1 Thursday, 29 October 2009
2 [Open session]
3 [The accused entered court]
4 [The accused Pusic not present]
5 [The witness takes the stand]
6 --- Upon commencing at 8.59 a.m.
7 JUDGE ANTONETTI: [Interpretation] Registrar, could you please
8 call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in and around the courtroom.
11 This is case number IT-04-74-T, the Prosecutor versus
12 Jadranko Prlic et al. Thank you.
13 JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.
14 This is Thursday, October 29, 2009. I would like to first greet
15 all the accused, as well as all the counsels, the Prosecutor, who will
16 carry on her cross-examination, as well as all of the other members of
17 the OTP, as well as all those assisting us.
18 I understand Mr. Karnavas has something to say.
19 MR. KARNAVAS: Good morning, Mr. President. Good morning, Your
20 Honours. Good morning to everyone in and around the courtroom.
21 Just a brief matter, and I'm speaking on behalf of the Defence
22 teams that have to respond to the 92 bis documentary evidence motions
23 filed by the Praljak team. We are seeking a 15-day extension to respond
24 to that.
25 I did mention it to the Prosecution. I don't know what the exact
1 position is that the Prosecution will take. I understand they may wish
2 to have some additional time as well, but I thought I would raise it at
3 this point because I believe the dead-line is somewhat -- at the end of
4 this week. The documents are rather voluminous, and we want to be rather
5 careful to err on the side of caution, hence this request.
6 JUDGE ANTONETTI: [Interpretation] Mr. Scott.
7 MR. SCOTT: Good morning, Mr. President, Your Honours, all those
8 in and around the courtroom. Good morning.
9 Your Honour, we don't -- the Prosecution has no objection to the
10 request. In fact, I was going to raise this later today. But since
11 Mr. Karnavas is on his feet this morning, let me say, in terms of the
12 92 bis -- Mr. Praljak's 92 bis filing, the Prosecution has filed its
13 response as of, I believe, yesterday, so that's been filed. However, as
14 to the document motion, the 89(C) motion for the admission of documentary
15 evidence, as Mr. Karnavas has indicated, it's rather voluminous. They're
16 tendering approximately 390 documents, which obviously will take all the
17 parties -- all the other parties some time to review. We would ask to
18 have -- the Prosecution asks to have until the 16th of November to file
19 its response to the 89(C) document motion, but we have no objection to
20 Mr. Karnavas' request.
21 And while I'm on my feet, Your Honour, the other thing -- again,
22 we were going to do this later today, but might as well do it all at one
23 time. In the event that we might, it appears, finish the current witness
24 earlier than perhaps might have been anticipated next week, it would be
25 helpful for scheduling, presumably for the Chamber as well as for all
1 parties, if the Petkovic Defence might indicate whether they would
2 possibly then move the next witness up or if the next witness would still
3 be coming a week from Monday. It would assist everyone in scheduling.
4 If that could be clarified.
5 Thank you, Your Honour.
6 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic.
7 MS. ALABURIC: [Interpretation] Your Honours, good morning to you
8 and everybody in the courtroom.
9 Our next witness is General Ivan Beneta, an active officer. He
10 has a lot of commitments. He was planned to be here on Thursday and be
11 in the courtroom next Monday. We cannot change our plans, because only
12 yesterday we realised that we might be finished with this witness today.
13 So even if we wanted to very hard, we couldn't bring our next witness any
15 JUDGE ANTONETTI: [Interpretation] All right. First I'll consult
16 my colleagues for a 92 bis and 89(C) --
17 JUDGE TRECHSEL: Ms. Alaburic, you have been translated as
18 speaking about next Monday. I take it that you think a week after next
19 Monday; is that correct?
20 MS. ALABURIC: [Interpretation] Yes, that is correct. I was
21 indeed talking about the week after next, and I believe that the date is
22 6 November.
23 JUDGE TRECHSEL: Thank you.
24 MR. STEWART: Your Honours -- oh, fine.
25 [Trial Chamber confers]
1 JUDGE ANTONETTI: [Interpretation] As regards the 92 bis motion,
2 of course the Chamber has heard everyone, and authorises the request for
3 the extension of the dead-line, in light of the voluminous documentation
4 to be reviewed.
5 As to the Prosecution's request regarding 89(C), and taking into
6 account the fact that there are 390 documents, the Chamber also
7 authorises the extension of the dead-line and grants the time requested
8 to the Prosecution.
9 The Chamber also notes that General Beneta, who is scheduled for
10 Monday, the week of 9th November, will appear as scheduled on account of
11 his numerous commitments. So no change with respect to the
12 already-indicated Petkovic Defence planning.
13 Mr. Stewart, you're looking at me. Did you want to say
15 MR. STEWART: Yes, Your Honour. It's just that we've got a
16 general problem here. There are several of us, I don't know how
17 widespread it is, who are simply not getting LiveNote. We've got it on
18 this non-terminal, whatever you call it, but we're not -- we're not
19 getting. So -- and it's that --
20 JUDGE TRECHSEL: No discrimination. Same here.
21 MR. STEWART: Well, I'm so very glad to hear it. I'm very sorry
22 to hear that Your Honour is inflicted in the same way, but nevertheless
24 JUDGE ANTONETTI: [Interpretation] The technicians are taking the
25 necessary steps.
1 Mr. Kovacic.
2 MR. KOVACIC: [Interpretation] Good morning, Your Honours, and
3 everybody in the courtroom.
4 Your Honours, I would like to seek clarification. I believe that
5 there is a mistake in the record. In your decision, you are talking
6 about extending the dead-line at the request of the parties for
7 submitting a reply to Praljak's submission according to Rule 92 bis. The
8 dead-line was yesterday, if I'm not mistaken, and the replies were
9 already filed yesterday by the OTP, and the Prlic Defence filed theirs
10 two or three days ago. I believe that this should not be part of that
11 decision. We're only talking about extending the dead-line on the
12 documentary motion. Maybe this should be clarified at this point, before
13 we go any further.
14 MR. KARNAVAS: This is the motion from 15th of October. We have
15 filed something to the previous 92 bis statements, motions filed by
16 Praljak, so this is related to that particular motion, and I don't see
17 any concern or prejudice to the Praljak team.
18 JUDGE ANTONETTI: [Interpretation] For the Chamber, we're talking
19 about the 15th of October motion.
20 Prosecutor, my greetings to you again. I give you the floor for
21 the remained of your cross-examination. I would also like to welcome the
22 expert witness.
23 WITNESS: MILAN GORJANC [Resumed]
24 [The witness answered through interpreter]
25 MS. WEST: Good morning, Mr. President, Your Honours,
1 Ms. Alaburic, everyone in and around the courtroom.
2 Cross-examination by Ms. West: [Continued]
3 Q. Good morning, Mr. Gorjanc. Do you have your report with you
4 still? Very good.
5 I just want to review a little bit of what we did yesterday just
6 to make sure that we're all starting on the same page.
7 Yesterday, towards the end of the day, I asked you whether, by
8 your analysis, in the war in the former Yugoslavia no one was a civilian
9 as it related to the All-People's Defence, and your answer was, yes, but
10 there were some caveats for children under 12 and the elderly, with some
11 exceptions; is that right?
12 A. Yes.
13 Q. And then the second thing that I asked you, which is most
14 relevant, is -- the question was:
15 "So by application, when the HVO made arrests or detained people
16 or isolated people, whether it was a soldier in the field with a gun or,
17 say, a woman in her 20s in her home, it is your opinion that the arrests
18 would have been justified under the All-People's Defence?"
19 And to that, your answer was:
20 "Yes, they would have been justified."
21 Is that correct?
22 A. Yes.
23 JUDGE TRECHSEL: Excuse me, Ms. West. You said, and it's written
24 like this, "by application." You didn't, per chance, "implication"?
25 MS. WEST: No, I meant "by application," but I suppose
1 "by implication" would mean the same thing. Thank you, Judge Trechsel.
2 JUDGE TRECHSEL: Thank you.
3 MS. WEST:
4 Q. So what I would like to do this morning is look at the documents
5 that support the opinion you gave in your report, and so I'd like to
6 start at the group of people who would be men from 16 to 60. And in your
7 report, at paragraph 14 -- I don't know -- you can go to this if you'd
8 like, but in paragraph 14 you wrote that:
9 "All men liable for military service from ages of 16 to 60 were
10 members of active or reserve forces of the armed forces."
11 Mr. Gorjanc, my question is: What is the source of 16-year-old
12 boys being members of the armed forces?
13 A. In legal documents, it -- the age of 16 is not mentioned
14 expressly anywhere in the documents. However, following the common
15 practice, for example, in Slovenia
16 of the TO once he reached the age of 16. They had to undergo a certain
17 form of training within the TO, and that would have been before they
18 started their compulsory military service. Such practice did not exist
19 in other republics. However, in secondary schools there was a subject
20 called "Defence and Protection" or "Pre-Military Education," for some
21 students even at the age of 16, and for a majority it started at the age
22 of 17 and it was compulsory for everybody.
23 Q. Okay, so that's -- you wrote part of that in paragraph 59 about
24 16-year-olds in Slovenia
25 cite any article of the BiH documents, you don't cite any SFRY article,
1 either, to support the notion that a 16-year-old would be a members of
2 the armed forces?
3 A. It is not provided for by the law. However, all citizens who put
4 up armed resistance or any other form of resistance are members of the
5 armed forces, and a 16-year-old could also put up armed -- or, rather,
6 any other resistance.
7 Q. Okay. So just to be clear, I understand that the way you're
8 coming to the conclusion that a 16-year-old could be a member of the
9 armed forces is the fact that anyone, in any way, could participate to
10 those purposes; it's not because you saw a document that said so?
11 A. You're right.
12 Q. Okay. But let's now look at a document. We're going to look at
13 4D0 --
14 JUDGE TRECHSEL: Excuse me. If I may just ask a question to be
15 more complete.
16 Do you have any document, any article, any source which says that
17 a 15-year-old or a 12-year-old, who puts up resistance, that is to say,
18 throws stones, for instance, therefore would not be also a member of the
19 armed forces?
20 THE WITNESS: [Interpretation] There is no explicit legal norm to
21 that effect. That was a constitutional provision pursuant to which
22 anybody who puts up armed or other forms of resistance are members of the
23 armed forces. I must admit that this was more for the political and
24 propaganda purposes than real. That was within the context of the
25 introductory video-clip that depicted Josip Bros Tito, who said that
2 8 million people under arms at any one time.
3 JUDGE TRECHSEL: Thank you very much.
4 JUDGE ANTONETTI: [Interpretation] Witness, in paragraph 59, which
5 you were questioned by the Prosecutor, there is a footnote 25 which I've
6 just read, and you mentioned the case of a Slovenian politician - sorry
7 for the pronunciation - Jansa, who has had the rank of corporal as a
8 young volunteer. Is this an example that you mention showing that this
9 man, who had been a young volunteer, so less than an 18-year-old at the
10 time, would have had the rank of a corporal as a young volunteer? I'm
11 just trying to understand this footnote 25. You can take a look at it,
12 if you want to.
13 THE WITNESS: [Interpretation] He joined the voluntary units of
14 the TO at the age of 16, in the second grade of grammar school. He was
15 very active in that unit, and before completing secondary education he
16 became a corporal, which would be the -- at that time a rank of an
17 officer rather than of a non-commissioned officer.
18 JUDGE ANTONETTI: [Interpretation] So using the example of that
19 politician, what you are saying is that he joined the Territorial Defence
20 at the age of 16? This is the case you mention?
21 THE WITNESS: [Interpretation] Yes.
22 JUDGE ANTONETTI: [Interpretation] Maybe that should help the
24 MS. WEST:
25 Q. Mr. Gorjanc, I would like to go back to the question that
1 Judge Trechsel asked you. It was whether you had seen any document
2 suggesting that a 15-year-old or somebody younger than 16 could be a
3 member of the armed forces. And in your answer, you did mention a
4 document. You mentioned the Constitution; correct?
5 A. Yes.
6 Q. And in your report, the first mention of the Constitution is at
7 paragraph 53, and I'm just going to read the short section from that.
8 Here you write:
9 "Each citizen who participated in the resistance to the enemy
10 with arms, or in some other way, was deemed to be a member of the armed
11 forces of the SFR Yugoslavia."
12 Now, this is from the Constitution of the former Yugoslavia, and
13 you cite Article 240. Now, to focus in on this, the language is "in some
14 other way." Should we understand that the theory you espouse, that
15 people under the age of 16 or people over the age of 60 might have been
16 in the armed forces, is sourced from that language, "in some other way"?
17 Is that right?
18 A. No. Those could be all people who were not members of the TO or
19 military units. It could have also been military conscripts, women in
20 military units, or women not assigned to military units. In any case,
21 this could be all civilians [as interpreted] who were putting up any
22 other form of resistance but armed resistance.
23 Q. Very good. So let's go back to where we left off, and we we're
24 going to talk specifically about the category of people, 16 to 60 men --
25 16 to 16 -- excuse me, 16 to 60. And here you do cite a document. You
1 cite 4D01030. So this should be in the binders in front of you, in the
2 small binder in front of you. That's 4D01030.
3 MS. ALABURIC: [Interpretation] Your Honours, by your leave, just
4 one correction in the transcript. I apologise to my learned friend West.
5 I believe that it will be useful.
6 Page 16 reads that the witness said "all civilians," and the
7 witness said "all citizens." He did not use the term "civilians," but
8 rather the term "citizens."
9 MS. WEST:
10 Q. Okay. Mr. Gorjanc, this is the Decree Law on Compulsory Military
11 Service. Now, this is the source of information -- and this is for the
12 BH, so it's dated 1992. This is a source of information for when a
13 people would have to go into the obligatory service, and the details that
14 go along with that; correct?
15 A. Yes.
16 Q. All right. If we can turn to Article 11. In English, it's
17 page 4, but it's Article 11. This is the article you cite in your
18 report, indicating that recruitment for this compulsory military service
19 begins in the calender year where a person reaches the age of 17;
21 A. Yes.
22 Q. And if we could go down to Article 13, it's a continuation of
23 that, and it even says in the case of imminent threat of war, that person
24 may be recruited as early as 16; correct?
25 A. Yes.
1 Q. But if we can just back up to Article 4 a few pages before, I
2 would like to look at that.
3 Article 4, paragraph 3, talks about this recruitment of men for
4 the compulsory military service, but paragraph 3 says:
5 "... citizens of the BH who are fit for military service shall be
6 subject to the obligations ..."
7 Would you agree with me, then, that there's an exclusion here,
8 and this exclusion is people who are sick or unwell or who are otherwise
9 unsuitable for training are not required to do this?
10 A. Yes.
11 Q. And right below that, it says "Chapter 5" in English, but I
12 believe it's Article 5, right below it, it says:
13 "Women shall not be subject to recruitment or the obligation to
14 complete compulsory military service," as well.
15 You would agree that's another exception to this rule?
16 A. Yes.
17 Q. Now, in your report, at paragraph 102, in regard to this
18 Article 5, you wrote that women can volunteer for training. But,
19 Mr. Gorjanc, would you agree with me that Article 5 actually limits that
20 volunteering? It says:
21 "In peacetime, military training may be organised for women who
23 So it's only during peacetime that they can volunteer, not during
25 A. Yes.
1 Q. Okay. So at least from this document, we've now seen that with
2 regard to your conclusion in the report that in practice the entire
3 population served the purposes of armed combat, now at least has some
4 exceptions, and those exceptions, and you can tell me if I'm wrong about
5 this, those exceptions would exclude, for purposes of this document,
6 anyone under the age of 16, it would exclude, for the purposes of this
7 document, anyone older than 60, it would exclude the unfit, and it would
8 also exclude women unless they volunteered during peacetime; is that
10 A. Yes.
11 JUDGE TRECHSEL: Excuse me. Mr. Gorjanc, I seem to detect a
12 contradiction between Article 4, second subparagraph, and Chapter 5,
13 which is probably also Article 5, the first subparagraph.
14 In Article 4, it says that:
15 "Female citizens shall be subject to compulsory military service,
16 under the conditions set out in the decree."
17 And then in Chapter 5 or Article 5, it says:
18 "Women shall not be subject to recruitment or the obligation to
19 complete compulsory military service."
20 I wonder whether there is a difference between "women" and
21 "female citizens," or some other explanation.
22 THE WITNESS: [Interpretation] Women were subject to military
23 obligation, but not to the obligation of being recruited, which was the
24 first level of military obligation. They didn't have to serve in the
25 army as a compulsory service, but they were subject to military
1 obligation from the age of 19 to 50, in keeping with their capability of
2 performing tasks that would have a bearing on the preparation for defence
3 and defence. We have to make a distinction between the obligation to be
4 recruited and a military obligation as a whole.
5 JUDGE TRECHSEL: Thank you.
6 MS. WEST:
7 Q. Mr. Gorjanc, I want to talk to you about a principle of
8 international war of which I'm sure you're familiar, and it's closely
9 related to this idea of being unfit or unsuitable for fighting, and the
10 term is "hors de combat." Are you familiar with that term?
11 A. Yes.
12 Q. Can you tell the Trial Chamber what that is? What does it mean?
13 A. As I understand the term, it means that the people it refers to
14 are people who are not directly included in combat on the battle-field or
15 up at the front-line facing the adversary.
16 Q. If we can look at P11072. That is in --
17 JUDGE ANTONETTI: [Interpretation] Expert, before we talk about
18 "hors de combat," I would like to come back to the following issue
19 because it's very relevant, in my view, to the issue of minors aged
20 between 16 and 18. I must recognise that until now I had failed to grasp
21 the scope of Article 13 and paragraph 3, and the Prosecutor asked you the
22 question -- a question about it.
23 When you look at Article 13(3), in case of war or the imminent
24 threat of war, the Presidency, and I stress "the Presidency," not "the
25 president," the Presidency of the Republic of Bosnia-Herzegovina
1 order the recruiting of persons aged 16.
2 Now, expert witness, can one say that in a particular wartime
3 situation or in the case of an imminent threat of war in the BiH, the
4 Republic of Bosnia-Herzegovina, a minor aged 16 or 16 and 1 week or half
5 a year could be integrated into the army?
6 THE WITNESS: [Interpretation] Yes, by a special decision of the
7 Presidency of the Republic of Bosnia-Herzegovina.
8 JUDGE ANTONETTI: [Interpretation] Very well. By this answer, I
9 now ask a new question.
10 From your own point of view, your own point of view, a
11 belligerent party who sees that a soldier from the other party and who is
12 16 years old and, say, a fortnight, a week, is likely to present a
13 threat, may he arrest him or isolate him in order to protect himself?
14 THE WITNESS: [Interpretation] Yes.
15 JUDGE ANTONETTI: [Interpretation] You are affirmative, you are
17 THE WITNESS: [Interpretation] Yes.
18 MS. WEST: Thank you, Mr. President.
19 JUDGE TRECHSEL: Excuse me. I would like to add a question to
21 Do you know, Witness, whether a decision to that effect has been
22 taken by the Presidency of Bosnia and Herzegovina; namely, a decision
23 that young boys, adolescents of 16 years, have to do compulsory military
25 THE WITNESS: [Interpretation] I'm not aware of that, nor was I
1 ever shown a document like that by the Defence team.
2 JUDGE TRECHSEL: In view of the answer you have just given to the
3 President, do you think it makes a difference for the enemy, in view of
4 boys of 16 years, whether this special possibility to call them to arms
5 has been put into force or not?
6 THE WITNESS: [Interpretation] I think that the opposite side was
7 aware of that, because the document was published in the official media,
8 official government papers and gazettes.
9 JUDGE TRECHSEL: Excuse me. I find that a bit contradictory,
10 because on line 19-20, you have said you are not aware that such a
11 decision was taken. Now you presume that it is published. How does that
12 go together?
13 THE WITNESS: [Interpretation] Your Honour, I think we
14 misunderstood each other. I -- what I was saying was that I think that
15 this provision was common knowledge, that it could be taken, a decision
16 like that could be taken, not that it was actually taken. I can't say
17 that it was taken. I don't know.
18 JUDGE TRECHSEL: And would you then say that the fact that this
19 possibility existed justified the enemy in regarding any way boys of 16
20 as members of the armed forces?
21 THE WITNESS: [Interpretation] Yes, referring to the provisions of
22 the Constitution whereby each citizen has the right and duty to put up
24 JUDGE TRECHSEL: I'm not going to discuss this further, but thank
25 you for the answer.
1 JUDGE ANTONETTI: [Interpretation] Witness, we shall try and
2 conclude on this.
3 During the 10 days' war, Slovenia
4 JNA, I shall not get into details, which you know better than I do, but
5 do you know whether the Territorial Defence, which had become the Army of
6 the Republic of Slovenia
7 old -- from 16 to fight against the JNA during these 10 days?
8 THE WITNESS: [Interpretation] No, and the soldiers who were doing
9 their military service at the time, that is to say, young boys who were
10 19, did not take part in the war operations. They were removed from the
11 theatre of operations.
12 JUDGE ANTONETTI: [Interpretation] And for what reason were they
13 set aside?
14 THE WITNESS: [Interpretation] Because on the JNA side in
16 35.000 soldiers, well armed and very well trained and highly capable.
17 JUDGE ANTONETTI: [Interpretation] All right, I understand.
18 Madam Prosecutor.
19 MS. WEST:
20 Q. Mr. Gorjanc, just picking up on --
21 [French interpretation on English channel]
22 MS. WEST: We had the French translation.
23 Q. Mr. Gorjanc, picking up on the question posed by the President,
24 during the fighting in Slovenia
25 people, other than the 35.000 soldiers you mentioned, other people who
1 were in some way -- rather, in an unarmed way supporting the purposes of
2 the Slovenian TO?
3 A. I have to put something right. The 35.000 soldiers were not
4 captured by the JNA. On the TO, there were 35.000 people taking part,
5 and the JNA did not capture a single civilian or soldier. Over 1.500
6 members of the JNA were arrested, whereas the others were blocked and
7 held in the barracks.
8 Q. Thank you, Mr. Gorjanc, and that's my mistake. I didn't intend
9 that understanding.
10 What I'd like to know is whether the JNA ever arrested anyone who
11 wasn't one of those 35.000 soldiers. Did they apply the theory of
12 All-People's Defence, and did they -- in your opinion, would they have
13 been -- would it have been legitimate for them to arrest, again, a young
14 woman in her home who is 20 years old and didn't carry a gun?
15 A. No.
16 Q. Okay. Let's go back --
17 MR. KOVACIC: [Interpretation] Your Honour, I do apologise, but I
18 really think that when examining the witness, we should stick to some
19 sort of order.
20 This is a hypothetical question. It's just like if you asked
21 whether Eskimos need fridges or not. The situation during the war in
23 different from Bosnia-Herzegovina. In Slovenia, there weren't three
24 sides, there were just two sides, and the war went on for two days, so
25 this is nonsensical and just a waste of time. It's as if I were to ask
1 the witness what he thinks about a Ferrari, is the back axis too short or
2 whatever, and whether he could apply that to Bosnia. It's a completely
3 unrealistic comparison, and I'm sure you know at least the basics of the
4 disintegration of Yugoslavia
6 compare it to Bosnia-Herzegovina. So to put forward a hypothesis of that
7 nature is absurd.
8 Thank you. I said this to make it easier to relieve my thoughts.
9 Well, General Praljak can suggest something, and why not compare
10 the conduct of the JNA in Vukovar and put forward that hypothesis?
11 But I apologise for taking the floor, but it's just nonsensical.
12 JUDGE ANTONETTI: [Interpretation] I think myself and my
13 colleagues may disagree or not agree with you on everything you've said
14 then; that political situations are different, we agree on that. But
15 Madam Prosecutor, as I have understood, is trying to ask questions on the
16 military plane, and she is starting from an assumption would the JNA, in
17 the fighting situation opposing it to the Slovenian Army, did they arrest
18 people, for instance, women, or not. But the question, which was as -- I
19 asked it myself yesterday. Therefore, it's not a new question.
20 Therefore, it is in military terms that it is asked. The witness
21 has answered, No, so there we are. We don't need to ask for the floor
22 and spend five minutes on this matter, since Madam Prosecutor is asking
23 the military expert a question which is military and which has to do with
24 the behaviour of the JNA. And he is in a position of speaking about the
1 Ms. Alaburic.
2 MS. ALABURIC: [Interpretation] I apologise to my learned
3 colleague, but since we're dealing with the Slovenian example, and we
4 know a lot of details about the war in Slovenia and that is why it is
5 impossible for us to get to grips with the situation, the basic question
6 was: Did the JNA, in the war in Slovenia
7 the essential question. Perhaps the witness could tell us something
8 about that, and then --
9 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic, you have now
10 added to what has been said by Mr. Kovacic, but I don't agree with you.
11 Please continue, Madam Prosecutor.
12 MS. WEST: Thank you, Mr. President.
13 Q. Sir, let's go to P11072. It's a small binder.
14 MR. STEWART: Your Honour, could I ask -- this doesn't seem to be
15 in e-court because not all of us have been given binders. We only ever
16 get one set of binders per team, so those of us that don't have the
17 binders are reliant upon the stuff that comes up in e-court. I'm not
18 getting this exhibit. We also still don't have LiveNote, so it's not the
19 easiest morning.
20 MS. WEST: My apologies to Mr. Stewart. I'm sure it's being
21 up-loaded right now.
22 THE INTERPRETER: Microphone, Mr. Stewart, please.
23 MR. STEWART: Now my microphone is not working. This is a good
25 MS. WEST: I believe it's in e-court.
1 MR. STEWART: I give up for the moment. It's on now.
2 No, I was going to say I don't know whether I'm the only person
3 who has the handicap on the access to exhibits. I've got a hard copy, so
4 my immediate problem is solved. If nobody else has the problem, we'll
5 end the story, apart from the LiveNote and et cetera, et cetera.
6 MR. KOVACIC: Your Honour, since there was interruption anyway,
7 I think it is not fair that we are now in trial without transcript in
8 e-court, and this example which my dear colleague Mr. Stewart mentioned
9 also, it doesn't make for us possible to go into the e-court and see the
10 document by ourselves. I mean, it is really difficult. No, we don't
11 have it. No, we don't have it, Your Honour. Nobody here have it.
12 MR. STEWART: Sorry, if I could just say it -- to help --
13 MR. KOVACIC: Ms. Tomanovic, Ms. Pinter, I don't have it. She
14 doesn't have it. Nobody has it.
15 MR. STEWART: Just trying to help, Mr. Kovacic. I've found that
16 although the LiveNote is not working, the exhibits could be brought up in
17 the normal way, but this particular exhibit is not there -- oh, it is
18 now, is it? Ms. Winter is very quick with these things, so she's
19 repaired that particular problem. Thank you very much.
20 MS. ALABURIC: [Interpretation] Your Honour, my associate has just
21 told me that the document that Ms. West called up is on e-court, but
22 under another number. 11073 is the number it's under in e-court.
23 MR. STEWART: That's an obvious solution, then, yes, thank you.
24 Right. Not surprisingly, I went for the number that we were given.
25 MS. WEST: So, in fact, it is the number that they were given.
1 There are two documents, 11072 and 11073, that look similar. So if we
2 can go to 11072.
3 MR. STEWART: Sorry, that's the one I can't get. So 1173 is
4 sufficiently similar, is it, that I can work from there?
5 MS. WEST: No.
6 MR. STEWART: Well, if it's not then I've still got the problem.
7 But I've got the hard copy. I don't know about others.
8 JUDGE TRECHSEL: The -- in fact, Ms. West, the document under
9 number 11072 that we have in our file here bears, at the bottom, the
10 number P11073, so there is a discrepancy. The paper has a different
11 number, it seems, as compared to the electronic one. But I think
12 everyone has it and we should go forward now.
13 MS. WEST: So if we can all just focus on the ICRC document
14 regarding "hors de combat", regardless of whether it's 72 or 73. Do we
15 all have that? There we go.
16 Q. So, Mr. Gorjanc, if we could go back to what we were speaking
17 about earlier, which is the principle of "hors de combat," if you look at
18 this document that you have in front of you, this is the Additional
19 Protocol number 1, and it's Article 41, and it says, under number 2:
20 "A person is an hors de combat if: A, he is in the power of an
21 adverse party; B, he clearly expresses an intention to surrender; or, C,
22 he has been rendered unconscious or is otherwise incapacitated by wounds
23 or sickness and is, therefore, incapable of defending himself."
24 Sir, would you agree that a person who is incapacitated by wounds
25 or sickness, and is therefore incapable of fighting, cannot therefore be
1 considered a member of the armed forces, even for the purposes of
2 All-People's Defence?
3 A. Yes.
4 Q. So we've spoken about, so far, one group of members of the
5 All-People's Defence who appear to be 16 to 60, they're men, and
6 conventionally they would be soldiers on the field, but you write about
7 other groups as well, and you write about five other groups. And let me
8 list those, and tell me if this is correct. These other groups include:
9 People involved in work obligation; secondly, people involved in the
10 civil protection; thirdly, people involved in monitoring or information
11 regarding enemy aircraft; fourth, people who had military training, and,
12 fifth, people who are involved with intelligence, getting intelligence on
13 the other side; is that right?
14 A. Yes.
15 Q. And so if we were to organise your notion of All-People's
16 Defence, the first group would be the soldiers on the field, and these
17 other people that I've just listed would be those who are unarmed and
18 support the armed forces in other ways; is that right?
19 A. Yes.
20 Q. All right. I'd like to talk about each of those groups because
21 I think those groups are the key for the purposes here. And the first
22 are those involved in work obligation, and this is paragraph 72 of your
23 report. You don't need to look at this, but there you wrote:
24 "All citizens capable of working who have turned 15 were subject
25 to compulsory labour service."
1 So under this first group, this would go as young as 15? This is
2 even below 16; correct?
3 A. Yes.
4 Q. And for these questions, I'd like to look at 4D00408. I believe
5 that's in the second binder, the binder in front of you. And this is the
6 decree that you cite in your report regarding work obligation, 4D00408.
7 Would you agree with me, when we're talking about these people --
8 strike that. If you can go to Article 48, Article 48 of the decree.
9 A. May I see the Croatian text up on my screen, please.
10 Q. Do you have Article 48?
11 A. Yes.
12 Q. This is the article to which one would cite when they were
13 looking for information about how young you could be for work obligation,
14 and this article says:
15 "All able-bodied citizens older than 15 are subject to work
17 So, Mr. Gorjanc, would you agree with me this article
18 specifically excludes those who are not fit; correct?
19 A. Yes.
20 Q. So when you spoke earlier about -- that in practice the entire
21 population serves the purposes of the armed forces, this particular work
22 obligation category is limited to fit people over 15; correct?
23 A. It does not refer to that in the sense of a work obligation --
24 well, in the sense of work obligation, not in the sense of putting up
1 Q. Right. Right now we're speaking just of work obligation. So if
2 we go to your report, in paragraph 72 you list a number of examples of
3 what might be considered work obligation. You list building trenches,
4 building shelters, building obstacles on the battle-fields, building
5 fortifications, building roads. In this paragraph, you don't cite
6 anything. Is this one of those examples of where your knowledge
7 supporting your statement is based on your experience and not based on a
9 A. My assertions are based on experience and also on documents, the
10 documents that I received from the BH Army when the population was
11 engaged on trench-building and fortification-building for the needs of
12 the army, and I attach that to my report.
13 Q. Yes, you did attach some BH documents regarding this, and we'll
14 talk about those. But in regard to the list, you put a very fulsome list
15 of things and tasks that work obligation would include. You didn't --
16 you didn't also include a document that supported every one of those
17 tasks that you listed; correct?
18 A. No.
19 Q. So now I want to go to your experience in Slovenia, because
20 I think that is relevant here in regard to the All-People's Defence.
21 In the course of your experience during the war with the JNA, was
22 the work obligation under the All-People's Defence ever employed?
23 A. Yes. Civil engineering firms, for example, were given the
24 obligation to put up obstructions on the roads against the JNA, and for
25 fortification and other obstructions, but I don't think that there was
1 any strict obligation by which citizens should be rallied together and
2 taken off for work, such as in Bosnia
4 Q. And is that because the war was so short?
5 A. [No verbal response]
6 Q. So just going to the next paragraph in your report, it's
7 paragraph 73, and you further expand on the types of tasks that somebody
8 in work obligation might do. Specifically, you talk about a delivering
9 and distributing food, providing medical treatment, clearing up the
10 terrain, and then you indicate that work obligation systems could also
11 deliver ammunition and ordnance directly to combat positions on the
12 battle-field. You specifically follow up with:
13 "This task was mostly performed by young or elderly men."
14 Mr. Gorjanc, there's no cite for this, so are we to assume that
15 you've not seen a physical document that would indicate that the young
16 and the elderly were to bring up ordnance to the front-line?
17 A. No, I have not seen such a document.
18 Q. Now, let's move on to the second group. We've just talked about
19 the first of five, work obligation. If we move to civil defence or civil
20 protection, which is the second group. It's at paragraph 77 of your
21 report. But you still cite the document in front of you, which is
22 4D00408, so let's stay with that. But if we can move to Article 71 of
23 4D00408. It's Article 71 that you cite describing what civil defence is,
24 and this article says:
25 "Civil defence is an all-encompassing organisation, preparing and
1 training citizens, administration bodies, businesses, and other legal
2 entities for participation in non-armed resistance and for protection,
3 rescue, and salvage of people and property from consequences of war,
4 natural disasters, and other calamities."
5 In your report, you indicate that this civil defence in
6 Article 70 applies to citizens between the ages of 18 to 60 for men and
7 18 and 55 for women; is that correct?
8 JUDGE PRANDLER: Ms. West, it is only a question of having the
9 article properly put here. You mentioned Article 71 twice, but actually
10 what you quoted, it is from Article 70, 7-0.
11 MS. WEST: Judge Prandler, thank you for that correction.
12 JUDGE PRANDLER: Thank you.
13 MS. WEST:
14 Q. If we can move on to the ages, you indicated that it's 18 to 60
15 for men, 18 to 55 for women, and for that you cite Article 50. So my
16 apologies for making you move around this document, but if we could do
17 that and go to Article 50 of the same document.
18 We see here, under Article 50, it does say men and women, between
19 18 to 60 for men, and then it says -- at least in my English version it
20 65 for women, and I assume that's gotta be a typo. But what I'd like to
21 focus on is the beginning of Article 50, it says "all able-bodied men and
23 Mr. Gorjanc, would you agree with me that this group, too, just
24 like work obligation and just like compulsory military service, also has
25 a limitation? It requires that the person be fit in order to be a member
1 of the civil protection; right?
2 A. Yes.
3 Q. Did you see any ABiH documents supporting the theory that they
4 were employing 18-year-olds and 16-year-olds for this type of civil
6 A. No.
7 Q. Did you see any ABiH documents that support the notion that they
8 were employing civil protection at all?
9 A. I did not see any such concrete documents. However, I could see
10 in the media that fire brigades were active, as well as some other
11 services of the civilian defence were also active.
12 JUDGE ANTONETTI: [Interpretation] Expert witness, I would like to
13 tell you that I'm puzzled, not by what you're saying or the questions,
14 but on the topic of civil protection units. Rightly, the Prosecutor
15 stated that in civil protection there could be men and women. All right,
16 this is what Article 50 states. But as far as you're concerned, these
17 civilians in the civilian protection, can they be considered as members
18 of the armed forces under the command of the army, or are we talking
19 about a civil entity under a civilian command; for example, the mayor of
20 the municipality? Could you tell us, these civil protection units, which
21 command authority -- which was their command authority?
22 THE WITNESS: [Interpretation] Civil protection units were under
23 the command of the civil protection staff that was subordinated to the
24 executive authorities in the territory, either the Assembly or the
25 Executive Board of the Assembly. I can't tell you anything else about
1 the rest of that system.
2 JUDGE ANTONETTI: [Interpretation] Which means that, in a
3 particular location, women were asked to collect stones and put them on
4 the road - this is just an example - this was not requested by the
5 military authority but by the civilian authority, the municipality or --
6 requesting this?
7 THE WITNESS: [Interpretation] Work obligation units were
8 activated as part of the authority of the civilian authorities, at the
9 request of the military bodies.
10 JUDGE ANTONETTI: [Interpretation] Let me specify the question.
11 Let's take a theoretical example. Let's imagine -- it must have
12 happened, but I do not have a specific case to mention, but let's imagine
13 there is a group of women placing stones on the road, and they are shot
14 at by the enemy, and a few women get killed. Now, under Slovene law,
15 would these women be eligible for military pension, hence they would be
16 considered as military, or were they considered as civilians and placed
17 under a civilian social security scheme?
18 THE WITNESS: [Interpretation] As a matter of fact, they were
19 civilians under work obligation, and their responsibility falls onto
20 those who placed them as a work unit within the reach of the enemy fire,
21 within the fire range.
22 JUDGE ANTONETTI: [Interpretation] All right.
23 Go ahead, Prosecutor.
24 MS. WEST:
25 Q. I'd like to move on now to the third group that you wrote about,
1 and this would be the group for monitoring and -- the Monitoring and
2 Information Service. It's paragraph 80 of your report, and here you
3 specify that the primary task of this service is monitoring the
4 air-space. And in regard to the decree in front of us, you cite
5 Article 91. At this point, we don't need to go to that, but my question
6 for you is: In this group of your report, you don't cite any ABiH
7 document evidencing that the ABiH were utilising this form of
8 All-People's Defence. Is that because you did not see a document like
10 A. No, I've not seen any such thing in any of the documents.
11 Q. And if we look specifically to your paragraph 81, and I'll just
12 read this out:
13 "These monitoring crews consist of elderly or young persons of
14 both sexes who are not assigned to units of the armed forces or civilian
15 protection units."
16 Mr. Gorjanc, what is your source for that information?
17 A. The source for that information are several BiH Army documents
18 whereby the local population was ordered to provide security for the
19 villages, whereas the local population that was not armed could only
20 carry out the task by way of observing the situation. So they could act
21 as observers.
22 Q. Mr. Gorjanc, you don't even footnote this entire section. It
23 consists of two paragraphs, and there's not one footnote. So these
24 documents that you wrote -- excuse me, you just said the source of that
25 information are several ABiH documents. You don't note them here, do
2 A. Not in this part. However, they exist in some other parts within
3 that context.
4 Q. Just so I understand, do you mean they exist in some other parts
5 of the report or they otherwise exist?
6 A. Yes, they exist, and I have noted them in my report.
7 Q. Sir, I don't want to belabour this, but can you tell me where in
8 your report you noted those documents?
9 A. Well, you'd have to bear with me while I search.
10 One such document is on the following page, 4D01475. You have it
11 as well.
12 Q. And, in fact, we're going to speak specifically about that
13 document, so we can wait a few minutes and we'll get there. But besides
14 that document, is there another one that supports this notion of
15 Monitoring and Information Services?
16 A. No, I don't have any such documents, but I base my claim on the
17 fact that the BiH Army engaged population to provide security for the
18 units in the settled areas, and the settled areas themselves.
19 Q. And is that something you took from the media, or how do you know
21 A. Well, I would say it's more from the documents of the BiH Army,
22 reports, orders, and the reports of particular commanders.
23 Q. Let's move on to the fourth group, and you entitled it "Training
24 and Acquiring Skills for Defence." And that's paragraph 82 of your
25 report. Mr. Gorjanc, I was a little bit confused about this group,
1 because this -- this group talks about people who had training. Are you
2 specifically suggesting that the fact that a group of people had
3 training, but didn't do anything else, was somehow supportive for the
4 purposes of the armed defence?
5 A. Yes.
6 Q. Can you explain that to us?
7 A. Well, training for putting up resistance, and not only for
8 putting up resistance, but also for protection, for logistics and supply
9 of both armed forces and the population in a war zone, in my view, all
10 that is instrumental to the organisation and putting up resistance.
11 Q. All right. But if somebody is just trained and they do nothing
12 else than, in fact, just be trained, how is that instrumental to the
13 organisation and putting up resistance?
14 A. Well, amongst other things, they also are trained to put up
16 Q. Mr. Gorjanc, this part of your report is one paragraph long.
17 It's paragraph 82. There are no cites. Did you see any ABiH documents
18 evidencing that they were employing this part of the All-People's
20 A. I saw only the decree law, according to which the right and duty
21 for training for defence is something that has to be done by everybody
22 from the ages of 15 and 65 in order to acquire skills for defence and
23 military training. And when it says "military training," I also imply
24 training for putting up resistance.
25 Q. Let's move to the last category of these unarmed forms of
1 resistance, and this is your paragraph 83, 84, and 85. It's the
2 intelligence activity by citizens. And I'll just summarise, and you tell
3 me if this is right.
4 This is an obligation to provide any information or importance
5 for defence that the citizen might observe or see? It's basically
6 intelligence information; correct?
7 A. Yes.
8 Q. And in paragraph 84, you wrote that the special obligation to
9 which all citizens are subject, regardless of age and sex, so this was
10 sort of like a catch-all group; correct?
11 A. Yes, that would be everybody. Everybody could have intelligence.
12 A child could become aware of the imminent approach of the enemy and
13 inform about that.
14 JUDGE ANTONETTI: [Interpretation] Witness, I'm listening to you,
15 and you're saying that even a seven-year-old can provide information.
16 Listening to you, I wonder if, on that basis when there is a war, there
17 are no civilians any longer, only military people, because what can
18 happen? If a warring party realises that the civilian are providing
19 intelligence to the other party, they will deem them or consider them
20 spies and arrest them or even execute them right away. So under that
21 theory, there are no civilians any longer, everyone's a military man; yes
22 or no?
23 THE WITNESS: [Interpretation] Yes. I've claimed that all the
24 while. All citizens have the right and obligation to put up resistance.
25 JUDGE ANTONETTI: [Interpretation] All right.
1 JUDGE TRECHSEL: Just to add, that would also apply to disabled
3 THE WITNESS: [Interpretation] No.
4 JUDGE TRECHSEL: I do not understand. Why can't someone who has
5 lost a leg and is walking with a limp and makes observations on enemy
6 movement, why should he not be under an obligation to inform? I see no
7 logic in that limitation.
8 THE WITNESS: [Interpretation] Your Honour, you're absolutely
9 right. It was my mistake. My answer was hasty. I spoke too soon.
10 JUDGE TRECHSEL: You probably thought that the blind man is not
11 obliged to tell what he sees.
12 MR. STEWART: Your Honour, may I observe -- please don't take
13 this too critically, but it happened yesterday. This is an example of
14 what we mentioned yesterday, that, in fact, Your Honour's question was
15 leading. And I'm not objecting to it being leading, I'm just observing
16 that it is. So when you said, "Just to add that would also apply to
17 disabled persons," it's another example of what we had yesterday. Of
18 course, a witness is going to inclined very readily to agree with such a
19 suggestion put in that form from a learned Judge. It's been cleared up
20 here, but it's just a feature of the way in which witnesses do respond to
21 Judges' questions. But it's not an objection to the form of the
22 question. It's just an observation of the way it works between Judges
23 and witnesses.
24 JUDGE TRECHSEL: Yes. It's not the first time, of course, that
25 this comes up, and so far Judges have not accepted that their questions
1 must be in a particular form. We take the liberty and ask the questions
2 the way we think is most expedient.
3 MR. STEWART: It's not for me to deprive Your Honours of any such
5 MS. ALABURIC: [Interpretation] Your Honours, as we are discussing
6 the further course of the cross-examination, I would like to draw your
7 attention to the fact that there is a difference between the category of
8 an armed soldier and the category of another member of the armed forces
9 who will put up resistance in a different way. The two categories,
10 again, are distinguished from civilians. We all the time are saying that
11 civilians and a member of the armed forces are one and the same, and I
12 believe that this could lead to a major confusion and that at the end of
13 the day we'll not be able to understand what the witness is saying.
14 Let's be very precise, both in the questions and the answers, when we are
15 talking about the categories of the members of the armed forces, whether
16 they are soldiers or other members of the armed forces.
17 That would be all, and that would be by way of explanation.
18 JUDGE ANTONETTI: [Interpretation] All right.
19 Witness, I wanted to say this to you: When you're asked a
20 question by a Judge, if -- there are five Judges. If I say to you, for
21 example -- if I put to you, There are five of us, don't hesitate to
22 answer, No, no, there's not five of us, there's four of you. So please
23 try and remain independent when asked a questioned by a Judge. I invite
24 you to say "no." It's not because a Judge asked you questions I have to
25 say, Yes, because we really need a contradictory debate.
1 Have you understood my point?
2 THE WITNESS: [Interpretation] Yes.
3 MS. WEST: Your Honours, if I could --
4 JUDGE ANTONETTI: [Interpretation] All right.
5 MS. WEST: If I may take a moment here as well.
6 I am certain that Ms. Alaburic's comments were only to make
7 things more understandable and expedient, but I would just caution the
8 Court that any time counsel makes statements of a factual nature, that is
9 not evidence in this case. Now, this is a perfect example where this
10 witness is a military expert about this very question. If there is any
11 confusion, it should be coming from his mouth.
12 Thank you, I'll proceed.
13 Q. Sir, before we stopped, we were talking about intel information
14 or intelligence information, and paragraph 84 is where you wrote that
15 there is a special obligation to which all citizens are subject,
16 regardless of their age and sex. Now, you do not cite that. Have you
17 ever seen an ABiH document indicating that they employed this part of the
18 All-People's Defence?
19 A. My conclusion is again based on a general constitutional
20 provisional that all citizens participate in resistance.
21 Q. Okay. At the bottom of this section, it's paragraph 85 where you
22 talk about -- in this case, you talk about neighbours, relatives, elderly
23 persons, women, and even children for information-gathering. You include
24 those groups. You then do cite at this point an ABiH document, and this
25 is the document to which you have referred a couple of minutes ago. So
1 I'd like to go to that document. It's 4D01475. It's in that same
2 binder, the small binder. And you're familiar with this document, sir.
3 This is an order -- an ABiH order to intensify intelligence
4 activities in the 3rd Corps. And if we look at that document, I think
5 what you were focused on was number 2, which is:
6 "Engage the intelligence organs primarily in organising and
7 gathering of information on the aggressor's forces, activities, and
8 intentions. And as a special task, maintain connections with our
9 structures and sympathisers in temporarily occupied territory."
10 Mr. Gorjanc, this word "sympathisers," is this the source of your
11 information that neighbours, relatives, elderly persons, women, and even
12 children were used for information-gathering? Are those the people that
13 you would consider sympathisers?
14 A. No, not only on that. That's just one of the documents. This
15 document doesn't specifically talk about sympathisers, it doesn't say
16 whether it is men, women, younger or older people. I base my conclusions
17 on that.
18 Q. Mr. Gorjanc, I want to make sure I understand. You just said
19 that it's not only that document, that's just one of the documents. So
20 presumably you mean that there are other documents, but when you look at
21 this section of your report, you only cite that document. Are you
22 suggesting to the Trial Chamber that you base your opinion on other
23 documents that you do not cite in your report?
24 A. I cited almost all documents that the Defence had made available
25 to me. However, I did not deem it relevant to cite all the documents in
1 every place. I am not a legal professional and I didn't know that I
2 should corroborate each and every claim of mine by a document. I believe
3 that most of the claims are widely known, at least to us in the former
5 additional explanations.
6 Q. And so let's just look at your answer. You just said:
7 "I cited almost all documents that the Defence made available to
9 So are we to understand, when we look at your report and we look
10 at the footnotes, almost all the documents that the Defence gave you to
11 review in support of your theory are cited?
12 A. Yes.
13 Q. So, therefore, the only document in this entire section of these
14 five -- these five groups that we've been talking about, the work
15 obligation, civilian protection, training, monitoring of aircraft, and
16 intelligence work, the only document that I can see from your report that
17 could involve elderly or women or children is this document, 491475? So
18 is this the document upon which you base your theory that women,
19 children, elderly are part of the All-People's Defence ?
20 A. No. That document confirms only the fact that all citizens were
21 duty-bound -- or, rather, that they were reckoned with when it came to
22 intelligence activities on behalf of the armed forces or, rather, the BiH
23 Army. Other claims are corroborated by other documents which I cited
24 elsewhere when I spoke about other things.
25 As far as I know, the engagement of work obligation units, as one
1 part of this chapter, has been confirmed by two different documents.
2 MS. WEST: Mr. President, this might be a good place to stop.
3 JUDGE TRECHSEL: In connection with the issue of documents that
4 you have based your report upon, I would like to know whether you had
5 documents from other sources than the Defence or whether you, yourself,
6 went out to investigate documents that you thought might be useful for
7 the fulfillment of your task.
8 THE WITNESS: [Interpretation] For the first part, or especially
9 All-People's Defence in the former Yugoslavia
10 However, when I was asked about the doctrine of All-People's Defence in
11 the territory in the war in Bosnia-Herzegovina, I asked for additional
12 documents, which the Defence provided. Other documents, reports, orders,
13 and other such documents is something that I was able to find on the web
14 pages of General Praljak.
15 JUDGE TRECHSEL: Thank you.
16 MS. ALABURIC: [Interpretation] Maybe it would be useful for the
17 witness to tell us how many documents there are on General Praljak's web
18 pages. This would give you an insight into that database, and you would
19 then be able to qualify this statement about the source of documents.
20 THE WITNESS: [Interpretation] I can't answer. I did not count
21 them, but I know that I was perusing the site for weeks. I was maybe
22 even -- I would maybe glance at some of them to see whether they were
23 relevant and move on. I believe that there were over 20.000 documents,
24 all in all.
25 JUDGE ANTONETTI: [Interpretation] It's time for the break. Let's
1 have a 20-minute break.
2 --- Recess taken at 10.30 a.m.
3 --- On resuming at 10.53 a.m.
4 JUDGE ANTONETTI: [Interpretation] We resume.
5 Mr. Scott, a specific point. A while ago, when you asked
6 extending the time for the motions, 92 bis, in fact there have been three
7 motions. The first concerns the admission of 155 declarations, and this
8 is dated 14 September 2009. We have also 22 -- we had given an extension
9 on 22 September for until the 28th October. And concerning this motion,
10 which Petkovic, Prlic and Pusic Defence also filed their motions, and
11 apparently yourself too, this is the first motion. The second has to do
12 with the admission of four statements, 92 quater, and the time to answer
13 was 28 October, and you have filed your response yesterday. And the
14 third one is the request from the Praljak Defence concerning the
15 admission of evidence -- documentary evidence, instead of the deposition
16 of Vlado Djuric under 92 bis, and this is a motion of the 16th of
17 October, with the possibility of answering the 30th of October. And to
18 date, only yourself have filed a response.
19 So, Mr. Scott, when you requested an extension, for which motion
20 was that?
21 MR. SCOTT: Thank you, Mr. President.
22 The request that we made was in response to the documentary
23 motion. Mr. Praljak's Defence has recently filed a motion to admit 390
24 documents by motion. That is the document -- excuse me, the motion upon
25 which we request an extension to the 16th of November. The Prosecution
1 has responded, so far as we know, to all pending 92 bis motions.
2 Thank you, Your Honour.
3 JUDGE ANTONETTI: [Interpretation] Very well. So this was a
4 request for extension concerning the motion concerning Directive L-9.
5 That's it, very well. So now everybody's understood.
6 MR. KOVACIC: Thank you, Your Honour. Now everything is clear.
7 And if I may so, as a moving party in the case of documentary
8 motion, we do not certainly object on the Prosecution request to
9 response, because we were in the similar situation in the Prosecution
10 case and we were also granted a longer time. I don't remember how much,
11 but considerably, but it is work -- it is a lot of work. Thank you so
13 JUDGE ANTONETTI: [Interpretation] Very well. Now we have
14 clarified this problem.
15 Therefore, we shall now proceed, and, Ms. West, the floor is
17 MS. WEST: Thank you, Mr. President.
18 Q. Mr. Gorjanc, before we stopped, we were -- you had mentioned that
19 you took about two weeks and you looked at the Praljak web site and there
20 was 20.000 documents, so you have perused --
21 MS. ALABURIC: [Interpretation] Your Honour, just a correction.
22 The witness didn't say "two weeks." He said "for weeks and weeks," which
23 in our language means many weeks.
24 MS. WEST: Very good. So many weeks, lots of documents. Okay.
25 Q. So my question is: Of all the documents you saw, would you agree
1 with me that it would make sense to put the best documents that you saw,
2 the best documents that supported your theory, in your report? It would
3 make sense to put the most persuasive documents in your report; is that
5 A. Yes.
6 Q. And, in fact, you did that; correct?
7 A. I did do that.
8 Q. And so just so that we're clear, as to these five groups we
9 talked about of unarmed resistance, as far as I can see, there are four
10 documents that you cite, four ABiH documents. I'm not talking about
11 decrees or anything, but factual ABiH documents; is that correct?
12 A. Yes.
13 Q. So let's move on, Mr. Gorjanc. I want to turn our attention to
14 some HVO documents, because I understand that in your report you did not
15 include any HVO documents. And I want to look at them to understand
16 whether -- whether they may -- whether they relate or they don't relate
17 to the theory that you've presented to the Court.
18 So the first document is P03133, and I believe it's probably in
19 the bigger binder, the first big binder. 3133.
20 And, sir, this is a July 3rd, 1993
21 about the Heliodrom, and it talks about the people at the Heliodrom and
22 what was going on there. But specifically if we go to the second page in
23 English, and for B/C/S it's the one page, it's the paragraph that begins
25 "Checklists of persons younger than 18 and older than 60 have
1 been made. They will be sent home with the consent of the Department of
3 And then it indicates that this is 82 people.
4 Mr. Gorjanc, would you agree with me that if these 82 people were
5 sent home, just assume this document to be factually correct, they were
6 sent home, they were likely not supporting the BH armed forces and were
7 civilians, because otherwise they would not have been sent home; is that
9 A. Yes.
10 Q. So we'll move to the next document. It's P03344.
11 JUDGE TRECHSEL: I'm sorry.
12 Witness, this document says these persons will be sent home. You
13 have been asked whether they actually were sent home, and you said,
14 "Yes." How do you know that they actually were sent home? Do you?
15 MR. KARNAVAS: Your Honour, if you look at the answer, the answer
16 was not whether they were sent home. He's not validating that. He's
17 validating the reasons why they would have been sent home, if I'm -- if
18 I'm correct.
19 JUDGE TRECHSEL: Well, "otherwise they would not have been sent
20 home," is what I read. This clearly implies that they were, doesn't it?
21 MS. WEST: Your Honour, I'm sure that this is my inelegant
22 question. I think Mr. Gorjanc and I understood each other, but my
23 question was: Assuming they were sent home, so assuming that factual
24 premise, they were sent home because they were civilians and not
25 otherwise supporting the armed forces? And the answer was, "Yes." And
1 so let's just do that again.
2 Q. Is your answer supporting my conclusion that they were sent home
3 because they were civilians and not otherwise supporting the armed
4 forces, not that they were sent home?
5 A. Yes.
6 MS. WEST: Judge Trechsel might --
7 JUDGE TRECHSEL: Excuse me for being meticulous. I sometimes am.
8 MS. WEST: Of course.
9 So if we could move to 3344, P03344. This is a July 9th
11 Q. And just to be clear, what I'm going to do is the same thing that
12 Ms. Alaburic did. I'm going to show you a number of documents. I want
13 you to assume them to be correct, and then I will ask your opinion about
14 them. So I'm not asking you factual questions. Just assume factually
15 this is the correct information. I'm only asking for your opinion about
16 these documents.
17 In this document, this is a list of persons detained at the
18 Heliodrom who were interrogated, and there's several people listed here.
19 And as you go through them, for example, number 2, at the bottom of
20 number 2, it says -- whoever wrote this, this HVO person who wrote it,
21 labelled them a civilian. Number 4, that person was born in 1932, so is
22 fairly old; also labelled that person, at the end of the sentence, as
23 civilian. Number 5 is labelled as civilian. Go to the next page. I can
24 quickly see that 7 is a civilian, 10 is a civilian, 11 is a civilian, 12
25 is a civilian. We get to 15; civilian as well; 16, civilian; 17,
1 civilian. I'm going to stop there for a moment and focus in on 15 and
3 In these two cases, it indicates that these people -- 15 is --
4 had work obligation in the mine of a dark -- in the mine -- a coal mine,
5 "was a civilian," and 17, the last sentence is:
6 "He fulfilled his work obligation in the project, was a
8 My question, Mr. Gorjanc: Is it possible to be both, to be
9 somebody who has a work obligation but also to be a civilian?
10 A. This is a matter of interpretation, because if a person has a
11 work obligation and is subject to work obligation, it's included in one
12 way or another into the defence system. He's not a classical civilian,
13 whereas here these people are being classified as civilians. Probably
14 the notion of civilian here applies to somebody without weapons and not
15 having been deployed in a unit, whether it be a BH Army unit or an HVO
16 unit. So in that context, he would be a civilian. That's the
17 understanding of "civilian" here, and that's how we understood it.
18 However, in legal terms, once again, following the constitutional
19 provision and legal provisions on All-People's Defence, in actual fact
20 every member is subject to work organisations and, as such, was a member
21 of the armed forces; not a member of the army, the HVO or whatever, but a
22 member of the term "the armed forces." That is what the laws dictate.
23 JUDGE ANTONETTI: [Interpretation] Expert witness, you are now
24 putting us in a form of confusion. It's difficult to follow you, and I'm
25 going to explain why things are getting confused.
1 Starting from the document we have here, where one sees some
2 people who are considered as civilians, let's say number 17, who had a
3 work obligation in the Projektant, you say that since he has a work
4 obligation, he is in the armed forces, because you refer to the concept
5 of All-People's Defence.
6 Now, let's consider a civilian, a plain civilian, whoever, a
7 lady, a woman, and under the terms of civilian protection she's going to
8 be asked, after a battle, to go and get the corpses, because the
9 battle-field has to be cleared, and also, therefore, to take the killed
10 soldiers, and she does so. She takes the bodies away, which are going to
11 be transferred to the morgue and to a cemetery and so on. Is she a part
12 of the armed forces? Because at the end of this work she is going to go
13 back home and look after her children, and you say, no, she is within the
14 armed forces, and there I just don't understand. What do you mean,
16 THE WITNESS: [Interpretation] Your Honour, the law deems
17 everybody who puts up an armed resistance or resistance in any other way
18 to be a member of the armed forces, but not a member of a unit. So
19 following on from that legal provision, we can consider everybody who
20 contributes to the defence is a member of the armed forces. The law also
21 stipulates that all members of the civilian protection system have equal
22 rights as are enjoyed by members of the armed forces, that is to say,
23 members of the army, and all conscripts of work organisations, while
24 they're doing their work assignment, enjoy the same rights that soldiers
25 do in their units. So in that context, too, we consider those civilians
1 to be, in a way, members of the armed forces, as a broad term.
2 JUDGE ANTONETTI: [Interpretation] Let me take an example.
3 Imagine, in Mostar, that the wife of a military of the HVO, who is a
4 mother with four children. Then the municipal authority tells her,
5 Madam, you're going to retrieve bodies because there have been artillery
6 shelling and we need people to go to mop up the battle-field. So this
7 lady leaves her children and goes to get the bodies. Then she comes home
8 and she starts looking after her children. If I understand what you say,
9 you consider that this woman is integrated in the armed forces?
10 THE WITNESS: [Interpretation] In principle, yes. However, I have
11 to say that women with children under the age of seven were not subject
12 to military obligations, and these were the bylaws. This was stipulated
13 in the bylaws.
14 JUDGE ANTONETTI: [Interpretation] Right. Therefore, for you,
15 everybody is in the armed forces. This is the conclusion which you give
17 THE WITNESS: [Interpretation] Yes.
18 JUDGE ANTONETTI: [Interpretation] Right.
19 JUDGE MINDUA: [Interpretation] Expert witness, you just said also
20 that any person who opposes an armed resistance or any form of
21 resistance, in English, "any other manner," a member of the armed forces.
22 Could you give me an example of any form of resistance, other than armed
24 THE WITNESS: [Interpretation] That might entail putting up
25 obstacles along roads used by the enemy, by cutting down trees and
1 placing logs across a road or large stones, and so on and so forth, or
2 inflicting direct harm and damage to military installations or vehicles.
3 It can also be propaganda activity, for example, by handing out pamphlets
4 against the enemy, or any other form of activity, for that matter, which
5 will affect the combat readiness of the adversary, of the enemy, and will
6 affect the enemy's morale, designed to undermine enemy morale.
7 JUDGE ANTONETTI: [Interpretation] Sir, several times you use the
8 word "resistance," because you start from a premise which is that all
9 citizens are resistance -- are resisting. But in the case of the woman
10 which I gave you as an example a while ago, whose husband may be in the
11 HVO, but it would be the same for the HV, she is not a resistant. Her
12 only problem is to look after her children in her own life, but she's
13 being requested to do this job, and then after that, once it's done, she
14 goes to look after her children. Military or political problems, she's
15 not concerned. And despite this, you consider that she's a resistant,
16 unwilling resistant?
17 THE WITNESS: [Interpretation] In a way, that particular woman
18 would be supporting the armed forces because, as the task you've quoted,
19 otherwise they would have to involve soldiers from the front-line and
20 take them away from the front-line to perform the tasks she was given.
21 JUDGE ANTONETTI: [Interpretation] Right. We're going to reflect
22 on all this.
23 MS. TOMASEGOVIC TOMIC: [Interpretation] Your Honour, I apologise,
24 and I apologise to my colleague, as soon as this document came up,
25 because I would like to indicate something that is illogical in this
1 document, which would take us down the wrong path.
2 At the beginning of the document, and this was read out by my
3 colleague, it says that this is a list of persons who were interviewed on
4 the 9th of July, 1993. Now, if we take a look at the person under
5 number 17 that we looked at just now, in that particular paragraph it
6 says that he was included in the Rama Brigade until the date stipulated
7 here, and then at the end of the text it says "civilian." From this, we
8 can conclude the following: That this document was compiled not on the
9 9th of July, but after November 1993, at all events, and that this
10 particular person, by November 1993 -- until 1993, November, was a member
11 of the HVO Rama. And so we can conclude that the person who compiled
12 this document, and we don't see from the document when that was, this
13 person was considered a civilian, but until November 1993 he was not a
14 civilian. There are other examples like that. I tried to find them on
15 e-court because this is a Prosecution piece, and the 9th of July is just
16 the date stipulated. But obviously the document contains data which go
17 to the end of the year. So the person who compiled this document on the
18 9th of July could not have known that. So we started out from the wrong
19 premise, in actual fact.
20 MS. WEST: Your Honours, I appreciate those comments from
21 counsel. However, I will point out that those are the type of questions
22 that can be dealt with on redirect or can be dealt with on the trial
23 brief, and they are not appropriately placed here.
24 MS. ALABURIC: [Interpretation] Your Honours, I also wanted to
25 draw the Trial Chamber's attention to the fact that the information under
1 person number 7 were not put to the witness in extenso and the assertion
2 that it is a civilian who is linked to the work obligation, but a few
3 lines above that it says it's a person who had an operation on his
4 intestines and now he feels pain. So there are more criteria there, and
5 therefore we must take care in suggesting somebody's status.
6 MR. KARNAVAS: If I may be briefly heard concerning the objection
7 that was raised by my colleague from the Coric Defence and the response
8 that we heard from the Prosecution.
9 I do think that there is an obligation at this stage of the
10 proceedings to be fair to the witness. Granted, some issues can be dealt
11 with on redirect examination. However, to be fair to the gentleman, you
12 have to show the passages that are good, the bad, and the ugly that may
13 be relevant to a particular issue, as opposed to cherry-picking and then
14 asking the gentleman to give an answer in the dark. So in that respect,
15 I would take exception to what Madam Prosecutor has indicated, and I do
16 think that the objection was merely to point out that there may be other
17 passages that, when shown to the gentleman, and given an opportunity to
18 look and reflect on them, would provide the Trial Chamber with a much
19 more meaningful explanation contemporaneous to the issue, as opposed to
20 having to deal with it later on as a mop-up operation.
21 Thank you.
22 MR. STEWART: Your Honour, could I observe to support Counsel for
23 Mr. Coric that Ms. West, obviously inadvertently, but at page 43, line
24 23, she said, "If we could move to 3344, this is a July the 9th
25 document," it's put in those terms, and what was being pointed out was
1 that it is not a July the 9th document. It is a document recording the
2 consequences of interrogation on the 9th of July, and as it's been
3 pointed out, it's much later. So that is not the sort of point that can
4 await or should await re-direct. It's exactly the sort of point which
5 ought to be raised straight right away and has been so that it
6 clarifies -- obviously, it's inadvertent, we understand that, but the
7 correction is required.
8 MS. WEST: Of course. And I will accept Mr. --
9 JUDGE ANTONETTI: [Interpretation] The list we have is a list of
10 persons which have been detained at the Heliodrom which have been
11 interrogated on the 9th of July, 1993, the list having been established.
12 Number 17 is mentioned as being a soldier of the HVO in November 1993,
13 which means, therefore, that the document was made after November,
14 perhaps December 1993 or January 1994, we don't know this, so this is the
15 important point, and that there is a contradiction between the fact that
16 he was a soldier of the HVO with the designation of a civilian. That's
17 the only thing we can say about this.
18 Madam West.
19 JUDGE TRECHSEL: For one, of course, it cannot be excluded.
20 There is a misprint in the date of 73 instead of 72. That cannot be
21 completely be excluded. At the first hand, we have this figure, but
22 mistakes arise everywhere.
23 And a bit more serious is that this document has no signature and
24 it seems to have no date, and it comes from the archives. That's all we
25 have on it.
1 Does the Prosecution have any indication what kind of document
2 this is? By whom was it established? We have the police -- the Military
3 Police Administration, but I think we are a bit in the dark there.
4 MS. WEST: Thank you, Your Honour, for your comments, and at this
5 moment I'm trying to get that information for you. But to -- while I do
6 that, if I can just continue on this document.
7 Q. Sir, I want to focus on not factually these people and their
8 ages, or anything like that, but I want to focus on the word "civilian"
9 each time it's mentioned here. Would you agree with me that whoever
10 wrote this document, typed this document out, when they typed out
11 "civilian," it is because, in their head, they had a notion between the
12 difference of "civilian" and combatant"? In their head, there's a
13 difference, and that's why they wrote "civilian" down; is that correct?
14 A. Yes.
15 Q. Very good. And a few minutes ago, Mr. President asked you some
16 questions. It was the beginning of this break, in which he asked you
17 some questions about this document. And in your answer, you spoke about
18 the difference between in practice versus -- you even said the word
19 "constitution." And I can't find the quote right now, but you had
20 indicated that in the Constitution, legally, the All-People's Defence
21 means everyone is a member of the armed forces, but I think what you are
22 saying is maybe in practice here, this person wasn't employing the
23 All-People's Defence when he wrote "civilian." Is that understanding
25 A. Yes.
1 THE ACCUSED PETKOVIC: [Interpretation] Your Honours.
2 JUDGE ANTONETTI: [Interpretation] Mr. Petkovic.
3 THE ACCUSED PETKOVIC: [Interpretation] Your Honours, with your
4 permission, a technical intervention here.
5 This word "civilian" wasn't written by the person because they
6 wanted to do so. They were recording and taking note of the statement
7 given by the person. The person, himself, said, I'm a civilian. It's
8 not a conclusion made by the person writing this document, it's this
9 person saying that they were a civilian, and the person recorded that
10 "civilian" as told by the individual.
11 JUDGE ANTONETTI: [No interpretation]
12 MS. WEST: I didn't get the translation. There was no English
14 Judge Trechsel, in answer to your question in regard to this
15 document, the information I have now is that it was seized from the
16 Croatian State
17 decision in December of 2007. At this moment, that's the only
18 information I have, and if I have more, I will supplement it.
19 JUDGE TRECHSEL: Thank you.
20 MS. WEST:
21 Q. Mr. Gorjanc, if we can go to P03328. It's probably very close
22 by, P03328. I think you have it. Very good.
23 This is a document -- this date is -- it's dated July 9th, 1993.
24 It's about Dretelj. And if you -- it focuses on the number of people
25 taken into custody at Dretelj by that date, and it's 2.000 plus. But if
1 we go down to 3, 4 and 5, it says:
2 "Persons with disabilities, 33."
3 "Persons under 18, 38."
4 And: "Persons over 60, 129."
5 Sir, would you agree with me that those with disabilities,
6 understanding that we don't know what the disability is here, but those
7 with disabilities potentially makes them ineligible for being a member of
8 the armed forces?
9 A. No, but I'd like a brief explanation. When this disability was
10 established, then the conclusion made was that they couldn't be members
11 of the armed forces and, thus, do damage.
12 Q. Sir, if a disability was established and they're not members of
13 the armed forces, you'll agree with me that they're civilians; correct?
14 A. Yes.
15 Q. If we can go to 3971, P03971. This is a report from August 5th,
16 1993, and in this report, if we go to the second paragraph - it's quite
17 short - it says:
18 "However, there were isolated cases that persons older than 60,
19 younger than 16, and those who were seriously ill were brought in.
20 "We request from the brigade command to say what is to be done
21 with people who are over 60 or under 16 years of age and those who are
22 seriously ill because they are not military conscripts but civilians, and
23 we therefore stress to the civilian authorities in particular that they
24 make a decision about them."
25 Mr. Gorjanc, would you agree with me that it appears here that
1 the -- there is making an inquiry -- the person who wrote this is making
2 inquiry into the status of these individuals and affirmatively seeking
3 out whether they're civilians or members of the armed forces? Would you
4 agree with that?
5 A. Yes.
6 Q. And it would follow that who -- the author of this report would
7 separate this situation -- or strike that. The author of this report,
8 his mindset would not follow the All-People's Defence; correct?
9 A. Yes, thinking like a human being, in the spirit of -- well, the
10 Security and Information Service and the military police probably ordered
11 all Muslims to be rallied up from 16 to 60. Now, if any younger people
12 or older people were being brought in, that was just a specific instance.
13 But obviously this person wanted to receive explanation as to what to do
14 with those older and younger, although the order wasn't to take them into
16 Q. And so is it fair to say that this situation would represent an
17 occasion where the HVO did not apply the All-People's Defence?
18 A. Yes.
19 Q. We'll go to one more document. It's P02266, 2266. It's a long
20 listing of people. I think you have it. It's 2266. This is persons
21 arrested on May 10th, 1993
22 that from the last page of it, in which it separates them. It indicates
23 that there were 216 women, 104 children, and 31 elderly.
24 These people, sir, assume this to be true, that they were
25 arrested on May 10th. Would you agree with me that this is a very clear
1 example of the HVO's actions being inconsistent with the theory of
2 All-People's Defence?
3 A. It is not consistent with the international rules of war, but it
4 was consistent with the doctrine of All-People's Defence. All those
5 people, save for the children, were potentially, in one way or another,
6 capable of putting up resistance.
7 Q. Very good. So would it follow that the doctrine of All-People's
8 Defence is also not consistent with the international rules of war?
9 A. No. When I explained, in answers to Ms. Alaburic's question, I
10 said that -- because the expert on international law, Dr. Perazic,
11 allowed for the possibility that in such a case an enemy could apply some
12 measures of isolation of those people who were not carrying arms. Within
13 that context, the doctrine of All-People's Defence was not fully
14 consistent with the provisions of the convention on the protection of
15 civilians and other persons, including the troops in case of a war. Many
16 people in the former Yugoslavia
17 and propaganda effects always spoke louder than any of our words.
18 MS. TOMANOVIC: [Interpretation] I apologise. I believe that we
19 have to correct the transcript because this is very important.
20 On page 55 -- line 19 and 20, the witness said that many people
21 in the former Yugoslavia
22 problem. I believe that the interpretation is entirely different. Maybe
23 the witness could confirm my correction of the transcript.
24 THE WITNESS: [Interpretation] Yes.
25 JUDGE ANTONETTI: [Interpretation] Witness, we know that you
1 attended several training courses in the Military Academy
2 elsewhere. As regards this problem of the consistency of the doctrine of
3 All-People's Defence with the Geneva Conventions, specifically the one
4 dealing with the status of civilians, as regards that, were you told
5 about this and were you told you have to arrest all civilians because
6 they may pose a threat, or was there an academic discussion on this
7 issue, or was the question just never raised?
8 THE WITNESS: [Interpretation] We drew everybody's attention to
9 that. However, as you say, Your Honour, there was no academic discussion
10 about that. Even the paragraph before that sentence that Dr. Perazic put
11 in there, in view of the fact that he well versed in international law,
12 suffered criticism, and as a result of that Dr. Perazic never made it to
13 the rank of general.
14 MS. ALABURIC: [Interpretation] Your Honours, just one
15 clarification. Now you've just put a question and sought clarification
16 about the alleged view that, according to the doctrine of All-People's
17 Defence, it was possible to arrest all civilians. If I understood the
18 testimony well, that was not the essence of All-People's Defence, and I
19 believe that the witness did not refer to that part. What the witness
20 was trying to say, that all civilians, under certain circumstances, were
21 actually considered members of the armed forces. At the moment when
22 somebody is considered a member of an armed force, they lose the civilian
23 status. Maybe the witness could explain whether, indeed, according to
24 the doctrine of All-People's Defence, all civilians in Yugoslavia could
25 be arrested.
1 THE WITNESS: [Interpretation] No, not civilians.
2 MS. WEST: Excuse me. Mr. President, if I can again just comment
3 on comments from counsel.
4 This comment, although not entirely factual, does give an answer
5 for which she wants the witness to comment on. I think it's entirely
6 unfair, it's inappropriate, and it should be dealt with on redirect, and
7 the answer to the question should come from the witness.
8 May I proceed?
9 JUDGE ANTONETTI: [Interpretation] Yes, you're quite right,
10 Ms. West.
11 Witness, we have a document. I'm going to deal with the crux of
12 the matter because we're spending a lot of time on this, but this is
13 quite a simple problem. We have a document which talks about people who
14 have been arrested, detained, or isolated, and I'm not going into the
15 problem of the classification of their exact status, but these people are
16 not at home, they're not in their own residence. They're elsewhere, at
17 the Heliodrom or elsewhere. And among these people, there are women, as
18 you can see, elderly people, and children. There are three categories.
19 The only question from the Judges is the following: We would like to
20 know, on the basis of what you say, if the army, who has placed these
21 people in a situation which is different from their daily situation,
22 could do this under the doctrine of All-People's Defence. This is the
23 essential question. What is your answer?
24 THE WITNESS: [Interpretation] Your Honour, they did that based on
25 the general understanding of All-People's Defence, and it was not
1 justified from the humane point of view, from the human point of view.
2 Actually, not "human," but rather "moral point of view." I apologise. I
3 misspoke. The word that I used was wrong.
4 MS. WEST: Thank you, Mr. President.
5 Q. Mr. Gorjanc, yesterday I asked you basically that question, and I
7 "When the HVO made arrests or detained people or isolated people,
8 whether it was a soldier in the field with a gun or a woman in her 20s in
9 her home, is it your opinion that the arrest would have been justified
10 under the All-People's Defence?"
11 And you said:
12 "Yes, that would have been justified."
13 So you've just reiterated that, and my question is: By the same
14 token, then, the ABiH and the JNA, in the Muslim-Croat war, would have
15 been fully entitled to arrest and imprison all Croats as All-People's
16 Defence combatants as well; isn't that true?
17 A. Yes.
18 Q. And isn't it also true, sir, that you, to date, have not seen an
19 ABiH document where they employed the All-People's Defence and arrested
20 Croat civilians?
21 A. In this concrete case, no, but I saw documents pertaining to
22 other cases, and I also learned all that from the media.
23 Q. Very good. Let's change --
24 JUDGE ANTONETTI: [Interpretation] Witness, the ABiH has
25 already -- has also arrested Croatian civilians. This was judged. This
1 is a well-known fact. According to you, when they arrested them, did
2 they arrest them on the same grounds of All-People's Defence or for other
3 reasons? This is what Ms. West wants you to tell, but of course it's
4 possible that you do not know.
5 THE WITNESS: [Interpretation] They did it based on their
6 understanding of the doctrine of All-People's Defence.
7 MR. KOVACIC: [Interpretation] Your Honours, although this
8 document is already in evidence, I would still like to draw attention to
9 the fact that there is a mistake in translation, and that may be the
10 reason why the witness is providing the answers as he does.
11 In the original title, in Croatian, it says that those persons
12 listed herein are categorised in three groups: Children, women, and then
13 there is an abbreviation, "VO," which means military conscripts, and the
14 last category is elderly persons. We have discussed the document, and we
15 have found a number of persons -- a number of individuals who, judging by
16 the year of birth, might fall in the category of military conscripts.
17 I'm not sure whether this document only deals with women, children, and
18 the elderly. It is possible that it also deals with military conscripts.
19 In the English translation, however, and I'm looking at the title
20 of this -- of the document, this does not transpire, because the
21 categories mentioned in the English are children, women and the elderly.
22 And in the Croatian, I can see another category, VOs, military
23 conscripts. I'm saying this just to point your attention to the fact
24 that the document is broader than we originally thought.
25 JUDGE ANTONETTI: [Interpretation] Witness, you can see the
1 handwritten text, and I can see "VO" in it. In B/C/S, does "VO" mean
2 "military conscript," which I cannot find in the English translation?
3 THE WITNESS: [Interpretation] Yes.
4 MS. WEST:
5 Q. Mr. Gorjanc, let's change gears for a moment and look at some of
6 the explanations the HVO proffered as the reasons for the arrests.
7 If you can go to P08880. I think it's in the same binder,
8 P08880. Yes, I think you have it.
9 This is a -- again, these documents I'm going to show you, I want
10 you to assume them to be correct, factually correct. I won't ask you any
11 questions about the facts. I'll ask you your opinion on the documents.
12 This is a diary of Witness CT, who was one of the Muslim --
13 JUDGE ANTONETTI: [Interpretation] This is a confidential
14 document. It cannot be seen outside.
15 MS. WEST: Thank you, Mr. President.
16 Mr. President, may we go into private session? It may make more
18 JUDGE ANTONETTI: [Interpretation] Yes, let's move into private
19 session for a few moments.
20 [Private session]
11 Pages 46285-46291 redacted. Private session.
20 [Open session]
21 THE REGISTRAR: We're back in open session, Your Honours.
22 JUDGE ANTONETTI: [Interpretation] In open session, I want to ask
23 you a question. I'm not referring to the document. My question is a
24 general one.
25 In military terms, a commander or some authority - I will broaden
1 the debate - when it hears that the persons who were under his orders are
2 willing -- trying to seek vengeance and to take revenge on a civilian
3 population, should a military who commands a brigade or some military
4 authority, in order to protect those civilians, may he in such
5 circumstances, which are exceptional, take measures or steps which go as
6 far as isolating between, in inverted commas, "civilians," in order to
7 protect them, despite their own will? Is this a military response to a
8 situation -- a specific situation of a potential danger which may exist
9 towards a civilian population and which might be the object of reprisals
10 from soldiers?
11 THE WITNESS: [Interpretation] No.
12 JUDGE ANTONETTI: [Interpretation] You say, No. So what will this
13 authority do, then, knowing that there is this danger?
14 THE WITNESS: [Interpretation] They must caution the civilian
15 organs in the territory concerned, that is to say, the police, the
16 military organs on the territory, who were there to protect the village
17 physically or in some other way. Now, if the possibility exists or if
18 they know that this can happen, then they must prevent those soldiers
19 from going home or from moving towards that particular village.
20 JUDGE ANTONETTI: [Interpretation] I will now make my question
21 more specific.
22 Let us assume that the civilian police does not exist, is
23 nonexistent, or that the civilian police is implicated in perpetrating
24 some form of crime, and that in such an assumption the military authority
25 does not have at its disposal the possibility of asking the civilian
1 authority to act. What can the military authority do then?
2 THE WITNESS: [Interpretation] Well, that hypothesis is a very
3 difficult one and assumes that the powers and authority on a given
4 territory were inactive. Now, as a commander, in that case I would try
5 and prevent that group, using my forces, or I would try and prevail upon
6 them in words to try and persuade them to refrain from entering the
7 village and carrying out reprisals.
8 JUDGE ANTONETTI: [Interpretation] I will now refer to the
9 document without citing it, without quoting it, but I will make my
10 question more specific.
11 When you introduce a supplementary element, those soldiers which
12 might get into reprisals, if it appears that among these soldiers there
13 are some gangsters, some thugs, what will the commander of the brigade do
14 then, or the commander of the operational zone, and the supreme
15 commander? What will they do?
16 THE WITNESS: [Interpretation] The supreme commander, to start at
17 the top, can issue an order, decree, or whatever preventing this, or,
18 through the Ministry of the Interior, can ask reinforcement from the
19 civilian police. He can also issue orders through the system of command,
20 the chain of command, not to allow the soldiers to go home, that they be
21 placed under supervision. The commander of an operations zone, in actual
22 fact, would just be conveying what the supreme commander has ordered in
23 that context, given that situation, and then he would ask, in this
24 particular case, the HVO, because that was the establishment -- he would
25 request of the HVO -- he would ask his superior, in a way, that is to
1 say, the Ministry of Defence, to bring in more military police into the
2 area to deal with the situation. And what he could do was to engage his
3 own military police under his command, or some other unit, to have these
4 people prevent it. But it would be normal that in his own unit, if there
5 were indications that retaliation might take place, that he either
6 isolate these soldiers or place them under supervision.
7 JUDGE ANTONETTI: [Interpretation] Your answer is rather lengthy,
8 but I want still to make my question even more specific.
9 In a situation -- in a given situation with all parameters which
10 I indicated already, I will add another parameter or element, which is
11 the fact that part of the soldiers is on the front-line, and at that
12 moment, if one touches any of these soldiers, either to come and help the
13 others which are in difficulty because of what is going on with the
14 civilian population, there is a risk of taking too many men away from the
15 line and enable the enemy, in this case the Serbs - you have
16 understood - to go through. What will then, according to you, do, the
17 commander of the brigade who finds himself in such a situation that there
18 are some elements which are on the front-line who he can't use because of
19 the major risk of letting the enemy take an offensive and gain something
20 on the military plane, on the battle, but he also has soldiers, some of
21 which are thugs, delinquents, and a population -- a civilian population
22 who he has to protect, so what will the brigade commander do then?
23 THE WITNESS: [Interpretation] Faced with a situation of that
24 kind, most probably those soldiers wouldn't leave the battleground and go
25 and retaliate, because there was the threat of danger, danger of the
1 enemy advancing and breaking through. So they would be more taken up
2 with the enemy than they would with their own revenge or retaliation.
3 Now, in the specific case put to me by the Prosecutor, those
4 soldiers were on their way home. They were going home, to their houses,
5 away from the battle-front.
6 JUDGE TRECHSEL: Excuse me.
7 Mr. Gorjanc, I have listened to your recent answers, and I have
8 in mind what you are reported as saying on page 68, lines 19 and 20. You
9 are asked -- a question is whether you agree with the Prosecutor that, I
11 " ... the Muslim people who were being detained were better
12 placed inside the detention centre than outside the detention centre?"
13 And you answered: "Yes."
14 I had a different memory, actually. I thought you had
15 answered -- or the question was put differently. But could you tell the
16 Court whether that is your view or whether there is something not quite
17 in line with your view in the transcript?
18 MS. ALABURIC: [Interpretation] Your Honour, just to contribute to
19 clarifying the issue, you said "assuming that the safety of" -- was that
20 the first part of your question, on page 68, that is, line 17. The
21 question was "assuming something" and then asked the question, just that
22 we know what the assumption was just to get an answer.
23 JUDGE TRECHSEL: I was annoyed by your interference, but I
24 confess that you're quite right. I will quote the whole sentence. The
25 sentence of the question was:
1 "Assuming that the 'safety' reason proffered by Dr. Prlic was
2 true, and would you agree with me that for their own well being, the
3 Muslim people who were detained were better placed inside the detention
4 centre than outside the detention centre."
5 And your answer: "Yes."
6 THE WITNESS: [Interpretation] Yes, on condition that the
7 conditions of accommodation were decent and commensurate to a normal
9 JUDGE TRECHSEL: Thank you.
10 THE WITNESS: [Interpretation] And we have that -- well, I beg
11 your pardon.
12 MS. WEST: Thank you.
13 Q. Mr. Gorjanc, and just to close that loop, is the reason you said,
14 Yes, was because if they're really unsafe -- if it's really unsafe for
15 them on the outside, then it makes more sense to keep them on the inside
16 for their own safety?
17 A. Yes.
18 Q. If we can look at P02315, P02315. The first binder, so it's the
19 bigger binder. My apologies, sir. It's the big binder. 2315.
20 This is dated May 11th, 1993
21 days after the events on May 9th. And in the top right-hand corner, it's
22 handwritten: "May 13th, as per the order of Brko Pusic, nobody can
23 release persons whose names are encircled."
24 And then if you go through the document, and in the B/C/S it's
25 easier to see this, you see a number of numbers and people's names are
1 circled, and then next to it, it says: "Stay."
2 Now, sir, assuming we believe the safety reason proffered by the
3 HVO that these Muslims were arrested, in other words, that it's true that
4 they were arrested for their own safety, would you agree, then, that
5 Mr. Pusic has either executed a very quick assessment of the relative
6 peril these people would face on the outside, if released, or there is
7 more to this than just keeping these people safe?
8 A. I can't actually make a conclusion in that respect, based on the
9 document that I have in front of me.
10 Q. Okay, fair enough. Then my next question is: Would you agree
11 with me that releasing these people is inconsistent with the notion that
12 they were at risk in the first place? Releasing these people should mean
13 that they're, in fact, safe on the outside; is that right?
14 MR. KARNAVAS: One point of clarification. At one point in time?
15 It might be that at one point, certain action needed to be taken, and at
16 another point in time, because of the change of circumstances, another
17 action needed to be taken. So at which time?
18 MS. WEST:
19 Q. Mr. Gorjanc, my question does not regard time, and that will be a
20 good question for redirect. But in this case, this document indicates
21 that they -- it's dated May 11th, and as I indicated in my question, this
22 would be two days after the events in Mostar on May 9th. Would you agree
23 with me that if they were detained for safety reasons, and then
24 subsequently they were released, then either - and I'll give Mr. Karnavas
25 this - they were no longer unsafe or the safety reasons proffered in the
1 first place were false?
2 MR. STEWART: Those aren't the only possibilities, Your Honour.
3 MS. WEST: And I appreciate those comments as well, but that's
4 not the question, and if Mr. Gorjanc can be given a moment to answer the
6 MR. KARNAVAS: Before he's given a --
7 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, I'll give you the
8 floor later, but I wanted to tell you -- I would like to tell you, you
9 and the other counsels, when the Prosecution, herself, is asking a
10 question to the witness and you don't like the question, there is a
11 mistake on the date, et cetera, when you make an objection, well, the
12 Judges are going to look into the probative value, so it's better to have
13 the witness answer the question and then you respond and say, First of
14 all, I'd like to point out to the Judges that this document is dated May
15 11, and that's it. But if you take the floor before the witness answers,
16 then you decrease the value of what the witness has to say. This is
17 something you fail to understand.
18 MR. KARNAVAS: Mr. President, if I might just point out, I mean,
19 one fact.
20 The gentleman indicated that he was only given certain documents.
21 Given the -- given the question that is being posed, one would assume
22 that he knows what is happening on this particular day, what has happened
23 the previous day, what the situation was on the 9th, the 10th, and the
24 11th. And so to ask such a question, I understand the tricks that are
25 going behind in this particular line of questioning because we want to
1 get a particular answer, but if we're trying to search for the truth,
2 then let's -- and I see that Judge Trechsel is shaking his head. I take
3 you on board, Judge Trechsel, but the fact is before somebody can answer
4 such a question, they need to have some facts. Does he know what the
5 situation was in Mostar on that particular day, yes, no, maybe, I don't
6 know. If he doesn't know, then he's just purely speculating. And if the
7 Court wants to base its decision on pure speculation, well, then have at
8 it, but that's not the way to achieve justice.
9 JUDGE TRECHSEL: I object, Mr. Karnavas, to your attacks to the
10 other parties speaking of tricks. You do that often, and every time from
11 whichever side. We do not like this. You should not suppose that the
12 other party plays tricks, as the other party should not suppose that you
13 or any other Defence does.
14 MR. KARNAVAS: Your Honour, when I say "tricks," if you look at
15 the manner in which the questioning is going, those of us who have a lot
16 of experience in this common-law system, the adversarial system, and on
17 cross-examination, it is quite obvious what we're getting at, and we're
18 not being fair to the witness by trying to cherry-pick and the witness
19 says, Yes. Yes to what? And that's what I'm saying. And if I dare do
20 anything that is tricky or that I'm engaging in tricks, I suspect you're
21 going to call me on it.
22 MS. ALABURIC: [Interpretation] Your Honour, I had intended to
23 object to this question, and the reason is the following: Thus far, I
24 have considered that my colleague, Ms. West, is asking questions on the
25 basis of a hypothetical situation, for which it is not important when it
1 happened and where it happened, and that then we were answering questions
2 and the witness was answering questions based on his knowledge and
4 However, in this particular question my learned friend Ms. West
5 has given us a date and location, and it is on page 75, line 1. She said
6 "two days after the events in Mostar of the 9th of May," therefore
7 specifying the date. Now, if we fail to react in this change of context
8 where the question is concerned and continue the examination of the
9 witness, his answers will have a different importance and significance.
10 So in that respect, I agree with the objection raised by
11 Mr. Karnavas, and I consider that if you allow questions to be asked with
12 respect to the situation in Mostar after the 9th of May, then we have to
13 ask the witness what he knows about that particular situation. We must
14 know whether there were evacuations of civilians and so on and so forth,
15 what the situation actually was, and what he knew about it.
16 JUDGE ANTONETTI: [Interpretation] Witness, just before the break,
17 are you aware of what happened in Mostar on the 9th of May?
18 THE WITNESS: [Interpretation] I know about it from the media. I
19 know that armed conflicts began, and both sides accused each other for
20 the outbreak, but I know that serious armed conflicts broke out in the
21 town of Mostar, itself, and the surrounding parts between the HVO and the
22 BH Army.
23 MR. STEWART: Your Honour, may I say, because I was going to get
24 to my feet before my learned leader did, and we support the objection, as
25 indicated, but I also did, before Judge Trechsel's comment, without
1 wanting to create too much of a skirmish, to say that we do not associate
2 ourselves with the word "tricks." I have a long experience of the
3 adversarial common-law system as well, and I want it to be understood
4 that there is a difference between us there. We do not and have not
5 associated ourselves with that. But the objection we do support for the
6 underlying reasons.
7 JUDGE ANTONETTI: [Interpretation] Witness, you know what happened
8 on the 9th of May, and the document submitted to you by the Prosecutor is
9 a document from May the 11th. Do you agree that this document is dated
10 May 11?
11 THE WITNESS: [Interpretation] Yes.
12 JUDGE ANTONETTI: [Interpretation] All right. It's time for the
13 break. We shall have a 20-minute break, and the Prosecutor will carry on
14 after that.
15 --- Recess taken at 12.28 p.m.
16 --- On resuming at 12.49 p.m.
17 JUDGE ANTONETTI: [Interpretation] Let's resume the hearing.
18 Mr. Karnavas, I would like you to tell me exactly, because the
19 legal officer drew my attention to this, when you said on behalf of the
20 Defence, I thought you were talking on your behalf and on behalf of your
21 colleagues. When you applied for an extension of the dead-line, for
22 which -- which motion were you talking about?
23 MR. KARNAVAS: Thank you, Mr. President.
24 I was speaking about both of them, the one which was the
25 documentary motion, and the other one was the 92 bis from the 15th of
1 October. So those are the two, and I believe -- I'm not sure whether I
2 understood properly Mr. Scott, but I believe it was -- I believe he
3 indicated that for that one, he had already filed his response yesterday.
4 So to those two, those two documents.
5 And while I'm on my feet, Your Honour, I did have a word with --
6 or I should say that the witness had a word with me during the break, and
7 it was a poor choice of words. It should have been "technique," and I
8 just want to draw that to everyone's attention. And I wish to apologise
9 to Ms. West if I gave the impression that she was being less than honest
10 in court. It is a technique. I recognise it. You know, we may at times
11 use it, but I apologise if I inappropriately caused any embarrassment or
12 intimated that she was anything less than a professional.
13 Thank you.
14 JUDGE ANTONETTI: [Interpretation] All right, thank you.
15 I should say that from a personal point of view, I had understood
16 that this was a matter of technique and it wasn't aimed at anyone in
17 particular. But it's better for it to be said for everyone.
18 Ms. West, you have the floor.
19 MS. WEST: Thank you, Mr. President.
20 Just one procedural matter. I have spoken to Ms. Alaburic and
21 another counsel about our binders. We, quite candidly, had not expected
22 this cross to begin until Monday, so we have one more binder that is not
23 completely finalised as of this moment, but we expect it will be
24 finalised later today. So either we can e-mail everybody the numbers
25 tomorrow, and even give them the -- put the binds in their locker, if
1 they'd like, or -- and we will also distribute the rest of them on
2 Monday, if that is acceptable to the Chamber and to counsel.
3 JUDGE ANTONETTI: [Interpretation] So you're saying on Monday,
4 you'll have a third binder. Well, yes, you should perhaps communicate
5 the numbers to the counsels if you don't have the actual paper binder.
6 But you're right, that according to the schedule you were to have started
7 on Monday, and I'm very grateful that you could start right away.
8 MS. WEST: Thank you, Mr. President.
9 Q. Mr. Gorjanc, just to wrap up what we were talking about before we
10 broke, I want you to assume, for the purposes of my question, that on
11 May 9th, 1993
12 many Muslim civilians were arrested. Assume that to be a fact. And then
13 I want you to -- in regard to the document we saw, P02315, that's dated
14 May 11th, 1993
15 me if those Muslims were detained for safety reasons and then
16 subsequently they were released, then either they were no longer unsafe
17 or the safety reasons proffered in the first place were false?
18 A. Based on the list, I can conclude that those were staff members
19 of the hospital. I can't claim that for sure. Maybe the hospital had
20 been relocated and those people had to be taken away. But as it says
21 here, they were taken away from their apartments, so I wouldn't say that
22 it was the matter of relocation. I can't confirm that they were taken
23 away for safety reasons or whether the HVO or Croat safety was threatened
24 in the area where those people resided. I can't say that either one or
25 the other is correct.
1 Q. Okay, thank you. Fair enough. Let's move on.
2 Again, just to make sure everyone's acquainted with it,
3 paragraph 113 of your report, you summarise your conclusion -- and when
4 you wrote:
5 "In practice, the entire population served the purposes of armed
7 So my question, Mr. Gorjanc, is: If this was the case and
8 everyone served the purpose of armed combat, would you agree with me that
9 when HVO soldiers were targeting enemy persons, there would have been no
10 need to distinguish between who was a combatant and who was a civilian,
11 and the reason for that would be is that every person would have to have
12 been a combatant or a member of the armed forces? Would you agree with
14 A. Yes.
15 Q. So I'd like to show you some more HVO documents, and again the
16 same principle goes. You just assume these documents to be truthful, to
17 be the facts, and then I'll ask you a question.
18 The first is P03663, that's the first binder, the one right in
19 front of you, 03663. This is a document that is dated July 23rd, 1993,
20 and it's the decisions adopted at the meeting held at Ljubuski on the day
21 before. And at this particular meeting, Mr. Coric was in attendance.
22 If we go down to the third paragraph, it's talking about the
23 people who were detained, and the second sentence -- I'll read the whole
24 thing. It says:
25 "Consequently, all those persons who have been detained but
1 against whom criminal proceedings have not been initiated or against whom
2 a criminal report has not been filed are, according to the order of the
3 chief of the Military Police Administration, unknown to our department."
4 And the next sentence says:
5 "This refers solely to the large number of Muslims who have been
6 brought unselectively to the Central Military Remand Prison and who have
7 been since forgotten."
8 Mr. Gorjanc, I want to focus on this word "unselectively." Does
9 this suggest to you that when these people were arrested and brought
10 there, that there was no amount of discretion or distinguishing that was
11 used when they were actually arrested? Does it suggest to you that the
12 person, in fact, who wrote this report and offered the statement
13 recognised that there is an obligation to use discretion when making an
15 My apologies, that's two questions, but I think you can handle
17 A. Yes.
18 Q. Very good. If we can go to P0672 --
19 JUDGE ANTONETTI: [Interpretation] Witness, I presume that this is
20 the first time that you've seen this document, or had you seen it before?
21 THE WITNESS: [Interpretation] I've not seen this document before.
22 JUDGE ANTONETTI: [Interpretation] You can see this is a document
23 from the military police, and in paragraph 3, you were submitted this by
24 the Prosecutor, but the Prosecutor hasn't read the end of the paragraph.
25 One can see that the military police says that they had 2.000 people,
1 that they interrogated 2.000 people, so I presume these people were heard
2 in the framework or in the context of an investigation. And in the
3 paragraph read out to you by the Prosecutor, the military police points
4 out that no criminal procedures were brought or about to be brought
5 against these people, because that's between parenthesis, so the author
6 of that document doesn't know what the next step will be of the
7 procedure, and obviously the author of the document is asking for further
9 According to you, in such a case, which is the authority which
10 interrogates 2.000 people, and which person decides to bring charges or
12 THE WITNESS: [Interpretation] According to this document, Your
13 Honours, one can see that this was done by the military police. They
14 carried out interrogations. They didn't find any probable causes. They
15 didn't find that individuals had committed any acts of crime. In my
16 view, they should have either released them or transferred for further
17 proceedings all those who might have been suspected of something to the
18 civilian authorities. I don't see any reasons for them being detained
19 any longer.
20 JUDGE ANTONETTI: [Interpretation] Right. You said they should
21 have been released or indicted, but who decides? Is it the military
22 policeman carrying out or conducting the interview, or the military
23 prosecutor, or the civilian prosecutor? Who has the power to say, I'm
24 going to release them?
25 THE WITNESS: [Interpretation] Your Honour, this is a
1 too-complicated question for me. I'm a soldier, and this is a legal
3 JUDGE ANTONETTI: [Interpretation] All right, you cannot reply.
4 Thank you for your answer.
6 MS. WEST: Thank you.
7 Q. P06729, 6729. This is a November 18th, 1993, SIS report on
8 prisoners in Gabela and Heliodrom, and it's several pages' long. And I
9 would like to focus in on page 2, the bottom of the English, and at B/C/S
10 it's also page 2. It talks about the situation of prisoners of war, and
11 it says:
12 "There are about 300 POWs in each of the said facilities (there
13 are currently 1.268 prisoners of war). All prisoners of war are persons
14 of Muslim nationality, male, and there are some of them (I have not been
15 able to establish the figure precisely) who are under 18 and some who are
16 above 60 years of age."
17 It continues:
18 "In brief personal contacts with prisoners of war, the impression
19 is that many of them have been brought to the shelter from their homes,
20 street, or work-places, while the rest have been captured during combat
22 This is the B/C/S page 3, the first paragraph:
23 "Although there are no precise numbers for these categories, the
24 fact is that so far nothing has been done to separate, provide
25 accommodation, and apply all other criteria to these two so-called
1 categories of persons housed on the premises of the shelter."
2 Mr. Gorjanc, I'd like to focus on the language of "two so-called
3 categories of persons." From your experience, to what categories of
4 persons do you think they refer in this document?
5 A. They refer to prisoners of war who had carried arms and engaged
6 in combat. Those were classical prisoners of war, whereas the others
7 were arrested based on their ability to carry arms, as potential
8 soldiers, in keeping with the doctrine of All-People's Defence, so based
9 on their potential and possibility.
10 Q. So if we look at this -- at these two so-called categories
11 through the eyes of the All-People's Defence, it's your testimony that
12 one category is the conventional soldier, and the other category could be
13 people who aren't carrying guns but people who, in an unarmed way,
14 support the armed forces; is that what I should understand?
15 A. I have to correct you. Some were caught as combatants, having
16 participated in military operations, and others were arrested in their
17 houses, out on the street, as potential combatants. The first group were
18 combatants already, and the other group were potential combatants. When
19 reference is made to their numbers and when it says that it is not known
20 how many of them were under 16 and above 60, those people could have put
21 up a non-armed resistance and also fall under the category of members of
22 armed forces pursuant to the notions of the doctrine.
23 Q. If we can go to page 5 of the English, and this is page 4 of the
24 B/C/S. It's the third paragraph from the bottom, page 5 of the English.
25 It's under the heading "The Accommodation of Prisoners of War."
1 JUDGE PRANDLER: I'm sorry to interrupt you, Ms. West. I would
2 like to ask General Gorjanc, actually, about his very last answer, when
3 he said, and let me quote:
4 "The first group were combatants already and the other group
5 potential combatants. And when reference is made to their numbers and
6 when it says that it is not known how many of them were under 16 and
7 above 60, those people could have put up a non-armed resistance and also
8 fall under the category of members of armed forces pursuant to the
9 notions of the doctrine."
10 So my question is, General Gorjanc, if according to you, judging
11 from your answer, then you believe that those in the second category,
12 they were arrested because they could have put up a non-armed resistance,
13 so, in other words, if you feel that their detention was legally and
14 according to the laws of the All-People's Defence, et cetera, are legally
15 justified? Thank you.
16 THE WITNESS: [Interpretation] Your Honour, the second category,
17 people who were potential combatants were also, at the same time,
18 military conscripts, which means that at any point in time they could
19 have been called up to join a military unit. Only the third category
20 does not fall directly into the category of combatants, but they,
21 however, could put up non-armed resistance. All the three categories,
22 based on the doctrine, are members of the armed forces. Therefore, they
23 could be arrested as potential combatants or, rather, members of the
24 armed forces rather than combatants.
25 JUDGE PRANDLER: Thank you, Mr. Gorjanc, although now I believe
1 that you have made three categories, because up to now, if I'm not
2 mistaken, we have spoken about two major categories of those people, and
3 it is mentioned here in that report, second paragraph, that:
4 "Although there are no precise numbers for these categories, the
5 fact is that so far nothing has been done to separate, provide
6 accommodation, and apply all other criteria to these two so-called -- two
7 so-called categories of persons housed on the premises of the shelter."
8 So now you spoke about three categories. I accept this
9 categorisation, what you have just mentioned. Thank you.
10 Ms. West, please.
11 MS. ALABURIC: [Interpretation] Your Honour, may I contribute to
12 this complication about the categories.
13 I would like to draw your attention to one part of this report,
14 which is the third paragraph --
15 JUDGE ANTONETTI: [Interpretation] Ms. Alaburic, Judge Prandler
16 has just had the witness confirm this distribution in two or three
17 categories. The Judge has asked a question; the witness has replied.
18 Now you are on your feet, through the back door, to change the witness's
19 answer, but then there's a redirect for that purpose. This is where I no
20 longer understand you, although there may be a translation problem. If
21 so, tell us.
22 MS. ALABURIC: [Interpretation] Your Honour, I don't intend to
23 influence the witness. The witness has, indeed, answered. I would like
24 to draw attention to the document that is now before you, where it says
25 that the segregation was not carried out in terms of all the other
1 criteria with regard to the above two. So a lot of criteria were applied
3 JUDGE ANTONETTI: [Interpretation] Ms. West.
4 MS. WEST: Thank you.
5 Q. Mr. Gorjanc, the same document, if we can go to page 5 of the
6 English and on page 4 of the B/C/S. It's the part of the document that
7 begins with: "The accommodation of prisoners of war ..." In the B/C/S,
8 it's the third paragraph, and I'll read this:
9 "In the said facilities, there are 2.600 prisoners of war who are
10 of the same category as the prisoners of war in the previous shelter of
11 the same category, i.e., real prisoners of war have not been
12 separated - members of BH Army have not been separated from civilians who
13 have been brought 'for various reasons.'"
14 Mr. Gorjanc, I'm not going to ask you to speculate about what
15 these various reasons could be. You're not in a position to answer that.
16 But I am going to ask you about the use of the term "civilians" here.
17 Again, it says members of the BH Army have not been separated from
18 civilians who have been brought for various reasons. Is it fair -- is it
19 a fair understanding that the word "civilians" here means persons who did
20 not participate in any way to the armed forces?
21 A. It can also be understood that those people did not participate
22 in the armed forces. However, they were military conscripts, and as such
23 they fell under the category of potential combatants.
24 MS. WEST: If we can go into private session, please.
25 JUDGE ANTONETTI: [Interpretation] Private session.
1 [Private session]
9 [Open session]
10 THE REGISTRAR: We are in open session, Your Honours.
11 MS. WEST:
12 Q. Mr. Gorjanc, I'd like to direct your attention to 4D01492. This
13 is your quote from the Perazic book, Professor Perazic. 4D is in the
14 small binder. There you go, 4D01492. You'll be familiar with this
15 because --
16 A. Yes.
17 Q. -- you cited this particular quote in your report, and it is
18 right in the middle of the page. And on Tuesday, you indicated that
19 Professor Gavro Perazic, a colonel in the JNA, was one of the biggest
20 experts on international law in the former Yugoslavia, and you said he
21 authored several books about that subject. So I want to look at the
22 quote you gave, which is right in the middle. It says:
23 "If they are not caught in an open armed battle, the enemy can
24 consider them as potential combatants and treat them accordingly, since
25 in some other situation they could be caught in combat with the arms in
1 their hands."
2 So, Mr. Gorjanc, this is another person who espouses the same
3 notion that you espouse, correct, that people who don't necessarily have
4 a gun in their hand, and who are between the ages of 16 and 60, under the
5 All-People's Defence could be considered potential combatants?
6 A. Yes.
7 Q. All right. But I want to -- I want to go to the next sentence,
8 which you don't cite in your report, and it says:
9 "As a matter of fact, not having arms in hands will make possible
10 for the enemy to assess more broadly and more safely whether or not the
11 particular citizen is really involved in some kind of resistance, because
12 if the weapons would be shown in an open manner, the enemy would not have
13 any dilemma."
14 Now, Mr. Gorjanc, would you agree with me that Professor Perazic
15 here recognises some type of obligation, upon arresting a person in war,
16 some type of obligation to ascertain whether that person is a combatant
17 or is, in fact, a civilian?
18 A. Yes.
19 Q. Very good. Let's go to P11073, same binder, 11073. This is from
20 the ICRC web site, and it's the Additional Protocol 1 to the Geneva
21 Conventions from 1977.
22 MR. STEWART: We don't have this one up-loaded, apparently.
23 MS. WEST: This is, I think, the confusion we had earlier.
24 MR. STEWART: Yes, it was. It's the same batch of documents, but
25 is there some alternative we can go to?
1 MS. WEST: If we could just have a moment. It would appear --
2 it's on screen. So I think it's on the screen now, at least for
3 everybody who may not have it in hard copy.
4 MR. STEWART: Thank you.
5 MS. WEST: Yes. Okay.
6 Q. So this is the Additional Protocol 1. It's Article 48, and it's
7 the basic rule, and it says:
8 "In order to ensure respect for and protection of the civilian
9 population and civilian objects, the parties to the conflict shall at all
10 times distinguish between the civilian population and combatants and
11 between civilian objects and military objects, and accordingly shall
12 direct their operations only against military objectives."
13 Mr. Gorjanc, are you familiar with the principle of distinction?
14 A. Yes, I am familiar with it.
15 Q. And is your understanding consistent with what I've just read?
16 A. Yes.
17 Q. Would you agree with me, in those HVO documents in which the HVO
18 referred to the two so-called categories and in which they named
19 civilians or said "civilians" versus "soldiers," would you agree with me
20 that it's to this -- it's likely to this article that they're referring,
21 this notion -- this principle of international war that they are
23 A. Yes.
24 Q. And would you also agree with me that the principle -- this
25 principle, in theory, is inconsistent with the notion of All-People's
2 A. It's not.
3 Q. So is your answer that it's not consistent with the All-People's
5 A. That's right, it's not.
6 Q. And that's because in the All-People's Defence, if everyone is a
7 potential combatant, then by that definition, an All-People's Defence
8 culture, there are no civilians; correct?
9 A. In principle, yes.
10 Q. And so when we saw the HVO documents in which -- assuming them to
11 be true, in which the people who wrote them, the authors of those
12 documents, were indicating that there were -- there was a difference --
13 there was a category -- there was a separation between combatants and
14 between civilians, but at least those authors, in fact, recognised the
15 principle of distinction, that it did exist?
16 A. Would you repeat that question, please? I'm not sure I
17 understood it.
18 Q. I think it was a bad question. Let me try again.
19 Would you agree with me that the authors of those HVO documents
20 that we saw, that talked about two so-called categories, and the
21 civilians versus the combatants, the ones that we just looked at
22 recently --
23 MR. STEWART: Your Honour, I'm not absolutely sure, but I -- I
24 could stand to be corrected here, but I'm not absolutely sure that the
25 documents talked about the categories civilians versus combatants. I
1 have a feeling the word "combatant" may have been an interpretation or an
2 introduction to the questions. I stand to be corrected, but if this is
3 the foundation of the question, then I think we do need to be very clear
4 that the documents, themselves, were actually talking about those words
5 and that specific distinction.
6 MS. WEST:
7 Q. So, Mr. Gorjanc, we'll go back to the documents. At least one of
8 them, you'll remember, spoke about large numbers of Muslims who had been
9 brought unselectively to the prison, and that was P03663. And then there
10 was another document, that's specifically P06729, talked about two
11 so-called categories. And if we were to assume this would refer to
12 combatants versus civilians, would you agree with me that the authors of
13 those documents recognised that the principle of distinction was
14 something in which something -- it existed?
15 A. Yes.
16 Q. Would you also agree with me, then, that although the
17 All-People's Defence is something that is clearly, from the documents, a
18 theory that existed in the former Yugoslavia
19 also was something the ABiH and the HVO may have recognised, would you
20 agree with me that, in practice, the HVO did not apply the All-People's
22 A. I can't agree with you there. As far as I know from the
23 documents, the HVO makes no mention in its own documents of All-People's
24 Defence, all-people's resistance, and things like that. However, by
25 force of inertia from the former system, in the field they did apply, in
1 actual fact, the concept of All-People's Defence, by inertia more than
2 anything else, because yesterday we spoke about their propaganda work,
3 equipping men, and that this concept was applied.
4 Q. So if we can go to P00289. I believe it's probably in the -- the
5 big binder, the first binder. You just stated that the HVO makes no
6 mention in its own documents about the All-People's Defence, and I
7 believe you probably have not seen this document, then, P00289. This is
8 the decree on the Armed Forces of the Croatian Community of Herceg-Bosna.
9 It's dated July 3rd, 1992
10 "Every citizen of the HZ-HB shall have the duty to protect and
11 defend the independence and territorial integrity of HZ-HB, in
12 particular, serve in the army, perform compulsory work service,
13 participate in the civil defence, participate in monitoring and reporting
14 services, and be subject to requisitioning requirements."
15 Then you go down and it says: "Compulsory work service." If you
16 continue, then they have: "Civil Defence." It continues with other
18 I know you have not had an opportunity, sir, to really look at
19 this, but would you agree with me that this type of language to you
20 recalls the All-People's Defence?
21 A. I have to say, first of all, that I am familiar with this
22 document. I have it in my library. I found it on Mr. Praljak's web
23 page. This document and Article 3 is one which can relate to any army
24 anywhere in the world, because the first point of the All-People's
25 Defence is that every citizen has the right and duty. All it says here
1 is "duty," and that is something that any citizen of the world has; to be
2 a soldier, to help in the defence, to work -- to have a work obligation,
3 everything else. So from this article, you cannot actually claim that
4 the HVO did act in accordance with or that it issued orders and that it
5 was a system according to which that was done.
6 Q. Can you turn -- can you turn to Article 21. Mr. Gorjanc, can you
7 hear me? Can you turn to Article 21. This is --
8 A. [In English] One moment, please.
9 Q. Thank you. Okay. So let's read that. It says:
10 "The Armed Forces of the HZ-HB shall constitute a form of
11 organisation and preparation of citizens for armed struggle. The Armed
12 Forces of the HZ-HB shall protect its sovereignty and defend its
13 territorial integrity."
14 Then let's focus on this last sentence:
15 "Every citizen of the HZ-HB who, in an organised manner and in
16 conformity with international law, by bearing arms or in some other way
17 participates in resistance against the enemy, shall be considered a
18 member of the armed forces."
19 Mr. Gorjanc, isn't this language very familiar to you? Doesn't
20 this show that the HVO, at least per this document, applied the
21 All-People's Defence?
22 A. [Interpretation] In the language of this article, yes, the
23 doctrine of All-People's Defence was applied. However, this is in
24 conformity with international law, whereas in the documents of the former
25 state there is none of that, that is to say, in conformity with
1 international law. It doesn't say that, whereas it does here, and that
2 means with international law, well --
3 Q. Sir, just to be absolutely clear about this, is it your position
4 that the HVO employed the All-People's Defence or that it did not employ
5 the All-People's Defence?
6 A. It is my position that the HVO, in its practical work, did employ
7 the concept of All-People's Defence, in the practical implementation, but
8 it was not prescribed in HVO documents.
9 Q. Okay. And is it your position that if the HVO, in the documents
10 that we've reviewed, specifically going back to "unselectively," the term
11 "unselectively," and the terms two so-called categories, if the HVO were
12 using those principles as the principles of distinction, that that's
13 evidence that the HVO, in practice, was not using the All-People's
15 A. I do apologise, Madam Prosecutor, but I don't understand the
17 Q. That's okay, I'm going to ask you another question.
18 Let's assume that you're right, in the All-People's Defence
19 everyone is a combatant or a potential combatant, would it then follow
20 that there would be no need at all to distinguish civilians in the
21 military doctrine of Yugoslavia
22 civilians; correct? If everybody's a combatant, then they don't need to
23 even talk about civilians?
24 A. Yes.
25 Q. All right. If we can turn to P0007. I think this is loose.
1 This is a document, I think, everyone received separately this morning.
2 Thank you.
3 Now, this is a document to which you don't refer in your report,
4 but the Trial Chamber and the parties are very familiar with it because
5 the Prosecution witness Andrew Pringle spoke about it extensively. In
6 this document -- this is the application of international law in the
8 Now, I'd like to look at paragraph 50 -- excuse me, paragraph 73.
9 So this is a document that was issued from a nation that employed the
10 All-People's Defence, but here we see, in paragraph 73, it talks about
11 protected facilities, and it says: "Civilian facilities."
12 Sir, if the All-People's Defence was meant to be understood that
13 everybody is a combatant, why would this document have a paragraph about
14 civilian facilities?
15 MS. ALABURIC: [Interpretation] Your Honours, with your
16 permission, I'd like to object to that question, because the document is
17 not specifically defined. The document we're discussing now is called
18 "Regulations on the Application of the Rules of International War Law,"
19 so just so that we know that the contents of this document is
20 International War Law.
21 MS. WEST: Very good.
22 Q. So my question, Mr. Gorjanc, is: This is a document of the
23 former Yugoslavia
24 there sections in here that speak about civilians?
25 A. At the very beginning, I noticed that this document was written
1 and published in 1988. The last volume -- or the last book that
2 determined All-People's Defence more closely was written in 1983.
3 Now, that document arrived in the units sometime in 1990. I
4 didn't receive it in my unit until mid-1991, and I wasn't able to
5 distribute it further down the chain of command. This document was, in
6 actual fact, written, and perhaps written -- taken over word for word
7 from international conventions, copied. We processed it -- or, rather,
8 we dealt with these international conventions and looked at the source.
9 So we dealt with them from the source in training soldiers and in the
10 military academies, when teaching it. So why it says "civilian"?
11 Because that was taken over from International Law, word for word.
12 Q. And so is it your testimony, then --
13 JUDGE PRANDLER: Sorry to interrupt you, Ms. West. Actually, I
14 believe the major issue is here that we should make a distinction between
15 two kinds of civilians, if I may say so. The issue is that according to
16 the laws in force in the former Federal Republic of Yugoslavia, of course
17 they have spoken about a situation when there was a invasion, or
18 aggression, or whatever you would like to call it, against Yugoslavia,
19 and then of course the rules of the International Law should have been
20 applied. And that is why if you have a look at this collection of
21 regulations and if you have a look at page 74, you will find Chapter 9,
22 entitled "Civilians, Enemy Nationals, Nationals of Neutral States,
23 Stateless Persons, and Refugees," at page 74. And, of course, in those
24 paragraphs, like 253, 254, et cetera, these rules in a way forbid any
25 mistreatment of the civilians, because they say, like in paragraph 253,
1 and I quote:
2 "When, in the hands of a party to a conflict, civilians shall
3 have the right to respect of their person, honour family rights,
4 convictions and customs," et cetera.
5 And it continues that:
6 "Women shall be especially protected against any attack on their
7 honour, and especially against rape, forced prostitution, and such-like."
8 Now, my point is and what I'm getting at, the following: That
9 there should be a distinction under the rules which are within the
10 All-People's Defence, which was the internal law of Yugoslavia, and of
11 course within that framework the civilians were regarded as possible
12 contributors to the All-People's Defence. But, frankly, the whole
13 situation was in a way envisaged that there would have been a foreign
14 aggression against Yugoslavia
15 which probably some of us would lose of sight sometimes.
16 And it is another question that under the law of the land, that
17 is, in this case, the laws which have been promulgated already during the
18 existence of the Federal Republic of Yugoslavia, but on the other hand
19 they were also confirmed by the individual republics which have come into
20 being, then, of course, frankly, there had been a kind of contradiction
21 between the applications of the generally-recognised rules of
22 International Humanitarian Law and that of the rules which had to be
23 applied or had been applied in the former Yugoslavia.
24 It is -- I would like to ask Mr. Gorjanc if my approach
25 yesterday -- I believe that it is now -- I have to finish because we are
1 at the end of the sitting, but then this issue could be continued. Thank
3 JUDGE ANTONETTI: [Interpretation] Yes. Unfortunately, we don't
4 have all the time we need, so Monday Judge Prandler will ask his question
5 again. He described this text, this article, and since we're going to
6 have another hearing in another case now, we have to stop now.
7 We will meet on Monday at a quarter past 2.00.
8 [French interpretation on English channel]
9 [The witness stands down]
--- Whereupon the hearing adjourned at 1.47 p.m.
11 to be reconvened on Monday, the 2nd day of
12 November, 2009, at 2.15 p.m.