Celebici Trial: Prosecution's 'Loose Cannon' Witness

Friday, 31 October, 1997

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IWPR ICTY

Like others, this witness also protested against the manner in which he was summoned to Court, claiming that he had been ready to testify voluntarily. Divjak demanded that he be allowed to address the Court on this issue before the beginning of the trial. When he was allowed to do so, he said that "as a European, a white man, a Bosnian, and a citizen of Sarajevo" he was deeply insulted by the subpoena and requested that it be cancelled immediately.

Given the fact that he spoke before the Trial Chamber comprised of Presiding Judge Karibi- Whyte from Nigeria, Judge Jan from Pakistan, and Judge Odio Benito from Costa Rica, the least that could be said is that "politically correct speech" was not one of the strong points of education received at the JNA Military Academy, from which General Divjak graduated. As one of the deputies of the chief of the general staff at the beginning of the aggression by the JNA, General Divjak was the highest ranking Bosnian Serb in the B-H Army.

Apart from the first part of his testimony, in which he provided a lengthy and documented account of the military and political preparations of the JNA, Serbia, Montenegro and Karadzic's SDS for the aggression against Bosnia-Herzegovina and the beginning of that aggression, the Prosecutor did not have much use for this witness.

The second part of his testimony - dealing with concrete events described in the indictment - did not yield any new insights into the Celebici camp and the responsibility of the accused, primarily that of Zejnil Delalic, who was the highest military authority in the region of Konjic in 1992.

General Divjak said that he had gone to Celebici only once, in November 1992, to inspect the warehouse of military equipment there. Divjak did not see inmates on that occasion, nor was he told that there were any there. He learned about existence of the prison only later, when he was told that "the soldiers who took part in the attack on Konjic" were detained at Celebici. The indictment, however, asserts that inmates were civilians.

By the same token, Divjak stated that several soldiers expressed dissatisfaction with the fact that "those in the prison (the camp) have 3 meals a day, while the defenders of Konjic on the frontlines receive food only two times a day." However, the testimonies that the inmates gave before the Court concerning the food at the camp were quite different: they claimed that they were mostly starving.

General Divjak`s interpretation of the powers and responsibilities of Delalic, whom the Prosecutor charges with command responsibility for the events at the camp, was also rather vague. Analysing the documents about his appointment to the post of the commander of Tactical Group I and the powers assigned to him by the higher military authorities, Divjak stressed that they were "imprecise", that they do not contain the accurate list of units that were placed under Delalic's command, that it is not clear from these documents what Delalic`s powers were, and that they "are not in accordance with the combat documents of the B-H Army" from that period.

Two days later, however, the representative of the Military Archive of Bosnia-Herzegovina confirmed, before the Court, the authenticity of 13 out of the total 14 such documents (the decisions on appointments, military orders and the reports to higher commands) which are in the Prosecution's possession.

If, at certain moments during the direct examination by Prosecutor Theresa McHenry, General Divjak gave the impression of being a defence witness rather than a prosecution witness, a similar thing occurred during the cross-examination: his replies to some questions asked by the Defence unexpectedly provided the Prosecution with arguments.

The general was absolutely unpredictable, which, it appears, the Prosecutor was the first to grasp so she stopped the direct examination of the witness much earlier than it was expected, handing him over to the Defence. The Defence appears to have forgotten the golden rule of the authors of "courtroom novels" not to ask the questions for which they are not sure in advance what the witness' answer will be. Due to this oversight, the Defence had many unpleasant surprises during the two-day-long cross- examination.

Perhaps one of the most unpleasant of all surprises that General Divjak gave them was the one prompted by the question concerning the non-existence of communications between the units and the command of the B-H Army in the first days of the war, which is one of the main arguments in the defence of Delalic and the other accused.

Even though Divjak confirmed that telecommunications were one of first targets of the aggressor, he extolled the functioning of the system of information and communication between the units and the commands of the B-H Army "in the most difficult situations, even when all technical links were severed."

He recalled an example from Konjic, when the runners were sent daily to the mountain several dozen kilometres away in order to send reports to the command in Sarajevo from the transmitter of TV B-H located on that mountain. General Divjak especially praised the ham-radio operators from Konjic, who, according to him, are "among the best in B-H" and who established connections in the first months of the war not only with all parts of Bosnia, but with all continents as well!

Unlike General Divjak, who spent two and a half days in the witness box, the prosecution expert-witness Constantin Ekonomides testified for less than a half an hour, but the discussion with the Defence, who demanded that the cross- examination be postponed, lasted several times longer.

Ekonomides, a professor of international law at the University in Athens, the former director of the Legal Department of the Ministry of Foreign Affairs of Greece, and a member of the commission of the UN and the Council of Europe which deals with the problem of "citizenship of physical persons in cases of succession of states", spoke in general terms about the ways of acquiring citizenship and the right to opt, concluding that the Bosnian Serbs - at the time of the disintegration of SFRJ and the declaration of independence of B-H - did not enjoy the right to choose, which, according to him, they ought to have had since they comprise "the population that is linked in ethnic, religious, cultural and other ways with another community," i.e. Serbia.

The judges were interested in what happens with citizenship during the inter-regnum - after the disappearance of the old state and before the new one has been constituted - that is, before the right to opt, which is normally granted within a limited time-period, is used. The witness replied that, by rule, at the moment of succession everybody automatically acquires the citizenship of the successor state, and that afterwards they are given time to declare themselves.

However, he could not reply how the B-H legislature regulates this issue and he had not read the citizenship laws of Bosnia-Herzegovina. Since the Prosecutor announced this expert-witness only a week earlier and since the Defence - as it claimed - did not have time for preparation, the Trial Chamber decided that the cross- examination of Professor Ekonomides be postponed for the first week of December.

The testimony of Dr James Gow from the Department of War Studies at King's College London was also postponed for the same reason. He was supposed to testify before the Tribunal as an expert-witness for the third time in two years.