that page, but --
23 MR. WEBER: Your Honour, I would direct the Chamber's attention
24 to lines 17 to 19 on that page.
25 JUDGE ORIE: Yes, I see it. Yes. Thank you.
Page 20654
1 Please proceed. Sorry for the interruption.
2 THE WITNESS: Your Honours, the deployment of UNPROFOR followed
3 the adoption of two Security Council resolutions which can be -- I mean,
4 this can be found on page 177 of part 1 of the report. First, we have
5 seven -- sorry, Security Council Resolution 743, 21st of February, 1992,
6 and then we have 749 on the 7th of April, 1992. In practice, the
7 deployment of UNPROFOR was gradual; i.e., not all forces arrived at the
8 same time in the different UNPAs and became operational at the same time.
9 I -- if I -- my recollection is well -- is correct, I believe, for
10 example, in Sector East in April/May UNPROFOR became fully operational,
11 and this has to be April/May 1992. But in others sectors, for example,
12 Sector South, my recollection is that it took more time before UNPROFOR
13 became fully operational.
14 And if you allow me, I did not have the opportunity to make an
15 additional comment during cross-examination on the document, the early
16 January 1992 document by General Mladic, which I think may be useful to
17 further clarify the context of that document.
18 Q. Please go ahead --
19 A. Yeah.
20 Q. -- Mr. Theunens, if you feel it's important for us to be aware
21 of.
22 A. The situation was that at that time that the political leader of
23 the Krajina Serbs, Milan Babic, rejected the Vance Plan; whereas the
24 president of Serbia, Mr. Milosevic, had agreed to the plan and wanted to
25 use all available means to convince the Krajina Serbs of accepting the
Page 20655
1 plan. My view is that General Mladic's document where he explains the
2 benefits of the Vance Plan and the importance of strict adherence is part
3 of the plan or the campaign by Mr. Milosevic to convince the Krajina
4 Serbs of accepting the plan.
5 Q. Okay.
6 MR. WEBER: Could the Prosecution please have 65 ter 14421,
7 page 4 of the English and page 2 of the B/C/S.
8 Q. Appearing before you is a 27 February 1992 report and order from
9 General Mladic sent to the 2nd Military District IKM in Manjaca. At the
10 end of this document, General Mladic communicates he has decided to
11 continue to assist the TO and MUP of the RSK in carrying out
12 organisational and establishment changes and in equipping the TO and MUP
13 units. There is also reference to his decision to clean up the town of
14 Drnis and its environs.
15 Can you tell us whether or not this document is consistent or not
16 with your conclusions that the JNA 9th Corps took actions to circumvent
17 the Vance Plan?
18 A. In -- yes, Your Honours, it is. And this document is also cited
19 in footnote 585 on page 179 of part 1 of the report.
20 MR. WEBER: The Prosecution tenders 65 ter 14421 into evidence.
21 JUDGE ORIE: Mr. Ivetic.
22 MR. IVETIC: No objection.
23 JUDGE ORIE: May I take it that the underlining in the part you
24 read is not part of the original and should be ignored by the Chamber?
25 MR. WEBER: It is. It's just how we received it, so it's
Page 20656
1 nothing --
2 JUDGE ORIE: You received it, but it's --
3 MR. WEBER: It's --
4 JUDGE ORIE: Apart from that it has no specific meaning, but I'm
5 just wondering what it is.
6 Madam Registrar.
7 THE REGISTRAR: Document 14421 receives number P3089,
8 Your Honours.
9 JUDGE ORIE: Admitted into evidence.
10 MR. WEBER: Could the Prosecution please have 65 ter 00769,
11 page 2 of both versions.
12 Q. Mr. Theunens, appearing before you is a 5 April 1992 report from
13 General Mladic to the 2nd Military District. At the end of this report,
14 General Mladic indicates again that he decided to continue with the
15 mobilisation, forming, equipping, and arming in this case of mobilised
16 units in Bosansko Grahovo and Bosanski Petrovac and to continue helping
17 the RSK TO and MUP in forming TO and MUP units in the 9th Corps zone of
18 responsibility.
19 Again, could you tell us whether or not this document is
20 consistent with your conclusion that the JNA 9th Corps took actions to
21 circumvent the Vance Plan?
22 A. Yes, indeed, Your Honours. I mean, it is. I would just like to
23 clarify, I mean, Bosansko Grahovo and Bosanski Petrovac are located in
24 Bosnia-Herzegovina. It's a different subject. It is not RSK MUP and TO
25 as is explained in the next paragraph in the document, and this is also a
Page 20657
1 document I have cited in footnote 585, mentioned earlier.
2 Q. Thank you for that clarification.
3 MR. WEBER: At this time the Prosecution tenders 65 ter 769 into
4 evidence.
5 MR. IVETIC: No objection.
6 JUDGE ORIE: Madam Registrar.
7 THE REGISTRAR: Document 00769 receives number P3090,
8 Your Honours.
9 JUDGE ORIE: Is admitted into evidence. Let me just have a look.
10 Do I understand your testimony well that it's only the lines
11 where it says "to continue helping the RSK TO Main Staff and the Ministry
12 of the Interior in forming of TO and MUP units," that that's the only
13 part which is demonstrative for circumventing the Vance Plan, whereas the
14 first part is not.
15 THE WITNESS: Indeed, Your Honours, that is -- that was the
16 purpose of my comment on the first part.
17 JUDGE ORIE: Yes. Thank you.
18 Please proceed.
19 MR. WEBER: Your Honour, if it's okay with you, I'm happy at this
20 stage or I can continue going through five more documents and asking the
21 same exact question. If it's okay with you, I could tender these
22 collectively for the same exact purpose that I have been asking on the
23 previous two documents. So if acceptable, the Prosecution would tender
24 65 ter 763, which is a -- another report from General Mladic, along with
25 additional reports from General Mladic under 65 ter 741, 752, and 775.
Page 20658
1 In addition to this, we tender 65 ter 753, which is General Mladic's plan
2 relating to the regrouping of RSK TO and MUP units between the months of
3 February and March 1992.
4 JUDGE ORIE: Just for my information, Mr. Weber, these are all
5 footnote materials to the relevant part? Of course, I couldn't --
6 MR. WEBER: For --
7 JUDGE ORIE: If they are, then the Chamber would, starting from
8 the view that it's -- that the witness considers these materials relevant
9 for the conclusions drawn. If not, I think they should be put to the
10 witness first and the question to be asked.
11 MR. WEBER: Two are and I can put the other three, if that's what
12 Your Honour would like to do. I'd be happy to do that.
13 JUDGE ORIE: Yes. I think that would be appropriate.
14 MR. WEBER: Okay.
15 JUDGE ORIE: Or another option would be to give the texts of
16 these exhibits to the witness during the break and ask him, upon return,
17 whether he found in those documents elements which are in support of his
18 conclusions. There are two ways. But I think since we have time, the
19 best way to do it would be to put the three to the witness now.
20 The two other ones who are in footnote materials, could you
21 already identify those so that we decide on?
22 MR. WEBER: 65 ter 763 and 65 ter 753.
23 JUDGE ORIE: Mr. Ivetic, any objection against them being
24 admitted?
25 MR. IVETIC: None, Your Honour.
Page 20659
1 JUDGE ORIE: Madam Registrar, 65 ter 763 receives number?
2 THE REGISTRAR: Number P3091, Your Honours.
3 JUDGE ORIE: Admitted.
4 65 ter 753.
5 THE REGISTRAR: Receives number P3092, Your Honours.
6 JUDGE ORIE: Admitted into evidence.
7 Please proceed, Mr. Weber, with the other three.
8 MR. WEBER: Thank you, Your Honours.
9 Could the Prosecution please have 65 ter number 741.
10 Q. Mr. Theunens, coming up before you will be a 3 March 1992 request
11 to carry out mobilisation from General Mladic, sent to the
12 2nd Military District command. If you could please review the first page
13 of the document.
14 A. Your Honour, I have read the first two paragraphs.
15 Q. Okay. Just so you see the complete document.
16 MR. WEBER: If we could please have the second page of the
17 English translation. It's just the signature page.
18 THE WITNESS: Yes, okay.
19 MR. WEBER:
20 Q. Do you have any comments in relation to this document and your
21 opinions on the JNA 9th Corps's activities after the --
22 JUDGE ORIE: Could we -- could we go back to the first page for
23 the content of the document --
24 MR. WEBER: Yes.
25 JUDGE ORIE: -- now knowing who signed it?
Page 20660
1 Please proceed.
2 THE WITNESS: Yeah, I would also like to see the third paragraph
3 because the third paragraph, actually -- in the first two paragraphs talk
4 about preparations in Bosnia-Herzegovina where General Mladic requests
5 his superior -- excuse me. Where General Mladic proposes mobilisation
6 of -- of a number of TO units in Bosansko Grahovo and Bosanski Petrovac
7 for potential engagement in Bosnia-Herzegovina, and the third paragraph
8 is actually a clarification of that. So, I mean, this document is not
9 related to any -- any support or, yeah, activities in -- concerning the
10 RSK MUP or TO.
11 MR. WEBER: And, Your Honour, that might have been my -- that's
12 obviously my bad in my reading of the document. If I could check the
13 other two, then, to see if that repeats during the recess. However,
14 based on Mr. Theunens's explanation, I believe that Mr. Mladic's
15 involvement of mobilisation of units in Bosnia would separately make this
16 document relevant and we ask that it be admitted.
17 JUDGE ORIE: Mr. Ivetic.
18 MR. IVETIC: It may make it relevant for something else if
19 evidence were to be led, but if it is not part of Mr. Theunens's analysis
20 and it does not go toward points raised in cross, I don't believe
21 redirect is the proper time to admit it.
22 JUDGE ORIE: Mr. Weber, any direct link to the evidence of this
23 witness? Apart from that it's not related to what he said.
24 MR. WEBER: Yes, I -- I apologise for the confusion. We could
25 separately bar table this. I -- I appreciate, based on my mistake, that
Page 20661
1 I -- I misunderstood the -- the context of it.
2 JUDGE ORIE: Yes.
3 MR. WEBER: The witness has clearly explained it, and Mr. Ivetic
4 did bring up the general activities of the accused during this
5 time-period. In the specific contents -- context in relation to the
6 Vance Plan --
7 JUDGE ORIE: Mr. Weber, I think you are using a lot of words
8 where most important is that you made a mistake in considering this to be
9 relevant as underlying material for Mr. Theunens. If we leave it to that
10 and if you would not tender this document at this time in this way, then
11 we could proceed.
12 MR. WEBER: Very well, Your Honour.
13 JUDGE ORIE: Please proceed.
14 THE WITNESS: Your Honours, sorry, I mean -- I'm not answering a
15 question now, but it provides information on the preparations taken by
16 the 9th Corps to mobilise certain TO units. This is -- this looks like
17 regular units of the TO of Bosnia-Herzegovina, but it's in specific
18 municipalities. And if you see that in the context of what I have
19 described on the changing role of the JNA and also the role of the
20 2nd Military Districts, it could be part of that. But what I tried to
21 explain in my answer to the question was it has no relation with the
22 Vance Plan.
23 JUDGE ORIE: That was clear.
24 THE WITNESS: Thank you.
25 MR. WEBER: I'm going to move on.
Page 20662
1 Q. On Tuesday, at transcript pages 20608 to 11, the Defence and the
2 Chamber questioned you about why you did not include a declassified CIA
3 intelligence report dated 28 May 1995 in your report. Based on the
4 information that is in this CIA report and on the CIA web site, it
5 appears that this document was declassified on 19 March 2013. Can you
6 just clarify for the record whether or not this CIA report was even
7 available to you when you completed your report in September 2012?
8 A. Indeed, Your Honours. I also -- I received an e-mail from a
9 former colleague, I think, one or two months ago, where the
10 declassification of these documents, I don't know, hundreds of --
11 apparently, hundreds of documents by the CIA -- actually,
12 declassification is by another authority, but that these documents would
13 become available on the CIA web site. And this is like, I think, two or
14 three months ago. But I never had time to -- to look at the web site.
15 And obviously, this is long after this report was finalised.
16 Q. If you were asked to by the Chamber to review these approximately
17 300 documents that were recently declassified, would be willing to do so
18 and let us know whether or not this would change or impact any of your
19 opinions?
20 A. Your Honours, it's always useful to look into additional
21 material. I mean, it would be, I think -- in my specific case, it would
22 mainly depend on my supervisor, whether I would be authorised to spend
23 time on doing this, but I would find it, I mean, very interesting to do.
24 Q. I'd like to turn to the -- what you had access to during the
25 preparation of your report. Did you have unfettered access to the
Page 20663
1 evidence collection in the possession of the Office of the Prosecutor?
2 A. Yes, I had, Your Honours.
3 Q. Do you know the approximate number of documents that are
4 available in this collection? I mean, I'm speaking of the overall
5 evidence collection of the Office of the Prosecutor.
6 A. I -- my -- I would make a guess just based on the documents I
7 have seen over the years I worked here, but I would say more than hundred
8 thousand, several hundred thousands.
9 Q. During the drafting of your report in this case, was there any
10 direction or indication provided to you from the OTP trial team that
11 affected your analysis or any of your conclusions from your review of the
12 documentary material?
13 A. No, there was not, Your Honours.
14 Q. During cross-examination, the Defence asked you generally about
15 whether you ever assisted the Prosecution either by drafting, reviewing,
16 or revising briefs. You specified your limited role and you also
17 distinguished in your answers between your involvement before April 2009
18 and thereafter. Can you clarify whether or not you have participated in
19 the drafting of anything other than your report for the OTP in this case?
20 So aside from your report in the Mladic case.
21 A. Your Honours, I believe already -- I already mentioned that. But
22 for this case, i.e., the Mladic case, I only compiled -- I only prepared
23 this report here. I did not provide any other work or support or
24 assistance to the Office of the Prosecutor or anybody else.
25 MR. WEBER: Your Honour, just at this point to take care of a
Page 20664
1 quick housekeeping matter. The Prosecution did locate the most recent
2 curriculum vitae of the witness from the Hadzic case and we have uploaded
3 and provided the 65 ter to the Defence. It's uploaded under 65 ter 30523
4 and we tender it at this time.
5 MR. IVETIC: No objection.
6 JUDGE ORIE: Madam Registrar.
7 THE REGISTRAR: Document 30523 receives number P3093,
8 Your Honours.
9 JUDGE ORIE: And is admitted into evidence.
10 MR. WEBER: Your Honour, if this is a good time for the break.
11 This would be --
12 JUDGE ORIE: I think it is a good time for the break.
13 There is, however, one matter which you caused to be in the air
14 now. If the Chamber would ask Mr. Theunens, which the Chamber did not
15 do, to review any CIA documents which now have become -- they have been
16 declassified. Of course, the Chamber didn't do that, so therefore
17 whatever the witness said about it, whether he would be willing, whether
18 his chiefs would be willing to give him that time is irrelevant at this
19 moment.
20 At the same time, Mr. Ivetic, you referred to one of those CIA
21 documents which seems to indicate that you are aware of these documents,
22 these documents having been declassified. And if those documents would
23 contradict or undermine the opinions of this witness, of course the
24 Chamber would expect you to put them to the witness and to confront him
25 with that material while he is here before us. Therefore, I'm putting
Page 20665
1 the two together. The Defence has shown to be aware of those documents,
2 has not put specific elements to the witness any further than it did.
3 And you have considered whether this witness, if he would be asked, what
4 he's not, to further consider whether that material would change any of
5 his conclusions -- well, it is not put by the Defence to him that it
6 would change his conclusions. So in the absence of any further action,
7 the Chamber will just leave the matter as it is now.
8 MR. WEBER: Your Honour, in terms of evidentiary -- what we
9 intend to rely on, we intend to rely on Mr. Theunens's analysis.
10 JUDGE ORIE: Yes.
11 MR. WEBER: However, in visiting the web site, I do see that
12 there is many materials that may be consistent that were not put to
13 Mr. Theunens. So I don't want to get into a full-on process and I
14 understand the Chamber's concern, but if this is a significant issue to
15 the Defence where they feel it impacts his methodology, we would ask for
16 the opportunity to tender additional materials from this web site to show
17 that there is materials consistent with his --
18 JUDGE ORIE: So what you're saying --
19 MR. WEBER: [Overlapping speakers] --
20 JUDGE ORIE: -- at this moment on the basis of what the Defence
21 has put to the witness, you do not consider this to be a concrete
22 challenge of the conclusions of Mr. Theunens, and for that reason you
23 refrain from now tendering and further seeking to be admitted into
24 evidence any of those reports where -- which the Defence is apparently
25 aware of, and you're asking that whether -- if at any later point in time
Page 20666
1 the Defence would raise such challenges, that you would still have an
2 opportunity to further rely on those materials, perhaps when
3 cross-examining any witness the Defence may present, if it ever comes to
4 a Defence case?
5 MR. WEBER: Yes.
6 JUDGE ORIE: Then I think the procedural context of these matters
7 is now clearly put on the record.
8 We take a break and we'll -- after Mr. Theunens has left the
9 courtroom, we will resume at five minutes to 11.00.
10 [The witness stands down]
11 --- Recess taken at 10.33 a.m.
12 --- On resuming at 11.02 a.m.
13 JUDGE ORIE: Could the witness be escorted into the courtroom.
14 Could the usher escort the witness into the courtroom.
15 Mr. Weber, you would consider the last two out of the
16 five documents which you considered to tender in support of the
17 undermining of the Vance Plan. Have you made up your mind in that
18 respect?
19 [The witness takes the stand]
20 MR. WEBER: I have, and on further review I think they might be
21 relevant --
22 JUDGE ORIE: [Overlapping speakers] --
23 MR. WEBER: -- to the other thing that the witness indicated and
24 not necessarily what [overlapping speakers] --
25 JUDGE ORIE: I leave it to you, but I strike them from the list
Page 20667
1 of five supporting documents. So two now remain, which are footnote
2 materials already and which have been admitted.
3 Please proceed.
4 MR. WEBER:
5 Q. On Tuesday, at pages 20581 to 92, the Defence asked you about
6 Arkan. During this examination, you were read a portion of your
7 testimony from the Karadzic case related to Arkan's presence in Bosnia in
8 late September 1995. In particular, this was in relation to a
9 23 September 1995 document from General Mladic. You were also read parts
10 of General Mladic's order related to paramilitaries from July 1992. Do
11 you recall this testimony?
12 A. I do, Your Honours.
13 MR. WEBER: Could the Prosecution please have 65 ter 09685.
14 Q. Before you is an order from Tomo Kovac dated 11 October 1995.
15 What does this document show with respect to the relationship between the
16 VRS, the RS MUP, and Arkan?
17 A. The document shows co-operation between the VRS, i.e.,
18 VRS Main Staff, and the MUP at the -- I mean, the MUP at the level of the
19 minister because it refers to an agreement. And then at -- when we're
20 looking at the contents of the order, it indicates that Arkan will be
21 used or his group will be used to arrest -- to start arresting deserters
22 from the front in the territory of the Prijedor CJB, organise, I mean,
23 military ranks; i.e., bring them back into the military and return them
24 to their original brigades.
25 Q. Now, we saw during cross-examination that General Mladic's order
Page 20668
1 from 28 July 1992 indicated that paramilitary formations were to be
2 disarmed and arrested if they did not place themselves under the unified
3 command of the VRS. Also, according to the text of General Mladic's
4 23 September 1995 document, he also appears not to be satisfied because
5 Arkan did not report to any command from the battalion level to the
6 VRS Main Staff to receive an assignment.
7 In light of this subsequent order, what does this show about the
8 Main Staff's attitude towards paramilitary groups, like Arkan's SDG, who
9 were operating in the zones of responsibility of the VRS?
10 A. Well, reading this order the -- the 11th of October document, it
11 is not exactly clear under whose orders Arkan operates, but at least, I
12 mean, his presence is tolerated by the VRS Main Staff, and he's also
13 given explicit missions. Whereas, when we go back to the -- the earlier
14 order, the one from July 1992 which is mentioned, for example, in
15 footnote 292 and 293, there paramilitaries who, quote unquote, are
16 honourable -- whose intentions are truly honourable, quote/unquote, and
17 place themselves in the service of the just struggle for the survival of
18 the Serbian people, i.e., as is explained further on, incorporate
19 themselves in the units of the VRS, these units again can remain and will
20 then form a part of the VRS.
21 MR. WEBER: The Prosecution --
22 JUDGE FLUEGGE: Mr. Weber, if you look at the English
23 translation, in the first line:
24 "Pursuant to the agreement between the MUP Minister and the Chief
25 of the VRS General Staff Manojlo Milanovic."
Page 20669
1 I think this is a mistake in the English translation. In the
2 original, it's clear it refers to Manojlo Milovanovic.
3 MR. WEBER: Yes, Your Honour. Thank you for noting that.
4 JUDGE FLUEGGE: You should carefully review that again.
5 MR. WEBER: Yes, Your Honour.
6 With that being noted, if it's okay to rely on original in
7 relation to the individual identified which is clearly
8 Manojlo Milovanovic.
9 The Prosecution at this time tenders 65 ter 09685 into evidence.
10 The Prosecution also tenders 65 ter 06764, which is the 23 September 1995
11 document from General Mladic which was referred to during the Defence
12 cross.
13 MR. IVETIC: No objection to either.
14 JUDGE ORIE: Madam Registrar, 65 ter 0965 receives number?
15 THE REGISTRAR: Your Honours, was it 09685?
16 JUDGE ORIE: 685. Yes, which then receives?
17 THE REGISTRAR: Receives number P3094, Your Honours.
18 JUDGE ORIE: Admitted. Then 65 ter 06764.
19 THE REGISTRAR: Receives number P3095, Your Honours.
20 JUDGE ORIE: Madam Registrar, P094 and P095 certainly are not the
21 numbers.
22 THE REGISTRAR: The numbers are P3094 and P3095 [Realtime
23 transcript read in error "P0394 and P0395"].
24 JUDGE ORIE: P3094 and P3095, and that's the numbers that were
25 assigned in the last line by Madam Registrar to these two documents, are
Page 20670
1 admitted into evidence. It seems that at line 11, the 0s and the 3s have
2 changed place. The numbers I mentioned are the numbers under which they
3 are now [Realtime transcript read in error "not"] in evidence.
4 Please proceed.
5 MR. WEBER: Could the Prosecution please have 65 ter 30553.
6 Q. Mr. Theunens, during cross-examination you were asked questions
7 about the co-ordination, resubordination, and what you also referred to
8 as the attachment of MUP units during VRS operations. In particular, on
9 page 20615, the Defence, in leading into this examination, made passing
10 reference to your testimony related to Trnovo.
11 Before you is a 23 July 1995 SRK regular combat report from
12 Dragomir Milosevic at the IKM in Trnovo. This document is sent to the
13 Main Staff. Are you familiar with this document?
14 A. I am, Your Honours. I don't believe that I included it in my
15 report for the Mladic case, but I have certainly included it in my report
16 for the Stanisic-Simatovic case.
17 Q. What does --
18 JUDGE ORIE: Before we continue, Mr. Weber. I have,
19 unfortunately, to deal with the transcript.
20 Page 29, line 15 and 16, now reads that:
21 "The numbers I mentioned are the numbers under which these
22 documents are not in evidence."
23 But what I think I said is that the numbers I mentioned, P3094
24 and P3095, are the numbers under which they are now in evidence.
25 Please proceed and sorry for the interruption.
Page 20671
1 MR. WEBER: Thank you, Your Honour.
2 Q. What does this document or report show in terms of the
3 relationship between the SRK and the Skorpions?
4 A. Your Honours, at least on the first page in -- under title 2, it
5 shows that the Skorpions unit is considered a unit of, quote/unquote, our
6 forces, which in my view indicates that it's subordinated to the SRK
7 during the conduct of operations that are discussed in this combat
8 report.
9 MR. WEBER: The Prosecution tenders 65 ter 30553 into evidence.
10 MR. IVETIC: No objection.
11 JUDGE ORIE: Madam Registrar.
12 THE REGISTRAR: Document 30553 receives number P3096,
13 Your Honours.
14 JUDGE ORIE: Admitted into evidence.
15 MR. WEBER: The Prosecution has no further questions.
16 JUDGE ORIE: Thank you, Mr. Weber.
17 MR. IVETIC: Approximately three questions, Your Honours.
18 JUDGE ORIE: Mr. Ivetic.
19 Which means anything between two or four, isn't it?
20 MR. IVETIC: Correct.
21 JUDGE ORIE: Please proceed.
22 MR. IVETIC: Thank you.
23 Further Cross-examination by Mr. Ivetic:
24 Q. If we can look at the document we have on the screen, sir, and if
25 we can ask you to look at the first paragraph, it would appear that the
Page 20672
1 4th DLpbr and the MUP, Ministry of Interior, Skorpions are forces that
2 are in the same area but not necessarily at the same point. You will
3 agree with me, sir, from the military standpoint when it talks about the
4 point of convergence between the MUP, Ministry of Interior, Skorpions and
5 the 4th DLpbr, Drina Light Infantry Brigade, seems to imply that they are
6 operating in separate zones, does it not? Rather than being comingled
7 forces?
8 A. That is correct, yeah. I mean, each unit has its own areas of
9 operations.
10 Q. Would you also agree from a military standpoint that one has to
11 take into account neighbouring force even if they are not subordinated
12 but are still friendly forces to prevent so-called blue on blue contact?
13 A. Yes, indeed. I mean, we spoke about co-ordination with
14 neighbouring forces.
15 Q. So this document could also be in relation to co-ordination and
16 reporting on neighbouring forces; is that correct?
17 A. No. I mean, you have to look at the originator from the
18 document. The document originates from the Sarajevo -- from the SRK, the
19 Sarajevo-Romanija Corps of the VRS. They have a number of forces. I
20 mean, they have what I would call establishment units, i.e., units that
21 are always part of the SRK, as well as other units, for example, the MUP
22 Serb -- as it is identified, MUP Serbia units Skorpions, who are
23 operating in the zone of operations of the SRK in the Trnovo area. And
24 looking at the document, and again the other documents in the context of
25 the operations that are conducted in Trnovo, I conclude that this MUP
Page 20673
1 unit is subordinated to the SRK.
2 MR. IVETIC: Okay. If we can call up what has now been marked as
3 P3094.
4 JUDGE FLUEGGE: I think you are referring to P3094.
5 MR. IVETIC: That's correct.
6 JUDGE FLUEGGE: Now it's correct on the transcript.
7 MR. IVETIC: Thank you, Your Honour.
8 Q. This is the order of the MUP minister in relation to Arkan. I'd
9 like to ask you, sir, if the MUP is using Arkan in October 1995, despite
10 General Mladic's September 1995 appeal to President Karadzic and to the
11 MUP to withdraw and remove Arkan, can we thus conclude that Arkan and his
12 group fall under the jurisdiction of the MUP?
13 A. I mean, before answering the question I think we have to be
14 careful in how we phrase this, because you -- you use the word "despite,"
15 but I see the document that there is agreement between the MUP -- I mean,
16 MUP RS at minister level and the Main Staff through its chief or the
17 deputy commander of the VRS General Manojlo Milovanovic.
18 It is not -- I mean, maybe there is -- sorry, on -- at -- looking
19 at this document only, I cannot draw a conclusion as to whom Arkan is
20 subordinated at that time. Maybe there is a military document that also
21 describes the role of Arkan, because I would assume that for the VRS, the
22 commanders in the area, they would also like to know, and through their
23 chain there has to be a communication of the agreement that's been
24 reached. And then looking at these documents in combination, we would be
25 in a better position to draw a conclusion as to who Arkan is subordinated
Page 20674
1 while conducting these specific type of activities.
2 JUDGE ORIE: Mr. Theunens, could I ask you one question in this
3 context.
4 Arresting deserters. Deserters of what armed force in your
5 understanding?
6 THE WITNESS: In my understanding, Your Honours, this includes
7 for sure members of the VRS. Because maybe you remember what I mentioned
8 earlier, that I had a recollection that Arkan had been sent to arrest
9 deserters. People in general were afraid of Arkan, and not just
10 non-Serbs but also among the Serbs. And again, I don't think I
11 specifically saw this document before but this is something I remember
12 from my work on -- on the Balkans, that Arkan could be used for those
13 kind of activities; i.e., that he would be sent to the rear area. And
14 just the fact that he and his people were there would have an
15 intimidating role --
16 JUDGE ORIE: Yes.
17 THE WITNESS: -- or --
18 JUDGE ORIE: -- you're now --
19 THE WITNESS: Yeah.
20 JUDGE ORIE: -- going beyond my question. My question was:
21 Deserter of what armed force? And then you explained why it would be
22 useful to use him for that purpose.
23 THE WITNESS: Mm-hm.
24 JUDGE ORIE: Do I therefore understand that the -- that there is
25 an agreement in which the chief of VRS GS is involved, which includes
Page 20675
1 Arkan to be used in the arrest of deserters of the VRS and to bring them
2 back to their original brigades. Is that how we have to understand this
3 document?
4 THE WITNESS: Yes, Your Honours, to bring them back to their
5 original VRS brigades.
6 JUDGE ORIE: Yes. That is the role and the function of Arkan and
7 his men. I take it it's not Arkan alone. Under whose command he did so
8 you say not clear from this document. So the function, the role is
9 clear, but under whose command, if any, he performed that task is
10 unknown. Is that a correct understanding of your interpretation of this
11 document?
12 THE WITNESS: Yes, Your Honours. The -- the 23rd of September
13 letter from General Mladic to Mr. Karadzic suggests that the presence at
14 that stage, i.e., end of September 1995, has not been approved by the VRS
15 Main Staff; i.e., that Arkan is not operating under the orders of the VRS
16 Main Staff in September 1995 in the -- the wider Sanski Most area. Now
17 we are, I would say, three weeks later, and then we see that there is an
18 agreement between the Main Staff and the MUP on the use of Arkan. But I
19 cannot conclude from this 11 October document under whose authority Arkan
20 is doing -- is conducting the activities that had been -- have been
21 agreed between the MUP and the Main Staff.
22 JUDGE ORIE: But at least you conclude from this document that it
23 is with the consent of the VRS Main Staff?
24 THE WITNESS: Yes. And not, I mean, "consent," but in the
25 military sense explicit approval.
Page 20676
1 JUDGE ORIE: Yes. Thank you.
2 Please proceed.
3 MR. IVETIC:
4 Q. Sir, isn't it just as likely a reading of this document that
5 there was an agreement reached that military forces in an area and police
6 forces in an area will arrest personnel with each providing the units
7 from their composition which would participate in such a task such that
8 the inclusion of Arkan may not even have been known to the army
9 Main Staff?
10 A. I -- I don't understand the question, because Arkan is explicitly
11 mentioned there. And if, I mean, from a practical sense, if Arkan or
12 members of his group are conducting certain activities in an area, it
13 will be known. And people will ask questions, what are they doing here.
14 Q. Yes, but if you look at the addressee, the Republika Srpska
15 General Staff, "for their information," isn't it entirely possible that
16 this document could be the first time that the Main Staff is getting
17 information that indeed Arkan is the group that will be doing the
18 previously agreed to arresting?
19 A. I don't understand why you -- I mean, previously there is an
20 agreement and then the agreement has to be communicated to everybody so
21 that everybody is familiar with what has been agreed to. And that when
22 they see Arkan or other units identified in this order, when they see
23 them conducting certain activities, that nobody is surprised.
24 JUDGE ORIE: Could I try to see where apparently the possible
25 disagreement lies.
Page 20677
1 The order reads "pursuant to the agreement," and then mentions
2 the two parties, that is, the MUP and the chief of the VRS Main Staff.
3 Then orders who should start arresting people. Is it true that there are
4 two ways of reading this document? The one is that the agreement already
5 included who would do these arrests or that the agreement was more
6 limited, dealing with people having to be arrested but without giving the
7 details on who would do that. And that in this order, it is further
8 specified who would perform those arrests.
9 Is that, Mr. Ivetic, the two ways of interpreting the document,
10 whereas it's your position that the second interpretation I mentioned is
11 the -- the better one and that the first one apparently is what you
12 understood to be the interpretation given by Mr. Theunens?
13 MR. IVETIC: That's absolutely correct, Your Honour.
14 JUDGE ORIE: So now we have at least clarified or identified what
15 the problem is.
16 Mr. Theunens, could you please comment on the preferred
17 understanding of the document by the Defence.
18 To which I add, Mr. Ivetic, there seems to be no disagreement
19 that even if the original agreement would not identified who would have
20 to do the arrests, that at least through this order the Main Staff
21 becomes aware, if not already before, who would be assigned with this
22 task.
23 MR. IVETIC: That's correct.
24 JUDGE ORIE: Mr. Theunens, please, your comment.
25 THE WITNESS: Your Honours, I still -- I mean, I am trying to
Page 20678
1 practically imagine how this agreement would be implemented. And while
2 doing so, I find it hard to understand that the -- I mean, if I
3 understand the second interpretation well, that there could be an
4 agreement to arrest VRS members, and then on the ground, people would
5 discover that, yeah, by the way, also Arkan is involved. I mean, it
6 wouldn't make sense --
7 JUDGE ORIE: Could I intervene, then, for a second.
8 The situation would be, if I understand the Defence well, is that
9 when reaching the agreement, they would not have known who would do the
10 arrests, but on the ground, once Arkan's men would have started to arrest
11 people, they would by then be aware of the order which says it is Arkan's
12 men who should do it. Therefore, on the ground the confusion would not
13 any further exist, not on the basis of the agreement but upon being
14 notified of the order that it was Arkan's men who should do the arrests.
15 That is, if I understand well, the Defence's position.
16 Could you please comment.
17 THE WITNESS: Yes, Your Honours. I mean, I don't think that that
18 is a correct interpretation, because when -- I mean look -- I mean, take
19 two aspects into account: First, the order; and secondly, how things are
20 done in reality or in practical situation. The order talks about -- it
21 says "pursuant to the agreement," and then it says in the order "shall
22 immediately start." So first there is an agreement, and then the action
23 will be taken.
24 Normally it's the military police who arrest deserters.
25 Apparently, there is not enough military police or at least they are not
Page 20679
1 identified here. As I tried to explain, it would be a violation of the
2 principles of command and control if Arkan would have been given a task
3 but nobody in the military chain would have been informed of that task
4 prior to Arkan's people starting to implement the task. I don't
5 understand why people would try to make the situation so complicated.
6 Because we have the September letter from Mladic -- from General Mladic
7 where he says, you know, what is Arkan doing here. And now we have an
8 agreement which, again, talks about Arkan. It wouldn't make sense for me
9 to have an agreement without identifying who would implement those tasks
10 and activities that have been agreed.
11 The Main Staff must know in advance that Arkan will be part of
12 those forces that will be used to conduct the arrests in order to allow
13 the Main Staff to inform its subordinate units of the role Arkan and his
14 people will have.
15 JUDGE ORIE: Yes.
16 Now, Mr. Ivetic, just for your information. Reading the document
17 and considering your interpretation, one question would arise for me in
18 interpreting this document, which would be the last sentence:
19 "This task should be carried out together with unit commands if
20 they are in the area, and if they are not, further command should be
21 agreed with the Main Staff."
22 Now, the question that arises would be: Would
23 Minister Tomislav Kovac, if there would have been no agreement on who
24 would perform the arrests, be in a position to impose on the unit
25 commands any obligation to act together with Arkan's men? And would
Page 20680
1 there be any reason, if there were no units around, that Minister Kovac
2 could expect or order the Main Staff to enter into negotiations and
3 agreement on the command? Those would be the questions that would come
4 to my mind reading the last sentence, and perhaps the witness could
5 comment on that as well.
6 MR. IVETIC: If I could perhaps try to clarify.
7 Q. The -- this order from the MUP minister, it's addressed to
8 several entities. The first one being the VRS for their information.
9 Would that be necessary if all these things had been known to the
10 General Staff of the VRS prior, or would that indicate that this was the
11 first time that they are being advised of the specifics of the MUP forces
12 and the MUP orders for those forces?
13 A. Well, I would assume that if the minister -- if the minister and
14 the chief of the VRS Main Staff have concluded an agreement, that the
15 Main Staff is also informed. I had -- we don't know to what extent they
16 agreed on specific units. But again, given the -- the September letter
17 from General Mladic on the presence of Arkan, I would find it very
18 unusual if the involvement of Arkan would not have been explicitly been
19 agreed upon between the people who concluded the agreement, i.e., the
20 minister, Minister Kovac, and General Milovanovic.
21 JUDGE FLUEGGE: Mr. Theunens, I --
22 JUDGE ORIE: Well, I think now three Judges want to put questions
23 to you. I hope that my colleagues will forgive me that I put the first
24 question to you.
25 The purpose of sending the VRS Main Staff for their information
Page 20681
1 this order, could the purpose be that the other party to the agreement,
2 which is the MUP minister, hereby informs the Main Staff that the
3 agreement, the content of it, has been communicated with the command of
4 the joint task staff, the Tigrovi, and the Janja Special Police
5 Detachment, and the chief of the Prijedor CJB, could that reasonably be
6 interpreted as the reason for sending this information to the VRS Main
7 Staff?
8 THE WITNESS: Yes, Your Honours. And also the VRS Main Staff is
9 obviously not subordinated to the minister, so that's why he shares the
10 order with them for information, not for action.
11 JUDGE ORIE: Yes. And their position is that they have already
12 reached an agreement, which is, of course, not the same as an order.
13 Now, the command of the joint task staff. Could you tell us what
14 the joint task staff exactly stands for in this context?
15 THE WITNESS: Your Honours, I have no specific knowledge of the
16 role of a joint task staff during that time-period in -- in Sanski Most.
17 It could consist of --
18 JUDGE ORIE: Well, if you don't know --
19 THE WITNESS: Okay, then.
20 JUDGE ORIE: -- if you start guessing --
21 THE WITNESS: No, no --
22 JUDGE ORIE: -- then we'd rather refrain from doing that, unless
23 you say: I have relevant information which might be elements which
24 could - although not on the basis of this document and on the basis of
25 your knowledge - contribute to ever establishing what the a joint task
Page 20682
1 staff was.
2 THE WITNESS: That was actually my intention. It -- a joint task
3 force -- task staff could consist of police and military personnel, but I
4 haven't seen any specific documents concerning it.
5 JUDGE ORIE: Thank you.
6 THE WITNESS: Of police and military personnel, so not military
7 police personnel but could consist of military and -- yeah, it still says
8 "military police," but of military and of police personnel.
9 JUDGE ORIE: I'd just consult for a second with my colleagues.
10 [Trial Chamber confers]
11 JUDGE MOLOTO: Mr. Theunens, you have partly answered the
12 question I was going to ask, which was going to be: Does the minister of
13 the MUP have any legal authority to give his orders to the VRS. You said
14 he does not. Is it reasonable to understand that as a result of this
15 document, for the VRS to operate and co-operate with the other groups
16 that are mentioned here, an order should come then from the VRS to its
17 units?
18 THE WITNESS: Yes, Your Honours, that what -- is what I mentioned
19 in the beginning when we were discussing, I think, the subordination of
20 Arkan, that it would have been useful to see whether there were any
21 military documents in relation to this agreement, and then to see how the
22 agreement -- I mean, the text of the agreement was forwarded to the
23 various command levels because it has to be shared with the lowest
24 possible levels so that each subordinate military commander knows what
25 Arkan, as well as the other units involved in the activities that have
Page 20683
1 been agreed, what they are doing there.
2 JUDGE MOLOTO: Okay. Thank you.
3 My next question. We have been mentioning Arkan a number of
4 times. Which of these groups here is Arkan's group? Just for the
5 record.
6 THE WITNESS: Your Honours, it's the command -- I mean, it refers
7 to it -- the third addressee, the commander of the Tigrovi Special
8 Purposes Unit.
9 JUDGE MOLOTO: That's the Arkan group.
10 THE WITNESS: Exactly, Your Honours.
11 JUDGE MOLOTO: Thank you so much.
12 MR. IVETIC:
13 Q. Sir, you reviewed a lot of documents and reached some conclusions
14 as to Arkan and his men in the Stanisic and Simatovic case. Was one of
15 those conclusions that they were subordinated to the state security
16 organs of the MUP?
17 MR. WEBER: Your Honour, if we could just have clarification on
18 which MUP.
19 JUDGE ORIE: Are you talking about the MUP of Serbia or the MUP
20 of the RSK or the MUP of the Republika Srpska?
21 MR. IVETIC: I'm referring to the -- I believe the state security
22 MUP of Serbia.
23 JUDGE ORIE: Yes. Having thus specified the question, could you
24 answer it, Mr. Theunens.
25 THE WITNESS: That was indeed one of the conclusions, but, I
Page 20684
1 mean, it's never simple in a sense that there were also instances where
2 Arkan, while he was, in my conclusion, part of the units that were under
3 the command and control of the MUP Serbia, that -- for example, in the
4 latter half of 1991 in -- in SBWS, there is at least one instance where
5 Arkan's group or part of the group operate under JNA command during a
6 specific operation.
7 Why do I mention that? That is to say, well, you know, we have
8 the overall situation but then we need to look at the specific documents,
9 because as we saw with Trnovo unit -- or the Trnovo situation, also there
10 units of MUP Serbia are participating in the fighting -- in the
11 operations, I'm sorry. But during the specific operations, they have
12 been resubordinated or reattached to a VRS unit.
13 Q. Thank you, sir, for answering my questions.
14 MR. IVETIC: Your Honour, that's all.
15 JUDGE ORIE: Thank you, Mr. Ivetic.
16 Mr. Weber, this then concludes the testimony of the witness.
17 Is there anything remaining as far as tendering is concerned?
18 MR. WEBER: There was a couple of matters that we still had that
19 Mr. Ivetic and I had to work out in terms of some documents I referenced
20 during direct.
21 JUDGE ORIE: Yes.
22 MR. WEBER: If we can do that either via e-mail or our update to
23 the bar table motion, we can do that in the course of that too.
24 JUDGE ORIE: I see that Mr. Ivetic agrees with that. At least
25 most important for now is that we don't need the witness to remain
Page 20685
1 present for that purpose.
2 Mr. Theunens, since the Chamber has also no further questions for
3 you, this concludes your testimony in this case, and I would like to
4 thank you very much for coming a long way these days. That was perhaps
5 different in the past, but you're coming a long way, and for having
6 answered all the questions that were put to you by the parties and by the
7 Bench. And I wish you a safe return to your place of residence.
8 THE WITNESS: Thank you, Your Honours.
9 JUDGE ORIE: You may follow the usher.
10 [The witness withdrew]
11 JUDGE ORIE: Mr. Groome, we could start with all the procedural
12 matters now and then stop in 10 minutes from now, or we could take an
13 earlier break and try to deal with all of them in one session.
14 MR. GROOME: The Prosecution's preference would be for the break
15 now, Your Honour.
16 MR. IVETIC: I think the Defence as well.
17 JUDGE ORIE: Yes. Then the Chamber will follow that agreement.
18 We'll take a break. We will resume at five minutes past 12.00,
19 and we'll try to deal with all the procedural matters in the one-hour
20 session which then follows.
21 --- Recess taken at 11.43 a.m.
22 --- On resuming at 12.11 p.m.
23 JUDGE ORIE: I will deal with quite a number of procedural
24 matters. I'll start with the Prosecution's request to admit into
25 evidence a stipulation between the parties. I think it was a matter
Page 20686
1 mainly dealt with by Mr. McCloskey.
2 On Tuesday, the Chamber denied the Prosecution's
3 4th of December, 2013, motion to admit into evidence a stipulation
4 between the parties, which had been filed on the record on the
5 19th of November, 2013. This filing of the 19th of November was made on
6 behalf of both parties and clearly set out what was stipulated to. On
7 Tuesday, the Prosecution raised an issue about the legal status of such
8 stipulations. The Chamber has previously taken the view that agreed
9 facts should be made part of the record by stipulating in court or filing
10 them on the record. I refer to transcript page 101 as an example. And
11 the parties have filed numerous agreements on certain facts.
12 Agreed facts or stipulations which have been put on the record
13 are materials on which the parties can rely on future submissions. An
14 agreement on matters of fact removes these facts from the area of dispute
15 between the parties and will make it highly unlikely that any of them
16 will present evidence to the contrary of what was agreed upon.
17 Similarly, reasons for not accepting the agreed facts for the truth of
18 their content are unlikely to be found by the Chamber when making its
19 final findings.
20 However, the Chamber is not bound by any point of fact or law
21 agreed upon between the parties and recorded in a filing under
22 Rule 65 ter (H) of the Rules. The ultimate weight of these agreed facts
23 will be determined by the totality of the evidence. Whether or not a
24 separate decision on admission is taken, the status of the agreed facts
25 which are recorded is not any less than evidence formerly tendered and
Page 20687
1 admitted under Rule 89(C) of the Rules. Accordingly, the Chamber finds
2 that formal admission of the agreed facts would constitute an unnecessary
3 procedural step.
4 And under these circumstances, the Chamber's denial of the
5 Prosecution's 4th of December, 2013, motion stands.
6 I move to the second item, unless the Prosecution would raise any
7 issue in relation to this first one.
8 MR. GROOME: The only thing, Your Honour, and I would have to
9 review the transcript, but one of the issues is whether what was said on
10 the record clearly reflected the fact as agreed. I haven't had a chance
11 to review that, but I imagine the Chamber --
12 JUDGE ORIE: Well, it's a common filing. The agreement is a part
13 of a common filing.
14 MR. GROOME: Well, then I misunderstood what Your Honour has
15 said. I thought you were indicating that you were not accepting the
16 filing.
17 JUDGE ORIE: No, we are not accepting the motion. There was a
18 filing in which the parties expressed their agreement on a certain matter
19 which was filed jointly. And apart from that, there was a motion to have
20 that stipulation admitted into evidence, and we said that second step is
21 totally unnecessary.
22 MR. GROOME: I understand now and agree.
23 JUDGE ORIE: Yes.
24 Then we briefly move into private session.
25 [Private session]
Page 20688
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8
9
10
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12
13
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15
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18
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20
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22
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24
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Page 20689
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 (redacted)
11 (redacted)
12 (redacted)
13 (redacted)
14 (redacted)
15 (redacted)
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
21 (redacted)
22 [Open session]
23 THE REGISTRAR: We're in open session, Your Honour.
24 JUDGE ORIE: Thank you, Madam Registrar.
25 I now deal with documents MFI'd during the testimony of
Page 20690
1 Mr. Ewan Brown.
2 During the testimony of Mr. Brown, several documents were marked
3 for identification awaiting further submissions from the Defence. The
4 Chamber dealt with some of them last Tuesday and will now deal with the
5 rest of it. This concerns P2900 and P2926 up to and including P2932.
6 For P2900, the Defence objected last Tuesday against admission
7 because there is no stamp on the document.
8 First of all, I'd like to invite the Prosecution to present its
9 views on that matter, that is, the absence of a stamp.
10 MR. TRALDI: Thank you, and good afternoon, Mr. President.
11 The document MFI'd as P2900 is, on its face, a collection of
12 several reports from local SJBs sent to the Banja Luka CSB's national
13 security section, which report on similar events in their municipalities
14 including the expulsion of non-Serbs and the existence of detention
15 facilities, several of which are charged in schedules B and C of the
16 indictment. One of the included reports is stamped, the report from
17 Sanski Most, which can be found at page 21 of the B/C/S.
18 The document was seized from the Banja Luka CSB to which the
19 reports were sent. Consequently, I would respectfully submit, it is
20 appropriate for admission.
21 I do have one request regarding the exhibit. The cover page is
22 not yet part of the English version because it was translated separately,
23 and I'd seek leave to add it at this time. It has been uploaded and
24 released under doc ID B0032526ET.
25 JUDGE ORIE: Could I hear from the Defence any further
Page 20691
1 submissions as to admissibility and also as to adding the cover page,
2 which is a handwritten cover page mainly, to the bunch of documents
3 comprised in this exhibit?
4 MR. LUKIC: I think this explanation only adds to our objections,
5 since it's obvious that one of the documents is stamped. So we wonder if
6 the rest of the documents are part of the same document or the same
7 report, why are they not stamped and who produced them? So ...
8 JUDGE ORIE: Yes. Can you -- could you guide me, Mr. -- it's a
9 bundle of documents.
10 MR. LUKIC: In e-court it's page 21, as my learned friend said.
11 That page 21 has a stamp.
12 JUDGE ORIE: And the one which is not stamped was?
13 MR. LUKIC: Any other one is not stamped. There are signatures
14 on page 16 --
15 JUDGE ORIE: Let me have a look.
16 MR. LUKIC: -- or maybe it's 17 in the e-court.
17 JUDGE ORIE: I've signatures on page 17 --
18 MR. LUKIC: [Overlapping speakers] -- in e-court --
19 JUDGE ORIE: Four signatures.
20 MR. LUKIC: Yes, yes. No stamps.
21 JUDGE ORIE: No stamps. Signatures, however.
22 MR. LUKIC: Then on page 21, we have signature and stamp.
23 JUDGE ORIE: Just looking at it for a second. Chief of the SJB,
24 page 21 and --
25 MR. TRALDI: There is an additional signature on at least the
Page 20692
1 last page, Your Honour.
2 JUDGE ORIE: Yes. I'm just wondering whether -- you said the
3 rest, Mr. Lukic. I said that we have a bundle of -- are there four
4 documents? Because I see on page 30, I see another signature but no
5 stamp.
6 MR. LUKIC: Yes.
7 JUDGE ORIE: And then we have the last of the -- what seems to be
8 a series of four documents. The last one is signed as well on the last
9 page, 39, not stamped.
10 MR. LUKIC: Yes.
11 JUDGE ORIE: Yes.
12 MR. TRALDI: And, Mr. President, the signatures I think make
13 clear who produced them, and the fact that the documents are addressed to
14 Banja Luka CSB and were found there is fairly relevant as to whether they
15 were sent.
16 JUDGE ORIE: Yes, you'd say that they were found at the place
17 where the addressee was located, rather than stayed at the place where
18 the supposed author had stayed.
19 MR. TRALDI: That's correct, Mr. President.
20 JUDGE ORIE: Yes.
21 Any further submissions on this, Mr. Lukic?
22 MR. LUKIC: That's all we had for this document, Your Honour.
23 [Trial Chamber confers]
24 JUDGE ORIE: The objection is denied. P2900 is admitted into
25 evidence.
Page 20693
1 Then P2926 up to and including P2932.
2 Mr. Lukic, you were given time to further consider your position.
3 Could we hear from you?
4 MR. LUKIC: Yes. Our objections are based on the testimony of
5 Mr. --
6 JUDGE ORIE: I have -- I have difficulties in hearing you, but --
7 MR. LUKIC: Yeah, this microphone is not working, so I have to go
8 the other way. Sorry.
9 JUDGE ORIE: Yes.
10 MR. LUKIC: I cannot turn this one on. So we found the
11 transcript page as Mr. -- my learned friend from the Prosecution asked me
12 the last time to do. It's page of our transcript 19581, lines 6 to 13.
13 Can we have it on the e-court, our transcript? Transcript
14 page 19581.
15 JUDGE ORIE: Of this case, Mr. --
16 MR. LUKIC: Yes.
17 JUDGE ORIE: -- Lukic?
18 MR. LUKIC: Yes, its Mr. Ewan Brown.
19 JUDGE ORIE: I don't know whether we can produce it right away.
20 You said --
21 MR. LUKIC: I can read what I found.
22 JUDGE ORIE: One second, please.
23 Please read, Mr. Lukic.
24 MR. LUKIC: "Q. In view of the documents that have been
25 tendered, are you testifying about Podrinje or about Krajina? What is
Page 20694
1 your report about? If you are testifying about Podrinje, I am prepared
2 to go there as well, but I have to know.
3 "A. No, my report is about the Krajina. But clearly, there are
4 other areas that would have -- that I'm aware of, but the report itself
5 deals with the Krajina."
6 JUDGE ORIE: I have difficulties in -- let me see. Do I find
7 this on 1958 --
8 MR. LUKIC: Pardon?
9 JUDGE ORIE: -- 1.
10 MR. LUKIC: Lines 6 to 13.
11 JUDGE ORIE: 6 to 13. Yes, I found it.
12 MR. LUKIC: So because of this question, I didn't go further into
13 Podrinje.
14 MR. TRALDI: Mr. President --
15 JUDGE ORIE: Mr. Traldi.
16 MR. TRALDI: -- I'd submit that that was asked in a different
17 context related to the take-overs in Bratunac and Zvornik that had just
18 been mentioned above on line 5. The documents associated to Mr. Brown's
19 statement deal with Directive 4 and its dissemination and implementation.
20 I observe that Directive 4 is cited in both Mr. Brown's Krajina report at
21 footnote 723 and in his Manjaca report at footnote 54.
22 Mr. Brown's report makes a similar point to what is made in
23 paragraph 2 of page 8 of his statement, P2863, to which these documents
24 are associated. In both cases, he analyses the dissemination of
25 directives down through the VRS ranks using Directive 4 as an example,
Page 20695
1 and refers to documents associated with that dissemination process in,
2 for instance, footnote 57 of his Manjaca report. Those documents include
3 Exhibit P2925, which was admitted on Tuesday, and MFI P2926, the next on
4 our agenda.
5 More generally, it is necessary for Mr. Brown's analysis of VRS
6 operations in the Krajina for him to analyse the strategic objectives of
7 those operations and the way those strategic objectives were communicated
8 to the forces on the ground. He's done that extensively in both of his
9 reports. He uses Directive 4 as an example in his report. He does so in
10 his statement as well. I think it's well within the scope of the
11 witness's evidence.
12 JUDGE ORIE: Mr. Lukic, having heard the explanation given by
13 Mr. Traldi, any further submissions?
14 MR. LUKIC: I think that this answer from the direct testimony of
15 Mr. Brown told us that he didn't deal with Podrinje area, that those
16 documents that are proposed to be tendered through him dealt with
17 Podrinje area. If he wanted to show us some example, he should use it
18 with Krajina Corps which area and documents he examined. So I don't
19 think that this is proper way of introducing documents through the
20 witness that, according to his testimony, did not deal with Podrinje and
21 that his report is only about Krajina.
22 MR. TRALDI: I -- I'd just object to that characterisation. The
23 witness testified that his report was about Krajina. He did not testify
24 that he did not deal with other areas. And in fact, both reports and his
25 statement make clear that he had dealt with these specific documents.
Page 20696
1 JUDGE ORIE: You'd say if only by referring to them in the
2 context of his report?
3 MR. TRALDI: Yes, Mr. President.
4 JUDGE ORIE: Mr. --
5 MR. LUKIC: I have just another matter. We have never been
6 informed that this witness will deal with anything -- any other area but
7 Krajina. If there is any notification to Defence, we should -- we'd like
8 to have it now.
9 JUDGE ORIE: But isn't a mere reference to these documents in the
10 context of the report of the witness sufficient notification of that the
11 witness considers these documents relevant in this context? Which is not
12 Podrinje primarily but ...
13 MR. LUKIC: We would stand by our objections, Your Honour.
14 JUDGE MOLOTO: Mr. Traldi, you said at page 54, line 22, "and in
15 fact both reports and his statement make clear that he had dealt with
16 these specific documents."
17 MR. TRALDI: I -- I should have said, I think, that the Krajina
18 report referred to Directive 4. These specific dissemination documents
19 are in the Manjaca report and the statement, and so that's P2862 and
20 2863.
21 JUDGE MOLOTO: And those documents, were they discovered to the
22 Defence?
23 MR. TRALDI: Yes, both reports and the statement now in evidence
24 were part of our 94 bis notice in August for both reports. The statement
25 was our 92 ter filing in September, more than two months before the
Page 20697
1 witness testified. That 92 ter filing -- sorry, actually, both the
2 92 ter filing and the 94 bis notice included annexed charts of every
3 document cited in the reports, where it was cited, that mentioned, among
4 others, Directive 4, which is P1968 and P2925 and 2926.
5 JUDGE ORIE: The objection is denied.
6 The Chamber admits into evidence P2926 up to and including P2932.
7 I move to my next item which is --
8 MR. TRALDI: Mr. President, I apologise for interrupting. Before
9 we leave Mr. Brown, there was a request to add the cover page to the
10 English --
11 JUDGE ORIE: Yes.
12 MR. TRALDI: -- of P2900.
13 JUDGE ORIE: Yes, I -- first of all, would there be any objection
14 against adding this cover page?
15 MR. LUKIC: No objection.
16 JUDGE ORIE: Mr. Traldi, leave is granted. But you would have to
17 upload the entire document again including the cover page under a
18 separate 65 ter number and not the cover page as a separate
19 65 ter document. That is the way you would have to deal with it in a
20 technical sense.
21 MR. TRALDI: We will. We'll do that, Your Honour. As always,
22 I'm volunteering someone other than myself. But we'll deal with that --
23 JUDGE ORIE: Yes.
24 MR. TRALDI: -- efficiently, I imagine.
25 JUDGE ORIE: Madam Registrar, once the complete document,
Page 20698
1 including the cover page, has been uploaded, it may -- it may replace the
2 existing version of P2900.
3 I move now to deliver the decision -- the Chamber's decision on
4 the Prosecution's motion to add Mile Micic to its witness list and to
5 admit his evidence pursuant to Rule 92 bis.
6 On the 11th of November, 2013, the Prosecution filed a motion to
7 add Mile Micic to its Rule 65 ter witness list and to admit his evidence
8 pursuant to Rule 92 bis. In doing so, the Prosecution argues,
9 inter alia, that the inclusion of Micic on its Rule 65 ter witness list
10 is in the interests of justice, given that his evidence is both relevant
11 and probative. Further, the Prosecution states that whilst it previously
12 did not present this witness to avoid presenting every available witness
13 account on all issues, it now finds it appropriate to request the
14 witness's addition. This is because, according to the Prosecution,
15 Micic's prior testimony clearly establishes the date that Tolimir
16 instructed Witness Milenko Todorovic to prepare Batkovic camp to receive
17 prisoners from Srebrenica.
18 With regard to the Prosecution's request to admit Micic's
19 evidence pursuant to Rule 92 bis, the Prosecution tenders seven pages of
20 his prior testimony from the Prosecutor versus Tolimir trial, dated the
21 4th of July, 2011. The Prosecution submits that this evidence is
22 relevant to Counts 2 to 8 of the indictment. Further, the Prosecution
23 highlights that Micic's evidence does not concern the acts and conduct of
24 the accused and is corroborated by Witness Ljubomir Mitrovic's
25 Rule 92 bis evidence, Witness Novica Simic's Rule 92 quater evidence, and
Page 20699
1 Todorovic's Rule 92 ter evidence.
2 The Defence did not respond to the Prosecution's motion.
3 The Chamber will first consider the addition of Micic to the
4 Prosecution's Rule 65 ter witness list. At the outset, the Chamber
5 recalls and refers to the applicable law concerning amendments to the
6 Prosecution's Rule 65 ter witness list as set out in its previous
7 decision filed on the 22nd of August, 2013. The Chamber considers that
8 the witness's evidence is prima facie relevant and of probative value.
9 The Chamber considers that whilst the Prosecution has not shown good
10 cause to add the witness to its Rule 65 ter witness list at this stage,
11 the addition of the witness will result in a limited additional burden
12 for the Defence, in particular given that the witness's evidence relates
13 to issues that have been addressed by other witnesses. In this respect,
14 the Chamber notes that the Defence has not responded to the motion. The
15 Chamber has also considered that the Prosecution proposes to tender the
16 witness's evidence pursuant to Rule 92 bis, and that the evidence
17 consists of seven pages of transcript of the witness's prior testimony in
18 the Tolimir trial.
19 For the foregoing reasons, the Chamber finds that it is in the
20 interests of justice to allow the addition of Mile Micic to the
21 Prosecution's Rule 65 ter witness list.
22 The Chamber will now consider whether to admit Micic's evidence
23 pursuant to Rule 92 bis. The Chamber recalls and refers to the
24 applicable law concerning admission pursuant to Rule 92 bis, as set out
25 in its previous decision filed on the 19th of October, 2012. Having
Page 20700
1 reviewed the proffered excerpts of Micic's prior testimony, the Chamber
2 notes that the witness provides evidence on General Tolimir's movements
3 on the 12th of July, 1995, and considers that the testimony relates to an
4 important aspect of the case; namely, the charges in the indictment
5 related to Srebrenica. Accordingly, the Chamber finds that the proffered
6 evidence is relevant, as required under Rule 89(C) of the Rules.
7 The Chamber further notes that the proffered evidence does not
8 concern the acts and conduct of the accused and is of a cumulative nature
9 to the evidence of Ljubomir Mitrovic, Novica Simic, and
10 Milenko Todorovic. The Chamber considers that there are not other
11 factors under Rule 92 bis(A)(ii) weighing against admitting the tendered
12 evidence in written form.
13 Accordingly, the Chamber grants the motion and admits into
14 evidence the excerpts of Mile Micic's prior testimony from the Tolimir
15 trial as specified in Annex E of the Prosecution's motion. The Chamber
16 instructs the Prosecution to upload the above document into e-court and
17 requests the Registry to assign this document an exhibit number.
18 And this concludes the Chamber's decision.
19 Could I ask whether the excerpt has already been uploaded into
20 e-court?
21 MR. GROOME: It has not, Your Honour.
22 JUDGE ORIE: Then we'll -- perhaps, Madam Registrar, if you would
23 already reserve a number for the excerpt of the transcript of the
24 testimony of Mr. Micic in the other case.
25 THE REGISTRAR: The reserve number would be P3097, Your Honours.
Page 20701
1 JUDGE ORIE: The decision on admission stands. It's just a
2 matter of technicality to have the accurate 65 ter number uploaded into
3 e-court, which will then be the underlying document, P -- and again I see
4 on the transcript we have a 03 instead of a 30 to start with. P3097. I
5 move to my next item.
6 It relates to the uploading of new witness packages related to
7 the 27th 92 bis decision and concerns Witness RM074 and Witness
8 Sakib Muhic.
9 By informal communications of the 27th of November and the
10 6th of December, the Prosecution requested permission to upload new
11 attestation and statement packages, replacing those attestations
12 currently uploaded for RM061 and RM074. The Chamber hereby allows the
13 Prosecution to upload those new packages but will revisit the matter
14 after it has reviewed them.
15 I move to my next item which is a reminder, a reminder about
16 further submissions from the parties on revisions made in the text of
17 intercepts tendered with Milan Babic.
18 Mr. Groome, I see you're on your feet.
19 MR. GROOME: Your Honour, last Tuesday you asked us to address
20 you orally today and I'm prepared to do that if that's convenient now.
21 JUDGE ORIE: Yes. Perhaps it -- because it's not only -- let me
22 just put on the record the context.
23 It was indeed on the 10th of December, last Tuesday, that the
24 Chamber requested the Prosecution to give some clarification on the
25 revisions made in the texts of intercepts tendered with Milan Babic. The
Page 20702
1 Prosecution was invited to address the reliability of the documents in
2 light of the suggested revisions, and the Defence was also invited to set
3 out their position on this matter. And it is at this point, Mr. Groome,
4 that I would give you an opportunity to first make any submissions on the
5 matter.
6 MR. GROOME: Thank you, Your Honour.
7 The Chamber asked us to address two issues: First, who made the
8 suggested revisions; and b, to address the reliability of the documents.
9 The Chamber raised this inquiry and referred to 15 specific intercepts.
10 We note that one of those, 65 ter 20351, does not in fact have revisions.
11 First, Your Honours, I think it's important to recognise what is
12 not at issue here, and nothing about these revisions raises issues
13 related to the authenticity of the audiotapes. This issue is confined to
14 the reliability of the transcripts of those audiotapes and the
15 translation of those transcripts.
16 As to the first part of the Chamber's inquiry, the revisions were
17 made prior to this case and they were made by language assistants in the
18 Office of the Prosecutor. The process involved required those language
19 assistants to listen to the audiotapes and to recheck the B/C/S
20 transcripts, and then check the corresponding translations.
21 As to the second part of the Chamber's inquiry, with respect to
22 reliability, the Prosecution's position is that the suggested revisions
23 address minor adjustments and do not put into question the reliability of
24 these intercept transcriptions. These minor adjustments are consistent
25 with the evidence the Chamber has already heard with respect to the
Page 20703
1 accuracy of these transcripts by Witness RM507, who talked about the
2 omission of some words and the background voices that can sometimes be
3 heard on intercepts.
4 The Prosecution -- I'll now go through some of the -- or all of
5 the individual intercepts that the Chamber has drawn our attention to.
6 On review of the 15 intercepts, the Prosecution notes that the revisions
7 generally fall into the following categories: First, background
8 conversation unrelated to the conversation between the main speakers.
9 For example, in 65 ter 20112, there is an unidentified female voice
10 talking in the background which has now been added to the transcript, in
11 the revised transcript. The Prosecution does not rely on anything that
12 this person says in the background.
13 The second category: Foreign language terms and names. For
14 example, 65 ter 20507, the word "Salzber" [phoen] other "Salzburg"
15 [phoen] has been replaced with "Strasbour" [phoen] or "Strasbourg,"
16 though it's very clear from the context of the conversation they are
17 talking about the European Parliament, which is based in Strasbourg.
18 There are typographical errors that occurred when transcribing
19 the audio. For example, in 65 ter 20405, we see in the English at
20 e-court page 7 that the phrase "other things as well" has been seemingly
21 corrected even though text in the English remains the same. "Other
22 things as well." That's because the correction in the transcript is of
23 the B/C/S "idrugo" to "i drugo," introducing a space between the words in
24 e-court page 5.
25 There are a number of revisions in many of these transcripts
Page 20704
1 which are of this nature. I shouldn't say "many," in a number of these
2 transcripts. For example, 65 ter 20441, "odma," although correctly
3 translated as "immediately," has been changed to "odmah," [phoen] adding
4 an h. This was simply a typo, understood as such, by those who
5 translated the document into English.
6 There are also grammatical errors that occurred in the B/C/S when
7 transcribing the audio. For example, 65 ter 20298, we can see in the
8 English at e-court page 12, the phrase "in Stari Grad," has been
9 seemingly corrected even though the text in the English remains the same,
10 "in Stari Grad." That's because the B/C/S at e-court page 13 uses the
11 phrase "u Stara Gradu" has a declension error that has been corrected in
12 the original transcription.
13 Your Honour, I can address the remainder of these if the Chamber
14 wishes. I think the Prosecution -- I think the point that we're trying
15 to make is that these revisions have no significant evidential import on
16 the substance of the transcript, and we believe that they are
17 inconsequential. Of course, now both the Chamber and the Defence have
18 these suggested revisions, and if at any time the Defence in looking at
19 the revisions thinks that it is of substance, the Prosecution would
20 certainly work with them to come to an agreement about what the correct
21 revision should be. And certainly the Chamber could make its own
22 decision about whether anything was of consequence. But we have reviewed
23 them and we do not believe that any of the revisions change in any way
24 the substantive import of the intercepts.
25 JUDGE ORIE: Thank you, Mr. Groome. I would not be surprised if
Page 20705
1 the Defence could not immediately respond to this. But having looked at
2 the material itself, is there anything the Defence would like to raise
3 either on the basis of their own review of the material or on the basis
4 of what Mr. Groome just told the Chamber?
5 MR. GROOME: Your Honour, if I could perhaps just be clearer,
6 when I extended that offer to work with the Defence to correct anything
7 that they believe is substantive, I did not intend to mean today but over
8 the course of the coming months or the course of the case.
9 JUDGE ORIE: Mr. Ivetic.
10 MR. IVETIC: Your Honours, I believe Tuesday it had been said
11 that we could also respond in writing by Friday.
12 JUDGE ORIE: Yes.
13 MR. IVETIC: I think it would be the more efficient manner for us
14 to see -- to take a look at those in front of us today and respond in
15 writing, although I don't think there will be anything substantial from
16 our side.
17 JUDGE ORIE: Yes, then -- you're right, we gave an opportunity
18 either to make submissions orally today or in writing by tomorrow. Since
19 you have looked at the materials yourself and having now heard the
20 observations made by Mr. Groome, may I take it that it would still be
21 feasible to submit such comments in writing?
22 MR. IVETIC: Yes, it would, Your Honour.
23 JUDGE ORIE: By tomorrow.
24 MR. IVETIC: Yes.
25 JUDGE ORIE: Then we'll wait for the Defence to make the further
Page 20706
1 written submissions on the matter.
2 I move on to --
3 MR. GROOME: Sorry.
4 JUDGE ORIE: Yes, Mr. Groome.
5 MR. GROOME: Your Honour, just before we leave that. It seems
6 that I've misspoken. At line 21, I intended to say 20 -- 65 ter 20411.
7 Page 62, line 21, should be "65 ter 20411." Thank you.
8 JUDGE FLUEGGE: That must be on another page.
9 JUDGE ORIE: I don't see not even a number what comes close to it
10 on page 61, line 21.
11 MR. GROOME: Sorry, Your Honour, it's page 62, line 21.
12 JUDGE ORIE: Yes. Yes. The correction is clear now, that you
13 referred to 65 ter 20411 and not to 20441.
14 JUDGE FLUEGGE: I think the transcript was already corrected on
15 page 62.
16 JUDGE ORIE: We move on.
17 And I'm moving now to the Prosecution request for order on
18 pseudonyms. On the 27th of November, the Prosecution made an oral
19 request that the Chamber issue an order with regard to the pseudonyms of
20 protected 92 bis and quater witnesses. The Chamber take this opportunity
21 to put on the record that for those witnesses who have been granted
22 protective measures, including the use of a pseudonym, the case-specific
23 RM reference numbers assigned are the official pseudonyms. Most of these
24 can be found in the Prosecution's 10th of February, 2012, witness list.
25 I move to my next subject which deals with exhibits tendered with
Page 20707
1 Witness Barry Hogan.
2 On the 27th of November, the Prosecution was asked to provide the
3 Chamber with additional information with regard to Exhibit D381 and its
4 relation, if any, to videos bearing 65 ter numbers 22311F and 1D1310.
5 The Chamber is still awaiting this information.
6 On the same day, the Chamber admitted the video excerpt marked as
7 D385 but understands from the Registry that we are still awaiting the
8 65 ter number to be provided by the Defence as well as the video on disk.
9 The Chamber hereby sets the dead-line of the end of business tomorrow for
10 the parties to provide the information needed and for the Defence to
11 provide D385 on disk.
12 The next item on my agenda deals with scheduling. The Chamber
13 previously discussed the further scheduling with the parties. As matters
14 stand now, the Chamber expects to hear the oral Rule 92 bis submissions
15 in the last week of February. A Scheduling Order will follow, but the
16 parties should already prepare according to this indication.
17 I move to the next item, assuming that there is nothing the
18 parties want to raise in relation to scheduling issues at this moment in
19 addition to -- to what we have dealt with already.
20 I would like to consult for a second.
21 [Trial Chamber and Legal Officer confer]
22 [Trial Chamber confers]
23 JUDGE ORIE: Mr. Lukic, is there anything apart from this
24 scheduling issue the Chamber just addressed a minute ago in relation to
25 the 98 bis submissions that you would like to raise?
Page 20708
1 MR. LUKIC: I think we should go to private session for one
2 minute, Your Honour.
3 JUDGE ORIE: We move into private session.
4 [Private session]
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 (redacted)
11 (redacted)
12 (redacted)
13 (redacted)
14 (redacted)
15 (redacted)
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
21 (redacted)
22 (redacted)
23 (redacted)
24 (redacted)
25 (redacted)
Page 20709
1 (redacted)
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 (redacted)
11 (redacted)
12 (redacted)
13 (redacted)
14 (redacted)
15 [Open session]
16 THE REGISTRAR: We are in open session, Your Honours.
17 JUDGE ORIE: Thank you, Madam Registrar.
18 MR. LUKIC: As you know, we asked for six months. We were
19 allocated five months. We accept that. But I hope that Your Honours
20 would still reconsider that if the Prosecution reopens their case in
21 March. And in the line with our request, that if the reopening would
22 last for two weeks, that we would need at least one month to extend the
23 time of the beginning of our case.
24 JUDGE ORIE: Yes, Mr. Lukic. Decisions are usually taken on the
25 basis of what is said in Latin to be rebus sic stantibus, which means as
Page 20710
1 matters stand at that moment. We have been put on notice that the
2 exhumations may trigger a request for reopening the case by the
3 Prosecution. We'll consider that, and, of course, at that point in time
4 consider what the consequences would have to be.
5 MR. LUKIC: And for 98 bis, we would comply with Your Honours'
6 order, so we will be ready to have oral arguments at the end of February.
7 JUDGE ORIE: Yes. And you will deliver those oral arguments,
8 Mr. Lukic?
9 MR. LUKIC: I will ask your permission to maybe empower my
10 colleague Ivetic to be here alone at that time, since both me and
11 Mr. Stojanovic will be in the field, I'm sure, at that time. And the --
12 JUDGE ORIE: Yes, any specific -- because the ruling until now
13 was that Mr. -- that there were two members of the Defence team which
14 would be allowed to cross-examine witnesses and make submissions but only
15 related to those witnesses they were cross-examining.
16 MR. LUKIC: Yeah, so now we are making the application for
17 Mr. Ivetic to be here alone and address you on 98 bis.
18 JUDGE ORIE: Yes.
19 MR. LUKIC: Oral motion.
20 JUDGE ORIE: One second, please.
21 [Trial Chamber confers]
22 JUDGE ORIE: Has the Prosecution -- takes the Prosecution any
23 position in Mr. Ivetic delivering -- not only delivering the 98 bis
24 submissions but also being there without counsel?
25 MR. GROOME: Your Honour, the Prosecution has no objection to
Page 20711
1 Mr. Ivetic. Certainly, he could give the entire submission while
2 Mr. Lukic is in the room.
3 The one concern that I would have is that it's -- what's become
4 clear over the course of this trial, is that Mr. Mladic seems to rely, in
5 significant part, on the counsel who is not addressing the Chamber. And
6 I think the more prudent course of action would be, once the Chamber has
7 issued its scheduling order, Mr. Lukic and Mr. Stojanovic could consider
8 whether they could be here; and if not, then maybe they could raise it
9 again at that stage. But it seems to me to be a bit premature to not
10 give Mr. Mladic the benefit of both of his counsel, as it seems that it's
11 been something that's been important to him.
12 JUDGE ORIE: Mr. Lukic.
13 MR. LUKIC: I don't like this answer.
14 JUDGE ORIE: You don't like the answer.
15 MR. LUKIC: It was very polite.
16 JUDGE ORIE: Yes. Well, that's straight-forward.
17 Yes, now --
18 JUDGE FLUEGGE: Mr. Lukic, it stresses your importance, the
19 answer of Mr. Groome.
20 MR. LUKIC: Yeah, thank you, but at the wrong time.
21 JUDGE ORIE: Yes, well, importance is not limited in time,
22 Mr. Lukic. It's for eternity.
23 [Trial Chamber confers]
24 JUDGE ORIE: The Chamber will revisit the matter in due course.
25 And whether that would mean that we either grant your request or that
Page 20712
1 we'll wait until a further stage and a renewed request be made and then
2 decide upon it, I leave that entirely open at this very moment. But we
3 will consider it and we'll inform the parties.
4 The Chamber expects that the preparations for the 98 bis
5 submissions, which are of a kind -- at least I take it you'll not do it
6 by heart in court. That needs to be written out anyhow. That you can
7 continue at this moment to prepare, to the extent you can prepare at all,
8 before the final evidentiary stage has been concluded. So we'll revisit
9 the matter.
10 MR. LUKIC: And that's what -- all we had, Your Honours.
11 JUDGE ORIE: That's all you had.
12 MR. LUKIC: Thank you.
13 JUDGE ORIE: Then we are -- I have only one and a half item left.
14 I think, as a matter of fact, no item at all -- no, we have two items
15 left which will take so little time that I suggest that we'll proceed and
16 then adjourn for the day.
17 The first is documents MFI'd with Mr. Theunens. Before today's
18 hearing, we had three leftovers; that was P3029, which we have to leave
19 MFI'd anyhow because a new redacted version will appear, and we had P3054
20 and P3075.
21 Any further submissions on P3054 MFI'd until now?
22 MR. IVETIC: Nothing further from the Defence, Your Honours.
23 JUDGE ORIE: Nothing further from the Defence.
24 Prosecution also.
25 MR. GROOME: No, Your Honour.
Page 20713
1 JUDGE ORIE: And P3075?
2 MR. IVETIC: Likewise nothing further on that one, Your Honour.
3 JUDGE ORIE: Thank you.
4 Same for the Prosecution.
5 MR. GROOME: Yes, Your Honour.
6 [Trial Chamber and Legal Officer confer]
7 JUDGE ORIE: If my recollection and the recollection of my staff
8 serves me and us well, P3054, I think we needed the extraction of the
9 letter from a newspaper article without the remaining text. Has that
10 been done until now?
11 MR. GROOME: No, Your Honour.
12 JUDGE ORIE: Then we'll wait to decide on that until we have
13 heard from the Prosecution that it has been done.
14 For P3075, it was a missing B/C/S version, I think, which has
15 been uploaded meanwhile and that for that reason there is no objection
16 against admission. P3075 is admitted into evidence.
17 Finally, the last item is about P3011, which was admitted into
18 evidence with Witness Treanor. The Chamber has admitted P3011 into
19 evidence on the 2nd of December of this year, and it then requested the
20 Prosecution to review the document in order to identify which exact
21 portions the Prosecution would like to have in evidence.
22 You have made those submissions now, Mr. Groome. What then
23 remains is the position of the Defence in relation to this matter. That
24 is the full document still needed to be --
25 MR. GROOME: It may assist my colleagues to know it's the
Page 20714
1 Law on the Army dated the 1st of June, 1992.
2 JUDGE ORIE: Where you said you would need -- you have reviewed
3 it but you are still of the opinion that you would need all of it.
4 MR. GROOME: Yes, Your Honour.
5 MR. IVETIC: The Defence has no objection on that.
6 JUDGE ORIE: I think it was to some extent the Chamber's concern
7 whether it was not too much, although pages alone are not determining the
8 thoughts of the Chamber.
9 [Trial Chamber and Legal Officer confer]
10 JUDGE ORIE: Yes. Being comforted that the Prosecution has, as
11 always, seriously considered the issue raised by the Chamber, and in view
12 of the fact that the Defence does not object, P3011 is -- was already
13 admitted but remains admitted as the full text of that law.
14 [Trial Chamber confers]
15 JUDGE ORIE: Mr. Groome, you're still on your feet or again on
16 your feet.
17 MR. GROOME: Your Honour said you had two additional matters. Is
18 the Chamber finished? I just have one thing that I think I need to say.
19 It may be clear to everyone but it should be on the record.
20 Mr. Theunens was the last witness we intended to call. We
21 appreciate that the Chamber is still considering some of our 92 bis and
22 quater motions as well as the bar table motions. Once we have had a
23 chance to review these decisions and determine that there remains nothing
24 else for the Prosecution to do with respect to its case in chief, I will
25 file a written notice that we have rested our case, and I expect that we
Page 20715
1 would be able to do this shortly after the Chamber's last decision.
2 JUDGE ORIE: Any comments from the Defence? I would say it
3 almost goes without saying that not knowing the Chamber's decision on
4 many outstanding motions, that it would be a bit difficult for the
5 Prosecution to already do anything else than to provisionally say that --
6 that you have presented your evidence, but depending on what is still
7 to wait for, that that might change and that you will give written notice
8 of your position once we have decided on all the evidentiary issues.
9 MR. GROOME: That's correct, Your Honour.
10 JUDGE ORIE: Then we adjourn for the day and we adjourn sine die,
11 and since -- you never know what happens, but since I do not expect to
12 see you again before the Christmas, whether we are talking about the
13 25th of December or whether we are talking about the Orthodox Christmas,
14 I wish everyone, parties, you, Mr. Mladic, my colleagues, everyone
15 assisting us in and just outside this courtroom, the Chamber conveys its
16 best wishes, best greetings for these days, and hope to see you back
17 somewhere in January all in good health.
18 We adjourn sine die.
19 --- Whereupon the hearing adjourned at 1.25 p.m.
20 sine die
21
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24
25