Page 17378

 1                           Monday, 23 March 2009

 2                           [Rule 98 bis]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.01 a.m.

 6             JUDGE ORIE:  Good morning to everyone.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in the courtroom.  This is case number IT-06-90-T, the

10     Prosecutor versus Ante Gotovina et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Mr. Tieger, the Chamber assumes that the Prosecution wants to

13     respond to the 98 bis submissions made by the Defence.

14             MR. TIEGER:  That is correct, Your Honour.  Thank you very much.

15             JUDGE ORIE:  You have an opportunity to do so.

16             MR. TIEGER:  Good morning, Mr. President, Your Honours.  We're

17     pleased to have this opportunity to address the Defence motion pursuant

18     to 98 bis.  Over the course of today, you will hear from a number of

19     members of the Prosecution, who will address in turn relevant aspects of

20     the motion.  I will begin with some preliminary remarks and focus on some

21     aspects of the joint criminal enterprise, the implementation of which

22     will be addressed in greater detail by those who follow.

23             Mr. Russo, for example, will follow me and address the unlawful

24     shelling of civilians.

25             Mr. Hedaraly will turn to the implementation of the common

Page 17379

 1     purpose through persecutory killings, burning, looting, detention, and

 2     harassment directed at Serbs.

 3             Mr. Waespi and Ms. Gustafson will describe General Gotovina's

 4     command and control, contributions to the JCE, notice of crimes by

 5     HV troops under his command, and failure to take necessary and reasonable

 6     measures to prevent or punish.

 7             Mr. Margetts will outline General Cermak's role in the JCE and

 8     his 7(3) liability.  Ms. Mahindaratne will discuss the role played by the

 9     special police under the command of General Markac as well as his role in

10     the JCE and 7(3) liability.

11             Now, a few preliminary remarks before I discuss aspects of the

12     JCE, Your Honours, about the legal standard to be applied and a couple of

13     other issues.

14             First, our discussion today will focus on or be in the context of

15     JCE and 7(3), largely because those are the modes of liability primarily

16     focussed on by the Defence.  Other modes of liability in the indictment,

17     however, such as ordering or aiding and abetting remain operative and

18     provide a further basis for denial of the 98 bis motion.  Nevertheless,

19     in the context of 98 bis, they need not occupy a distinct portion of our

20     presentation in order for the Court to determine that they, too, are

21     supported by the evidence.

22             Your Honours, since the December 2004 amendment, Rule 98 bis does

23     not permit a judgement of acquittal on parts of counts.  Therefore, the

24     Gotovina Defence citation to Strugar relies on an anachronistic view of

25     Rule 98 bis which was, as you will be aware, explicitly modified to

Page 17380

 1     eliminate the parsing out of counts.  If -- first of all, the

 2     Trial Chamber may only enter a judgement of acquittal with respect to an

 3     entire count of the indictment.  That's seen in the recent Prlic 98 bis

 4     decision.  If a count is comprised of several parts and there is no

 5     evidence on one part but there is evidence capable of supporting a

 6     conviction on the other parts, the 98 bis motion will fail and that can

 7     be seen in Lukic and Lukic.

 8             Now, in addition to our observation that the Gotovina Defence

 9     erroneously stated the legal standard with respect to counts, we also

10     note that the Defence was wrong in asserting that a sovereign authority

11     is an element of deportation.  And I direct the Trial Chamber to both the

12     Stakic Appeals Chamber judgement and the Krajisnik Appeals Chamber

13     judgement.

14             Similarly, contrary to the Defence assertion, the evidence

15     supports the conclusion that a state of armed conflict continued

16     throughout the state of Croatia until the conclusion of a peaceful

17     settlement was achieved in November 1995, and that can be seen at

18     transcripts 4967, line 17, through 4968.

19             Finally, Your Honour, a word on the legal standard for evaluation

20     of 98 bis.  A Rule 98 bis decision does not involve the weighing of

21     evidence or an evaluation of the strength or weakness of contradictory or

22     different evidence before the Trial Chamber, and that could be seen in

23     the recent Martic decision.

24             Now, while the Defence has expressly acknowledged aspects of

25     these standards, noting, for example, that the weighing of credibility is

Page 17381

 1     not a factor, they have, at the same time, reversed or inverted that

 2     standard in some respects, either citing a piece of evidence that

 3     purportedly contradicts the Prosecution case as demonstrating that the

 4     motion should be granted or urging the Trial Chamber to engage in a

 5     weighing of evidence, and find in favour of the Defence.  And as I

 6     discuss aspects of the JCE I will attempt to identify at least a couple

 7     of those examples.

 8             Again, the standard is not whether the Defence can cite evidence

 9     in support of its theory.  The standard, of course, is whether is there

10     any evidence taken at its highest which can support a conviction as to

11     each count.

12             Your Honour, let me therefore turn now to the joint criminal

13     enterprise to forcibly remove Serbs from the area, to remove them through

14     such means as shelling, destruction, looting, intimidation, and violence.

15             Let me begin by noting what we know about intent related to the

16     JCE.  In sum, the Croatian leadership wanted Serbs out, planned to get

17     them out through illegal means, insisted that they weren't coming back,

18     took a variety of steps, including illegal means, to keep them out,

19     boasted about the benefit of having a Serb-free Croatia and, finally,

20     those who saw what was happening on the ground as it was happening

21     recognised that it was intended to get Serb civilians to leave.  I'd like

22     to discuss those in somewhat more detail.

23             First -- and I'd like to begin chronologically with the shelling,

24     if I might.

25             First of all, Your Honours, those who were present as the shells

Page 17382

 1     rained down and then as they were later lobbed in here and there, those

 2     persons who experienced that and observed that, realised that the purpose

 3     of such shelling was to panic and drive out the civilian population.  And

 4     I direct the Court to P926, paragraph 3, Mr. Williams; P931, paragraph

 5     16, Mr. Hendriks; P695, paragraph 30, Mr. Dangerfield.  Now that

 6     testimony was buttressed by Colonel Konings who, when asked about the

 7     firing of projectiles at irregular intervals, recalled his time in

 8     Sarajevo and noted that the only purpose of firing artillery at such

 9     intervals is to harass a civilian population, to get them to flee, to

10     create chaos, or whatever.  That's T14426.

11             Now these conclusions based on contemporaneous experience

12     presuppose an underlying desire to get Serbs out and although these

13     witnesses had no way of knowing that, we now know on the basis of the

14     evidence how right they were.  President Tudjman, the leader of Croatia,

15     didn't wanted Serbs in Croatia, and neither did those he surrounded

16     himself with who were likewise convinced, like him, that Croatia was

17     better off without Serbs.  Multi-ethnic states, President Tudjman

18     insisted, were unsustainable, unstable, and Serbs, he believed,

19     represented a threat.  I'd cite the Court to Galbraith at P444,

20     paragraph 68 and 70, transcript at 4929, and also to P452 of presidential

21     transcript of 29 October 1993.

22             As President Tudjman's Chief of Staff told Ambassador Galbraith,

23     Serbs were a cancer on the stomach of Croatia.  That's at P444.  And the

24     answer for countries plagued with a multi-ethnic society, according to

25     President Tudjman, was population transfers, about which he spoke openly

Page 17383

 1     to Western diplomates such as Galbraith at T4936, or spoke more covertly

 2     to other nationalists like Bosnian Serb leadership Koljevic in 1992;

 3     that's P459.

 4             The intent of the JCE regarding Serbs can also be seen in the

 5     barriers erected to prevent their return.  As President Tudjman flatly

 6     told Ambassador Galbraith, it wouldn't be possible for Serbs to return.

 7     "We cannot have these people back."

 8             That's at P444, at paragraph 33.

 9             And as President Tudjman planned for the return of Croats from

10     South America, he set up laws and barriers to the return of Serbs, "not

11     even 10 percent," P463.  Those laws were set up in a way to ensure that

12     Serbs would lose their property when they were unable to get back.  See

13     P477.  And President Tudjman and Croatian officialdom worked to ensure

14     that the fewest possible number of Serbs would slip through.  "If we let

15     204 persons come here tomorrow you would have 1204, and in ten days

16     12.000.  Nothing for now."  P466.

17             So when the political and military situation in late July 1995

18     caused President Tudjman and others to conclude that the opportunity was

19     ripe for a military solution to the stalemated conflict,

20     President Tudjman met with his key advisors to discuss the operation on

21     the 31st of July.

22             The Defence has suggested to you that the Brioni transcript read

23     in context is "highly ambiguous."  Now, apart from the fact that those

24     ambiguities must be resolved against a 98 bis motion, it is also

25     important to note, Your Honours, that the context offered by the Defence

Page 17384

 1     referred to the passages purportedly relied upon by the Prosecution but

 2     omitted several significant passages.  You will hear more about the

 3     meeting in Brioni from Mr. Russo shortly, but I'll simply refer to a few

 4     key elements that were not mentioned.

 5             One, President Tudjman reminded his subordinates of the Croat

 6     towns that had been destroyed and that there was now an opportunity to

 7     hit Knin with artillery.

 8             Two, President Tudjman pointed out that this was not simply an

 9     opportunity to have things under control but to give Serbs a taste of

10     what they had given Croats and to pay them back.

11             And, three, it was important that the civilians flee.

12             The army will follow and each will have a psychological effect on

13     the other.

14             Your Honours, the intention to get civilians out was also

15     reflected in the use of leaflets and other forms of psychological

16     operations as you have heard.  These further means of getting them out as

17     President Tudjman said, "while pretending to guarantee civil rights, et

18     cetera ... use radio and television but leaflets as well."

19             That's at P461.

20             Minister Susak later bragged to Ambassador Galbraith about using

21     psy-ops to get civilians out.  General Gotovina confirmed in his book.

22     General Gotovina confirmed the use of leaflets in his book to get the

23     local population to leave.  That's at P113, part 2, page 197.  You've

24     seen the purported RSK leaflet with the clear mistake on the stamp that

25     purportedly orders a civilian population to withdraw, that's P480, as

Page 17385

 1     well as the MUP report revealing that it was thrown from an aircraft,

 2     P484.  And you've seen that this process was so successful that it was

 3     replicated later, for example, in Operation Southern Move, where a false

 4     leaflet purporting to be from the army of Republika Srpska ordered

 5     civilians to leave.  That's P113, part 2, page 206.

 6             Now, with respect to the violence, the killings, the looting, the

 7     destruction, burning as with the shelling, Your Honours, there was a

 8     contemporaneous recognition by observers on the ground that these events

 9     reflected a policy or at least acquiescence, official acquiescence, in

10     those acts.  And I would point the Court to P446, US code cable

11     mentioning that the goal was to ethnically cleanse the region of Serbs or

12     P447, referring to systematic looting and burning of Serb property.

13             The Defence has asserted that because there is no explicit

14     reference notice Brioni transcript to use of burning and looting as a

15     means of forcibly removing Serbs or keeping them out that it could not be

16     part of the JCE.  There is no basis either in common sense or in the

17     actual backdrop to these events for such a view, Your Honour.  Virtually

18     the day before, General Gotovina's forces were burning down Grahovo "in

19     an organised fashion," as Serbs fled to Knin.  I would point the Court to

20     P461; P71, the operational diaries between 28 July and 31 July; P1113,

21     part 2, pages 61 through 66; and at transcript at page 16484, lines 8

22     through 12.

23             As General Gotovina told President Tudjman, he was then going to

24     bring the same troops to Knin, troops who were aching to get there,

25     troops who were hard to keep on a leash.  There was no need to specify

Page 17386

 1     every means ... every means did not need to be specified for implementing

 2     the removal of Serbs and certainly not those particular means.

 3             The Defence has also focussed on orders concerning burnings,

 4     violence and looting as supporting their 98 bis motion.  The Gotovina

 5     Defence, for example, has asserted that the Prosecution's position is

 6     untenable, because it would be mean that these orders were not meant to

 7     be followed and they asserted that they asked Ambassador Galbraith "that

 8     particular question."

 9             And in essence, I asked -- that is the quote from the Defence:

10             "I asked Ambassador Galbraith did Minister Jarnjak and Minister

11     Susak issue orders that President Tudjman did not want followed?"  And

12     the answer was no.

13             Now apart from the fact that this asked the Court to weigh

14     purportedly competing evidence in a manner that has no place in a 98 bis

15     determination, it is in fact a piece of evidence that ignores the

16     witness's position to the contrary, and I'd ask you to what

17     Ambassador Galbraith said about that.  He was asked at -- this exchange

18     begins at 5077, 5076 and continues.  He was asked:  "... were you aware

19     of orders by the minister of the interior or the Ministry of Defence ..."

20     He went on to say he was told of such orders.  "I'm sure I was told the

21     Ministry of Interior had given orders."

22             And then the exchange continued:  "Mr. Ambassador, if orders were

23     being given to stop criminal activities in the Krajina, then permitting

24     those criminal activities was not state policy, was it?"  And that was

25     the thrust of the question, and here are some of the things that

Page 17387

 1     Ambassador Galbraith said:

 2             "I do not agree with -- with what you've just stated.  I have

 3     enough experience over the years that I served in Croatia with Croatian

 4     officials and Serb officials, giving orders and saying they'd given

 5     orders that they had -- and making promises they had no intention of

 6     keeping, and I do not believe that the Croatian government made a serious

 7     attempt to bring this destruction under control until such time as it was

 8     basically -- there was nothing left for the Serbs to return to."

 9             And he continues in that vein for nearly a page and he concludes:

10     "My point is, and I believe this, and I -- it comes from very extensive

11     observation of -- on my own part at the reporting of the embassy and lots

12     of other sources that the destruction that took place was something that

13     Croatia could have prevented, chose not to prevent because it served the

14     purposes of the top Croatian leadership."

15             And that is Ambassador Galbraith's answer to whether the orders

16     rendered the Prosecution's position untenable and it is buttressed by

17     such witnesses as Elisabeth Rehn, who testified -- who at P595 stated

18     that she had no doubt that the crimes committed by the Croatian forces

19     were pursuant to orders or silent approval.

20             Just a couple of other examples, Your Honour, of the inversion of

21     the standard that I mentioned earlier.

22             The Defence cited Peter Marti's evidence in support of the

23     position that the destruction was not discriminatory because he said that

24     "sometimes writing down the words 'Croatian house' on a dwelling did not

25     prevent the building from being spared."  Now apart from the fact that

Page 17388

 1     the use of the word "sometimes" indicates the exception that proves the

 2     rule, it overlooks the evidence that dwellings marked as Croatian

 3     households were left untouched.  Find that at T7915, or another witness

 4     T14922 through 23, or the general evidence that it was Serb houses looted

 5     while Croatian houses were not.  That's P61, paragraph 21.

 6             Similarly, the Defence referred to Peter Marti's testimony that

 7     his personal opinion was that the looting was not ordered "because you

 8     couldn't see any kind of systematic pattern in it, expect from the fact

 9     that it was more or less totalled."  P415, page 4.

10             Now, apart from the fact that the Chamber would be entitled to

11     infer that more or less total destruction was sufficiently systematic to

12     suggest ordering or at least acquiescing -- acquiescence by the

13     authorities, this evidence also ignores such evidence as P740, report

14     that most buildings were destroyed and systematic looting was taking

15     place; P477, again referring to systematic looting and burning; P807,

16     with the comment:  "Beyond any doubt this is a war crime act:  The

17     systematic burning of property, houses, stables, haystacks and the like."

18     Or P2151, referring to systematic devastation.

19             There was a reference to the fact that collection centres did not

20     constitute forcible transfer.  I would point the Court to the testimony

21     of Ambassador Galbraith at P444, who indicated that he viewed the

22     detention centres as "transition camps" out of Croatia where Serbs were

23     convinced it was in their best interest to leave and that while they were

24     detained, their houses were burned, their livestock killed, in a manner

25     similar to that which he saw after Operation Flash.  Paragraph 66.

Page 17389

 1             Your Honours, I mentioned it -- I mentioned, Your Honour, earlier

 2     that the -- that members of the Croatian political and military

 3     leadership led by President Tudjman and including the accused, wanted

 4     Serbs out, devised and implemented ways of getting and keeping them out

 5     and expressed their satisfaction in a job well done.  I didn't address

 6     that latter point and would like to conclude by citing the Court to some

 7     of that evidence.

 8             These are two speeches, one in the relatively immediate aftermath

 9     of Storm on August 26th by President Tudjman.  I invite the Court to read

10     this in its entirety and get a good feeling from this for the attitude

11     towards Serbs and the intent of the leadership.

12             Let me just read a few lines from this:

13             "This is not just a simple freeing up until now occupied areas.

14     This is creation of foundations for independent and sovereign Croatian

15     state for future centuries.  As long as they have been in Knin while Knin

16     was under occupation, future of Croatia hasn't been secure, but after

17     Storm it is.  Never again will anybody be able to endanger it."

18             President Tudjman goes on to describe when Knin was captured by

19     Turkish conquerers and "together with them, the ones who stayed till

20     yesterday in our Croatian Knin."  But today --

21             JUDGE ORIE:  Mr. Tieger, I'm in a continuous attempt to keep your

22     speed at -- at a pace which is still bearable for the interpreters.

23             MR. TIEGER:  My apologies to the interpreters.

24             JUDGE ORIE:  If you would take over part of this task that would

25     be appreciated.

Page 17390

 1             Please proceed.

 2             MR. TIEGER:  "Today it is Croatian Knin and never again it will

 3     go back to what was before, when they spread cancer which has been

 4     destroying Croatian national being in the middle of Croatia and didn't

 5     allow Croatian people to be truly alone on its own, that Croatia becomes

 6     capable of becoming independent and sovereign state."

 7             President Tudjman goes on to discuss the demographics and how

 8     there's a high percentage of Serbs in the middle of Croatian land, and he

 9     continues:

10             "But to manage that, dear Croatian brothers and sisters, we had

11     to unite."

12             And then an interruption in the recording.  And it continues:

13             "All decisions of our leadership the -- have been gone in two,

14     three days, as I have already said.  They were gone in a few days as if

15     they had never been here, as I said ... they did not each have time to

16     collect their rotten money and dirty underwear."

17             And then on the one year anniversary of the liberation of Knin,

18     President Tudjman made that point crystal clear.  "The results that we

19     have achieved are of historical importance.  We have returned Zvonimir`s

20     Croatian town," that's Knin, "to the fold of its motherland, Croatia, as

21     pure as it was in Zvonimir's time."

22             Thank you, Your Honours.  I'd like to turn the floor over to

23     Mr. Russo, who, as I mentioned earlier, will address issues related to

24     unlawful shelling.

25             JUDGE ORIE:  Thank you, Mr. Tieger.

Page 17391

 1             Mr. Russo, please proceed.

 2             MR. RUSSO:  Thank you, Mr. President, and Your Honours.

 3             I will, as you may have guessed address the allegations of

 4     unlawful attack.

 5             However, I must first address two legal errors in the Gotovina

 6     Defence's submission arising from argument that determination of a

 7     violation under Article 5 has to be dictated by the laws and customs of

 8     war under Article 3.

 9             First, they incorrectly argue that the Prosecution is required to

10     prove that the unlawful attack was "widespread and systematic."  This is

11     not accurate.  First of all, the chapeau elements for persecution are

12     widespread or systematic.  In any event, however, for purposes of

13     Count 1, the Prosecution has alleged an unlawful artillery attack as one

14     of many acts of persecution and not as a separate crime under Article 3.

15     As such, the Prosecution need not establish that this sole act was itself

16     either widespread or systematic, and the Court can look to the Kunarac

17     Appeals judgement as well as the Vasiljevic Appeals judgement.

18     Nevertheless, the evidence has indeed shown that the unlawful attack was

19     both widespread and systematic.

20             Second, they incorrectly argue that the Prosecution is required

21     to prove civilian deaths or injury resulting from the unlawful attack.

22     This again misstates the law.  The Kordic Appeals judgement, at

23     paragraph 105, specifically states that an unlawful attack against

24     civilians may constitute the crime of persecution without the requirement

25     of a particular result caused by the attack.

Page 17392

 1             Nevertheless, again, as I will address further on, the unlawful

 2     attack did in fact cause death and injury to civilians.

 3             The Gotovina Defence has also incorrectly argued that the

 4     unlawful attack is at the core of the Prosecution's case theory against

 5     General Gotovina, and that if the unlawful attack allegation fails, then

 6     the entire JCE theory fails.  As mentioned by Mr. Tieger, the Prosecution

 7     has alleged all modes of liability, including aiding and abetting through

 8     7(1), as well as command responsibility under 7(3) for all crimes charged

 9     in the indictment.

10             Thus, contrary to the Defence assertions, all crimes charged

11     against General Gotovina are neither dependant on the JCE allegation nor

12     on the allegation of unlawful attack.

13             I will now move to the evidence in the case of unlawful attack.

14             The Gotovina Defence argues that there is no evidence of a single

15     unlawful attack.  One can only come to such a conclusion by completely

16     ignoring the testimony of the witnesses who personally observed or were

17     subject to the shelling ordered by General Gotovina, as well as the

18     orders and actions of General Gotovina himself.

19             The evidence shows that General Gotovina ordered an attack on the

20     major population centres of the Krajina and that this attack was directed

21     at the Serb civilian population.  Pursuant to General Gotovina's order,

22     purely civilian areas were shelled in the towns of Knin, Benkovac,

23     Obrovac, and Gracac.

24             I'd like to show a demonstrative via Sanction.  From this

25     demonstrative, Mr. President, Your Honours, we can see the areas that

Page 17393

 1     were shelled according to witnesses Mira Grubor, Andries Dreyer,

 2     Joseph Bellerose, Roland Dangerfield, and Eric Widen, all of whom

 3     provided evidence that shells landed all over Knin, including in areas

 4     nowhere near any alleged military targets.  In particular, the north-east

 5     side of the town, which is the area around the hospital, as well as the

 6     eastern side of the town, are areas where there were no targets for

 7     artillery fire in Operation Storm.  We know this from the testimony of

 8     Marko Rajic, the man who planned and oversaw the artillery attack on

 9     Knin, as well as from the evidence of Phil Berikoff and Kosta Novakovic.

10             Let's take a look now at how this pattern of shelling compares

11     with the alleged targets identified by Mr. Rajcic himself.

12             Now what I have done here, Your Honours, is simply reproduce the

13     same areas where the shells landed, and I have highlighted the areas

14     which Mr. Rajcic identified as those which were actually fired upon by

15     Croatian forces, both as pre-planned targets, as well as targets of

16     opportunity.

17             The Court can find this evidence at transcript pages 16369 to

18     380, 16391 to 398, and Exhibits P2330 up to and including P2335, and

19     P2337.

20             Now, the Prosecution certainly does not agree with Mr. Rajcic

21     that all of the areas he identified were in fact military targets which

22     could be lawfully engaged with artillery.  Nevertheless, for purposes of

23     98 bis, this evidence suffices to demonstrate that contrary to the

24     assertions of Mr. Rajcic, and to those of the Gotovina Defence, the

25     artillery attack on Knin was far from a precise operation aimed only

Page 17394

 1     against military targets.  Indeed ... indeed, this evidence shows that

 2     shells impacted all over the town or, as one could easily find, that the

 3     town itself was shelled.

 4             The entire town was shelled even despite the fact that there was

 5     no military defence of Knin itself, meaning no combat troops, no defence

 6     trenches, no anti-tank ditches, no heavy weapon deployments, and no

 7     outgoing fire from within the town.  Nothing, Your Honours, to indicate

 8     that the ARSK had planned to defend Knin from within.  This evidence

 9     comes from Robert Williams, Roland Dangerfield, and Phil Berikoff.

10             Taken together, this evidence shows that the artillery attack on

11     Knin was not done for the purported purpose of "knocking out" the command

12     and control structure of the ARSK but was in fact directed at the

13     civilian population.

14             There is similar evidence of shells being fired at purely

15     civilian areas of the towns of Benkovac, Obrovac, and Gracac.  In

16     Benkovac, witnesses Dusan Sinobad and Witness 56 testified to the

17     shelling of purely civilian areas.  We can see those here.

18             Dusan Sinobad testified there were no military targets in

19     Benkovac proper, with the possible exception of the Macura barracks which

20     was located over a kilometre from the centre of town, though he also

21     testified that there were no ARSK soldiers in that barracks on 4 August.

22             This evidence was corroborated by Witness 56 and by

23     Kosta Novakovic, a member of the ARSK Main Staff, who both testified that

24     there were no combat troops in Benkovac because during Operation Storm

25     they had all been sent to the front-lines.

Page 17395

 1             A HV report also demonstrates that the town of Benkovac was

 2     indiscriminately shelled.  P1200, a report by the 134th Home Guards

 3     Regiment states at page 2 that the general area of Benkovac was shelled

 4     by the artillery forces of OG Zadar "without monitoring" and that they

 5     had received a message from that unit asking, "Is anything falling on

 6     Benkovac?"

 7             Moving now to Obrovac.

 8             In Obrovac, we have -- we have the witness testimony of

 9     Jovan Dopudj who testified that areas all over the town were shelled, and

10     based on personal knowledge as a former ARSK commander after that area,

11     that there were no military targets inside the town of Obrovac, which

12     meant no command or communications centres, no combat troops, and no

13     military equipment in the town.  That can be found at P548, paragraph 2.

14             Nevertheless, the spread of impacts -- the spread of impacts in

15     the town indicates that shells did, in fact, fall all over the town.

16             Moving now to Gracac.  In Gracac, witnesses Mile Sovilj,

17     Vida Gacesa and UNMO Herman Steenbergen, all testified to shells landing

18     in purely residential areas of the town.  Also significant to the

19     shelling of Gracac was the testimony from Marko Rajic himself that with

20     the exception of the cross-roads on the edge of town, there were no

21     military targets of sufficient value in Gracac to consider for gaining a

22     military advantage by artillery fire.  The Court can find this at

23     transcript page 16 -- transcript page 16 ...

24             JUDGE ORIE:  Mr. Russo, first of all, also the same invitation as

25     to Mr. Tieger to slow down.  Second, when you talked about Obrovac we saw

Page 17396

 1     Gracac on our screen, then it disappeared when you start talking about

 2     Gracac.  If you want us to follow it in this way, then it is best to have

 3     on the screen what you're talking about, which opens another matter, that

 4     is, how would you want to deal with the material you present to us on the

 5     screen?  We have seen the aerial view on Knin with now the green areas

 6     and the identified places where, as you said, witnesses had testified

 7     shells were falling.  How do you want to -- of course, the Chamber could

 8     look at the tapes of today's session and then get it back on our screens,

 9     but that might not be a very efficient way of dealing with these matters.

10             MR. RUSSO:  I'm happy to provide these to the Trial Chamber and

11     to the Defence so the Court can compare these to the targets, alleged

12     targets identified in these towns by the Defence.  However, I simply

13     wanted these to be a demonstrative of the areas where shells fell.

14             JUDGE ORIE:  Yes, I see that.  But, of course, the memory of a

15     human being is limited in keeping rather complex pictures stored.

16             I'm also addressing the Defence.  We know -- we all know that

17     this is just the visualized interpretation of the evidence by the

18     Prosecution.  Would there be any problem in providing it to the Chamber,

19     where we have looked at it anyhow, in hard copy.

20             MR. KEHOE:  We have no problem with that, Your Honour.

21             JUDGE ORIE:  Mr. Russo, then perhaps it would be good to have

22     hard copies prepared.  I think the originals are on the record, at least

23     on the video record of these hearings.  It is not evidence.  It is just

24     interpretation of evidence.  So, therefore, unless one of the parties

25     would consider it be necessary to have these visualisations being marked

Page 17397

 1     for identification, we would rather refrain from it and just use it as it

 2     seems fit.  Similarly as we have used often similar Defence pictures.

 3             MR. KEHOE:  Yes.  My only request is I do want a copy of what

 4     counsel has, which he offered to give, so I just want to follow that up.

 5             JUDGE ORIE:  Thank you.  May I take it that Mr. Kehoe has spoken

 6     on behalf of all Defence teams.  I see this confirmed.

 7             Please proceed, Mr. Russo, in -- at a speed which is appropriate.

 8             MR. RUSSO:  Thank you, Mr. President, and I'm grateful for the

 9     agreement.

10             Now, the testimony of Marko Rajic that there were no targets for

11     artillery fire in Gracac with the exception of the cross-roads can be

12     found at transcript page 16365.

13             In addition, Zdravko Janic, the special police commander in

14     charge of the axis of attack which included Gracac, likewise testified

15     that there were no military targets inside the town of Gracac proper.

16     This can be found at transcript 6355 to 356, and 6392.

17             Since the area of Gracac was the responsibility of the special

18     police during Operation Storm, I will return to a bit later in a

19     discussion of Mr. Markac 's contribution to the JCE through unlawful

20     attack.

21             In any case, the shelling of purely civilian areas inside the

22     major population centres of the Krajina is evidence upon which this

23     Trial Chamber could find that the artillery attack was, in fact, directed

24     against the Serbian civilian population.

25             Even beyond this, however, there is yet more evidence to show

Page 17398

 1     that the civilian population was the primary object of the artillery

 2     attack, because the civilians in the major towns were not the only

 3     victims of shelling.  Those who lived in the small villages and hamlets

 4     around the Krajina where no military presence could be found were also

 5     subjected to artillery strikes.  You can find this in the evidence of

 6     Witness 54.  That's at P186, page 5, transcript 2856 to 2857, as well as

 7     the evidence of Mr. Jovan Dopudj, that's at 5999 to 6000, as well as

 8     P548, paragraph 4, and P551.  In addition, the evidence of Sava Mirkovic.

 9     That would be at D720, transcript 7418.

10             Evidence that the artillery attack was directed against the

11     civilians does not only come from witnesses and places that were shelled

12     but also from the method and means of attack chosen by General Gotovina.

13     Knin was shelled for 19 hours on the 4th of August, followed by an

14     additional six hours of shelling on the following day with rates of fire

15     varying from intense bombardment at the outset to rounds -- four to five

16     rounds per hour landing during the day and night.  This we get from the

17     testimony of Alain Gilbert, Geoff Hill, Robert Williams and

18     Phil Berikoff.

19             The Trial Chamber has seen a video of the artillery attack on 4

20     August this is P1278, in which the varying rates of fire can be heard.

21     In particular, the single impacts which are unevenly spaced out in time.

22     We know that such sporadic fire was intentional from the orders of

23     General Gotovina at P1125, P2350, and the reports of the TS-4 artillery

24     commander Bruno Milin at P1268.

25             As alluded to a bit earlier by Mr. Tieger, Lieutenant-Colonel

Page 17399

 1     Konings testified --

 2             THE INTERPRETER:  Slow down please.  Thank you.

 3             MR. RUSSO:  My apologies.

 4             Lieutenant-Colonel Konings testified that this type of prolonged

 5     shelling with random single rounds would have almost no effect on the

 6     military itself, would not deliver any true military advantage, but that

 7     it would have a psychologically harassing effect on the civilian

 8     population as it would keep them guessing about where the next round

 9     would fall.  It is in fact this effect on the civilian population,

10     Your Honours, that was truly intended by General Gotovina and the other

11     members of the JCE which is reflected at the meeting which I will come to

12     in a bit.

13             Now, the kind of weaponry used is, of course, another fact which

14     sheds even further light on the true intent of the artillery attack.

15             Mr. Akhavan rightly pointed out that an indiscriminate attack can

16     be found to have been directed against the civilian population.

17     Article 51 of Additional Protocol I defines an indiscriminate attack as

18     "one which employs a method or means of combat the effects of which

19     cannot be limited as required by the protocol and consequently in each

20     such case are of a nature to strike military objectives and civilians or

21     civilian objects without distinction."

22             Now despite the arguments by the Gotovina Defence, the

23     application of Article 51 depends entirely on the circumstances of each

24     particular case, and in the civilian-populated areas in this case,

25     General Gotovina chose to use unguided multi-barrel rocket launcher

Page 17400

 1     systems, an unquestionably indiscriminate weapon under the circumstances.

 2     This we can find at D1425, paragraph 16, transcript reference is 16278 to

 3     279, 16282 to 285.

 4             Marko Rajic himself admitted that using multiple-barrel rocket

 5     launchers against targets in a residential area would violate the rules

 6     of distinction and proportionality.  He made this admission at transcript

 7     page 16592.  Every other witness who testified about MBRLs, including the

 8     special police chief of artillery Josip Turkalj, testified to their

 9     extreme inaccuracy and huge area of coverage.  We can find this also in

10     the testimony of Andrew Leslie, Harry Konings, and UNMOs, Kari Anttila

11     and Tor Munkelien.

12             Either worse than MBRLS, Your Honours, is the evidence that

13     cluster munitions were used.  The evidence that cluster munitions were

14     used against Knin, I refer the Chamber to the evidence of

15     Mr. Murray Dawes, P980, P981, P984, D863, and transcript reference 10500.

16             Finally, the almost complete lack of damage to the alleged

17     military targets in Knin highlights that the civilians were the primary

18     object of the attack.  For purposes of economy, Your Honours, I will

19     focus only on some of the "high-value military targets" identified by

20     Marko Rajic.

21             The ARSK HQ.  After 25 hours of shelling, the alleged target par

22     excellence, according to Mr. Rajcic, took exactly one shell hit and that

23     shell hit, Your Honours, landed in the parking lot behind the building.

24     This we know from the evidence of Kosta Novakovic, Geoff Hill, and

25     Alain Forand.

Page 17401

 1             Indeed, the evidence shows that General Cermak himself moved

 2     right into the building after the artillery attack and began using it.

 3             The northern barracks, another allegedly high-value target,

 4     showed almost no signs of damage and, again, was immediately used by

 5     Croatian forces upon their entry into Knin.  This we know from the

 6     evidence of Murray Dawes, Geoff Hill, Andrew Leslie, and

 7     Stig Marker Hansen.

 8             The residence of Milan Martic, even though the building in which

 9     Mr. Martic lived was targeted and fired upon, Marko Rajcic conceded that

10     the building itself was not a military target but, rather, only

11     Mr. Martic himself.  Mr. Rajcic also made clear that he absolutely no

12     information about the building that was targeted and fired upon.  He

13     didn't know how many flats were in the building, how many floors it had,

14     how many people may have been living there or who were there on the

15     4th of August, and he also admitted that the chance of actually injuring

16     or killing Mr. Martic by firing artillery that building was "very

17     slight."

18             The Court can find this at transcript 16446 to 447.

19             Although Mr. Rajcic denied that MBRLs were used when firing at

20     the residence of Milan Martic, UNMO Kari Anttila testified that he

21     conducted a crater analysis of six MBRL impacts in that same residential

22     area and that buildings and cars were damaged.  The Court can find this

23     evidence at P60, D166, D167 and D1261.

24             Mr. Rajcic also testified to firing on the "old hospital"

25     building in downtown Knin for the sole reason that he heard Mr. Martic

Page 17402

 1     was in there.  That's at transcript 16396.  Now chasing Mr. Martic around

 2     the town with a cannon or a rocket launcher located 25 kilometres away

 3     and shooting at any building he might be in, I submit, Your Honours, is a

 4     classic example of an indiscriminate and a disproportionate attack.

 5             The Gotovina Defence also argues that there was no death and no

 6     injury to civilians as a result of the artillery attack ordered by

 7     General Gotovina.  Even though, as I mentioned, there is no requirement

 8     to prove such a result, the evidence does indeed show that between 50 and

 9     75 civilians were killed, and between 30 and 40 were injured during the

10     artillery attack on Knin.

11             This evidence can be found from the testimony of Phil Berikoff,

12     P740, paragraph 2; D284, pages 7 to 9; P747; and P744, as well from the

13     evidence of witness Mila Grubor who was a nurse on duty at hospital on

14     4 August.  That's at P54 and P55, as well as the evidence of

15     Mr. Hussein Al-Alfi, Robert Williams and Exhibit P220.

16             There is also evidence of extensive damage to civilian structures

17     as a result of the artillery attack, despite the arguments to the

18     contrary.  In Knin, the UNMO evidence records at least 110 buildings in

19     Knin damaged or destroyed by shelling.  That evidence comes from P64 and

20     P67.

21             Mr. Berikoff also testified that he personally observed at least

22     100 houses in Knin destroyed during the artillery attack and that there

23     was substantial damage to more than these 100 houses which did he not

24     specifically record.

25             That can be found at 7601 to 602, 7882 to 83.

Page 17403

 1             Witnesses in Benkovac, Obrovac, and Gracac, also testified that

 2     the shelling caused damage to residential and civilian structures in

 3     those towns.  And I would refer the Chamber to the evidence of

 4     Witness 56, Dusan Sinobad, Jovan Dopudj, Vida Gacesa, and

 5     Herman Steenbergen.

 6             Now, the Gotovina Defence also asserts that there is no evidence

 7     that the artillery attack caused civilians to flee.  Here again, the

 8     evidence on the record proves otherwise.  Witnesses for each town that

 9     was shelled testified that civilians fled because of the shelling.  In

10     Knin, and the smaller villages surrounding it, there is the testimony of

11     Witness 54.  In Benkovac and its surrounding villages, there is the

12     testimony of Witnesses 56 and Dusan Sinobad.

13             In Obrovac, there is Jovan Dopudj.  In Gracac, testimony of

14     Mile Sovilj and Vida Gacesa.  As to any arguments that Mr. Martic's

15     decision to evacuate the women and children was the cause of this mass

16     exodus, I will refer the Trial Chamber to the evidence that Mr. Martic's

17     decision was issued because of the unlawful artillery attack and also the

18     evidence that most civilians were already leaving their towns before

19     Mr. Martic even made that decision, much less communicated it to anyone.

20     And in any event, the evidence shows that they would have left even in

21     the absence of that order.  The Court can find this evidence at D923,

22     D928, D929, D930, transcript pages 11968, 11973 to 78.

23             Now all of the foregoing evidence is more than capable,

24     Your Honours, of supporting a finding that General Gotovina conducted

25     unlawful attacks against the civilian population in order to drive them

Page 17404

 1     out of the Krajina.  Indeed, as it was apparent to those who suffered and

 2     who witnessed the artillery attacks, the intent to drive out the Serbian

 3     population by unlawful shelling appears plainly from the fact that the

 4     towns themselves were shelled.  The damage to the alleged military

 5     targets is almost nil, in comparison to the damage to the homes and

 6     buildings of the civilians who fled for their lives, and to the dead they

 7     left behind.  This evidence, on top of the evidence of the manner and

 8     means by which this attack was perpetrated, provides this Trial Chamber

 9     with sufficient evidence to infer that the intent of the attack was to

10     drive the civilians out.

11             Nevertheless, the Trial Chamber need not infer what has been

12     plainly expressed.  General Gotovina ordered that the major population

13     centres of the Krajina be put under artillery fire and he did so pursuant

14     to the plan reflected at the Brioni meeting.

15             At that meeting, President Tudjman announced that the political

16     climate presented an opportunity to repay the destruction of Croatian

17     towns and villages and he made clear to everyone the importance of

18     getting the Serb civilians to leave so the military would follow.  It was

19     General Gotovina who responded to that comment and assured the President

20     that if they kept up the pressure there wouldn't be so many civilians

21     left.

22             We know from the testimony of Marko Rajic that the use of this

23     term "pressure" is a euphemism for the use of artillery.  That can be

24     found at transcript 16601.

25             The pressure that General Gotovina was referring to at the Brioni

Page 17405

 1     meeting was the artillery attacks which he was conducting at that time

 2     against the civilian-populated areas of Cetina and Strmica and which were

 3     driving civilians out of those areas and into Knin, spreading panic among

 4     the civilian population there.  The Court can find this in the evidence

 5     of UNMO witnesses Peter Marti and Alexander Tchernetsky, P427, P417, P204

 6     and 205, as well as the evidence of Witness 136, transcript 666 to 67,

 7     797 to 798.

 8             In any case, President Tudjman, General Gotovina, General Markac

 9     and all who were in attendance at the Brioni meeting were well aware of

10     the effect that artillery had on Serb civilians in the areas they

11     shelled, not only from what they were doing in Cetina and Strmica but

12     also from their recent artillery attacks on Grahovo and Glamoc.

13     President Tudjman reminded everyone how the civilians had fled those

14     towns when General Gotovina's forces "put pressure on them."  And we know

15     from Marko Rajic that some of the civilians from those towns fled to

16     Knin.  Undoubtedly adding to the panic by the refugees from Strmica and

17     Cetina.

18             President Tudjman assured everyone that even greater panic would

19     break out in Knin once their attack started, and that the excuse of a

20     possible counterattack from Knin would be a good pretext for using

21     artillery against the town.  The message, Your Honours, was clear, the

22     plan was explicit.  Make them an exit route, shell the towns to trigger

23     the civilian flight and the military will follow them out.  That's what

24     exactly what they planned.  That's exactly what they did, and that's

25     exactly, Your Honours, what happened.  General Gotovina's order to put

Page 17406

 1     the civilian-populated towns under artillery fire is a patently illegal

 2     order as it explicitly directs his subordinates to disregard the

 3     principles of proportionality and distinction and to make entire towns

 4     targets for artillery fire.

 5             Let me now briefly address General Markac's responsibility for

 6     the unlawful artillery attacks against Gracac and Donji Lapac.

 7             The special police forces of General Markac were responsible for

 8     the axis of attack that included Gracac and Donji Lapac, and

 9     General Markac issued the order of attack and engagement of special

10     police rocket and artillery batteries.  This can be found at P2385, P614,

11     P552.

12             As I discussed earlier, the shelling of purely civilian areas in

13     Gracac itself is an unlawful attack.  There is additional evidence,

14     however, of the indiscriminate nature of the shelling done by the special

15     police forces.  The special police chief of artillery, Josip Turkalj, and

16     the commander, Zdravko Janjic, both testified that the special police did

17     not have forward observers.  That's at P1150, page 89 to 90; P1151, page

18     23 to 24; and transcript 13597, as well as P553, page 136.

19             Lieutenant-Colonel Konings testified that artillery should never

20     be used in a civilian-populated area without forward observers.

21             The artillery attack against Donji Lapac, Your Honours is the

22     same story.  General Markac ordered the special police forces to capture

23     Donji Lapac and they used artillery to do so.  This can be seen from the

24     evidence of General Markac's himself in a report, P585, as well as the

25     evidence of Zdravko Janjic, P552, paragraph 34, D556, page 1, and the

Page 17407

 1     evidence of Josip Turkalj, P1151, pages 10, 23, and 32 and transcript

 2     page 13611 to 612.  There were no military targets and no military

 3     presence in Donji Lapac either.  Josip Turkalj at transcript 13615, P1151

 4     at page 27.  Zdravko Janjic at P552, paragraphs 36 and 37, P553,

 5     pages 138 and 150 to 154.

 6             Donji Lapac resident Milan Ilic testified that Donji Lapac was

 7     shelled for several hours on 7 August 1995, that he left the town because

 8     of the shelling, and he could see that houses had been destroyed by

 9     shelling as he left the town, as well as the fact that there was no

10     military presence in Donji Lapac.  That's at P725, page 1; P726,

11     paragraph 5.

12             Now, the Markac Defence argues in an interesting way that there

13     is no witness who has testified that General Markac had anything to do

14     with the planning and preparing of artillery operations in his axis of

15     attack.  This seems to a rather obvious attempt to argue around his

16     presence at the Brioni meeting which reflects the plan to use artillery

17     to get civilians out of the Krajina.  The fact that the artillery attacks

18     on Gracac and Donji Lapac follow the same pattern of indiscriminate fire

19     as was carried out by General Gotovina's forces is evidence that

20     General Markac implemented the same common criminal plan.

21             The foregoing evidence, Your Honours, supports a finding that

22     Generals Gotovina and Markac significantly contributed to the common

23     criminal purpose of the JCE by executing the unlawful attacks against

24     Serbian civilians, establishing liability for Counts 1 through 3 of the

25     indictment.  In the alternative, the evidence suffices to establish their

Page 17408

 1     liability for those same offences through ordering, as well as aiding and

 2     abetting under 7(1) and also command responsibility under 7(3).

 3             That concludes the unlawful attack presentation.  I turn the

 4     floor over to Mr. Hedaraly.

 5             JUDGE ORIE:  Thank you, Mr. Russo.

 6             Mr. Hedaraly.

 7             MR. HEDARALY:  Thank you, Mr. President, Your Honours.

 8             The Prosecution has presented a vast amount of evidence regarding

 9     what took place in Sector South after the first few days of

10     Operation Storm, as was just described by Mr. Russo.  The burning and

11     looting of Serb property, the killing and harassment of Serb civilians

12     and the general untenable conditions of life for those Serbs who remained

13     behind or wished to come back.  This evidence included both general and

14     contemporaneous accounts and conclusions from witnesses on the ground, as

15     well as details of specific incidents.  Of course, I will not be able

16     today to review all this evidence but will only provide a brief snapshot.

17             I will begin with the destruction.  Reports from various

18     international organisations and the testimonies of numerous witnesses are

19     all consistent with respect to the widespread destruction that took place

20     in former Sector South.

21             ECMM reported in late August 1995, at P2151, that 60 to

22     80 per cent of houses had been partly or completely destroyed.  UNMO

23     reported 73 per cent on 13 September, at P97.  One member of the UNPROFOR

24     mission, Roland Dangerfield, who travelled 14 hours per day through the

25     area, stated that 80 to 90 of the villages suffered some form of burning.

Page 17409

 1     He testified that "the majority of the sector was on fire."

 2             This destruction ranged from one end of Sector South to the

 3     other, from the municipalities of Drnis to Donji Lapac, Benkovac to Knin,

 4     as well as Gracac and Obrovac.  In the words of Mr. Vanderostyne

 5     regarding the areas he visited, asked to clarify what he meant by burning

 6     on a large-scale, he said -- and that has been consistently corroborated

 7     by other witnesses, his answer was:

 8             "Yes, sure I can.  Looting on -- burning on a major scale, those

 9     were not isolated incidents.  Between Gospic and Gracac the whole

10     countryside was on fire, and I remember, Mr. President, at one time, we

11     were crossing a little -- a small little hill, and you saw the

12     countryside as far as you could look and everywhere, everywhere, every

13     farm, every barn, every annex, every house in the countryside, I mean not

14     in the villages but every single building in the countryside was on fire.

15     So this is what I mean on a major scale."

16             That was at transcript reference 4046, 4047.

17             The destruction started as soon as the HV took control of the

18     territory on 5 August 1995 with Serb houses seen burning in, for example,

19     Zagrovic, Knin municipality; Bukovic, Benkovac municipality; Kakanj in

20     the Kistanje municipality; and Amanovici in the Orlic municipality.

21             The towns of Kistanje, Djeverske, Cetina, Donji Lapac, were more

22     than 95 per cent destroyed.  Evidence was presented that this burning

23     occurred after the completion of combat operations.  Donji Lapac, which

24     was 99 per cent Serb before the war, was described in the following

25     manner by Minister Susak at a meeting he had with President Tudjman and

Page 17410

 1     others:  "Donji Lapac, as such, does not exist.  There is only its name

 2     on the map.  Everything is destroyed, everything."

 3             That is at P470, pages 53 and 54.

 4             In some cases only the church was left intact.  Sometimes with

 5     soldiers or policemen guarding it.  You will hear from that -- on that

 6     from Mr. Waespi.

 7             The only places spared from such extensive destruction were the

 8     larger towns so that they could be repopulated by Croat displaced persons

 9     or villages that were populated by Croats in the majority.

10             I refer, for example, to D820, P935, as well as the testimonies

11     of Eric Hendriks at 9747, 48 and 9671, 72; and Stig Marker Hansen, 14933

12     and 34.

13             The evidence presented by the Prosecution also demonstrated that

14     the widespread and systematic destruction was carried out in numerous

15     cases by Croatian forces.  I won't recite all the evidence from witnesses

16     who identified soldiers or people in uniform burning specific dwellings,

17     just a few observations and a few examples.

18             The HV itself noted that its members were committing arson.  A

19     report from the political administration coordinator Ivan Zelic on

20     13 August 1995, that is at D810, states:

21             "It should be noted that the largest number of fires occurred a

22     day or two following the entry of HV units into newly liberated villages.

23     Cases of arson were most often carried out by members of Home Guard

24     regiments who were displaced persons from the areas recently liberated."

25     Looting and burning were also carried out by the special police and there

Page 17411

 1     be evidence cited to you by Ms. Mahindaratne later on today.

 2             The internationals observed the same thing, P223, an UNCIVPOL

 3     report on 20 August states:

 4             "Another callous trend in Sector South is the widespread arson of

 5     deserted houses in the vicinities of Benkovac, Kistanje, Gracac, and

 6     Knin.  Croatian military personnel have been spotted at the crime scenes,

 7     strongly suggesting that they are the perpetrators.  Indeed there is

 8     hardly anyone else in the area to blame.  The destruction of houses is

 9     reportedly accompanied by the looting of property within the extent of

10     this activity indicates that it is officially condoned policy."

11             Two brief examples of the systematic nature of this destruction.

12     In Kistanje, a town I just mentioned as few minutes ago, on 6th August,

13     Mr. Gojanovic testified that he had gone through the town on

14     6th August and that saw HV soldiers had started to burn it already.

15             Mr. Dawes also observed the town of Kistanje starting to be

16     burned on 6 August.  By 9 August it was observed by Mr. Berikoff to be

17     95 per cent destroyed.

18             As written by journalist Robert Fisk, who was visiting the sector

19     with Alun Roberts, in P684:

20             "Every house in Kistanje has been destroyed by the Croat army:

21     Little bungalows, two-storey villas, Austro-Hungarian buildings of cut

22     stone, the burnt ruins still blessed by trees whose leaves have been

23     autumned browned by the fires.  No Serb will ever return here."

24             On the 10th of August in the Kosovo valley, a group of uniformed

25     soldiers was seen going house to house with the support of a fuel truck

Page 17412

 1     systematically burning the houses there.  That is at P830 and the

 2     testimonies of the ECMM witnesses.  On the same day, UNMO patrol team

 3     observed about 30 to 35 houses burning on the road from Knin to Kosovo.

 4     Patrol also observed about the same number of houses burnt down in the

 5     area.

 6             On the same road at a similar time, witnesses saw anti-aircraft

 7     guns used by HV vehicles used to set houses on fire on the road between

 8     Knin to Drnis.  One of these witness, Switbertus Dijkstra, noted a Puma

 9     insignia on the side of one of the military trucks.  As noted by a few

10     internationals, it is hard to separate the looting and burning.  They

11     usually went hand in hand, with houses looted before being destroyed.

12     The looting was equally systematic and carried out openly.

13             Once again, without going into too much detail, it started as

14     soon as Croatian soldiers entered the area.

15             On 5 August, witnesses Dawes and Williams, among others in the UN

16     compound, saw the Croatian soldiers looting openly, right outside the UN

17     compound.  Another witness, Stig Marker Hansen, testified that these

18     looted goods were then collected the next day by a truck and taken away.

19             The looting and burning also continued over time.  On 22 August,

20     Mr. Hendriks observed two uniforms military police HV members with a

21     72nd Battalion insignia, along with three civilians and the support of

22     INA light truck, leaving a house in Guglete in the Obrovac municipality

23     that had just been burned down.  There was photograph of that house

24     admitted into evidence.  That is at P948.  There are also some burning

25     incidents through the months of September, for example,

Page 17413

 1     4 September notice by HRAT at P36, and 10 September by UNCIVPOL at D179.

 2             The looting as well spanning the entire area also continued

 3     throughout the period of the indictment.  For example, reports of 23 and

 4     27 September, noted looting by uniformed personnel in respectively Plavno

 5     and Orlic.  P2149, P267.

 6             The reason internationals were able to observe these acts is that

 7     it was done publicly with complete impunity.  P933 states units are

 8     burning houses while military and civilian police are watching.  It is

 9     all done in public, and even our presence does not seem to disturb their

10     business.  By this fact, the looting must be organised and the burning of

11     houses smells of ethnic cleansing.

12             One report, P1287, noted that in one case, when asked why a

13     professional army was behaving that way, senior HV officer relied:  "Why

14     do people drink and drive?"  That is at P1287.

15             The effect of all of this, as one international organisation has

16     noted, is that the burning of the Krajina Serb farming resources

17     effectively prevents them to return in larger numbers.  Individual small

18     farming constitutes the basic livelihood of Krajina Serbs.  That is at

19     P2150.

20             And just to conclude briefly this section, as you heard earlier

21     from Mr. Tieger, the extent of this plunder and particularly the

22     destruction and its systematic nature led to the conclusion by witnesses

23     on the ground that the destruction was either ordered from the top or, at

24     the very least, condoned by the highest authorities.

25             Mr. President, is it a suitable time for a break?

Page 17414

 1             JUDGE ORIE:  It is, Mr. Hedaraly.

 2             We will have a break and we'll resume at five minutes to 11.00.

 3                           --- Recess taken at 10.31 a.m.

 4                           --- On resuming at 10.58 a.m.

 5             JUDGE ORIE:  Mr. Hedaraly, I would like to go into private

 6     session for a second to deal with a procedural matter.

 7                           [Private session]

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22                           [Open session]

23             THE REGISTRAR:  Your Honours, we're back in open session.

24             JUDGE ORIE:  Thank you, Mr. Registrar.

25             Mr. Hedaraly, please proceed.

Page 17415

 1             MR. HEDARALY:  Thank you, Mr. President.

 2             I will now move to the charges of murder that were alleged by the

 3     Prosecution, and just to inform the Court, based on the Chamber's

 4     guidance, the Prosecution will withdraw 32 specific victims that it had

 5     identified as victims of murder and subject to Counts 6 and 7.  I will

 6     not list them now to save time but we will provide the list by e-mail to

 7     the parties and the Chamber.

 8             JUDGE ORIE:  Thank you, Mr. Hedaraly.

 9             MR. HEDARALY:  However, these are the only incidents for which

10     the Prosecution concedes that it has not presented any evidence of

11     murder.  As to the other ones, and that is a total of 342, both scheduled

12     and additional killings, evidence was presented that these 342 victims

13     were killed unlawfully.  It the Prosecution's submission that the

14     evidence that was presented has to be viewed in its totality.  There are

15     various sources of evidence that must be considered in conjunction with

16     each other.  There is, of course, evidence from witnesses, both those who

17     have testified live and those whose statements have been admitted under

18     Rules 92 bis and quater, but it is not the only source of evidence.

19             There is not always evidence like that presented by

20     Smiljana Mirkovic or Manda Rodic who eye-witnessed the killing by

21     gun-shot of two different women in cold blood by Croatian soldiers,

22     respectively, Djurdjija Mirkovic in Polaca on 12 August and

23     Jovanka Mizdrak in Mizdrakovac on 8 August.

24             There also is evidence from documents relating to the collection

25     and burial of the bodies, where photographs were often taken by the

Page 17416

 1     Croatian authorities in their sanitation operations.  There is evidence

 2     from international organisations that discovered or otherwise witnessed

 3     the bodies on the ground.  There are contemporaneous accounts from these

 4     organisations about circumstances in which these victims have died.

 5     There is evidence from the exhumation and subsequent autopsy and forensic

 6     analysis of the bodies.  It is therefore an examination of all this

 7     evidence in its totality that must be considered, and the Prosecution

 8     submits that that evidence in its totality is sufficient for the purposes

 9     of Rule 98 bis.

10             We can obviously not today go through all 342 incidents.  I will

11     only address a few of the ones specifically raised in the Defence

12     submissions.

13             For example, additional killings number 131 and 132, specifically

14     challenged in the 98 bis submissions of the Gotovina Defence, two

15     unidentified bodies in the hamlet of Dmitrovic in the Zagrovic village.

16     There is no autopsy report for these two bodies, it is true.  But there

17     is evidence of unlawful killing.  There are reports by both UNCIVPOL and

18     HRAT as well as witness testimony from Mr. Hill who took pictures and

19     testified that they had been shot in the head.  Mr. Roberts also provided

20     the Chamber with contemporaneous photographs of the corpses of these two

21     victims and several international and insider witnesses have testified

22     about the problems related to the belated collection of these bodies.  I

23     refer to P226, UNCIVPOL report; D3, HRAT report; P292, Mr. Hill's

24     testimony, transcript reference 3770, lines 9 and 10; P303, the

25     photograph.

Page 17417

 1             In addition to this evidence, there is a witness, Ilija Mirkovic,

 2     who provided evidence that Croatian soldiers entered this hamlet on

 3     5 August, that he heard gun-shots, and that he then discovered the body

 4     of another victim on the Prosecution's list, Jovo Dmitrovic, which is

 5     victim number 129, and that he had been shot which was confirmed by an

 6     autopsy report, which is P1600.  So although there is no direct evidence

 7     as to how victims 131 and 132 died, there is strong evidence from which

 8     to infer that these victims were also shot by Croatian soldiers, the fact

 9     that this incident happened in the very same hamlet, around the very same

10     time.

11             But there is also more.  In the same village of Zagrovic, which

12     encompasses several hamlets, at least 12 victims on the Prosecution's

13     list of victims died shortly after the end of military operations.  In

14     fact, Your Honours heard evidence from Witness 69 regarding one of the

15     scheduled killings in this area.  You heard how, on the 5th of August,

16     Croatian soldiers entered the hamlet and the witness heard one soldier

17     take an 80-year-old man behind a house and he heard gun-shots.  This

18     victim died of a gun-shot wound to the chest as confirmed in the autopsy

19     report, P1522.

20             You also heard how, in the evening of the 5th of August, the

21     witness found the body of another victim, who had sought refugee at his

22     home, lying in a pool of blood, hours after the Croatian soldiers entered

23     the village.  Three other bodies were also found in that hamlet.

24             As I said earlier, we can't do the same exercise today for each

25     of the additional killings.  And, of course, we have not submitted for

Page 17418

 1     each of them witness testimony, photographs and reports from

 2     international organisations, but the point that I'm trying to make,

 3     Your Honours, by going in some detail into this incident is that what

 4     must be examined is not simply one killing, one autopsy report, for

 5     example, but the evidence must be examined in its totality.

 6             The same exercise could be made, for example, for the Plavno

 7     valley, where there are a number of instances of killings happening in

 8     this fashion on the 5th and the 6th of August.  Scheduled killing 2, for

 9     example, Sava Djuric being pushed in a burning workshop by soldiers comes

10     to mind, and although witnesses have not testified about each and every

11     willing in Plavno at around the same dates, there is strong evidence by

12     this pattern from which to infer that these other killings were similarly

13     unlawful.

14             I know that the scheduled incidents have generally been discussed

15     in court in some detail, so I want to focus on one or maybe two examples,

16     if I have time, of killings for which the Prosecution has submitted

17     witness evidence through Rules 92 bis and/or 92 quater.

18             The first example is found in the testimony of Vesela Damjanic

19     who testified regarding the killing of her epileptic husband,

20     killing 258.  As a result of two epileptic attacks, his head -- the head

21     of the victim, Lazo Damjanic, would shake uncontrollably.  On the

22     6th of August, 1995, three young Croatian soldiers entered the village of

23     Vrbnik in camouflage uniforms and the witness testified that they were

24     not from the area.  They took the victim towards the road.  As they were

25     walking away, the soldiers told him, Just shake your head, will you not

Page 17419

 1     do that for very long anymore.

 2             As his wife pleaded with the soldiers they told her to get lost

 3     or they would kill her.  One of the soldiers fired two shots in the air

 4     and indicated that the third bullet would be for her.  She was hiding

 5     behind a tree and waiting.  15 minutes later she heard shooting from the

 6     direction where her husband had been taken.

 7             Two days later, her husband not having returned and no one giving

 8     her any information, the witness saw the very same soldiers who took her

 9     husband away, and the soldiers asked her, What are you waiting for, old

10     woman?  When told she was waiting for her husband, they told her, You do

11     not have to wait for him anymore, you are not going to see him alive.

12     She responded, If I am not going to see him alive, will I get to see his

13     dead body?  The soldiers, If you manage to find him.

14             With the help of her son, the witness eventually found the body

15     of her dead husband under some bushes 15 metres from the road.  She

16     testified that when she saw her husband's body, the skull was broken and

17     the stomach was open and that it seems like he had been shot in the

18     stomach many times.  In his expert report, Dr. Clark confirmed that there

19     must have been at least six gun-shots.  That's P1251, page 12.

20             The body was removed by the Croatian authorities and buried in

21     the Knin cemetery more than two weeks later.  No investigation into this

22     killing took place at the time, despite the clear indication of

23     involvement from Croatian soldiers.  The only thing she was asked, as we

24     know from her statement, was by one soldier to take a picture of her with

25     her husband's body.  When she refused, she was beaten by a man in

Page 17420

 1     uniform.  When she made a cynical remark about the number of the metal

 2     tag assigned to the body, 498, presumably regarding that -- the high

 3     number, she was beaten again.

 4             I don't have time to go in other examples.  I know the Chamber

 5     has considered carefully those statements admitted under Rules 92 bis and

 6     quater.  The Prosecution also refer to those in its submission.

 7             At this stage, however, I briefly want to point out that the

 8     count for murder in the Prosecution's indictment --

 9             JUDGE ORIE:  Mr. Hedaraly, you started so well and now I find

10     that between -- on page 40, between lines 18 and 25, some portions are --

11     I'm not blaming the interpreters in any way, some parts of the

12     translation in French are missing.  Could you please resume where you

13     said -- I'll just read it slowly so that it is on the record:

14             "The only thing she was asked, as we know from her statement,

15     was" -- apparently a request by "a soldier to take a picture of her with

16     her husband's body.  When she refused she was beaten by a man in a

17     uniform.  And when she made a cynical remark about the number of the

18     metal tag assigned to the body," and then a word is missing, "she was

19     beaten again."

20             Could you please try to -- there was approximately some eight to

21     ten lines which the translation was behind.  So would you please re-find

22     your original speed of speech.

23             Please proceed.

24             MR. HEDARALY:  I will, Mr. President.  My apologies and thank you

25     for the guidance.

Page 17421

 1             At this stage, I briefly want to point out that the count for

 2     murder in the Prosecution's indictment is not limited to civilians but

 3     also to Serb soldiers who have laid down their arms or are hors de

 4     combat.  This was not challenged directly in the 98 bis submissions, but

 5     we have seen, both during cross-examination of Prosecution witnesses and

 6     in written submissions by the Defence, the suggestion that a member of

 7     the RSK could not be the victim of murder.  This becomes even more

 8     relevant considering that all men between 18 and 60 were considered to be

 9     ARSK members by the Croatian forces, as stated by Witness 82, P2359,

10     paragraph 28.

11             For example, there has been extensive briefing on the death of

12     Jovica Plavsa, killing 126, in the context of the admission of the

13     statement of his father, Witness 43.  And even assuming that the victim

14     was a member of an armed group, which the Prosecution stipulated to,

15     given the contradictory evidence on this point, the more important point

16     is that the victim was taken in handcuffs by Croatian soldiers on

17     5 August, and after ten minutes or, so the father heard a single shot,

18     and then found his son's body.  The autopsy report confirmed that Jovo

19     Plavsa had been buried in handcuffs and that he died of a gun-shot wound

20     to the head and chest, P1597.  Even if he was an ARSK soldier, he was in

21     the custody, in fact in handcuffs, of the Croatian soldiers and his

22     killing, the Prosecution submits, was therefore unlawful.

23             Similarly, you heard from witness Marija Vecerina about how her

24     son and four other young Serb men were taken out of a basement by

25     Croatian soldiers, and after hearing some shots, never seen again.  This

Page 17422

 1     was corroborated by the statement of Zdravko Buncic, admitted under

 2     Rule 92 bis.  The autopsy reports for these five men were that four died

 3     of gun-shot injuries to the head and that the fifth of a gun-shot injury

 4     to the neck.

 5             Finally, the last aspect of the murder I want to examine is the

 6     challenge by the Gotovina Defence in its Rule 98 bis submissions

 7     regarding number of incidents that had claimed the autopsy -- where it

 8     claimed the autopsy report could not conclude with certainty of a

 9     specific cause of death.  As an initial matter, the Prosecution notes

10     that for killings number 218, 220, and 288, there is in fact a determined

11     cause of death in the autopsy reports, and they are not unascertained.

12     P1641, P1257, and P1683.

13             In any event, the mere fact that an autopsy may not be able to

14     provide a certain cause of death is not in itself inconsistent with a

15     finding that a victim was unlawfully killed.  For example, a number of

16     people we have seen the body before it was collected and clearly stated

17     that he had been shot, like we've seen earlier in the case of additional

18     killings 131 and 132.  In some other cases, even where the autopsy could

19     not conclude the cause of death with precision, there can nevertheless be

20     evidence in the report itself that the death was not from a natural

21     cause.

22             So one brief example on this score, additional killing 193, where

23     the autopsy report, P163, says unascertained.  That is only because "a

24     fragment of the skull was present, therefore a high velocity gun-shot

25     injury or blunt head injuries cannot be excluded.  In other words, there

Page 17423

 1     was no head."

 2             It is the Prosecution's submission that people don't lose their

 3     head from natural causes and that therefore there is strong

 4     circumstantial evidence of an unlawful killing.

 5             There is more.  According to the death report, the death occurred

 6     in Golubic near Knin on 11 August.  Victim 124, a different victim not

 7     specifically channelled by the Defence, was also found in Golubic and

 8     killed a few days earlier.  His head was found 50 metres away from his

 9     body.  The autopsy report, P1596, confirms that the head of the victim

10     was not buried with the rest of the remains.  The HRAT daily report, P27,

11     indicates that members of the 4th Brigade were involved in the initial

12     operation and remained in the area of Golubic until about 12 August.

13     There also evidence in the Croatian Helsinki Committee report, P2345,

14     page 150, footnote 19, that soldiers were playing football with the head.

15             Just a quick word on Counts 8 and 9, the Prosecution has provided

16     evidence with respect to these counts.  I simply refer the Court to the

17     testimony of Draginja Urukalo, who testified via videolink about being

18     forced to strip to her underwear and ordered to play basketball behind

19     her house by Croatian soldiers, even if she was in her 70s at the time.

20     The Prosecution also refers to the evidence of Bogdan Brkic, who provided

21     a statement that he was tied to a tree by Croatian soldiers and a fire

22     was lit under his feet.  These are only a few examples, Your Honours.

23             There were countless incidents of threats, beatings and

24     harassment of the Serbs that remained in the Krajina reported by various

25     organisations.  Some Serbs were asked why they had not left.  For

Page 17424

 1     example, P950, a man armed and in uniform told a Serb civilian:  "Chetnik

 2     go away, this is not your country."

 3             You also heard of evidence of Witness 136 who testified being

 4     harassed by HV members when she left the UN camp and asked why she did

 5     not leave.  She also testified about HV firing over the UN camp and

 6     scaring the Serbs who had sought refuge there.

 7             Mr. Russo discussed the massive departure of the Serb civilians

 8     because of the unlawful artillery attack of the 4th and 5th of August.  A

 9     number of the small Serb population left behind also left following these

10     actions I have discussed today.  The looting, the burning, the killing

11     the harassment, the intimidation; in short, the hostile environment

12     created for the remaining Serbs in the Krajina.

13             As late as 27 September, ECMM reported regarding residents in

14     Plavno:  "Most people are getting more and more desperate due to the

15     ongoing looting and harassment.  They want to leave immediately to

16     Serbia."  P2147.

17             The Chamber may also recall the testimony of Witness 13 who was

18     injured by Croatian soldiers and sought refugee at the UN camp.  When

19     asked in court why after seven weeks she decided to go to Belgrade rather

20     than go back to her home, she responded:  "How could we possibly go back

21     home if our home had been burned down.  We had no home to go back to."

22             Witness 1, who was seriously wounded in the same incident, stated

23     that because of the shooting the first few days, he was afraid someone

24     might kill him if he went back to his home.  He therefore also left to

25     Serbia.

Page 17425

 1             When asked if he would have gone home absent those concerns, he

 2     said, Well, yes I didn't have any other country.  I was born in Croatia

 3     and that was my country.

 4             Finally, Witness 69, who I mentioned earlier in his connection

 5     with one of the scheduled killing incidents, when discussing the fact

 6     that he had stayed behind while others in his hamlet had left on

 7     4th of August and asked him to go with him, when he was asked who asked

 8     him to go with them to leave on the 4th he said, Well, neighbours, they

 9     tried to convince me that I should go and so did my wife.  But I said why

10     should I go?  Where should I go?  Why would I leave my home?  Why would I

11     leave my house?  But at one point the time came were I really had to go.

12     I had to leave it.

13             Thank you, Mr. President, Your Honours.  I will turn the floor

14     over to Mr. Waespi.

15             JUDGE ORIE:  Thank you, Mr. Hedaraly.

16             Mr. Waespi.

17             MR. WAESPI:  Thank you, Mr. President.  I will cover aspects of

18     General Gotovina's criminal responsibility under Articles 7(1) and 7(3).

19             First of all, I would like to describe his effective control, and

20     then move on to his shared intent and contribution to the JCE as outlined

21     by Mr. Tieger.

22             Your Honours, there is no doubt that General Gotovina had both

23     de facto and de jure command and control over all forces subordinated or

24     attached to the Split Military District during Operation Storm and

25     throughout the indictment period.  Rajcic testimony at 16560 to 62.

Page 17426

 1             There is evidence that General Gotovina was a forceful and

 2     effective commander capable not only of issuing orders but making sure

 3     that his orders were implemented on the ground.  You will recall the

 4     evidence of Mr. Rajcic that it was very dangerous not to comply with an

 5     order from General Gotovina, page 16454.

 6             There is evidence that General Gotovina's orders were indeed

 7     implemented by the troops on the ground.  See Liborius, at page 8273, and

 8     P845.  The images captured of General Gotovina during 6 August meeting in

 9     Knin, D792, demonstrate a confident military commander in full possession

10     of the authority to not only voice his displeasure at what he deemed to

11     be an unacceptable state of affairs created by subordinates, but also to

12     issue direct orders to rectify that situation and to have them

13     implemented.  Unfortunately, his focus during that meeting was on

14     supplying crosses, cleanliness and state propaganda for an impending

15     visit of President Tudjman.

16             There is ample evidence, Your Honours, in relation to the

17     72nd Military Police Battalion that it was part of the Split Military

18     District.  The evidence shows that General Gotovina had the material

19     ability to order the military police to take measures to prevent,

20     investigate and punish crimes.  P880, in particular Articles 8, 9, 16,

21     25.

22             Damir Simic, who was a member of the crime police section of the

23     72nd Military Police Battalion, confirmed that:  "Although formally the

24     MP belonged to the head of the MP administration in Zagreb, in their

25     daily activity the MP command would get orders from the Military District

Page 17427

 1     Command," and daily activity included maintenance of discipline,

 2     investigation of crime, securing check-points, and so on.  P967 at

 3     paragraph 16.

 4             General Lausic confirmed that Article 10 of these Rules fall

 5     within the regular military police tasks, and therefore, under Article 9,

 6     while performing these regular military police tasks, MPs were

 7     subordinated to the commander of the Military District.

 8             Contrary to the Defence assertions, there is ample evidence that

 9     General Gotovina and his subordinated unit commanders use their

10     subordinated MP units on numerous occasions for non-combat related tasks.

11             Just a few examples.  The first one is P1126, plan of security

12     measures, issued by the command of OG North, specifically approved by

13     General Gotovina.  Here the military police are ordered "collecting and

14     transporting the population trapped in liberated areas to collection

15     centres.  Further, they have to discover and arrest enemy soldiers and

16     prevent incursions of civilians into liberated territory."  Page 4.

17             Another example of the non-combat related use of military police

18     is D773, a very detailed order that you might recall, Knin 95, dated 23rd

19     August, in which General Gotovina gives very specific tasks to various

20     units of the district, including military police, in relation to

21     guaranteeing the security of the president.

22             It is telling that General Gotovina was able to issue orders to

23     his subordinates, including the military police, to successfully secure

24     the presence of Croatia in a war-torn area that only a few weeks prior

25     had been enemy territory.  Couple of other examples of the non-combat

Page 17428

 1     related use of MP, P1113, at page 370, an order by General Gotovina to

 2     the MP battalion to prevent torching, or P1123, an order again by

 3     General Gotovina to the MPs to set up check-points.

 4             Your Honours, there is further evidence - and I won't go into

 5     details - that the HV forces operating within the Split Military District

 6     were part of a disciplined army and had a functioning chain of command

 7     where orders were followed.

 8             Marko Rajic, page 16328.  Ambassador Galbraith said that the HV

 9     was the most disciplined military and best military in the former

10     Yugoslavia.  Page 4947 ...

11             As would be --

12             JUDGE ORIE:  Mr. Waespi, it is easier for me to follow your

13     argument directly rather than to have -- constantly having to check with

14     the French translation or, of course, I can't check the other

15     translation, that then I'm listening French, reading English, which

16     confuses me.  So to the extent the Prosecution could develop a similar

17     system as I sometimes saw the Defence doing, that is that one of your

18     people would check carefully how much you are behind that would -- I

19     would really appreciate that.

20             MR. WAESPI:  Thank you, Mr. President.  In fact, Mr. Saklaine has

21     that role already.  I just didn't obey him.

22             JUDGE ORIE:  Yes, I noticed that -- please proceed.

23             MR. WAESPI:  Thank you, Mr. President.

24             Another example are the inspections that were carried out if

25     deficiency occurred in units, example P27197, inspection of the

Page 17429

 1     72nd Military Police ordered by General Gotovina.  P1132, that is

 2     acknowledgment by General Gotovina himself that command and control of

 3     units was uninterrupted at the required level during Operation Storm.

 4             Your Honours, there is evidence that General Gotovina and his

 5     units maintained a strong presence in the Split Military District well

 6     beyond 9 August 1995.  There is also evidence that General Gotovina spent

 7     a significant amount of time in and around Knin during the relevant

 8     period of time.  Examples P543, a report dated 12 August, of which

 9     General Gotovina was appraised of what is happening in the ground.  Other

10     examples, P895, document of 20 September, documenting General Gotovina's

11     presence in Knin and his familiarity with the situation on the ground.

12     The interview with General Cermak at page 23, interview of 2004, saying

13     that Mr. Gotovina would come and go.  He left for Bosnia but he came back

14     and there are further notes in General Cermak's interview.

15             Other examples, P1131, P1143, and P1013, all documenting the

16     presence of HV units and General Gotovina in the Knin area beyond

17     9 August.

18             In terms of General Gotovina's ability to prevent or protect

19     property from being destroyed, there is evidence that General Gotovina

20     selectively used his authority issue such orders and control his troops.

21             Mr. Hedaraly already mentioned a couple of incidents about the

22     devastation of Serbian homes and that the Orthodox churches were spared.

23     See, for instance, P807.  In the face of the widespread devastation

24     throughout the area and the relative hands-off approach to churches, many

25     of the international observers concluded that there was a policy not to

Page 17430

 1     destroy the churches.  P988, Marker Hansen.  And that General Gotovina

 2     must have issued an order that they be protected.  There is evidence that

 3     guards were posted at some religious locations on the orders of

 4     General Gotovina.  Comes from Liborius.  The fact that most of the

 5     churches remained untouched demonstrates that General Gotovina was able

 6     to exercise his authority over his troops and ensure that orders were

 7     implemented.  However, he chose to be selective.

 8             You will hear, Mr. President, that -- from Ms. Gustafson that

 9     General Gotovina had notice that crimes were being committed by his

10     subordinates during and after Operation Storm, and that he did issue

11     orders in relation to prevention of looting and burning.  Despite both

12     the notice and orders to prevent, HV members continued burning and

13     looting.  General Gotovina had further notice of crimes and his response

14     was to issue another order, that HV members should --

15             JUDGE ORIE:  It is it not only the French translators which have

16     problems, Mr. Waespi, but the B/C/S translation is also behind.  I can't

17     listen to two channels at the same time.  But could you please slow down.

18             MR. WAESPI:  Thank you, Mr. President.

19             General Gotovina's response was to issue another order that HV

20     members should not burn and loot, and again, despite that order, the

21     looting and burning continued.  This was a cycle that repeated itself.

22     The non-compliance with General Gotovina's repeated orders to stopped

23     should not be seen as evidence of his lack of effective control over his

24     troops.  Quite the contrary was demonstrated through his ability to

25     protect the churches and the President.

Page 17431

 1             Your Honours, there is evidence moving to the JCE part that

 2     General Gotovina shared the common criminal purpose outlined by

 3     Mr. Tieger.  Won't go into details again as it relates to the artillery

 4     attack, but mention a couple of additional points.  A review of the

 5     Brioni meeting transcript make it clear that General Gotovina was

 6     actively engaged in the planning of the operation and receptive to the

 7     suggestions and objectives of his superiors.

 8             General Gotovina followed through on the plan discussed at

 9     Brioni, as demonstrated by subsequent comments, actions and omissions.

10     In terms of General Gotovina's attitude towards reports that crimes were

11     committed by his subordinates, there is evidence that when faced with

12     such allegations, General Gotovina impliedly condoned and justified these

13     acts.  Just two examples, P895, when General Gotovina expressed the

14     attitude being put on notice of crimes by his subordinates that:  "He

15     regards it as a human feeling to hate an enemy who has burned, looted and

16     expelled one's family."

17             Similarly, P2499, showing the condoning attitude of

18     General Gotovina.

19             I will conclude by General Gotovina's contribution to the JCE in

20     addition to what Mr. Russo, Mr. Tieger already mentioned.  Already

21     General Gotovina's overall plan of attack of 2nd August included, and

22     that's P1126, that civilians were to be transported into collection

23     camps.  This demonstrates General Gotovina's intent to get the population

24     out of their homes, rather than to protect their property.  And you

25     recall Ambassador Galbraith's testimony that he saw the detention centres

Page 17432

 1     as transition camps out of Croatia.  P446; and P444, at paragraph 66.

 2             There is also relevant JCE evidence in General Gotovina's

 3     participation in the sanitation system.  P496 is General Gotovina's order

 4     of 11 August 1995 to establish a sanitation team to collect human bodies

 5     which can be viewed as an effort to collect and bury murder victims

 6     without investigating their cause of death.  Support provided on this

 7     point by Witness 86, P487.

 8             Finally, Mr. President, Your Honours, a key contribution of

 9     General Gotovina to the JCE was his inactivity vis-a-vis the crimes that

10     were committed by his subordinates against the Serbs and their property.

11     By failing to take genuine measures to prevent, investigate or punish

12     these crimes, General Gotovina effectively condoned and encouraged the

13     commission of further crimes against Serbs.  He and his subordinate

14     commanders were primarily responsible for the climate of impunity

15     described by internationals, P451.  Maintaining military discipline is

16     first and foremost the task of the commander, not the MP.  Theunens,

17     13309; and Lausic, P2159 at paragraph 210.

18             General Gotovina was the commander of Operation Storm capable of

19     devising a plan, issuing orders and leading men into battle to swiftly

20     achieve the objectives set out by his superiors.  Apart from issuing a

21     few generic and hollow orders, General Gotovina chose to take no steps to

22     enforce those orders, while at the same time being aware that such a

23     failure would result in the commission of further crimes.  It is within

24     this climate of impunity that Serbs and their property were

25     systematically targeted and victimised by those under the command of

Page 17433

 1     General Gotovina.  The result was an unbearable and hostile environment

 2     in the Krajina which left those few Serbs that remained after the

 3     shelling with little choice but to leave their home.

 4             In that context, Your Honours, the inference can be drawn that

 5     the soldiers under the command of General Gotovina had been given free

 6     reign to loot and burn and even kill with impunity in furtherance of the

 7     objective of forcibly removing the Serbian population from the Krajina.

 8     And there is a concluding remark, observation by Ambassador Galbraith,

 9     P44 at paragraph 46:

10             "These were serious and systematic crimes for which the Croatian

11     leadership is fully responsible.  Given the disciplined nature of the

12     army and that the leadership was fully in command and had full power to

13     prevent, these were crimes committed on orders or it was a matter of

14     state policy to tolerate or encourage them."

15             Thank you, Mr. President.

16             JUDGE ORIE:  Thank you, Mr. Waespi.

17             MS. GUSTAFSON:  Good morning, Your Honours.

18             JUDGE ORIE:  Please proceed, Ms. Gustafson.  I take it that you

19     will be seconded in a similar way by your colleagues --

20             MS. GUSTAFSON:  I hope so, Your Honour.

21             JUDGE ORIE:  -- to keep your speed of speech under control.

22             Please proceed.

23             MS. GUSTAFSON:  Thank you.

24             Mr. Waespi has addressed General Gotovina's effective control

25     over the forces subordinated or attached to the Split Military District

Page 17434

 1     during the indictment period, and Mr. Hedaraly has described some of the

 2     evidence showing that General Gotovina's subordinates carried out the

 3     crimes charged in the indictment.  I will be addressing the evidence that

 4     supports the conclusion that General Gotovina had either actual or

 5     inquiry notice of the commission of these crimes and that he failed to

 6     take the necessary and reasonable measures to prevent or punish them.

 7             Mr. Russo has covered these elements in relation to the crimes

 8     underlying the artillery campaign, and therefore I won't be addressing

 9     this evidence.

10             A commander's duty to prevent or punish crimes is triggered when

11     he either knows or has reason to know that crimes are about to be

12     committed or have been committed by his subordinates.  As the Appeals

13     Chamber held in the Strugar case, a commander has reason to know that

14     crimes are about to be committed or have been committed by his

15     subordinates where he has "information of a nature, which at the least,

16     would put him on notice of the risk of offences by indicating the need

17     for additional investigation in order to ascertain whether such crimes

18     were committed or were about to be committed."

19             That's at paragraphs 297 to 302.

20             In addressing the evidence of General Gotovina's notice of the

21     charged crimes, I will focus on the crime of murder as this has been

22     specifically challenged by the Defence.

23             The Defence position is that General Gotovina did not know or

24     have reason to know that his subordinates were committing murder because

25     his awareness of the disposal of bodies by sanitation crews does not

Page 17435

 1     establish either that the deaths were unlawful or that his subordinates

 2     were responsible.  That was at page 17279.

 3             This assertion is flawed in two respects.  First, it reflects a

 4     misapprehension of the relevant legal standard, which is not whether

 5     General Gotovina received information establishing that his subordinates

 6     had committed murder but whether he had information notifying him of a

 7     risk of such offences.

 8             Second, General Gotovina's knowledge that sanitation crews were

 9     collecting and disposing of bodies during the indictment period is just

10     one of the many factors that, when taken together, put him on notice of

11     the risk that his subordinates had committed or might commit murder.

12             There is sufficient evidence to conclude that at the time

13     General Gotovina ordered the attack on the Krajina, he had information

14     that put him on notice of a risk that his subordinates might commit

15     crimes against Serb civilians and their property.  Furthermore, this

16     evidence together with the evidence showing his participation in a joint

17     criminal enterprise is sufficient to conclude that he participated in

18     that JCE, knowing that murder and cruel treatment, as well as plunder,

19     wanton destruction and persecution, were at least possible consequences

20     of its execution and he willingly took that risk.

21             First, General Gotovina knew of the widespread commission of

22     crimes, particularly burning and looting, immediately prior to the

23     operation by the same units he used to carry out Operation Storm.  And

24     this is clear from the numerous references in the Split Military District

25     operational diary to the looting, burning and destruction by HV members

Page 17436

 1     in Grahovo and Glamoc during Operation Ljeto.

 2             In addition, General Gotovina was well aware of the sense of

 3     bitterness that prevailed after four years of a brutal ethnic war between

 4     Serbs and Croats, and he knew that his subordinates, particularly the

 5     Home Guard Regiments, were motivated by revenge, as he explained to

 6     President Tudjman in Brioni.  General Gotovina also knew that this

 7     revenge element among his subordinates increased the risk that they would

 8     commit crimes against the Krajina Serbs and their property, because he

 9     referred to this same desire for revenge to justify their crimes when he

10     was confronted with them.  See Exhibits P383 and P895.

11             Before Operation Storm, General Gotovina also correctly predicted

12     that some Serb civilians would remain in the Krajina following the

13     artillery attack and those who did remain would be among the most

14     vulnerable.  Namely, those who have to stay, who have no possibility of

15     leaving, P461.

16             And finally, on the 4th of August, General Gotovina ordered his

17     subordinates to shell or at least was aware that they were shelling the

18     Serb civilian population through an indiscriminate artillery attack.  The

19     knowledge that his subordinates were firing on civilians must have

20     signalled to General Gotovina the risk that once his ground forces

21     entered the territory they, too, would violently target those Serbs who

22     had been unable or unwilling to flee.

23             This evidence is sufficient to conclude that at least by the

24     4th of August, General Gotovina had information that put him on notice of

25     the risk that his subordinates may commit each of the crimes charged in

Page 17437

 1     the indictment, thereby triggering his duty to prevent those crimes.

 2             Immediately following the launch of Operation Storm, those risks

 3     became reality.  As Mr. Hedaraly has described, on the 5th of August,

 4     Croatian ground forces began killing and mistreating the Serbs who

 5     remained in the area, and looting and burning their homes.  At least by

 6     the 6th of August, General Gotovina had actual knowledge of these crimes.

 7     At the meeting in Knin that morning he described his subordinates as

 8     "barbarians and vandals who are paid with war booty and wage war for war

 9     booty."

10             At this time General Gotovina would also have seen the smoke

11     rising from the villages around Knin, as described by Dzolic when he went

12     to the Knin fortress on the morning of the 6th of August; P875 and P876.

13     General Gotovina would also have heard the explosions and the small-arms

14     fire coming from downtown Knin and he would have seen the fires in Knin

15     itself as reported in P106, P825, and P826.

16             And he would likely have seen or received reports of some of the

17     dozens of dead civilians showing signs of deliberate killings by

18     small-arms fire that were scattered along the roads around Knin, such as

19     those witnessed by Murray Dawes and Andries Dreyer.  Having witnessed for

20     himself the burning and looting and signs of killing around Knin, the

21     next day, General Gotovina received a report from his own political

22     affairs department that his subordinates were behaving similarly in the

23     zone of operations of OG Zadar, and particularly Benkovac.  That's at

24     P1113, part II, page 326.

25             By the 8th of August --

Page 17438

 1             JUDGE ORIE:  No, no, no.

 2             MS. GUSTAFSON:  By the 8th of August the situation was such that

 3     General Forand expressed his concerns about the risks to the civilian

 4     population and warned General Gotovina of them.  P347.

 5             Those risks are also apparent in a 10th of August report from the

 6     SIS commander for OG North to the Split Military District Command, P1134.

 7     It states that in Knin "some HV members drove and seized cars about the

 8     town, under the influence of alcohol, making noise, shooting, and

 9     threatening people's lives."

10             The next day, the 11th of August, General Gotovina established a

11     sanitation detachment under his command.  P496.  Consistent with the

12     procedure implemented by the civil protection department, the order makes

13     no mention of conducting criminal investigations.

14             The following day, the 12th of August, General Gotovina receives

15     confirmation that his subordinates are burning and destroying property,

16     slaughtering livestock, and mistreating civilians and prisoners of war;

17     and that is through Exhibit P918.  And throughout the remainder of

18     August and September, he continues to receive information from a variety

19     of sources that add to his actual or inquiry notice that his subordinates

20     were murdering Serb civilians, in addition to burning, looting and the

21     slaughter of livestock.

22             For example, contemporaneous media reports of crimes included

23     reports of murders in the area.  P2319; P686; P712; P687; P451, page 243;

24     and P685 are examples.

25             And General Gotovina monitored such media reports of HV crimes.

Page 17439

 1     This is clear from his 5th of September meeting with General Forand, at

 2     which he threatened to execute the UN press officer, Alun Roberts.  In

 3     his subsequent letter to General Cervenko explaining his actions, he

 4     cited a statement made to journalists by Mr. Roberts, reporting that the

 5     Croatian army is burning, looting and violating human rights.  P383, P385

 6     and P407.

 7             The signs indicating that Serb civilians were being murdered by

 8     HV members were readily apparent to those monitoring and observing the

 9     situation and must have been apparent as well to General Gotovina who was

10     well acquainted with the situation on the ground through various means

11     including the SIS, PD and his unit commanders.  The evidence of

12     Mr. Rajcic, P918, and page 28 of General Cermak's 2004 suspect interview

13     confirm this.

14             Numerous witnesses described the signs on the ground indicating

15     the murder of Serbs by HV members.  For example, Mr. Morneau testified

16     that under the circumstances it was just a matter of deduction that some

17     of the bodies found on the streets had been murdered by the military.

18     Page 4006 to 4007.

19             Similarly, Witness 84 gave evidence that:

20             "Most of the bodies were said to be victims of war, which was a

21     way of trying to cover up ... when people were killed after Storm, it was

22     obvious that these killings had nothing to do with the operation itself."

23             P1036.

24             If these signs weren't enough, on the 16th of September,

25     General Gotovina received direct notice from General Lausic that the MP

Page 17440

 1     had not been able to "completely prevent the commission of crimes,

 2     especially theft of property, torching houses, and individual acts of

 3     murder."  D567.

 4             At the same time, reports from the sanitation teams indicate

 5     General Gotovina's knowledge that large numbers of corpses are being

 6     collected and buried.  See, for example, P507, a report from

 7     General Gotovina's sanitation detachment to the Main Staff, indicating

 8     that 418 corpses had been "cleared up in the Split Military District."

 9             In summary, Your Honours, the evidence is sufficient for the

10     Chamber to conclude that within the first few days of the operation,

11     General Gotovina possessed information that indicated at least the risk

12     that his subordinates had committed the crimes charged in the indictment

13     that triggered his duty to punish those crimes.  The same information

14     notified him of the risk that his subordinates would continue to commit

15     those crimes, triggering his duty to prevent them.

16             The evidence further supports the conclusion that with this

17     notice General Gotovina failed to take the necessary and reasonable

18     measures to prevent or punish the crimes of his subordinates.

19             This inquiry, whether a superior has fulfilled his duty to take

20     necessary and reasonable measures, is a matter of evidence to be assessed

21     on a case-by-case basis.  The Defence reliance on other cases to

22     determine what is necessary and reasonable in the context of this case is

23     of little assistance.

24             In this case the evidence supports the conclusion that, prior to

25     the commencement of Operation Storm, General Gotovina failed to take the

Page 17441

 1     necessary and reasonable measures to prevent the commission of the

 2     charged crimes.  As the Defence has pointed out, the attack order and the

 3     relevant attachments, P1125, P1126 and D201, contain generic instructions

 4     to "prevent burning and looting."

 5             However, in light of the clear risk that General Gotovina's

 6     subordinates would commit these and other crimes, the instructions do not

 7     constitute necessary and reasonable measures.

 8             First, General Gotovina knew that his subordinates had looted and

 9     burned Grahovo and Glamoc immediately before Operation Storm.  He failed

10     to punish the perpetrators of those crimes and he used the same

11     subordinates to carry out Operation Storm.  See P71; P1113, pages 61 to

12     66, and page 310, the evidence of Dzolic.

13             As the Strugar Appeals Chamber noted "a superior's failure to

14     punish a crime of which he has actual knowledge is likely to be

15     understood at least as acceptance, if not encouragement, of such conduct,

16     with the effect of increasing the risk of new crimes being committed."

17             Secondly, similar orders to those contained in the attack order

18     had already been proven to be ineffective.  The 29th of July operational

19     diary records General Ademi stating that "setting of fire to houses is

20     forbidden."

21             Yet the next day, the military police reported that members of

22     the 4th Guards Brigade, 7th Guards Brigade, 114th Brigade, and

23     126th Home Guard Regiment entered Grahovo and "began setting fire to

24     houses in an organised fashion."

25             P1113, page 66.

Page 17442

 1             These two factors alone would be sufficient to conclude that

 2     General Gotovina's mere repetition of earlier failed orders did not

 3     constitute necessary and reasonable measures.  In addition, the attack

 4     order contains no instructions to unit commanders relating to the

 5     punishment of crimes that, at this point, are a virtual certainty,

 6     measures such as engaging the military police, conducting investigations,

 7     imposing disciplinary measures, or initiating criminal proceedings.

 8     Among the many tasks directed at the military police in these documents,

 9     the only one relating to the investigation or punishment of crime is the

10     order to discover, arrest, and bring in enemy soldiers and officers.

11             Crucially, the attack order contains no measures to ensure the

12     implementation of the order to prevent burning and looting, such as

13     instructions to monitor or report on its implementation.  And in spite of

14     the risks to the safety of the Serb civilian population in the

15     circumstances of this attack, there are virtually no measures aimed at

16     protecting them or preventing crimes against them.  Just a generic

17     instruction to political affairs officers to "advise members of units on

18     conduct with civilians and POWs, in accordance with the

19     Geneva Conventions."  D201.

20             The Defence have also pointed to the orders that General Gotovina

21     issued after the commencement of Operation Storm which on their face

22     suggest an attempt to prevent the continued commissions of crimes.  In

23     particular, on the 6th of August, D792; the 10th of August, D204; and the

24     16th of August, P71, page 107 and 108.  Yet the evidence supports the

25     conclusion that none of these orders, either individually or

Page 17443

 1     cumulatively, constituted necessary and reasonable measures to prevent

 2     the wave of crime against Serbs and their property carried out by

 3     General Gotovina's subordinates.

 4             Two factors stand out in particular.  First, the orders relate

 5     almost exclusively to the prevention of burning and looting.  They

 6     contain little, if any, reference to crimes of mistreatment and killing

 7     of Serbs despite the fact that General Gotovina had information mounted

 8     over time that notified him of the risk that his subordinates might be

 9     committing such crimes.

10             And second, although there are slight variations in their

11     wording, these orders more or less repeat the generic instruction to

12     prevent burning and looting.  Other than the cynical threat issued to

13     units burning down houses that they will have to spend the winter in

14     them, recorded in the operational diary, General Gotovina took no

15     measures aimed at securing the implementation of these orders which he

16     knew were not being followed.

17             As Mr. Theunens explained, "Things will not get better just by

18     reissuing orders."

19             A commander must take steps to ascertain why his order has not

20     been followed and then take additional measure in order to guarantee his

21     orders are implemented.

22             The Chamber has received evidence indicating the kinds of

23     measures General Gotovina could have - and failed - to take.  These

24     measures are apparent from the orders he issued in relation to other

25     matters.  I refer the Court to P1142, D655, P1018 and 1019, P1033, and

Page 17444

 1     D773.

 2             It is the position of the Gotovina Defence that General Gotovina

 3     set his command climate at the 6th of August videotaped meeting.  That's

 4     at page 17269.  The Prosecution agrees.  At this meeting, knowing that

 5     his subordinates are committing crimes and that his instructions to

 6     prevent burning and looting have not been followed, General Gotovina

 7     takes steps to clean up the town in anticipation of the President's

 8     visit.  He issues no orders to identify or punish his subordinates who

 9     have committed crimes, no orders to stop the ongoing crime or prevent

10     further crimes, and no measures to ensure the implementation of his prior

11     failed orders.

12             The evidence, Your Honours, supports the conclusion that

13     General Gotovina had no genuine intent to implement his orders to prevent

14     the charged crimes and that he repeatedly and persistently failed to take

15     the necessary and reasonable measures to stop their commission.  This

16     evidence is not only sufficient to ground his superior responsibility, it

17     also supports the conclusion that General Gotovina condoned, assisted and

18     encouraged their commission thereby significantly contributing to the JCE

19     and aiding and abetting the commission of crimes by his subordinates.

20             There is also sufficient evidence to conclude that

21     General Gotovina failed to take the necessary and reasonable measures to

22     punish his subordinates for the crimes charged in the indictment.  First,

23     none of his orders to prevent crimes include any instruction to

24     investigate the crimes that he knew had happened.

25             Secondly, although it is the position of the Gotovina Defence

Page 17445

 1     that General Gotovina did not have the authority to order the military

 2     police to investigate or punish crimes, as Mr. Waespi explained, the

 3     evidence supports the contrary conclusion.  Namely, that he had this

 4     authority and he chose not to exercise it in relation to crimes against

 5     Serbs and their property.  And the evidence shows that General Gotovina

 6     failed to use the disciplinary system that was at his disposal to punish

 7     his subordinates' crimes.  His orders to prevent burning and looting did

 8     not direct his subordinate commanders to impose disciplinary measures in

 9     relation to these crimes, and this can be contrasted with examples in

10     P1034, and P1028, and P1013, in which he ordered his subordinates to

11     impose disciplinary measures in relation to other matters.

12             Mr. Theunens concluded that General Gotovina had a narrow

13     interpretation of the concept of military discipline, exclusively

14     focussed on the accomplishment of combat tasks and combat operations.

15     Page 12868.

16             Mr. Lausic echoed this view at P1259, and General Gotovina

17     himself confirmed his narrow approach to military discipline when, on the

18     15th of August, in the midst of an HV crime wave he reported to the

19     Main Staff that military discipline and combat morale was exceptionally

20     high in the preparation, course and conclusion of combat operations.

21     P1132.

22             Contrary to the assertion of the Defence, the evidence indicating

23     that General Gotovina demobilised soldier who is committed charged crimes

24     did not constitute a necessary and reasonable measure to punish them.

25     Ljiljan Botteri confirmed that there was no systematic reporting of these

Page 17446

 1     demobilisations to the Military District Command.  She was not aware of

 2     any effort to obtain information on how many soldiers were being

 3     demobilised for misconduct or the nature of such misconduct, and she was

 4     unable to identify any specific case where criminal proceedings were

 5     initiated against such a demobilised soldier.

 6             The evidence supports the conclusion that this practice was a

 7     reckless measure that General Gotovina used in an attempt to transfer

 8     responsibility for the criminal elements among his subordinates to

 9     another authority.  The necessary and reasonable measure in the

10     circumstances would have been to keep the perpetrators within the

11     military structure, and ensure their adequate punishment through

12     disciplinary and/or criminal measures.

13             In conclusion, Your Honours, the evidence adduced by the

14     Prosecution is sufficient to support a finding that General Gotovina knew

15     or had reason to know that his subordinates were about to commit or had

16     committed crimes in relation to all counts in the indictment and he

17     failed to take the necessary and reasonable measures to prevent or punish

18     them.

19             Thank you.

20             JUDGE ORIE:  Thank you, Ms. Gustafson.

21             Mr. Hedaraly, would this be a suitable time to have a break first

22     and then --

23             MR. HEDARALY:  Yes.  If we take a 20-minute break, we should be

24     able to finish by today's session.

25             JUDGE ORIE:  Yes.  We will have a break and we'll resume at

Page 17447

 1     20 minutes to 1.00.

 2                           --- Recess taken at 12.20 p.m.

 3                           --- On resuming at 12.43 p.m.

 4             JUDGE ORIE:  Mr. Margetts, you may proceed.

 5             MR. MARGETTS:  Thank you, Mr. President.

 6             Mr. President, Your Honours, I will address the submissions made

 7     by the Defence for Ivan Cermak.

 8             The first issue I'd like to address is the issue of effective

 9     control.  Mr. Kay, in his oral submission and his further note, set out a

10     number of indicators of effective control.  Whether any particular

11     accused possesses effective control is determined on a case-by-case

12     basis, taking into account all relevant indicators.

13             Some relevant indicators of effective control that the Defence

14     did not mention include the following.  First, the procedure used for

15     appointment of an accused (See Halilovic trial judgement, paragraph 58).

16             The Court will recall that General Cermak was appointed by the

17     supreme commander, Franjo Tudjman.  Exhibit D31.

18             Second, the position within the military or political structure.

19     Boskoski trial judgement, paragraph 411.  The Court will recall that

20     General Cermak received direct ordered and provided reports directly to

21     the chief of the Main Staff, General Cervenko, D561, P1219.

22     General Cermak was also in direct contact with Franjo Tudjman and the

23     minister of the interior, Ivan Jarnjak.

24             Now, General Cermak refers to that in his 1998 interview, we

25     don't have exhibit numbers for the interviews that have been admitted, so

Page 17448

 1     I will just refer to the interviews by their dates.

 2             Third, the authority to apply disciplinary measures, Strugar

 3     trial judgement paragraphs 393 to 397.  He was vested with the authority

 4     to ensure order and discipline; Article 52 of Exhibit D32.

 5             Fourth, in general terms, it is the reality of the authority of

 6     the accused that is at issue.  Kordic trial judgement from 2001,

 7     paragraph 418.  In addition to the matters referred to above,

 8     General Cermak held a high rank in the military, and he was a former

 9     assistant defence minister, former minister for the economy, and advisor

10     to the President.  That's his 1998 interview.  He was known and trusted

11     by the President and supreme commander, Franjo Tudjman.  2001 interview.

12             Throughout this case, and during the course of the Defence

13     submissions, the Defence have sought to lessen the impact of the evidence

14     of the international witnesses.  The international witnesses who were

15     present, meeting with General Cermak daily as they did their best to

16     carry out their humanitarian missions.  The Defence argue that their

17     evidence is limited since they could not see the workings of the Croatian

18     state from the inside, regardless of the extent to which these inner

19     workings were manifest in the external expression of the state organs and

20     actors.  However, the Defence failed to mention that not only the

21     international witnesses, but insider witnesses, too, provided consistent

22     and corroborative assessments of General Cermak's authority.

23             The insider witness, Stjepan Buhin, a high-level member of the

24     MUP in Zagreb deployed as a coordinator in the Kotar-Knin region, a

25     witness who was centrally placed in the state structures and could

Page 17449

 1     observe the functioning of the state from the inside, described

 2     General Cermak's authority as follows.  He stated that:

 3             "Cermak was the commander in chief in Knin."

 4             "He was the main commander of the army."

 5             He stated:  "General Cermak was the highest ranking officer that

 6     we worked with, in terms of coordinating the army," and "no one outranked

 7     him in the area."

 8             In regard to the area of General Cermak's authority, Buhin stated

 9     that his area of responsibility was "the newly liberated territory or

10     what used to be known as Kotar-Knin."

11             The evidence of Buhin is pertinent.  The witness had a sound

12     basis for this evidence, and I refer to transcripts 10049 and 10053.

13             General Ivan Cermak possessed de jure and de facto authority over

14     the units in the Knin garrison area, which comprised the majority of the

15     area of the Split Military District.  Article 52 of Exhibit D32, and

16     paragraph 1(e) of Exhibit D33.

17             General Cermak had de facto authority over the units in the

18     larger Split Military District area.  Examples of evidence establishing

19     this point, Exhibit D818, the evidence of Flynn, Buhin, Ermolaev.

20             He had the ability to directly investigate and discipline the

21     criminal conduct of the soldiers in these units.

22             He had the ability to initiate investigations into the conduct of

23     the soldiers in these units, using the military police and the civilian

24     police.

25             Contemporaneous documentation prepared by General Cermak confirms

Page 17450

 1     that he had command over the troops in the operational zone.  On the

 2     11th of August, 1995, General Cermak addressed a letter to

 3     General Forand, in relation to the freedom of movement.  It's

 4     Exhibit P390.

 5             In addition to General Forand, Cermak addressed this letter to

 6     "the troops in the zone of separation."

 7             In his 1998 interview, Cermak explained that this meant the

 8     troops in the operational zone.

 9             Further, in the 1998 interview, when discussing this letter and

10     incidences where internationals may have experienced problems with

11     freedom of movement, Cermak stated that in these circumstances:

12             "I would immediately phone either the civilian police or the

13     military police, or the operative zones.  I would phone them and tell

14     them to tell -- say, tell the units on the ground that people had freedom

15     of movement and to let them through and so on."

16             Extensive evidence from international witnesses confirms that

17     problems with freedom of movement were resolved by General Cermak in

18     precisely the way he describes.  Hansen, Hendriks, Liborius.

19             Later, in the year 2001, when General Cermak was again

20     interviewed by the Prosecutor, he realised the implications of this

21     admission and sought to explain this away, stating:  "I went a bit too

22     far sending out this letter, but I didn't have the authority to do this."

23     That's the 2001 interview.

24             However, Exhibits D32, D33, P390, and the evidence of the

25     internationals confirms that the statement he made in 1998 is the truth.

Page 17451

 1             It is a recurrent theme in the Cermak Defence case.  The

 2     Trial Chamber is asked to believe that General Cermak kept issuing orders

 3     that he didn't have the authority to issue.  Further, there is evidence

 4     that orders that it is alleged should not have been issued were received

 5     and acted on.  For example, P509 and P510 and D303, and the evidence that

 6     has been given in relation to those documents.

 7             The Defence submission is neither compelling on the facts nor an

 8     appropriate way to address the test that is applied under Article 7(3).

 9     It is an attempt to re-interpret and isolate facts in a technical and

10     nuances way, the way that the law of Article 7(3) does not support and

11     will not bear.  The law of Article 7(3) was expressed clearly in the

12     Kordic trial judgement at paragraph 418 where, and I quote:

13             "Whether de jure or de facto, military or civilian, the existence

14     of a position of authority will have to be based upon an assessment of

15     the reality of the authority of the accused."

16             Mr. Kay in his submissions took some time focussing on the use of

17     the words "ordering" and "telling" by the Witness Dzolic, suggesting that

18     the use of these words was of critical significance.  However, in a

19     revealing passage at transcript pages 9113 to 9115 the Trial Chamber

20     questioned this witness on this issue, and the reality of the situation

21     was immediately revealed.

22             In answer to the Court's questions the witness stated that he

23     could remember only one instance when General Cermak asked, requested,

24     ordered, or suggested something, and he didn't do it.  The reason he

25     didn't is that he couldn't.  He didn't have the manpower.  That's at

Page 17452

 1     transcript 9114, line 12 to 9114 -- 9115, line 4.  It is the reality of

 2     the authority of General Cermak that is at issue, not the words that any

 3     particular witness may use at any particular time.  General Cermak cannot

 4     hide his authority in semantics.

 5             As the Kordic judgement and all of the decisions that have

 6     followed it demonstrate, the law will be practical.  And the practical

 7     reality of the matter is abundantly clear:  General Cermak exercised

 8     enormous power for many and varied reasons.

 9             The international witnesses knew that.  The insider witnesses

10     knew that and the contemporaneous records show it.

11             A recording of a conversation between General Cermak and Tudjman

12     in early 1999 reveals General Cermak's true perception of his command

13     authority.  Having become aware that he was suspected of war crimes he

14     said to Tudjman:

15             "Norac and Gotovina were conducting military operations.  They

16     were in command of the military actions.  I was in command of my part and

17     none of us is as bad as to kill."

18             And he also said:

19             "Norac, Gotovina and I, we are all innocent before God.  Those

20     are political stories.  None of us ordered any killing.  That's rubbish."

21             In this conversation, Cermak placed himself together with Norac

22     and Gotovina as a commander, who could issue orders and had

23     responsibility for events in Operation Storm.  He observed that he was

24     not an operational commander but he acknowledged that he was in command

25     of his part.

Page 17453

 1             Turning now to General Cermak's authority over the military

 2     police and the civilian police.  Cermak's control over the military

 3     police and the civilian police is confirmed by, first, the orders that he

 4     issued to them; P512, P513, D303, D503, P509.  The fact that he met with

 5     them daily.  They came to his office every morning and he received

 6     reports from them.

 7             Witness 84, Witness 86, Buhin, Dzolic, his interview in 1998.

 8             The fact that police and military witnesses confirm -- and the

 9     third point I'm moving to now, and that is the fact that the police and

10     military witnesses confirm that they were answerable to him.  The witness

11     Dzolic, Witness 86, whether they did what he said or they did what he

12     ordered is not irrelevant to the assessment of the factors relating to

13     effective control but the difference in this case is marginal at best

14     and, as demonstrated above, is practically of very little significance.

15             As regards the evidence of the military witness Dzolic, Mr. Kay

16     in his submission indicated that he thought it odd that there could be a

17     dual chain of command.  There is nothing odd about that at all.  Dzolic

18     acted on orders that were given to him by either Colonel Budimir or

19     General Cermak.  It could not be more straightforward.

20             Mr. Kay said that as Defence counsel this paragraph referring to

21     the dual command placed him on "alert."  So it should have.  In our

22     submission, this evidence at law is sufficient to defeat his 98 bis

23     motion.

24             As regards the civilian police, in his 1998 interview, Cermak

25     gave a clear example demonstrating that he could ensure investigations by

Page 17454

 1     the civilian police.  He admitted that when televisions he had delivered

 2     to a village were looted he "called the civilian police commander"

 3     Mr. Gambiroza, and said, Do whatever you want.  I want the culprits to be

 4     found, and he got everything going.  He states that:  "Two or three hours

 5     went by and the culprits were captured."

 6             1998 interview at page 82.

 7             The Defence also raised the so-called UNCRO orders.  The

 8     principle that is reflected in the order Cermak issued - that's D303 - is

 9     clear.  Cermak could, if he chose to, if it promoted his objectives,

10     order the civilian and military police to investigate crime.

11             The evidence of the internationals as to General Cermak's

12     authority was also clear.  When dealing with the most serious issues

13     humanity can face, issues of life and death, issues of widespread

14     destruction, the decimation of people's lives and communities, they were

15     directed to General Cermak, who told them on a daily basis that he would

16     ensure that these major crimes were investigated and ultimately ensure

17     that these crimes did not continue.

18             The Trial Chamber has seen the television interviews of

19     General Cermak in relation to the events in Grubori, given on the

20     26th of August, and 27th of August, 1995.  P504, P2386.  In these

21     interviews General Cermak refers to his personal authority to conduct an

22     investigation or ensure an investigation takes place.  He provides a

23     false version of events and he provides false assurances that he would

24     investigate.

25             The Defence submissions concede that General Cermak may have made

Page 17455

 1     these representations to the internationals.  In his submission, Mr. Kay

 2     stated that "even though he may have held himself out or people had

 3     expectations of him, the fact of the matter is that that does not

 4     determine the matter."

 5             The Defence is inviting a conclusion --

 6             JUDGE ORIE:  Mr. Margetts.

 7             MR. MARGETTS:  Apologies, Mr. President.

 8             The Defence is inviting a conclusion that when confronted with

 9     these most serious crimes, General Cermak considered it appropriate to

10     pass himself off as someone he wasn't, to mislead UNCIVPOL, ECMM, UNCRO,

11     and the Red Cross.

12             General Cermak didn't mislead the internationals as to who he

13     was; he misled them as to what he knew about the crimes and what he

14     intended to do about them.

15             I would now like to address General Cermak's knowledge and

16     intent.

17             Immediately following his arrival in Knin on the 6th of August,

18     1995, General Cermak knew that Croatian soldiers were committing crimes.

19     On the 5th of August, 1995, General Forand had already forwarded a

20     request for a meeting.  He noted the destruction and looting in this

21     request and said he wasn't satisfied the Croatian army was fully under

22     control.

23             At this early point, he protested the restrictions of freedom of

24     movement and suggested that that will increase suspicions of abuse.

25     That's P347.

Page 17456

 1             In terms of notice and knowledge I probably don't have time to go

 2     into the details, and I just refer the Court to General Cermak's

 3     1998 interview.  He admits he knew about arson, looting.  He admits he

 4     knew that Kistanje was completely burned down.

 5             JUDGE ORIE:  Mr. Margetts.

 6             MR. MARGETTS:  Thank you, Mr. President.

 7             I'll just cut that short.  He was the interface with the

 8     internationals.  He knew what they knew.  He knew what the intelligence

 9     services of the Croatian army knew.  There's no doubt he knew about

10     crimes, and he also knew that it was the HV committing the crimes.  He

11     received the intelligence report that Ms. Gustafson referred to, P918,

12     the one drafted by Tomasovic.  It's a familiar document to the

13     Trial Chamber.  He admitted in a 7th September 1995 interview in

14     Slobodna Dalmacija that he knew about the looting and torching of homes

15     and that these crimes were most often committed by members of the

16     Croatian army; D59.  2001 interview.

17             In the -- turning now to the issue of killing.  In the

18     conversation he had with Tudjman in early 1999, P1144, he said to

19     Tudjman:  "You had fighters on the front-line for three, four years.

20     They lost their houses, ancestors' land.  They're already a bit damaged

21     by the Vietnam syndrome, and in that state, they were killing."  He knew

22     they were killing.

23             He says in his 1998 interview that his first tasks were to

24     urgently start clearing up the area to get rid of the dead bodies.

25     Trial Chamber's received the lists that he had in his possession, that he

Page 17457

 1     gave to the internationals.  He admits he received the MUP lists in his

 2     2001 interview.

 3             Trial Chamber also heard the evidence of the witness Hayden.

 4     General Cermak misrepresented the number of civilians killed.  First

 5     meeting with Hayden, the list that Hayden reviewed showed 41 civilians.

 6     General Cermak said there were two.  General Cermak also related on the

 7     19th of August, 1995, to Hayden a chilling report.  He said when Hayden

 8     asked him about summary executions, he said:  "There are probably 200 to

 9     300 bodies in the hills with bullet-holes in their heads."  That's a

10     General, that is the most powerful person in Knin, that's the person who

11     knew everything that was going on.  An unnerving report, and one that at

12     that time is appallingly accurate.

13             I'll move on, Mr. President.  I had some more details to address

14     about his failure to act and his awareness and intent that the crimes

15     would be committed.

16             I'll move straight to the Grubori incident.

17             Out of the many hundreds of killing incidents that occurred and

18     the many hundreds of incidents that he knew of, there is only one crime

19     scene that was caught on video by the internationals moments after the

20     commission of the crime.  This incident has provided the Trial Chamber

21     with an insight into the way General Cermak denied, covered up, and

22     promoted crime.  From the 21st of August, 1995, Cermak was fully informed

23     about the coming special police operations.  He met with Markac and

24     Gotovina; Exhibits D561, D562, P1219 and others.

25             General Cermak received maps from General Markac before Markac

Page 17458

 1     embarked on operations.  General Cermak's 1998 interview.

 2             Trial Chamber is familiar with the events in Grubori; I won't

 3     detail them again.

 4             When the internationals reported the events in Grubori to

 5     Cermak's office, Cermak immediately telephoned General Markac.  If not

 6     immediately, he did it that evening, on the 25th of August, 1995.

 7     2004 Markac interview also confirmed an interview -- interview of

 8     General Cermak.

 9             He didn't inform the civilian police.  He informed his friend and

10     the commander of the units suspected of the crime.  First the civilian

11     police knew about it, that was on the 26th at 10.00 a.m., when Romasev

12     reported it to Mihic.  Civilian police planned an on-site investigation,

13     Exhibits D57, P503, P501.  But parallel with the efforts of the civilian

14     police who were awaiting a meeting on the 27th with General Cermak,

15     parallel with their efforts to ensure an on-site investigation took

16     place, Markac and Cermak were taking steps to ensure that no

17     investigation was conducted.

18             Markac and Sacic were dealing with Celic.  Your Honours have

19     heard the evidence and seen Exhibit P563.  You've seen the interview that

20     the witness Lyntton conducted with Cermak, where Cermak related a false

21     story.  A similarly false story to the one that Sacic was dictating to

22     Celic.  Cermak sent Karolj Dondo to the scene.  1645, on the 26th he was

23     in Grubori, telling those that had survived, those that were fortunate

24     enough not to be in the village at the time of the killings and the

25     burning, he was telling them the bodies would be cleaned away.  He

Page 17459

 1     already knew that there would be no on-site investigation.  He recorded

 2     that or had it recorded in Exhibit D57, when he returned from the

 3     village.

 4             It was not until the morning meeting on the 27th of August, 1995,

 5     that the chief of the police of the region -- of the Kotar-Knin region

 6     and the chief of police of the Knin police station learnt that there

 7     would be no investigation.  It was only after this meeting that the chief

 8     of the Kotar-Knin region recorded in Exhibit P501 that would there would

 9     be sanitation of the Grubori village.  The investigation recorded and

10     contemplated in that same diary and in other documents was not to take

11     place.

12             Cermak knew the truth on the 25th, when the internationals told

13     his office.  He knew the truth when Lyntton told him the truth on the

14     26th.  He knew the truth when he was at the Grubori hamlet.  He saw it

15     with his own eyes.  He covered it up by denying it.  The internationals

16     didn't believe him.  But it was his version of events that was the reason

17     there was no investigation into this incident.

18             Mr. President, I see that the clock is running.  I will conclude.

19             Through his omissions, Cermak significantly and substantial

20     contributed to the crimes.  Had he acted, he would have made the

21     realisation of the crimes that were part of the joint criminal enterprise

22     more difficult.  Cermak was the central figure in ensuring that a climate

23     of threat and fear endured and that those Serbs who had not fled the

24     artillery attack would leave the Krajina in fear for their life.  Based

25     on his position of authority, Cermak had a duty to protect the Serb

Page 17460

 1     population.  He failed to so.

 2             Thank you, Mr. President.  Thank you, Your Honours.

 3             JUDGE ORIE:  Thank you, Mr. Margetts.

 4             MR. MARGETTS:  I will turn over to Ms. Mahindaratne.

 5             JUDGE ORIE:  Ms. Mahindaratne, unnecessary to remind you that

 6     speed of speech is, even if there is only half an hour left, is something

 7     to considered.

 8             MS. MAHINDARATNE:  I will bear that in mind, Mr. President.

 9             JUDGE ORIE:  Please proceed.

10             MS. MAHINDARATNE:  Mr. President, Your Honours, I will be

11     addressing Court on General Markac's criminal responsibility under

12     Article 7(1) and 7(3).

13             General Markac participated in the joint criminal enterprise.  As

14     already referred to, he was present at the 31st July meeting in Brioni

15     and discussed his contribution towards the plan.

16             I'd like to particularly refer Court to page 19 of P461 where

17     General Markac is recorded as stating as follows:

18             "There is no change in the task, except that Mr. Norac is heading

19     upward.  That means that we are going to drive them into a pocket here,

20     and from that point we can head towards Norac, while Norac can head

21     towards Lapac, and we have practically evacuated the entire area.

22     Everything fits in and to all practical purposes we gain with this plan

23     proposed by Mr. Gotovina ..."

24             Now this statement resonates with statements made by

25     President Tudjman and General Gotovina, particularly recorded at page 15

Page 17461

 1     of the transcript.

 2             General Markac contributed towards the joint criminal enterprise

 3     by planning and commanding the special police part of the operation.

 4             He was the assistant minister in charge -- assistant minister of

 5     interior in charge of the special police sector and its commander.

 6     Special police was subordinated to the HV General Staff for

 7     Operation Storm, and General Markac was appointed as the action

 8     commander.  And the chief of General Staff held Mr. Markac personally

 9     responsible for the special police part of the operation.

10             I refer to the testimony of witnesses Janic, Turkalj, P554, and

11     D543.

12             General Markac planned the operation in coordination with other

13     members of the JCE.  He conducted planning meetings where he briefed his

14     subordinate commanders and provided them with the required intelligence

15     gathered from HV intelligence branches and he also secured the required

16     material.  I refer to testimony of Witness Janic, D544 and D545.

17             He issued orders for combat readiness of the units and the

18     special police artillery batteries.  I refer to D541, D1206 and D1207.

19             Mr. Russo has already referred to orders issued by General Markac

20     during the course of the operation, so I will not go into that.  But I

21     would particularly draw attention of Court to P2385, page 7, and the

22     testimony of witness Janic.

23             After the territory was taken, General Markac also issued orders

24     for mop-up operations which were implemented.  P1153, page 6; D562; P574;

25     and P575.

Page 17462

 1             He had the material ability to punish his subordinates.  The

 2     inner control branch of the special police monitored discipline within

 3     the special police.  The head of inner control department was directly

 4     subordinated to the chief of the sector and to General Markac and

 5     reported to both.  Witness Janic, Turkalj, D528, D529.

 6             Witness Turkalj also described the Ministry of Interior

 7     disciplinary procedure, in addition to which P2370 extracts of the MUP

 8     employment code, Article 49, 59, 60, and P1155, P2364, 2369 - these are

 9     all P numbers, Mr. President - 609, 610, 587, reflect General Markac's

10     disciplinary authority over special police units.

11             Witness Janic testified if that a serious crime was committed by

12     a member of the special police, the matter would be reported to the chief

13     of the sector or General Markac who would in turn notify the matter to

14     criminal police for investigation.  And independent of that criminal

15     investigation, the special police authorities were required to initiate

16     an internal disciplinary procedure.  D530 and D531 reflect

17     General Markac's ability to initiate investigations into crime within the

18     special police itself.

19             Finally, as Witness Janic testified, special police -- members of

20     the special police were policemen themselves, and more importantly,

21     General Markac was an assistant minister of interior and, as such, was

22     well placed to activate the other components of the Ministry of Interior,

23     for example, crime police, if he deemed it necessary.

24             Now, Mr. Russo has already referred to the illegal artillery

25     attack carried out by General Markac.  As the special police forces

Page 17463

 1     entered the formerly Serb-held territory, they plundered and destroyed

 2     civilian property.  General Markac ordered or condoned this criminal

 3     activity.  General Markac commanded and directed the operation in person.

 4     He led the troops in person as they advanced.  I refer to his

 5     2003 interview, page 53 to 54.

 6             The discipline of the special police forces was at a very high

 7     level and not a singular part of the special police was out of control.

 8     Witness Janic.  General Markac entered Gracac at 1001 hours on

 9     5th August, and by 1200, Gracac was completely under the control of the

10     special police.  And from that point onwards, the special police

11     headquarters was set up in Gracac and operated there throughout the

12     period relevant to the indictment.  Since then there were approximately

13     500 members of the special police based in Gracac at any given time, and

14     General Markac was present in Gracac fairly regularly.  D555, page 29;

15     P238, page 7.  Testimony of Janic.

16             Having captured Gracac, General Markac ordered his forces to

17     advance to Donji Lapac.  General Markac entered Donji Lapac with his

18     forces around 1.00 or 2.00 p.m. on 7th August and was present in

19     Donji Lapac that night.  Janjic, Turkalj, D555, page 47.

20             The Trial Chamber has heard evidence of destruction and of

21     organised looting in Gracac.  Witness Steenbergen saw its tensile

22     destruction and looting in Gracac on 6th August.  And on 8th August,

23     witness Vanderostyne saw burning buildings in the outskirts of Gracac and

24     photographed special police looting property in the centre of the Gracac

25     town where special police officers were located in the presence of a

Page 17464

 1     commander.

 2             Witness 82 saw a large amount of houses along the road between

 3     Gracac and Donji Lapac burned down or destroyed and members of the

 4     special police present in the area while the dwellings were still ablaze.

 5     Witness Galbraith saw approximately 70 per cent of the buildings in

 6     Donji Lapac systematically torched, and at a meeting on 26 August,

 7     minister of defence, Mr. Susak, and the Gospic Military District

 8     Commander, Mr. Norac informed President Tudjman that the destruction in

 9     Donji Lapac was carried out by General Markac's forces.  I refer to P470,

10     page 53 to 54.

11             The burning in Donji Lapac started the very evening special

12     police forces entered the town.  General Markac -- and entered the town

13     with General Markac, and everything burned down during that night itself.

14     P586; D556; P470, page 53 to 54.

15             The population in Donji Lapac was 90 to 98 per cent Serb prior to

16     the operation, as already referred to, which reflects the persecutory

17     intent behind the criminal acts.  Further, Witness 82 testified to being

18     ordered to mark property with HV or MUP signs which were preserved, while

19     those that were not marked were destroyed.  This reflects the systematic

20     nature of the criminal conduct.

21             In addition to the acts of plunder and destruction, the special

22     police killed Serb civilians who remained in the area after the

23     operation.  General Markac was aware that killings of Serb civilians was

24     a possible consequence in the execution of the enterprise.  He deployed

25     members of the special police who had a propensity for violence and who

Page 17465

 1     had been described as undisciplined and nationalistic.  Witness Turkalj

 2     and P1088, the official note of interview, in fact, reflects the violent

 3     disposition of a particular member of the special police regarding whom

 4     General Markac was warned prior to the operation.

 5             General Markac was thus aware that in a climate where plunder and

 6     destruction of property belonging to the Serb population was encouraged

 7     Serb civilians could be killed or be subject to inhumane or cruel

 8     treatment.

 9             General Markac contributed to the joint criminal enterprise by

10     participating in the reporting of false information and thereby

11     encouraged further crimes.

12             The Lucko unit was considered to be an elite unit of the special

13     police and it was deployed in three mop-up operations; one in the area of

14     Petrova Gora on 13th and 14th August; the second in the Plavno valley on

15     25th August; and the third in the Promina hills on 26th August.

16             Members of the unit committed crimes in two of the three

17     operations which reflects that this was indeed the order of the day.

18     General Markac covered up both crimes.  I will refer to the case of

19     Grubori, Mr. President.  Due to lack of time, I will not go into the

20     second incident.

21             The crimes committed in the special police operation in Plavno

22     valley have already been addressed at length, so I will only focus on

23     General Markac's personal involvement in the cover-up.

24             Now, conspicuously absent in Mr. Kuzmanovic's address on the

25     incident was a reference to the three reports submitted by General Markac

Page 17466

 1     on the incident.  In General Markac's first report, on the event of

 2     25th August, that is P575, dated 26 August, General Markac reported that

 3     none of the six units which participated in the mop-up operation were

 4     involved in combat.  Then when he became aware that the incident was

 5     receiving scrutiny by the international community, he cancelled P575, and

 6     issued P576, also dated 26 August, by which he reported that the

 7     Lucko unit had met with resistance and civilians were killed and houses

 8     were caught fire in the course of combat.

 9             By P576 he also reported that one of the enemy soldiers by the

10     name of Duro Karanovic was killed and another by the name of

11     Stevan Karanovic was arrested.  And then in March 1996 when alerted to

12     the fact that this combat version could no longer be sustained in the

13     face of the overwhelming evidence that it was an outright crime, he

14     issued a third report, P505, by which he now reported that the crimes

15     were committed by enemy soldiers.

16             Witness Celic testified regarding General Markac's personal

17     involvement in the cover-up.  On 26th August, witness Celic was summoned

18     to General Markac's office where General Markac and Chief of Staff Sacic

19     informed him that an incident had occurred in Grubori, and then he was

20     ordered to write another report.  He was not asked questions.  He was not

21     asked to provide an explanation as to why he did not report the matter.

22     Instead, he was ordered to write another report.  And then soon after

23     that meeting, Celic was taken to another room in the same special police

24     headquarters where Sacic, the Chief of Staff, dictated the new report to

25     him.  That is P563.

Page 17467

 1             Witness Celic testified that he was completely unaware of the

 2     contents of the report and that he merely went along with what he was

 3     ordered to do.

 4             Court has heard sufficient evidence to conclude that

 5     General Markac's reports P576 and P505 are false and that the Lucko unit

 6     committed the crime.  Members of the unit were present in Grubori at the

 7     time.  P559, P1226, Celic, Roberts, P28, P561, P562.

 8             JUDGE ORIE:  Ms. Mahindaratne, you're developing a speed again

 9     which is unbearable for all those who are assisting us.  Take a breath

10     now and then.

11             MS. MAHINDARATNE:  I apologise, Mr. President.

12             May I proceed?

13             None of the units participating in the operation met with any

14     form of resistance contrary to what General Markac reported.  Testimony

15     of Janic, Celic, Exhibit P560, P577, page 5, notes of interview of the

16     members of the Lucko unit which have been admitted into evidence.  There

17     are several, and I will not go into all of them.  And contrary to what is

18     reported in P576, Court has heard testimony that Duro Karanovic was one

19     of the civilians killed in the incident.  And P624 and 626 confirm that

20     no one by the name of Stevan Karanovic was ever arrested by Ministry of

21     Interior or, for that matter, Ministry of Defence forces.

22             Similarly, General Markac submitted a false report, P579, in

23     relation to the incidents of burning houses which were -- which was

24     committed by members of the Lucko unit on 26th August in the area of

25     Ramljane.  That is in the course of the operation that was conducted on

Page 17468

 1     26th August.

 2             Due to lack of time I will not go into details of that incident.

 3             General Markac contracted to the joint criminal enterprise by his

 4     failure to act, namely, his failure to investigate and punish

 5     subordinates for crimes committed, thereby he encouraged the commission

 6     of further crimes.  By his failure to act, General Markac sent out a

 7     message to his subordinates that crimes could be committed with impunity.

 8     In fact the statement made by member of the special police soon after he

 9     burned houses in Ramljane to General Markac to the effect, So I did it,

10     so I burnt them, so what now?  Kill me if you want, captures the sense of

11     the command climate he created which encouraged his subordinates to

12     commit crimes.

13             I will now address Court on General Markac's 7(3) liability, his

14     command responsibility.  The evidence that I've already discussed

15     establishes that he had effective control over his subordinates and that

16     he had notice of crimes, particularly Grubori, the destruction in Gracac,

17     Donji Lapac, and Ramljane.  In addition, General Markac admitted in

18     statement that he had indeed seen destruction.  This is at page 44 of his

19     2004 statement.  He says:  "Look, I don't know that they were

20     deliberately burned.  I saw there houses that were burned but I can't say

21     it was deliberate, and I can't whether it was during Operation Storm or

22     after."

23             Further, the number of burials in the cemetery in Gracac, which

24     were increasing by the day, placed him on inquiry notice of the killings.

25     I refer to P41, P49, P35.

Page 17469

 1             And he knew of crimes committed in previous operations.  I refer

 2     to his 2002 statement, page 59 to 61, 81 to 82, 88 to 89.

 3             Notwithstanding General Markac's knowledge of -- knowledge that

 4     his subordinates had committed crimes, he failed to take reasonable

 5     measures to prevent crimes by his subordinates.  He failed to issue a

 6     specific order prohibiting crimes prior to the operation and in the face

 7     of extensive crimes committed in the course of the operation, for

 8     instance, in the case of Grubori and Ramljane he still did not issue a

 9     single order to prevent further crimes.  I draw Court's attention to P556

10     and P557.

11             He deployed members of the special police who had a propensity

12     for violence, notwithstanding warnings from his subordinated commanders.

13     By failing to act, on receipt of notice of crimes, he failed to prevent

14     further crimes.  For example, he received notice of crimes committed in

15     Grubori on 25th August itself.  And he was aware that the same units were

16     to be deployed the next day in the course of an operation.  Yet his

17     failure to withdraw the units immediately, at least on the 25th evening

18     or 26th morning prior to the next day's operation, led to the crimes

19     committed by the same unit on the 26th.

20             He failed to prevent the crimes on 26th by his failure to act on

21     25th, regarding the crimes committed in Grubori.

22             General Markac failed to take necessary and reasonable measures

23     to punish crimes by his subordinates.  Witnesses Janic and Turkalj

24     testified that no member of the special police was investigated and

25     punished for crimes committed during or in the aftermath of

Page 17470

 1     Operation Storm.

 2             The Grubori incident was not investigated by any authority,

 3     either the special police or the civilian police, until witness Zganjer,

 4     the Sibenik prosecutor, initiated an investigation in 2001.  Instead of

 5     punishment, all members of the special police who participated in

 6     Operation Storm, including those who committed crimes, were awarded

 7     medals.  Particularly the member of the special police who admitted to

 8     General Markac that he burned houses on 26th August, Franjo Drljo was

 9     promoted.  I refer to testimony of witness Celic, P1237, page 4; and

10     P616.

11             In addition to the modes of liability that are covered,

12     Mr. President, Your Honours, if the Trial Chamber does not find

13     General Markac to have participated in a joint criminal enterprise, the

14     evidence referred to allows the Chamber to find him criminally

15     responsible under Article 7(1) for ordering or aiding and abetting the

16     crimes charged in the indictment.

17             In conclusion, Mr. President, Your Honours, the Prosecution

18     submits that it has adduced sufficient evidence upon which the

19     Trial Chamber could convict Generals Ante Gotovina, Ivan Cermak, and

20     Mladen Markac as charged in the indictment.

21             This concludes the Prosecution addresses.

22             JUDGE ORIE:  Thank you, Ms. Mahindaratne.

23             To be quite fair to the Prosecution, you used three hours and

24     approximately 45 minutes so, therefore, formally, 15 minutes would be

25     left, but perhaps I can imagine that you have now concluded your

Page 17471

 1     submissions in such a way that you're not going to spend one minute more

 2     on this or one minute more on that.

 3             MR. TIEGER:  Your Honour, that's correct.  I'm -- I have to say I

 4     think we would have -- it was a little confusing.  I would have

 5     appreciated that guidance a bit earlier.  I think the Court can see that

 6     some of the participants felt fairly rushed to complete today based on

 7     Court's earlier comments.

 8             In any event, I don't think there is any particular point in

 9     revisiting the presentations, but thank the Court for the opportunity.

10             JUDGE ORIE:  Tomorrow, the Defence will have three times one hour

11     to make further submissions.  Tomorrow we'll not start at 2.15 but at

12     2.30.  There is a plenary planned which is planned until 2.30.  That's

13     the reason why we start late.  Nevertheless, I take it that for the three

14     hours that would do, which, Mr. Tieger, would then lead to the

15     Prosecution making their last submissions on Wednesday.

16             Therefore, we adjourn until tomorrow, Tuesday, 24th of March,

17     half past 2.00 in the afternoon, Courtroom I.

18                            --- Whereupon the hearing adjourned at 1.45 p.m.,

19                           to be reconvened on Tuesday, the 24th day of

20                           March, 2009, at 2.30 p.m.

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