1 Tuesday, 24 March 2009
2 [Rule 98 bis]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.35 p.m.
6 JUDGE ORIE: Good afternoon to everyone in this courtroom.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Thank you, Your Honours. Good afternoon,
9 Your Honours. Good afternoon to everyone in and around the courtroom.
10 This is case number IT-06-90-T, the Prosecutor versus Ante Gotovina
11 et al.
12 Thank you, Your Honours.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 The Chamber was informed, Mr. Kehoe, that the Gotovina Defence
15 would like to respond to very briefly, three minutes, in private session
16 on a pending matter on which the Prosecution, I think, filed yesterday a
17 response. But perhaps I should address Mr. Misetic.
18 MR. KEHOE: Yes, Mr. President. Before we get to that, may I
19 just address one procedural issue.
20 Mr. Kuzmanovic is not here and I know Mr. Mikulicic is in Zagreb
21 so at this point I'm not sure that there's been an issue concerning --
22 JUDGE ORIE: Yes. Of course, I shouldn't ask you, but has -- is
23 there any explanation for the absence of --
24 MR. KEHOE: I understand that Mr. Kuzmanovic is coming.
25 JUDGE ORIE: He's coming.
1 MR. KEHOE: Maybe we can address this issue that Mr. Misetic has.
2 JUDGE ORIE: We'll welcome him. Well, he might have difficulties
3 in getting to this place.
4 Mr. Misetic, I was informed that you needed three minutes but in
5 private session for the issue.
6 MR. MISETIC: Yes, Mr. President.
7 JUDGE ORIE: Then we turn into private session for a short period
8 of time.
9 [Private session]
11 Pages 17474-17477 redacted. Private session.
11 [Open session]
12 THE REGISTRAR: We're back in open session, Your Honours.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 Mr. Akhavan, you will be the first to make further submissions,
15 then please proceed.
16 MR. AKHAVAN: Mr. President, distinguished Judges of the trial,
17 as in our initial presentation, I will set fourth our overall case and
18 Mr. Kehoe and Mr. Misetic will elaborate on the evidence.
19 It is our submission in rebuttal that the Prosecution pleadings
20 on this motion are wholly unresponsive to the substance of our pleadings.
21 If anything, those submissions confirm our suspicion throughout these
22 proceedings that the entire case against General Gotovina has been based
23 on fundamentally flawed assumptions as to the applicable legal standards.
24 The Prosecution treats the catch-all count of persecution as a
25 black hole in which humanitarian law disappears. In particular, the
1 Prosecution treats its core theory of unlawful attacks under Count 1 as
2 an abstract accusation that if repeated enough times, somehow dispenses
3 with the requirement to prove any particular violation of the laws of
4 war. Similarly, the Prosecution treats JCE as a concept that is so
5 elastic that it can be stretched in every possible direction; a kind of
6 well-cooked legal soup where the requirement of distinct legal
7 ingredients is blurred into an indistinguishable whole.
8 Mr. Russo's pleading on Count 1 makes much of the view that when
9 charged as an element of persecution, unlawful attacks may be isolated
10 but widespread and systematic in conjunction with other crimes.
11 Mr. Russo further asserts at page 17392, lines 3 to 5, and I quote:
12 "That the Gotovina Defence has incorrectly argued that the
13 unlawful attack is at the core of the Prosecution's case theory against
14 General Gotovina."
15 Mr. Russo wholly disregards the Prosecution's repeated case that
16 "the shelling of Knin and other towns was at the core of the plan to
17 drive Serbs out." And that is once again a quote from Mr. Tieger's
18 opening statement at page 443, lines 24 to 25.
19 Are we now being told that if the Prosecution could prove a few
20 isolated cases of unlawful shelling, which we submit it cannot, that such
21 proof could sustain a conviction for a JCE alleging mass terrorisation
22 and mass expulsion under Article 5?
23 The Prosecutor's pre-trial brief states clearly at paragraph 11
24 that after Operation Storm, all but a small fraction of the civilian
25 population had left. Mr. Tieger's opening statement states that very few
1 civilians were left after Krajina's liberation. This is at page 418,
2 line 14. So if there is no evidence of large-scale unlawful shelling,
3 how could burning and looting be the basis for mass expulsion when
4 everybody left before any Croatian soldiers arrived? The Prosecution JCE
5 theory of mass expulsion can only stand if there is proof of widespread
6 or systematic attacks in violation of the laws of war.
7 But the best is yet to come, in Mr. Russo's pleading. He
8 submitted not only that isolated incidents of unlawful shelling are
9 legally sufficient to prove the Prosecution case, but that, additionally,
10 there is not even a requirement of proving civilian death or injury or
11 destruction resulting from such attacks. This is at page 17391, lines 9
12 to 25.
13 We were referred to the Kordic Appeals judgement, paragraph 105,
14 in support of this proposition. And, indeed, Mr. Russo is correct that
15 the Appeals Chamber in that case does not require results, such as death
16 or injury to civilians. But if we read the case carefully, and we go to
17 the Kordic trial judgement at paragraph 204, it becomes apparent that the
18 Appeals judgement is referring to the persecutory act of attack or
19 bombardment by whatever means of undefended towns, villages, dwellings,
20 or buildings, a violation of the laws or customs of war enumerated under
21 Article 3(C) of the Statute.
22 This provision corresponds to Article 59 of Protocol I which is
23 based on Article 25 of the 1907 Hague regulations on land warfare. An
24 attack against an undefended town does not require proof of death or
25 injury, because it is unlawful as such. Since there are no military
1 objectives whatsoever in an undefended town, there is no need for further
2 inquiry. But that is not the case before this Chamber. The Prosecution
3 has not charged this prohibited act anywhere in the indictment. On the
4 contrary, during the testimony of Kosta Novakovic, the Prosecution
5 stipulated on the record that they were not claiming that Knin was ever
6 an open city, and expressly waived the argument that it was undefended.
7 This is at page 11909, line 1, to page 11911, line 17.
8 It is astonishing that we are now presented for the first time
9 with the argument that attacks on Knin and other locations were unlawful
10 as such because they were supposedly undefended. This is a flagrant
11 instance of the Prosecution playing fast and loose with humanitarian law,
12 of treating persecution as a charge in which the specific actus reus
13 be arbitrarily changed even after the conclusion of the case in chief.
14 The Prosecution cannot now plead a new substantive charge of
15 attacks against undefended towns under Article 59 of Protocol I. It has
16 only charged in the indictment unlawful attacks against civilians and
17 civilian objects, and it has only referred to Article 59(2) [sic] at
19 Furthermore, based on Article 59(2) of Protocol I, the
20 Prosecution's unlawful shelling case would be dead upon arrival. The
21 Prosecution would have to prove that Knin and other locations behind ARSK
22 front lines were open for occupation by an adverse party, as stipulated
23 under Article 59(2). Based on the facts, such a case is manifestly
25 If I may, just for the sake of the transcript, indicate that at
1 line 10 -- on page 10, line 3, the reference to Article 59(2) should be
2 Article 51(2). Thank you.
3 The Prosecution thus cannot avoid the requirement of unlawful
4 attacks under Article 51(2) to prove to once again cite the Galic trial
5 judgement at paragraph 56, that in addition the mens rea of willfully
6 making civilians the object of acts of violence, that those acts must in
7 fact have caused death or serious injury to body or health within the
8 civilian population.
9 The fact that Galic was decided after Kordic should leave no
10 doubt that the Judgement distinguished between Article 51 and 59 of
11 Protocol I in requiring results such as civilian death or injury.
12 As Mr. Kehoe will explain, the Prosecution case taken at its
13 highest is that there was shelling in different parts of Knin. Beyond
14 speculation, based on observation at some distance, there is not a single
15 instance where an unlawful attack is conclusively proven. To the
16 contrary, the UNMO report, to give just one example, that's Exhibit P64,
17 concludes that artillery fire was concentrated in the close vicinity of
18 military objectives and caused minimal damage. What is most significant
19 for these proceedings, however, is that there is no proof whatsoever of a
20 single civilian death or injury resulting from an unlawful attack.
21 Mr. Russo has, for the first time, referred to 50 to 75 deaths
22 allegedly resulting from unlawful attacks. This is at page 17402,
23 lines 7 to 10. We would be grateful if the Prosecution could identify
24 these alleged victims and what evidence is now being adduced to prove
25 beyond a reasonable doubt that they in fact were not combatants or if
1 they were civilians, that they were victims of unlawful attacks rather
2 than incidental casualties of lawful combat operations. The Prosecution
3 provides no specific evidence because it has none.
4 In this regard, we note the Blaskic Appeals judgement at
5 paragraph 114, ruling that with respect to charges of unlawful attack,
6 and I quote:
7 "The specific situation of the victim at the time the crimes are
8 committed may not be determinative of his civilian or non-civilian
9 status. If he is indeed a member of an armed organisation, the fact that
10 he is not armed or in combat at the time of the commission of the crimes,
11 does not accord him civilian status."
12 If, as Mr. Tieger dramatically note, thousands of shells were
13 raining upon civilians, why has the Prosecution not succeeded, after
14 14 years, to prove a single civilian death or injury, or damage to
15 civilian objects resulting from an unlawful attack? It is telling that
16 Mr. Russo's main argument that the use of MBRLs constituted an
17 indiscriminate attack was actually based on Prosecution witness Rajcic's
18 testimony, that this weapon was in fact not used against Milan Martic's
19 headquarters because it was considered to be insufficiently accurate for
20 that specific military objective in an urban context. This is at
21 page 17400, lines 4 to 7.
22 Instead of drawing the only reasonable inference that Croatian
23 forces did not use MBRLs in an indiscriminate fashion, Mr. Russo instead
24 concludes that they did because, and I quote from page 17401, lines 20
25 to 21, that: "Kari Anttila testified that he conducted a crater analysis
1 of six MBRL impacts in that same residential area and that buildings and
2 cars were damaged."
3 Perhaps Mr. Russo has forgotten Judge Orie's question to
4 Mr. Anttila, at pages 2687 to 2688, demonstrating that the MBRLs were in
5 fact fired by the ARSK from Strmica. So the Prosecution's only crater
6 analysis in this casei n support of its mass terror JCE is based on a
7 single crater analysis with respect to MBRLs that were in fact fired by
8 the other party to the conflict.
9 In view of the applicable law, the Prosecution core theory of
10 unlawful shelling manifestly fails whatever imaginative last minute
11 theory or distortions of facts are now set forth.
12 The Trial Chamber may recall that Judge Orie specifically asked
13 the Prosecution's star witness Ambassador Galbraith at page 5055,
14 lines 21 to 23: "Did you consider the purpose of Operation Storm
15 primarily to expel the Serbs?"
16 His clear answer was: "No, not at all."
17 When Judge Orie sought clarification, Ambassador Galbraith stated
18 categorically at page 5057, lines 7 to 8: "I do not think
19 Operation Storm was taken for the purpose of expelling the Serbs from
21 We cannot help asking ourselves whether the Prosecution ever did
22 a proper assessment of the evidence before indicting General Gotovina.
23 In dismissing this JCE theory, the Trial Chamber need only consider other
24 unlawful shelling cases, in Galic, Blaskic, Kordic, Strugar, Martic, to
25 conclude that a conviction cannot be sustained under Count 1. Indeed, we
1 would respectfully submit that this is the most untenable weakest ever
2 unlawful shelling case in the history of this Tribunal. Consequently,
3 its dismissal would be entirely appropriate and consistent with a fair
4 and expeditious trial.
5 As set forth in our prior pleadings, there can be no case of mass
6 deportation through unlawful shelling if in fact there is no proof of
7 unlawful shelling. This is a matter of elementary logic and one needs
8 only to look at the Prosecution's consistent theory to conclude that a
9 conviction on Count 1 in relevant part and Counts 2 and 3 in whole,
10 depends entirely on proof of causation between unlawful attacks and
11 forced displacement. How else could such displacement, which is in fact
12 pursuant to RSK evacuation orders, how else could it be on grounds not
13 permitted in international law, as required by Articles 5(d) and (i).
14 What other factual basis is there to establish a widespread or systematic
15 deportation if, as the Prosecution has repeatedly admitted, there were
16 very few civilians remaining in Krajina once the Croatian soldiers
17 actually arrived.
18 It is also remarkable that the Prosecution persists in its
19 argument that there is no requirement of control over territory with
20 respect to deportation and forcible transfer. Article 49 of the
21 4th Geneva Convention stipulates in relevant part that:
22 "Individual or mass forcible transfers, as well as deportations
23 of protected persons from occupied territory ... are prohibited."
24 But the Prosecution contends that there is no such requirement
25 when it is charged under Article 5, such that it applies to displacement
1 as a result of shelling prior to occupation. The Prosecution has
2 completely ignored the authorities we have cited in this motion. It
3 relies on the Stakic Appeals judgement to argue that Article 49 of the
4 4th Geneva Convention does not apply to the actus reus of Articles 5(d)
5 or (i).
6 But paragraph 306 of the Stakic Appeals judgement states
7 categorically that Article 49 is "the underlying instrument prohibiting
9 In the Krnojelac Appeals judgement, Judge Schomburg's separate
10 opinion confirms at paragraph 13 that deportation under Article 5
11 requires: "The removal of someone from the territory over which the
12 person removing others exercises sovereign authority."
13 This language is identical with Stakic Trial judgement at
14 paragraph 674 and is consistent with the Krnojelac trial judgement at
15 paragraph 473, both of which we have previously cited. We also refer to
16 Judge Schomburg's separate and partly dissenting opinion in the Naletilic
17 Appeals judgement which is not dissenting on this particular issue at
18 paragraph 22.
19 The Prosecution's persistence on this untenable theory of
20 deportation only reinforces the view that these charges should have never
21 been made in the first place, as we argued in our Rule 72 pre-trial
23 In relation to discriminatory intention for Count 1, we note that
24 there is some confusion as to whether President Tudjman or
25 General Gotovina is on trial in this case. The obsessive focus on
1 President Tudjman's view of multi-ethnic states is hardly a basis for
2 proving that dolus specialis on the part of General Gotovina with respect
3 to a crime that is but one step away from genocide, to quote, once again
4 the Kupreskic trial judgement.
5 Mr. Tieger argues that members of the Croatian political and
6 military leadership, including the accused had a discriminatory intent,
7 but then proceeds to quote only from two speeches of President Tudjman.
8 This is at page 17389, line 1, to 17390, line 21.
9 It is also difficult to understand how Mr. Waespi concludes that
10 General Gotovina's orders to guard Serbian Orthodox churches to prevent
11 their destruction is in fact proof of his discriminatory intent to allow
12 burning and looting of Serbian property. This is at page 17429, line 18,
13 to page 17430, line 7. The Prosecution seems to believe that merely
14 because the Croatian RSK conflict was defined on ethnic lines, any
15 military commander participating in combat is presumed to be acting with
16 discriminatory intention. For this reason alone, Count 1 should be
18 In relation to the remainder of the case, that is, whether beyond
19 unlawful shelling, burning and looting was part of the Brioni JCE,
20 Mr. Tieger once again admitted the Prosecution's disregard for the
21 applicable law. He simply argued at page 17385, line 25, to page 1738
22 [sic], line 2, that there was no need to specify every means for
23 implementing the removal of Serbs and certainly not those particular
24 means. He goes on to insist that there is no basis in common sense for
25 such a requirement.
1 Whatever Mr. Tieger's perception may be of common sense, proof of
2 particular crimes is in fact a requirement of the law of JCE. Ever since
3 the Tadic Appeals judgement, the settled law has clearly required proof
4 of intention in relation to particular crimes.
5 With respect to JCE category 1, Tadic held at paragraph 196 that:
6 "All co-defendants acting pursuant to a common design possess
7 the same criminal intention. For instance, the formulation of a plan
8 among the co-perpetrators to kill where in effecting this common design,
9 they all possess the intent to kill."
10 This authority was most recently confirmed in the Krajisnik trial
11 judgement and upheld by the Appeals judgement at paragraph 200 to the
12 effect that the JCE participants must have, to quote, "a common state of
13 mind that the statutory crimes forming part of the objective should be
14 carried out."
15 Mr. Tieger's admission confirms once again that throughout this
16 trial the Prosecution case has been based upon the flawed legal theory
17 that a broad and vague Brioni JCE aimed at alleged removal of Serbs does
18 not require proof of a shared intention to commit specific crimes under
19 the Statute. This renders JCE so elastic that a mere allegation of
20 persecution would encompass everything from extermination to
21 discriminatory denial of employment.
22 There is simply no proof that there was an agreement in Brioni to
23 commit plunder and destruction. There is also no proof that
24 General Gotovina ever made a significant contribution to such crimes,
25 which he in fact actively opposed, or that he otherwise ordered,
1 instigated or aided and abetted their commission.
2 Finally, with respect to Article 7(3) liability, we note first in
3 relation to liability for murder and cruel treatment that the Oric
4 Appeals judgement, at paragraphs 58 to 59, specifically held that
5 knowledge of the crime and knowledge of the subordinate's criminal
6 conduct are not one and the same, even within the confines of a prison,
7 as contrasted to the large territory implicated in the present case.
8 The Prosecution has offered no evidence whatsoever that
9 General Gotovina had any notice that his subordinates in particular were
10 responsible for murder or cruel treatment.
11 We note further that in her submissions, Ms. Gustafson did not
12 respond at all to the Halilovic Appeals judgement, indicating that rights
13 of intervention over the military police cannot be the basis for
14 attribution of command responsibility to General Gotovina when there is
15 no additional evidence that criminal investigations were in fact within
16 his competence or material ability to act. Once again, these are issue
17 that the Prosecution should have carefully considered at the indictment
18 phase, let alone at this stage of the trial.
19 Finally, Mr. President, I will briefly address your questions
20 concerning the partial dismissal of counts under Rule 98 bis.
21 Our submission is that the evidence cannot sustain a conviction
22 on any of the counts and we therefore respectfully request the Chamber to
23 enter a judgement of acquittal on all counts.
24 In the alternative, it is our submission that the Chamber has the
25 discretion under Rule 98 bis to dismiss counts in part. Judicial opinion
1 in this regard not uniform. However, our position is consistent with
2 that of the Trial Chamber in Oric in discussing the object and purpose of
3 the amended Rule 98 bis. At page 7857, line 24, to 785, line 3, of the
4 transcript of the Oric trial, the Court says as follows:
5 "We have opted for 'count' rather than 'offences charged' or
6 'charges' with the understanding that everyone will try to understand
7 that behind the purpose of Rule 98 bis, there is not ... a humongous
8 exercise to be undertaken to deal with the minutiae of the events
9 mentioned during the testimony."
10 Further on at page 7858, line 19, to 7859, line 10, the
11 Trial Chamber goes on to say:
12 "We will, of course, be prepared to hear evidence if there is a
13 submission that, for example, in regard to a particular person mentioned
14 in the indictment that's supposed to have been the victim of cruel
15 treatment or the victim of murder, it's the submission of the Defence
16 that there was absolutely no evidence at all adduced by the Prosecution
17 or that the evidence adduced is -- can [sic] sustain a conviction. Then
18 I think - and we have discussed this amongst ourselves - we will
19 entertain submissions, short submissions, on that score because
20 ultimately it will be in the benefit of the economy of justice that the
21 defence is put on notice that ... as far as regards the alleged murder of
22 -- there is absolutely no way that the Trial Chamber can ultimately come
23 to a conviction so that they don't have to lose or waste time in trying
24 to bring forward evidence in that regard, even though they have no burden
25 of proof, but particularly because they have a right to remain silent.
1 So that right ought to be -- ought to be respected."
2 In the alternative, if this Trial Chamber does not concur with
3 the views in Oric, we submit that the earlier version of Rule 98 bis be
4 applied pursuant to Rule 6(D). The indictment was confirmed in 2001.
5 The case has been pending since then, and the failure to dismiss counts
6 in part clearly prejudices the rights of the defendant to a fair and
7 expeditious trial, and accordingly, we request relief in this regard,
8 should that be necessary.
9 Finally, Mr. President, we note in addition to our arguments on
10 the scope of Rule 98 bis, that it is within the inherent powers of this
11 Trial Chamber, in the interests of a fair and expeditious trial, to make
12 such findings as it considers appropriate to indicate whether it
13 considers evidence in relation to part of counts, to be irrelevant or
14 unnecessary in view of its appreciation of the Prosecution case in chief
15 thus far. We refer in particular to unlawful attacks as a persecutory
16 count -- persecutory act under Count 1 and the inextricable allegations
17 of deportation and forcible transfer arising from unlawful shelling under
18 Counts 1 to 3.
19 We also refer to a significant number of the scheduled killings
20 that the Prosecution has refused to drop.
21 So, in conclusion, we submit that there is no reason in principle
22 why the Trial Chamber could not avoid significant costs and delays in
23 this trial by indicating specific offences where it is unnecessary for
24 the defendant to answer the Prosecution case. Whether this is achieved
25 through a Rule 98 bis or any other ruling that the Chamber considers
1 appropriate, the underlying objective, we submit, should be the fair and
2 expeditious conduct of the remainder of this trial, especially when there
3 are serious flaws in the core theory of the Prosecution case in chief.
4 Before concluding, Mr. President, I also want to note that in the
5 transcript at page 18, line 15, this is an error and it should read never
6 sustain a conviction. Just to correct the record.
7 I thank you for your patience and kind attention. I now request
8 the Chamber to ask -- my colleague Mr. Kehoe to continue our pleadings.
9 JUDGE ORIE: Before we do so, you referred to paragraph 204 of
10 the -- of the Kordic judgement. Was it your intention to refer to 203
11 or -- because in 203 I find undefended towns, whereas in 204 I find
12 trench digging and the use of hostages and human shields so ...
13 MR. AKHAVAN: I will have to --
14 JUDGE ORIE: If you would please verify that.
15 MR. AKHAVAN: [Overlapping speakers]... Mr. President, but it is
16 referring to the paragraph which confirms that the persecutory act
17 charged in that case was attack against undefended town. So --
18 JUDGE ORIE: Well, it says "this act is akin to," and then it
19 quotes, "attack, or bombardment, by whatever means, of undefended towns,
20 villages, dwellings, or buildings." That's what you wanted to refer to.
21 MR. AKHAVAN: Exactly, and that is paragraph 203.
22 JUDGE ORIE: Yes, yes.
23 MR. AKHAVAN: Well, I apologise. Then it was my mistake.
24 JUDGE ORIE: Mr. Kehoe.
25 MR. KEHOE: Mr. President --
1 JUDGE ORIE: Before we continue, I have got one question.
2 Was it intended to charge under Protocol I, Article 51(2), the
3 attack on undefended towns. I was a bit wondering whether that was
4 intended because Mr. Akhavan says, I now hear for the first time that
5 this is the charge.
6 MR. TIEGER: I understood Mr. Akhavan to say that, in fact I
7 heard him refer, if I can look back in the transcript, to Mr. Russo's
8 comment that there was no such intention and that was not -- did not form
9 a part of the Prosecution case. But because this seems to involve
10 Mr. Russo's comments at the time, I will be happy to check with him and
11 confirm that my understanding is absolutely accurate. But I didn't even
12 understand that to be -- I thought that was a -- well, I'm not going to
13 comment on what I thought Mr. Akhavan was doing.
14 But, no, I didn't understand him to say, in his submission, that
15 the Prosecution had alleged at some point that its case was based on the
16 fact that Knin was an undefended town.
17 JUDGE ORIE: Yes. I was a bit puzzled by you in this request,
18 Mr. Akhavan.
19 MR. AKHAVAN: Mr. President, there's a history here of the
20 original indictment not charging unlawful shelling at all and then the
21 Prosecution referring to unlawful attacks for the very first time in its
22 pre-trial brief, and then in the amended indictment. And you will be
23 aware that we made a Rule 73 challenge alleging that that is a new charge
24 which was not indicated initially with respect to which --
25 JUDGE ORIE: Yes, I know the history --
1 MR. AKHAVAN: Now -- now here in this --
2 JUDGE ORIE: [Overlapping speakers] ... what makes you believe
3 that apparently on the basis of what you heard from Mr. Russo, I take it
4 yesterday --
5 MR. AKHAVAN: Two facts --
6 JUDGE ORIE: -- that suddenly a new charge was included in the
7 indictment, that is, an attack on a declared undefended city. We went
8 through that in quite some detail what is needed, and I never got the
9 impression that it was the Prosecution case that this was a declared
10 undefended city.
11 MR. AKHAVAN: Under the case law there is not necessarily
12 requirements of declaration, but leaving that issue aside, the reference
13 to paragraph 104 of the Kordic Appeals judgement was used by Mr. Russo to
14 justify the proposition that the Prosecution need not prove any results,
15 does not need to prove any civilian death or injury.
16 If we look at what the Kordic Appeals judgement is saying, it
17 refers back to the trial judgement which charges undefended towns.
18 So Mr. Russo is relying on an undefended town theory to argue
19 before this Trial Chamber that the Prosecution need not prove any
20 civilian death or injury resulting from unlawful attack.
21 JUDGE ORIE: Yes. And you did not understand it as a reference
22 to a wrong authority. But rather as an implicit, hidden, unnoticed
23 change of the indictment.
24 MR. AKHAVAN: I can then give you further quotes in the
25 transcript, Mr. President, where Mr. Russo repeatedly refers to
1 undefended localities, and if the --
2 JUDGE ORIE: You mean yesterday.
3 MR. AKHAVAN: Yes, yes. If it is not --
4 JUDGE ORIE: My search on the word "undefended" on yesterday's
5 transcript gives no result.
6 MR. AKHAVAN: Localities without any military objectives which in
7 substance is the same as --
8 JUDGE ORIE: Let's refrain from expressing emotions which are not
10 So I then -- this clarifies the issue that was on my mind. Thank
11 you very much. And your last reference to the Kordic Appeals judgement
12 would be to paragraph 105.
13 MR. AKHAVAN: I'm sorry. The Kordic Appeals judgement, I believe
14 it was the Prosecution that referred to paragraph 105.
15 JUDGE ORIE: Yes. No, you refer to it now as 104, but it was --
16 MR. AKHAVAN: I'm sorry.
17 JUDGE ORIE: -- 204 which is -- actually 203 --
18 MR. AKHAVAN: The trial judgement.
19 JUDGE ORIE: Yes. We have to apologise, I'll do it on behalf of
20 all of us, to the transcriber. So the reference was to paragraph 105, of
21 the Appeals judgement. You said which referred -- which was related to
22 204 which now turns out to be 203 in the Kordic judgement. Matters are
23 clear to me.
24 MR. AKHAVAN: If I may, just one very quick point just to make
25 things very simple. The only point here is whether the Prosecution has
1 to prove civilian death or injury or destruction to civilian objects in
2 its charge upon unlawful attack. That is the point in relation to which
3 we are expressing our concern. And once that issue is resolved based on
4 the Galic trial judgement, I don't think we need discuss this matter any
6 JUDGE ORIE: Thank you.
7 MR. MISETIC: Mr. President, I do need to correct the record in
8 light of the laughter of Mr. Hedaraly. The reference is page 17394,
9 line 4. Mr. Russo's position was the entire town was shelled even
10 despite the fact that there was no military defence of Knin itself.
11 JUDGE ORIE: I think, as a matter of fact, the laughter was
12 rather on -- still totally inappropriate to make an undefended town which
13 is a very technical term, to equate that with the quote just given. I
14 took it that, although still, Mr. Hedaraly, inappropriate, that that's
15 what was the -- what triggered your inappropriate reaction.
16 Is that correctly understood?
17 MR. HEDARALY: That is correct, Your Honour. And I apologise for
18 any inappropriate behaviour but sometimes it is difficult to --
19 JUDGE ORIE: Yes, Mr. Misetic, this being clarified.
20 Mr. Kehoe, please proceed.
21 MR. KEHOE: Yes, Mr. President. Just if we can get some -- if I
22 can get some idea of the time remaining.
23 JUDGE ORIE: Well, I can tell you even if I would -- did use
24 seven minutes because of my questioning, five seconds of laughter, then
25 you started at 1447 on this clock, which means that if we would give
1 seven minutes extra this would bring you to ten minutes to 4.00.
2 MR. KEHOE: To complete the --
3 JUDGE ORIE: Well, it's one hour for each Defence team that
4 was -- if you want to make arrangements with the other Defence teams, of
5 course, you're free, but that what was the Scheduling Order granted.
6 MR. KEHOE: Yes, Your Honour.
7 Mr. President, if I may proceed with the Chamber's permission. I
8 would like to back and cover some of the topics that were not covered by
9 the Office of the Prosecutor in their rather interesting argument
10 yesterday where, for the first time, we are to infer and not -- a variety
11 of facts and circumstances in light of other facts which, frankly, the
12 Office of the Prosecutor chose to ignore.
13 Once again the centrepiece of their argument with -- concerning
14 this JCE and also with regard to the alleged unlawful shelling of Knin is
15 Brioni. And once again they fail or refuse, and I suspect it's the
16 latter, to contextualise exactly that meeting says and where it fits into
17 the chronology of events.
18 What we know prior to 31st of July of 1995, as does the
19 Prosecutor know, that a directive -- that there was even before that,
20 there was planning for the retaking of Knin with grid references and
21 targeting done as far back as 1993. What we know, moving closer to
22 Operation Storm, that on the 26th of June, 1995, the HV Main Staff gave
23 instructions to the Military Districts to plan Operation Storm using
24 artillery and using rockets to be fired upon military objectives in Knin
25 and Benkovac, a month prior to Brioni.
1 What do we know after Brioni? We know that on the 1st of
2 August of 1995 that Ambassador Galbraith came to see President Tudjman to
3 discuss the retaking -- the military retaking of Knin where he cautioned
4 that the HV had to respect the rights of civilians. We know that on that
5 same date General Gotovina ordered his officers, that Operation Storm was
6 to achieve a military victory, and that they were -- it was to be aimed
7 only against enemy soldiers.
8 The one big thing that we also know that came post-Brioni that
9 wasn't discussed by the Prosecutor are two very important events.
10 Number one, they had less ammunition to fire. If you look at the
11 order from the HV Main Staff from the 26th of June, D956, where they
12 ordered that they would have six sets for the artillery, the Kozjak order
13 of the 2nd of August, because of limited -- limited ammunition ordered
14 only four.
15 So in this -- in addition to that, in addition to less
16 ammunition, this alleged attack on the civilian population with this less
17 ammunition also brought with it a firing on a town that wasn't even in
18 Knin. That town being Drvar. Drvar being a town that was being held by
19 the Bosnian Serbs in the Republic of Srpska
20 Mr. Russo, that is one of the towns, along with Knin, Obrovac, Gracac,
21 and Benkovac, that was to be fired upon.
22 So if we are to take the theory as presented by the Prosecution,
23 where this -- General Gotovina ordered the indiscriminate fire on these
24 towns, to drive the Krajina Serb population out, we have indiscriminate
25 fire on a town in Bosnia-Herzegovina where there was no Krajina Serbs --
1 or were no Krajina Serbs. It's an interesting argument to ponder.
2 And let us assume for the sake of argument that the shelling was
3 to drive the Serb -- the Krajina Serbs out of the Krajina. What we know,
4 Mr. President, Your Honours, is that the HV never fired on Knin prior to
5 the 4th of August of 1995. And I cite you to Marko Rajcic in the trial
6 transcript, page 16619, line 1, through 16620, line 4.
7 And if this was anything akin to the situation in Sarajevo
8 Mr. President, I'm sure that the Chamber would have heard any amount of
9 evidence on that score which it did not. And we also know that after the
10 retaking of Grahovo the HV was in position or in excellent position to do
11 just that, fire upon Knin and they did not.
12 How about the issue that they forced the Krajina Serbs to leave.
13 Well, once again the Prosecutor overlooked what was well known to the
14 internationals, as was reflected in Ambassador Galbraith's diary for
15 June 15th of 1995, that is set forth in P458, which was that if the HV
16 came to retake the Krajina that the Serbs would leave.
17 The Prosecution called Marko Rajcic, the author of the artillery
18 section of the Kozjak order, as well as the attack order for artillery
19 that was an attachment thereto. He explained to the Chamber exactly what
20 the language meant and what was understood by the language set forth in
21 that order which was the following: Attack military installations and
22 that they were to be guided by the principles of distinction and
24 The fact of the matter is, one again that is not discussed, in
25 this endeavour to drive the -- alleged drive the Krajina Serb population
1 out of the Krajina, the vast majority of artillery and rocket fire was
2 against front line positions being held by the ARSK and not on the towns
3 set forth in the order.
4 What is -- things are quite clear, that the target selection had
5 been made prior to Brioni, that civilians, per Marko Rajcic, were not to
6 be targeted, and in fact they attempted to minimise civilian casualties
7 and damage to civilian property. I cite Your Honours to D1425,
8 paragraph 17.
9 Let us next look at the allegations of the Prosecutor concerning
10 the weaponry that was used. Mr. Russo said at page 17399, line 25, over
11 to the following page: "General Gotovina choose to use unguided
12 multi-barrel rocket-launcher systems, an unquestionably indiscriminate
13 weapon under the circumstances."
14 There is absolutely no evidence in the record to substantiate
15 that position. To the contrary. Again, the Prosecutor overlooked the
16 statement of the Prosecutor's expert Colonel Konings, who noted at
17 page 14758, lines 11 to 15, that multi-barrel rocket launchers could be
18 directed against military targets. Likewise, Marko Rajcic noted that the
19 weapon systems that they chose, the T-130s and the 122 MRLs, were capable
20 of being directed and hitting military objectives and that they were used
21 in that fashion.
22 Suffice it to say, what is also lacking in the case presented by
23 the Prosecution is the whole idea of any type of disproportionate damage.
24 Has there been one scintilla of evidence presented to this Chamber that
25 would lead the Chamber or could lead the Chamber to conclude that there
1 was some type of disproportionate damage that was brought to bear against
2 the civilian population because of a weapon system that had been
3 employed? The answer to that question is no.
4 Merely finding a rocket or a piece of artillery in a civilian
5 neighbourhood does not render the -- does not lead to a
6 disproportionality argument as set forth by the Prosecution.
7 With regard to the arguments as set forth again by Mr. Russo at
8 17394 of the transcript at line 10 to 134, where he maintains that the
9 shelling was not done to knock out the command and control of the ARSK
10 but rather -- I want to quote him as accurately as possible, but was in
11 fact directed at the civilian population. What's interesting to note is
12 that he overlooks the fact that as a result of the shelling,
13 communications were in fact destroyed, as we know from Witness 56, which
14 led to the line being breached up in the Dinara being held by those
15 troops under Witness 56's command, as reflected in General Mrksic's
16 interview with the BBC
17 report, D923, page 6, where he highlights the -- or describes the defeat
18 of the ARSK coming from the breach in the lines by the HV being held by
19 Witness 56's troops.
20 Next, the issue concerning panic. One issue that Mr. Russo
21 emphasised on 173 -- 17399. Lieutenant -- he notes on line 4,
22 Lieutenant Konings testified that this type of prolonged shelling with
23 single rounds would have almost no effect on the military itself.
24 Of course, counsel did not read the cross-examination of
25 Colonel Konings where he noted in line -- on page 14538, in response to
1 my questioning at line 12:
2 "Well, under the circumstances and the information you were
3 given, harassing fire going into Knin can be used against the military to
4 cause confusion, suppress movement and lower morale. Isn't that right?
5 "Answer: Yes."
6 And we can see the actual impact on the ARSK military of the
7 shelling in P1256, D1257, and very interestingly the shelling going into
8 the northern barracks in D930, at Mr. Vrcalj's book, where no one would
9 even go out and assist him to travel downtown because they were afraid
10 for their lives.
11 Lastly, Mr. Russo's line on page 31394, that there was no plan to
12 defend. As a rationale for him arguing that the shelling was
13 unnecessary, he noted there was no plan to defend the town from in [sic].
14 Again, we can look at General Mrksic's report which shows quite the
15 contrary, D923, at page 3; General Mrksic's interview with Radio Belgrade
16 on the night of the 4th where he is talking about engaging in the direct
17 defence of Knin, D106; and which is likewise supported against by another
18 Prosecution -- Captain Dangerfield at P693, which noted that the Krajina
19 Serbs were headed for a bloody last stand in Knin.
20 In an effort to show that the attack was indiscriminate,
21 Mr. Russo presented the -- a chart to Your Honours with a -- numerous
22 circles on there, most of which came from Mr. Dreyer. I mean, one of
23 them, for instance, was from Mira Grubor who never saw any artillery
24 until the 5th.
25 And I would point Your Honours to the questioning by the Chamber
1 of Mr. Dreyer when the Chamber saw this exhibit with most of these
2 circles on it. And I cite the Chamber to page 10855, line 2, through
3 page 856, line 12. And if I can paraphrase the colloquy, and it was with
4 you Judge Orie and the witness, the questioning was -- you were asking
5 questions concerning what the witness saw and he noted that the -- when
6 he saw the shelling, he noted that the areas around the military
7 objectives incurred the most intense bombardment and that he had
8 witnessed a few impacts at areas where there were no military objectives.
9 So clearly what he was saying and, of course, the Chamber has the record
10 before it, that the fire was concentrated on military targets. Quite
11 similar to the conclusion that was made by Steiner Hjertnes, a witness
12 not called by the Prosecution, whose report is reflected in P64. And we
13 also know based on Mr. Roberts, that he came up to a similar conclusion
14 in his final report.
15 The conclusions of Mr. Hjertnes, of course, were consistent with
16 those found by, as we see in D66, a US
17 Operation Storm, 14 August 1995
18 "Although Knin was reportedly heavily shelled in the early hours
19 of hostilities, few buildings and residential areas showed signs of shell
21 This is consistent again with another HV -- OTP witness Mr. Flynn
22 who went on the 7th of August, 1995, and he noted on 1302 that he was
23 surprised at the lack of shelling.
24 With the little time I have left I would like to address the
25 killings issue that has come to bear because in fact Mr. Russo, in his
1 submission at page 17402, noted that 50 to 57 civilians were killed as a
2 result of the shelling and 30 to 40 more injured.
3 JUDGE ORIE: Mr. Kehoe, before we continue, you took us to
4 page 10855.
5 MR. KEHOE: 1855.
6 JUDGE ORIE: One thousand. Now then it appears on the --
7 MR. KEHOE: I'm sorry.
8 JUDGE ORIE: Thank you. Please proceed.
9 MR. KEHOE: One thousand. It was early on in the trial, Judge.
10 JUDGE ORIE: Yes. No, I was with totally different witnesses --
11 MR. KEHOE: I apologise. Yes, I may have misspoken in the speed.
12 JUDGE ORIE: Please proceed.
13 MR. KEHOE: If I may just say this, Judge, what we have before us
14 is -- are 37 victims in a joinder indictment and now 337 alleged victims
15 in a further clarification schedule. At this juncture in the trial, it
16 is incumbent upon the Prosecution if they maintain, as Mr. Russo did
17 yesterday, that 50 to 75 civilians were killed in this unlawful attack,
18 this shelling, to name them. To name this 50 to 75 people in this
19 clarification schedule and to do so tomorrow. We -- the Defence is
20 entitled to such notice and is required for a fair trial for the Defence
21 to be able to meet this.
22 Lastly, and my last point is with regard to cluster munitions by
23 Mr. Dawes. Mr. Dawes said that there cluster munitions and of course no
24 professional that was there at the location saw anything remotely
25 resembling cluster munitions, and when pressed, Mr. Dawes didn't even
1 know where it was. At this point I will turn the lectern over to
2 Mr. Misetic.
3 JUDGE ORIE: Yes. Which gives impression that there is time left
4 for you.
5 MR. MISETIC: Yes, Mr. President. Two points. One is that we
6 were told by Mr. Registrar that we began at 2.48 and I believe you'd
7 indicated that --
8 JUDGE ORIE: 2.47.
9 MR. KEHOE: 2.47. And then that you said on the record there
10 were seven minutes extra that you were granting us. Is that correct?
11 JUDGE ORIE: Yes, that means one hour brings you to 3.47. Seven
12 additional minutes brings you to 3.50 which is now --
13 MR. MISETIC: 3.55.
14 JUDGE ORIE: But --
15 MR. MISETIC: It's 3.55 it would bring us to. 3.54, yes, sorry.
16 And Mr. Kuzmanovic has ceded ten minutes of his time to me as well,
17 Mr. President.
18 JUDGE ORIE: That's great. Then please proceed. Mr. Tieger.
19 MR. TIEGER: Your Honour, I'm not going to quibble over a few
20 minutes for the Defence, however, the exchanging of time, I think, is
21 inappropriate. The Prosecution is -- was pressed for time, perhaps
22 everyone is, I accept that. But I don't think that -- those were the
23 ground rules before and I don't think -- as I say, if in terms of these
24 few minutes, I trust that -- that's not the standard of the practice here
25 and I don't intend to make a fuss about that. But to change the ground
1 rules entirely, I think it is inappropriate.
2 JUDGE ORIE: Mr. Misetic, you may have heard Mr. Tieger object as
3 a matter of principle but at the same time doesn't want to spend a lot of
4 time on the few minutes that --
5 MR. MISETIC: Yes. And we object as a matter of principle to the
6 fact that, as it turned out, the Prosecution spent three hours with
7 respect to General Gotovina and a half an hour apiece with respect to
8 Generals Cermak and Markac which is what results, of course, in the fact
9 that we've worked out amongst ourselves how to deal with the four-hour
10 presentation that the Prosecution did yesterday.
11 JUDGE ORIE: Views of both parties in this respect are clear.
12 Please proceed.
13 MR. MISETIC: Thank you, Mr. President.
14 Mr. President, Your Honours, you will recall that a little over a
15 year ago in the opening statements the Defence of General Gotovina told
16 you that you would be asked by the Defence to take the simple
17 straightforward view of the evidence and that you would be asked by the
18 Prosecution at the end of the day to take the complicated conspiracy
19 theories and to twist the facts in order to fit a particular conspiracy
21 As it turns out, over a year later, yesterday you heard such
22 things from the Prosecution as General Gotovina's defence of Serb
23 Orthodox churches should be held against him. You heard such things as
24 the necessary and reasonable measure was to keep criminal elements in the
25 army, and that to let criminal elements out of the army was a reckless
1 thing to do.
2 You didn't hear the Prosecution address any of the evidence that
3 overwhelmingly contradicts their theory of the case. And we submit,
4 Your Honours, that in light of the jurisprudence of this Tribunal, that
5 is a fatal flaw in their case and also reveals the fact that their
6 inability to deal with the hard evidence in the case reveals the fact, as
7 I said, that you have to accept the complicated conspiracy theory and
8 ignore the straightforward evidence.
9 The way they suggest this, of course, is through the use of the
10 word "inference." You are to draw inferences from certain evidence that
11 they put forward. We call your attention to the Blaskic Appeals
12 judgement of 29 July 2004
13 Trial Chamber erred when it drew inferences which were inconsistent with
14 the evidence in the trial record. This is at paragraph 520 through 525,
15 particularly paragraph 522.
16 What didn't they address yesterday? And after all, this is a
17 98 bis motion and not final argument and therefore I will focus on what
18 wasn't discussed. What they didn't dispute was that General Lausic was
19 in command and control of the military police in its crime investigation,
20 crime prevention and crime prosecution function. What they didn't
21 dispute is that no matter theory they come up with on mens rea for
22 murder, no witness was able to substantiate their theory and
23 Mr. Theunens, again, an in-house OTP witness put forward as an expert,
24 was unable or unwilling to go along with the OTP's view of sanitation
1 They completely ignore in their JCE context, all of the orders
2 issued before Operation Storm, both oral and written, whether by
3 Minister Susak or General Gotovina, the military or the civil police.
4 Completely ignored in their presentation yesterday. Why? Because they
5 can't deal with it. And we submit under the Blaskic Appeals judgement
6 that per se precludes you from draw drawing negative inferences when
7 there's specific evidence in the record.
8 JUDGE ORIE: Mr. Misetic, you are --
9 MR. MISETIC: I'm aware. I have -- [Overlapping speakers]
10 JUDGE ORIE: -- you have the disadvantage of not having someone
11 who holds you at a lower speed.
12 Please proceed.
13 MR. MISETIC: The Prosecution states an incorrect or at least
14 incomplete standard with respect to mens rea. The standard is not simply
15 whether General Gotovina was notified of the risk of such offences. The
16 Blaskic Appeals Chamber makes clear that such a standard would amount to
17 a negligent standard. The standard is not whether the accused has
18 knowledge of the mere possibility of crimes but, rather, that there is a
19 substantial likelihood that crimes will be committed. Furthermore, in
20 the interests of time, I call the Chamber's attention to paragraphs 344
21 through 348 of the Blaskic Appeals decision which dismissed very similar
22 arguments to the ones advanced by the Prosecution here attempting to
23 ascribe mens rea to General Gotovina for murder.
24 With respect to Mr. Hedaraly's presentation, first the
25 Prosecution files a first clarification. Then in July 2008 they advise
1 Chamber that after having conducted a comprehensive review of the body of
2 material on its exhibit list, they need to withdraw 59 names. But they
3 add 189. Then after the comprehensive review is conducted, nevertheless,
4 yesterday they're required to withdraw another 32. Mr. Hedaraly's
5 explanation for this is that yes, some of those victims have no autopsy
6 reports, have no name, et cetera, but then the best example he can put
7 forward is, beginning at page 17417, the case of Ilija Mirkovic,
8 Mr. Hedaraly says testified the Croatian soldiers entered the hamlet on 5
9 August, this is the hamlet of Zagrovic. And then Mr. Hedaraly says then
10 he discovered Jovo Dmitrovic's body, who is victim 129.
11 However, if you look at the further clarification, victim 129 is
12 alleged to have been killed on the 16th of August. So the first
13 inference to be drawn is that the HV entered the village on the 5th of
14 August, which means that a person killed on the 16th of -- on the 5th of
15 August, I should say, which means that someone killed on the 16th must
16 have been killed by the HV.
17 Building from there, Mr. Hedaraly says 12 victims died in the
18 same village of Zagrovic "shortly after the end of military operations,"
19 and suggests that these 12 individuals must have been killed by the HV
20 that entered the village on the 5th of August. But if you look at the
21 further clarification, in some of these it is actually 15 -- the dates of
22 death range from 5 August, some to 9 August, two on 16 August, one on 1
23 September, 25 August, 18 September, and 20 September.
24 Mr. President, it stretches credulity that the Prosecution's
25 theory of murder for many of these individuals without any other
1 corroborating evidence is that the HV entered a village on the 5th and
2 therefore if someone was killed on the 16th or later, that must be
3 ascribed to the HV. Why do I bring this up? Because the standard
4 apparently for the Prosecution is that we should take their word for it.
5 There's no evidence in the record to support this. The
6 Prosecution acknowledges in their argument that for many of these it all
7 depends on the Prosecution's oral representations but we should take
8 their word for it. More importantly, Your Honours, you should take their
9 word for it. We submit that is a not a proper standard under Rule 98
10 bis, that they are required to evidence. Their failure to demonstrate
11 evidence requires dismissal of those charges and we invite the
12 Trial Chamber to follow the guidance given by the Trial Chamber in Oric
13 with respect to partial dismissal of murder allegations.
14 With respect to the necessary and reasonable measures, again, we
15 heard, for example, about Grahovo, ignoring various evidence in the
16 record, which I will not go into detail on. However, suffice it to say,
17 that P71 reflects, at page 48, orders to shoot at the legs of persons,
18 burning and looting. It reflects the fact that Minister Susak, this is
19 at page 73, was personally advised of crimes in Grahovo. And as the
20 Court knows, the military police was under the command of the Ministry of
21 Defence, meaning the minister of Defence, and then General Lausic under
22 his command.
23 And we know from P71, page 69, that General Gotovina determined
24 that the problem was a lack of discipline in OG North. And at D793, on
25 the 2nd of August, he replaces the commander of OG North and appoints
1 General Ademi.
2 The Prosecution in its convoluted conspiracy theory suggests that
3 orders given after -- before, during and after Operation Storm were
4 "empty orders," yet what were they unable to rebut? We put forward in
5 our presentation that as of the 18th August, after the measures taken on
6 that date, there is no further evidence of any information going to the
7 Split Military District Command that General Gotovina's orders were
8 ineffective, or that any units in the Split Military District were
9 engaging in criminal activity on the territory of the Republic of
11 Mr. President, you asked me whether Mr. Theunens had testified as
12 to whether it was in the -- specifically in the Split Military District
13 diary, which is how I posed the question. You are correct. However, if
14 you review the several pages before that, I put to him specifically
15 whether there were any reports from political affairs, SIS, et cetera.
16 He said he needed time during the break to review the material and when
17 he returned he did not offer any such evidence. I submit that you were
18 present and know that Mr. Theunens had no problem interjecting his own
19 evidence if he felt it necessary. And more importantly, the Prosecution
20 had the opportunity yesterday to refute my -- or our position that there
21 is no such evidence.
22 Accordingly, the suggestion that there was -- there weren't
23 necessary and reasonable measures taken is refuted by the evidence. To
24 suggest that demobilisation was a reckless measure is pure testimony
25 given by counsel here. They adduced no evidence to that fact. The only
1 evidence in the record on that issue is from Prosecution witness Lausic,
2 Exhibit P2159, paragraph 210, where Mr. Lausic said the strongest way to
3 deal with an undisciplined reserve would be the threat of demobilisation.
4 The Prosecution had the opportunity to challenge Mr. Lausic on that
5 point, to challenge Ms. Botteri on that point, to ask Mr. Theunens
6 whether he agreed on that point. Most importantly, they had
7 General Pringle on their witness list, and at the end of the day decided
8 not to call him.
9 The Prosecution's case at the 98 bis stage is left with the
10 Prosecution trial counsel offering their own "expert opinion" as to
11 whether demobilisation was a sufficient measure. We submit at 98 bis,
12 that doesn't work for the Prosecution.
13 Mr. President, Your Honours, I know I'm out of time so let me
14 wrap up by saying that there is simply no evidence from which this
15 Trial Chamber could conclude that there is sufficient evidence in the
16 record that could rise to the level of proof beyond a reasonable doubt of
17 the allegations made by the Prosecution in their case in-chief. In light
18 of all of evidence that they have failed to adduce or have failed to
19 confront, we submit that drawing inferences against specific evidence in
20 the record is also something that the Appeals Chamber has indicated is
21 not an appropriate way to convict the accused, and we accordingly ask for
22 the entry of a Rule 98 bis order dismissing all counts.
23 Thank you, Your Honours, and I thank you for the extra time.
24 JUDGE ORIE: Thank you, Mr. Misetic. We will have a break.
25 After the break, Mr. Kuzmanovic, by the way, welcome. I promised that I
1 would welcome you. You will be the third one and will it Mr. Kay second?
2 MR. KUZMANOVIC: That's correct, Your Honour. And thank you for
3 the welcome.
4 JUDGE ORIE: Yes. We will have a break and we'll resume at
5 25 minutes to 5.00.
6 --- Recess taken at 4.09 p.m.
7 --- On resuming at 4.39 p.m.
8 JUDGE ORIE: Mr. Kay, please proceed.
9 MR. KAY: Thank you, Your Honour.
10 Your Honour, on behalf of Mr. Cermak, we shall answer each and
11 every point raised by the Prosecution in their submissions to the Court
12 in turn.
13 The first matter that Your Honours were referred to in the
14 Prosecution address on the Rule 98 bis hearings was the relevant
15 indicators of effective control. The first matter raised by Mr. Margetts
16 was the procedure used for the appointment of an accused. I refer the
17 Court to Exhibit P1187, Law on Service in the Armed Forces, Article 159,
18 "appointments of senior officers and generals shall be the responsibility
19 of the Supreme Commander."
20 Proceeding now to the next matter. Reliance was placed upon
21 Exhibits D561, and Exhibit 1219, P1219, reports to the chief of the
22 Main Staff. If we look at these documents, there is not a plurality as
23 implied in the submission but there was one issue arising from
24 Exhibit D561, when the chief of Main Staff, General Cervenko, wrote to
25 the commanders of Military Districts and included the Knin garrison, as
1 well as the intelligence administration and others, for information, and
2 that's what this document amounts to, not tactical orders or any orders
3 of command. It was for information.
4 And how did General Cermak respond to this? One could say not in
5 the fullest way. When one looks at Exhibit P1219, the Split Military
6 District Command and Knin garrison are in constant coordination. No
7 information was actually provided by General Cermak. To set that against
8 another document in evidence, Exhibit D564, the report from the Gospic
9 Military District, indicating what was done by them.
10 In fact, Your Honours, we submit that this is a classic example
11 which shows the Defence submissions as being correct, that General Cermak
12 was not commanding or operational, and the fact no report was filed by
13 him actually indicates he had no effective control. We're grateful for
14 the Prosecution arguments on this matter. Why was this sent? Probably
15 the President's visit on the 26th of August, when he was arriving by
16 train to Knin.
17 The next matter raised as a relevant indicator was contact with
18 President Tudjman and Mr. Jarnjak. How does that show effective control
19 on the ground? The quality of the contact should be the issue. And
20 before we look that, the word "contact" in itself is interesting, because
21 it does not indicate a formal reporting structure or commanding system,
22 but the only phrase that can be served is in itself of a non-operational
23 nature, the word "contact." And the interesting feature of this argument
24 is that if General Cermak was going to the minister of the interior and
25 the President, asking for more police, and asking for more troops, that
1 indicates he had no effective control in his position. And he wasn't
2 able to submit a formal report. He was not able to go through a formal
3 command structure. He was using his contacts. Influence is not enough
4 in these cases. Mr. Flynn said he believed he was influential. And so
5 he might have been. And using that influence for the good was not a bad
7 What this indicates is that General Cermak was taking positive
8 and appropriate action outside his position to try and deal with crimes
9 and problems in the liberated area. Consider his interview, as the
10 Prosecution asked, page 2122 of the 1998 interview. This indicates he
11 had no effective control, as these were measures he could not take
13 Not only that. Consider transcript page 5731, when Mr. Jarnjak
14 is contacted, when he protects Witness 86 and supports him. The fact
15 that this situation occurred at all indicates that General Cermak was
16 supportive of law and order, contrary to the JCE. Furthermore, the fact
17 that there was this argument concerning how events had occurred at
18 Grubori indicates that General Cermak in the military was not involving
19 himself in a civil police matter.
20 I asked the Court to look at Exhibit P957, an example, again, of
21 contact. When one looks at this document, and I am looking at page 2,
22 the bottom of it, an example of General Cermak contacting the minister of
23 internal affairs and asking him to contact the civil police in Split
24 establish coordination, to avoid accidents in future of internationals
25 having their freedom of movement restricted. That indicates, again, no
1 effective control, because if he was in control, he could have contacted
2 the civil police in Split
3 The next matter raised was the authority to apply disciplinary
4 measures. The case of Strugar was cited, paragraphs 393 to 397. Again,
5 we're grateful to the Prosecution. It was an authority we had cited in
6 our address to the Court, and it precisely demonstrates General Cermak
7 has no effective control. This authority here concerns subordination of
8 units and the authority to give direct combat orders, which
9 General Cermak certainly did not have. And the Court is welcome to look
10 at the details within those paragraphs of the authority.
11 The service regulations, Exhibit D32, Article 52, were cited as
12 being an example of disciplinary measures. In our submission, these
13 rules go to something entirely different. These concern rules by which
14 the military should conduct itself in a garrison town exactly as agreed
15 by the Prosecution expert, Mr. Theunens, in cross-examination through me,
16 transcript page 12881 to 4.
17 And D32 has to be considered in the context of the later order of
18 1993, the order concerning organisation regarding work, order, and
19 discipline at garrison headquarters. Exhibit D34, paragraph 2 of which
21 "Garrison headquarters commands do not have an operational
22 function and the right to issue orders to Croatian army units except
23 precisely prescribed authorities regarding work, order and discipline at
24 the garrison."
25 To borrow an expression from my learned friend, Mr. Cayley, the
1 Prosecution dance on a pinhead. They don't seek to provide information
2 outside that pinhead and to give the Court the full context and picture.
3 Let us turn now to the next of the relevant indicators relied
5 The reality of authority of the accused, his rank and he knew and
6 was trusted by the President. This observation must be made. The fact
7 that the President has contact with Mr. Cermak, as he was, and then
8 General Cermak, as he was mobilised on the 5th of August, is not of
9 itself significant. A president would have contact with many people.
10 This does not answer any question of effective control. The evidence
11 still has to be assessed; and in our submission, all descriptions of
12 General Cermak's tasks were those of a non-operational, normalisation of
13 life character. All the presidential transcripts that have been produced
14 in this court do not in any way undermine that submission, and we will be
15 looking, in particular, at the one from 1999 later in this submission.
16 The next matter that was relied upon by the Prosecution were the
17 assessments of General Cermak's authority, first of all, by the
18 international witnesses. We do not dispute that the international
19 witnesses had their beliefs about what General Cermak was able to do and
20 what his position was. The issues in this court are whether those
21 assessments were right, and we submit that we have proven during the
22 course of the Prosecution case that the foundation of their assessments
23 was based solely upon impression.
24 Let us look just at a few passages of evidence.
25 Exhibit P147, page 5, produced through the witness Ermolaev.
1 Summary of meetings. At the headquarters of General Gotovina, as the
2 headquarters of General Gotovina is in Knin, and also the headquarters of
3 General Cermak, who deals with the non-operational matters, CALO, and the
4 majority of his team has to stay obviously permanently in Knin.
5 The witness Flynn, who was one of the first Prosecution witnesses
6 and who had made a statement for the Prosecutor, giving his opinion and
7 impressions conceded, transcript page 1086, he did not know what
8 Mr. Cermak's job was.
9 Exhibit P361, the Forand cable of 9th of August in which he says
10 at paragraph 1C: "Croatian army units deny Cermak's authority and even
11 his existence."
12 Exhibit P375, another General Forand letter: "Cermak frustrated
13 with his authority and limited in certain areas." A very important
14 letter from that witness, because it was clear that he was speaking in a
15 way that showed that he was pleased with the level of cooperation of
16 General Cermak.
17 Transcript page 1176 to 7. Mr. Flynn never believed
18 General Cermak had direct command and responsibility over units.
19 You can display impression evidence from either side. This Court
20 should be concerned with the foundation of evidence. It is not good
21 enough just to rely upon impressions. And if impressions are
22 contradicted, we submit it is the duty of the Court to accept the
23 actuality, the reality.
24 Transcript page 1183 to 4. Mr. Flynn never believed
25 General Cermak was in control of the police.
1 I could go on with other references; I will not.
2 Looking at it from another pair of eyes, General Leslie,
3 transcript page 2202 to 3. The only information he had about
4 General Cermak was from the UN system.
5 The Court will remember that there was evidence of General Forand
6 writing on the 5th of August to be directed to the military governor.
7 This was a perception of General Cermak that had been built up in advance
8 through Western eyes and to a position that did not exist.
9 Transcript page 2200 to 1. General Leslie did not know tasks and
10 responsibilities of General Cermak and never saw him command troops.
11 Witness Berikoff, transcript page 7821 to 2. They all relied on
12 the rank, uniform, title, which was conceded by him as being incorrect.
13 In support of this, the Prosecution have sought to use the
14 testimony of a so-called insider witness, described as being consistent
15 and corroborative of their argument, the witness Buhin. He had never met
16 General Cermak; transcript page 1007. He didn't know Mr. Dondo, the
17 lieutenant who has featured in this case. He didn't know what
18 General Cermak's job was, but he knew it concerned coordination.
19 Let us turn now to de facto and de jure authority that the
20 Prosecution cited as being significant and indicative of the authority of
21 General Cermak. Cited in support of this was Exhibit D32, the service
22 regulations. We've looked at those already.
23 This proposition would give the garrison commander control over
24 all the units within a garrison at the expense of the operational
25 commanders. It simply doesn't make sense.
1 Look at Mr. Theunens's testimony, transcript page 12290 to 91.
2 There are simply no orders and evidence to support that General Cermak
3 had de facto and de jure authority over all the units within the
4 Split Military District. This one regulation involving specific powers
5 of the garrison has been used in a way that is like dancing on a pinhead,
6 and in our submission does not look at the substance of this case, we
7 invite the Court to do.
8 Paragraph 1(E) of Exhibit D33, which defines the area of the
9 garrison, is relied upon. Interesting in the language of that document
10 which just sets out the municipalities, it refers to the tasks of the
11 garrison, not command.
12 Consider also Exhibit D818, a letter which tells General Cermak
13 not to issue international passes, a non-operational matter, showing that
14 he had to restrict any steps taken by him in relation to areas where
15 there was a so-called war zone. This emphasised the non-operational
16 tasks that he had to perform.
17 The next heading relied upon was the ability to initiate
18 investigations into the conduct and discipline soldiers in the units
19 using military police and civilian police. There is absolutely no
20 evidence to support the proposition that General Cermak had a duty to
21 investigate. The Court has been referred to the Code of
22 Military Discipline and his responsibility to discipline his own
23 subordinates; Article 19. They numbered nine, and indeed, only to deal
24 with minor disciplinary breaches under Article 26.
25 Now, there is an clear hierarchy structure in this system. It is
1 not a system that the Prosecution would have to accept would be the
2 governing system, if their arguments and propositions were to be
3 supported. Consider his interview in 1998, page 30, when he said he had
4 no power to issue orders to troops and units.
5 Witness 86, transcript page 5706, lines 9 to 19, Cermak couldn't
6 order investigations.
7 For other references of Cermak being unable to issue orders to
8 the police, see transcript pages 5555 - four 5s, that is - to 7. 5684,
9 5688, 5691, and 5696.
10 I forecast to the Court that I would return to the witness Buhin,
11 whom the Prosecution described as consistent and corroborative. He
12 described General Cermak at transcript page 10044, as being a role of
13 coordination, looking after life and work in the liberated area,
14 generally speaking.
15 At transcript page 10046, he knew he was a commander in Knin, not
16 privy to the detail. He was asked: "Did you know enough to give your
17 opinion? "
18 "Answer: No."
19 That question was asked as a result of the witness statement that
20 has been taken from this witness and put in evidence under Rule 92 ter.
21 In our submission, significant problems have been thrown up in this case
22 by the use of those statements because the full context of evidence was
23 never being put to the witnesses.
24 I referred the Court in my first address to the fact that the
25 so-called MUP, UNCRO military police orders were not put before
2 Transcript page 9977, Cermak had no authority to issue orders to
3 the civilian police. We got orders from the MUP. And that was how the
4 system worked and how the documents and paper trail in this case show the
5 system working.
6 The Court would have to find that all those documents that we
7 have been looking at existed for naught, and people actioning each other
8 with their own lines of authority were actually under the command and
9 control of a person utterly outside the system.
10 The witness Dzolic, transcript page 8929, lines 17 to 21:
11 "Cermak couldn't order me."
12 Transcript page 9017, lines 13 to 18: "Cermak had no authority
13 to order you to investigate crimes," I asked.
14 He agreed: "That is right."
15 Transcript page 9027, line 24: "I was not obliged to follow
16 orders of this kind as orders."
17 Transcript page 9037, line 1 to 13: "... not under the command
18 of General Cermak. Wrong to say he was to obey any order."
19 The phrase in the witness statement came in via 92 ter and
20 demonstrating a significant lack of context and, indeed, penetration as
21 to important issues of subordination and effective command.
22 I will not go further into anything of dual command because, in
23 my submission, it simply wasn't relevant nor being raised by me.
24 Witness P84. He'd never seen orders by General Cermak to the
25 Knin police; transcript page 1137 to 8. And they weren't put to him in
1 his statement. Furthermore, there were two documents underlying the
2 UNCRO orders, in which he referred to a complaint being made by the
3 commander of the Knin garrison. In our submission, all this evidence and
4 all these factors utterly contradict the slenderest of lines used by the
5 Prosecution to put forward an argument of effective control.
6 It was suggested that General Cermak had command over troops in
7 the operational zone. The document being relied upon was Exhibit P390,
8 freedom of movement document, dated 11th of August; and a letter to
9 General Cermak -- from General Cermak to General Forand, allowing full
10 freedom of movement for the UN. And you look carefully at this document,
11 Exhibit P390, and it's delivered to troops in zone of separation,
12 whatever that means, and to the Croatian Ministry of Defence, UN, and
13 EU office.
14 At the 1998 interview, pages 59 to 60, Mr. Cermak said: "I would
15 phone them and tell them to tell their units on the ground that people
16 had freedom of movement."
17 Interestingly enough, he couldn't contact the units himself, but
18 as he said, he was contacting to enable other units to tell their units
19 on the ground. Well, no military system with effective control vested in
20 a general could operate like that.
21 Interestingly enough, the witness Berikoff described the letter
22 by General Cermak as a joke; transcript page 7791 to 2.
23 General Forand said: "It wasn't of any help. There was still
24 problems, as it wasn't always recognised." Transcript page 4317.
25 Exhibit P375, General Forand refers to the limit of authority,
1 and in evidence described General Cermak as a conduit.
2 There were many more references to how the police, army did not
3 respect Cermak's orders. Hill, transcript 3799. Also consider these
4 pages with other witnesses, transcript 133 to 4; 1176 to 7; transcript
5 1251, and that will be enough now.
6 The orders allegedly acted upon to demonstrate authority were
7 cited as Exhibits P509, Exhibit P510 and Exhibit D303. Witness 86 did
8 not take that as an order; transcript 5696. Witness Buhin said not an
9 order; transcript 9977.
10 Also look at Exhibits D494, 495, 496, where the civilian police
11 consider the Cermak passes and try to fathom what is happening as to
12 whether they are valid or not. The eventual conclusion at Exhibit D496
13 is that it was said to be only for the Ministry of Defence and not
15 The system in operation contradicts the Prosecution case in
17 Taking Exhibit D303, there is the paper trail of exhibits
18 submitted by the Defence to show the failure to collect/track the UNCRO
19 vehicles, requiring intervention; Exhibit P391, D503, D304, D500, D501,
20 D305, and D306.
21 Reliance was made on the presidential transcript, Exhibit P1144,
22 to somehow link General Cermak with Generals Norac and Gotovina, and it
23 is clear from the terms of the exhibits that all three had been
24 questioned or sought to be questioned or were to be -- charges were to be
25 brought against them in the content of the transcript; page 7: "They are
1 going to bring charges against the three of us, aren't they?" The talk
2 is about the three. Cermak saying, This is all perfect nonsense, saying
3 they were innocent, none of us ordered any killing, rubbish. Norac and
4 Gotovina were conducting military operations. They were in command of
5 military actions.
6 And now let's go to the full terms not read out by the
7 Prosecution. "I was in command of my part," and there it stopped. So
8 what was his part? "After two days, we set up a soup kitchen, which was
9 visited both by Croats and by Serbs." We engaged ourselves in
10 humanitarian work; made tours to the villages; set up power units; we
11 have more than enough papers and stories for them.
12 As for incidents in the field, no one could have prevented them.
13 You, President, you had a situation with the fighters in the field.
14 Well, if you are having a conversation about effective authority
15 and you're referring to soup kitchens and the like, in our submission,
16 the underlying bedrock of evidence presented by the Defence in this case
17 is -- is plainly supported by unarranged, unplanned conversations at the
19 Notice of crimes. Exhibit P918 was relied upon by the
20 Prosecutor. And the Court knows that General Cermak never denied crimes.
21 He may have had differences of opinion concerning what caused them. He
22 never denied that they were happening. And in our submission, this
23 document, Exhibit P918, dated the 12th of August, being a warning from
24 the political affairs section, sent only for information to the commander
25 of Knin garrison indicates that General Cermak had correctly passed on
1 and reported all those incidents that had been raised to him by
2 General Forand and others in the days from the 8th of August until this
3 time. "You know that General Forand had said about looting, burning
4 crimes, because this document refers to the fact that the international
5 community could undertake measures which would have unforeseeable
6 consequences for our state."
7 Well, information passed on by General Cermak results in the
8 warning; and for information, that document has been sent to him because
9 he was the one, General Forand. See the exhibit of his letter on the
10 11th of August where he said that Croatia
11 and thefts. I'm sorry I can't give the Court the exhibit number for
12 that, but maybe we will be able to in the interim period.
13 Moving on to the next subject, Mr. Hayden, bringing in a meeting
14 to General Cermak's attention problems in the region and that people were
15 killed. Prosecutor say that Mr. Cermak was misleading. There's no
16 evidence of that at all. He handed over reports that enabled Mr. Hayden
17 and his colleagues to do an analysis. If he was misleading them as to
18 the nature of deaths and who was killed, why would he have handed over
19 reports that they could analyse?
20 In our submission, steps taken by him to assist and help the
21 international community at the time are wrongfully being attacked as
22 examples of conduct which do not make sense in an analysis of the
23 evidence. He was a conduit for that information. What's happening here
24 in this example and the other examples is that the messenger is being
25 shot. Don't shoot the messenger is the important principle.
1 Let me turn now, in the last ten minutes, to matters raised in
2 the submissions of my learned friend on Grubori. One factor needs to be
3 made clear. This was a matter entirely within the province of the civil
4 police from beginning to end, the MUP. Cermak had no authority or right
5 to issue or institute a police investigation. Witness 86 confirmed;
6 transcript page 5706.
7 Remember the sequence of events. The 25th of August was the date
8 when Grubori happened. The garrison was contacted, not General Cermak,
9 but the office. The first report filed was one of fires. The
10 internationals went back to the scene and arrived after 6.00 and then
11 learnt of deaths. That night, the internationals did not go back to the
12 garrison. Neither did they go to the Knin police to report to the local
13 police that this was not now a situation of burning but was one of
15 The next information that came to General Cermak was on the
16 26th of August, and we can look at Exhibit P504, the transcript of the
17 UNTV interview at 11.00 in the morning. General Cermak repeatedly said
18 he did not know of the events concerning killings. He was only aware of
19 events that happened yesterday, and he gave information that was known by
20 him at that stage. It is clear from the interviews he had been in
21 contact, or had been contacted by, the special police who had given
22 information to him. See Exhibit P579 for corroboration of the fact of a
23 body being found with wire and hands tied behind the back.
24 General Cermak was repeatedly pressed many times to investigate
25 this matter. He would -- he had said he would verify the matter, but the
1 question of an investigation was an issue created by the questioner.
2 There is no evidence at this time as to what information was exactly in
3 his possession, but we can take it from the progress of the interview
4 that it was clear at that stage he did not know about deaths until the
5 interviewer himself said two civilians had been killed. That also was
6 not the full account, because we know, in fact, that more people had been
8 From the terms of this interview, you can quite clearly see that
9 General Cermak had said that the civil police had been to the village and
10 were unable to see anything. We know from the evidence of Witness 86
11 that that is correct.
12 The system was actually working as it should. (redacted)
25 [Private session]
12 [Open session]
13 THE REGISTRAR: Your Honours, we're back in open session.
14 JUDGE ORIE: Thank you, Mr. Registrar.
15 Please proceed, Mr. Kay.
16 MR. KAY: Lieutenant Dondo wrote on the 26th of August, with no
17 findings, an interim report as to what he had seen up there and passed on
18 the information.
19 Exhibit P764, second page, paragraph 5 in the English. This is a
20 very telling paragraph as to how the Knin garrison operated. They were
21 promised that the bodies would most probably be cleared up on the
22 27th of August. You make a promise if someone asks you to do something,
23 and that representatives of civilian structures would come to help them
24 with accommodation since their houses had been burned down.
25 This garrison wasn't operating as some clearing house for a joint
1 criminal enterprise. This garrison was operating on a humanitarian
2 basis, as described, and taking appropriate measures to ensure, so far as
3 they could, that people were helped. This is an internal memo, not a
4 memo for public consumption, so this memo provides a snapshot of how
5 General Cermak tried to run the affairs of the garrison in Knin at this
7 When one moves to what happened later in this account, it is
8 quite clear Witness 86 said that General Cermak did not seek to obstruct
9 the investigation; he was supportive to the witness, to the minister of
10 the interior. If he was a man part of this joint criminal enterprise,
11 why on earth would he be behaving supportively to Witness 86? Not only
12 that, he was letting him do his business and a more senior police
13 officer, a man called Sacic, from the special police, a direct senior
14 within the hierarchy of the Ministry of Interior, was the man who was
15 attempting to obstruct and prevent. In our submission, it is quite clear
16 that General Cermak was entitled to rely upon the police handling a
17 non-military matter that had been brought to his attention but was not a
18 matter over which he had command and control, and the steps taken were
19 entirely appropriate in the circumstances.
20 JUDGE ORIE: Mr. Kay, I'm looking at the clock.
21 MR. KAY: Those are our submissions, Your Honour.
22 JUDGE ORIE: Thank you, Mr. Kay.
23 In the beginning of your submissions you referred to D561 which
24 we find a provisional translation of that document, Mr. Kay.
25 Mr. Kay, I was addressing you.
1 MR. KAY: Sorry, there is housekeeping going on.
2 JUDGE ORIE: Yes, I have some housekeeping for you, then, as
3 well. D561, one of the documents you referred to early, in the English
4 translation which seems to be a provisional translation, lists among the
5 addressees the Knin ZP. The Chamber takes it that this is a mistake and
6 it should be Knin ZM as it is found in the original. If you agree on
7 that, then it's on the record.
8 MR. KAY: We have been attending to that, and that's right,
9 Your Honour. And on the first page of document there is also a mistake.
10 We've requested a revision.
11 JUDGE ORIE: Yes. Once it is ready, I take it that you will
12 inform Mr. Registrar.
13 We will have a break, and, Mr. Kuzmanovic, if we resume at
14 five minutes past 6.00 would that be -- in view of the fact that you have
15 given up ten minutes.
16 MR. KUZMANOVIC: Yes. That will be fine, Your Honour. Thank
18 JUDGE ORIE: We resume at five minutes past 6.00.
19 --- Recess taken at 5.43 p.m.
20 --- On resuming at 6.09 p.m.
21 JUDGE ORIE: If I created a confusion on the transcript, I don't
22 know what I said exactly but we see both five minutes past 6.00 and
23 ten minutes past 6.00, then I apologize for that.
24 Mr. Kuzmanovic, are you ready to make further submissions.
25 MR. KUZMANOVIC: Yes, Your Honour. I will forgive you for being
1 late, that's okay. Thank you.
2 JUDGE ORIE: I thought you would welcome me in the courtroom.
3 MR. KUZMANOVIC: Your Honour, this is our 98 bis submission in
4 response to what the Prosecution has put forth yesterday.
5 It is going to come in two parts, Your Honours. The first part
6 will discuss the -- what has been termed the unlawful artillery attack on
7 Gracac and Donji Lapac that was addressed mostly by Mr. Russo. The
8 second part will deal with the 7(3) liability, which was dealt with
9 primarily by Ms. Mahindaratne.
10 At the outset, the Court needs to be aware, and I'm sure the
11 Court is aware, that in terms of planning, General Markac had no role in
12 planning Operation Storm. He was used as an implementation -- in
13 implementation of Operation Storm, and I would like to advise the
14 Court -- and if we could pull up D535, which is map. Your Honours, D535
15 is the map that was provided to General Markac, and the special police
16 referred to in another exhibit -- or in this same exhibit, in which the
17 special police was supposed to -- which was supposed to, on this axis of
18 attack, cut the road off between Gospic and Gracac and go towards Gracac
19 and take various military objectives from the Velebit mountains.
20 Now on the English version of this document, the map on the
21 bottom right states the HV General Staff order addressed to commander of
22 MUP special units, General Mladen Markac, signed by Janko Bobetko. Now
23 D535 itself, is the order of General Bobetko, and this map was provided,
24 among other things, to General Markac.
25 Why is this an important issue with respect to planning? If we
1 take a look at P614, page 2 -- D535, by the way, was in June of 1995,
2 obviously before the Brioni meeting. Nothing changed through
3 July of 1995 in terms of what was eventually required of the special
4 police under the Main Staff of the Croatian military. If we look at
5 page 3 of P614, it says: "On 29 July 1995" --
6 We don't necessarily need it up on the screen, Mr. Registrar,
7 that's fine.
8 "The HV GS HQ," which is the Croatian military General Staff
9 headquarters. "A written order was issued to the leadership of the
10 special police sector with a map marked up with the attack axes and the
11 joint special forces zone of responsibility relating to the assault
12 operation and the capture of the Mali Alan pass and the Celavac radio
13 relay centre, cutting the Sveti Rok-Gracac road, as well as overrunning
14 the general Sveta Ruka and Sveti Rok area in the three days of the
16 Now what does P614 tell us? It tells that, first of all,
17 General Markac was not involved in planning Operation Storm. Second of
18 all, his axis of attack through the Velebit mountains was initially to go
19 to just outside of Gracac to cut that road.
20 Now, why is this important? When we look back at the artillery
21 issue, we see that the entire area at or near the Mali Alan pass and
22 further in that axis of attack is uninhabited. There is no civil
23 population there. It is entirely an area where the military was located;
24 that is the ARSK military.
25 There were heavy battles in those areas, and you will see when
1 you refer to some of the UNMO reports, specifically P102 in which it
2 discusses on the first day of Operation Storm how the Mali Alan pass was
3 taken by the special police well on their way on -- to the second day on
4 their way to Gracac.
5 Now, what happened with respect to the claim of an unlawful
6 artillery attack on Gracac and Donji Lapac - thank you, Your Honour -
7 which allegedly caused the civilian population to leave?
8 If we look at the testimony of Mr. Kosta Novakovic, transcript
9 references 11729 and 11815, at 11729, on the evening of August 4th, this
10 is well before the special police even were close to coming to Gracac,
11 Mr. Novakovic testified that -- that they decided to evacuate the
12 population out of Dalmatia
13 of the Gracac municipality and Lika.
14 Why? Because there was the danger that practically across
15 Mali Alan the route would be cut off, which was the only route leading
16 toward the hinterland, via Otocac and Dalmatia. The entire army and the
17 entire population would find themselves encircled.
18 If we go to 11815 at line 5, it says:
19 "When the civilian protection organs had conveyed the decision to
20 their commissioners in those four municipalities in Dalmatia, and Gracac
21 municipality, then that decision, evacuation order, was no longer a
23 And the question is asked:
24 "Then in fact at some point you are aware that the evacuation
25 decision did get into the media on the evening of the 4th; correct?
1 "Answer: Absolutely, yes."
2 Now, why is this important? Because, Your Honours, by the time
3 the special police got to Gracac, the city was empty. There were battles
4 that went on leading up to Gracac, but when they got to Gracac, the city
5 was empty. Now what kind of shape was the city in as a result of this
6 allegedly unlawful artillery attack?
7 First of all, I need to correct something that Mr. Russo said
8 regarding Mr. Janic.
9 Mr. Janic was not the leader of the axis of attack with respect
10 to Gracac. His transcript reference regarding his axis of attack is on
11 page 6392, lines 16 through 18. He says:
12 "Mr. Janic you testified about artillery support that you asked
13 for during the course of the attack. Now you said that there were
14 predetermined targets. There were any predetermined targets in civilian
15 populated areas in your line of attack?
16 "Answer: No, there weren't. Which stage are we talking it? The
17 first stage of Operation Storm or the entire operation?"
18 The question is: "Operation Storm, the first stage, on 4th and
19 5th August."
20 And here is where he describes his line of attack:
21 "My line of attack was Velebit, Celavac up until Prezid, so up
22 the road -- up until the road. This was an uninhabited area. There
23 weren't even villages in that area in my line of attack. Apart from the
24 first and second enemy lines, and up to the Celavac repeater, there were
25 no other facilities. There were no other buildings, so there weren't any
1 targets, targets that you are referring to now."
2 He is further asked about the issue of targeting, and he says
3 later on in that same transcript reference:
4 "The predetermined targets were the enemy positions and the depth
5 of their defence line, the artillery positions, their command post, their
6 depots, the targets, where the enemy infrastructure that they used to
7 defend their lines. Those were the exclusive targets that we had.
8 Whenever conducting an operation, well, it wasn't possible to have any
9 other targets. All the targets were military targets. The purpose was
10 to break through the enemy defence line and to attain the operation's
11 objective. It wasn't possible to have any other objective."
12 There is some discussion about targeting in civilian populated
13 areas regarding Mr. Rajcic and Mr. Janic and we can see from Mr. Janic's
14 testimony that there was no targeting of civilian populated areas.
15 If we again look at Mr. Janic's testimony -- actually, I already
16 discussed Mr. Janic's testimony relating to targeting. What I wanted to
17 discuss is the UNMO report, P102, of August 4th which reported 15 shells
18 in the area of Gracac, which is exactly the same number of shells that
19 Mr. Sovilj discussed, which is very close to the number of shells
20 Mr. Turkalj discussed. And if we look at P111, on page 3, the only UNMO
21 assessment done of shelling damage with respect to Gracac said that the
22 main artillery impacts in Gracac were on the main junction. So, with
23 respect to an alleged unlawful artillery attack on Gracac, Your Honours,
24 it doesn't exist. By the time the special police reached Gracac,
25 according to the evacuation order issued as discussed by Mr. Novakovic,
1 the civilian population was gone.
2 I'd like to talk a bit about the issue of forward observers.
3 There's a discussion of forward observers that Mr. Russo
4 discusses and the fact that the special police allegedly had no forward
5 observers, and that's really not exactly what the testimony was. Let's
6 look at the testimony of Mr. Turkalj. That's at transcript reference
7 13695, pages 5 to 20 -- lines 5 to 22:
8 "So your testimony is there were no forward observers. So in the
9 absence of forward observers, who corrected the fire for you?
10 "Answer: Let me answer this way: Along the axis of attack of
11 the special police it is true that the commanders of the units sought --
12 sought support from their battery and all -- and they all had had a coded
13 map based on which they were able to pinpoint the exact location of a
14 target. Specifically when they came into contact with the enemy and when
15 they engaged in combat, based on the coded map, they would -- they would
16 not" -- I would presume that means they would know, "exactly where they
17 were and where the target was, and then they would ask for the support
18 from their battery which would fire at the target. Of course, they were
19 able to adjust their fire if it was closer, further away, to the left, or
20 to the right. Let me just add, the artillery batteries were not able to
21 have their own observers or spotters because the terrain would not allow
22 for that but the commanders of units or, rather, commanders of specific
23 axes were also observers."
24 Now the next line I think is very telling:
25 "Why didn't the terrain allow for forward observers."
1 And the answer was a little bit sarcastic but it's true:
2 "I suppose you didn't see the area. It's a mountain."
3 Now, the fact that the artillery batteries did not have their own
4 individual forward observers is irrelevant because the commanders on the
5 ground had a coded map in which they would be able to pinpoint targets to
6 call in to the batteries to have accurate artillery fire. There is
7 absolutely no dispute. So the fact that there is no separate forward
8 observer for an artillery battery with respect to the special police area
9 of operations is completely irrelevant.
10 Let's look at the next issue discussed, specifically looting,
11 which was supposedly attributed to in the Plavno valley and in Orlic.
12 And as a citation, the Prosecution in its presentation uses two exhibits.
13 One exhibit is P1249. Now, I have checked the transcript twice and I put
14 that number into e-court and that -- nothing shows up so I don't know if
15 1249 is mistransposed. I don't know if 1249 actually exists, about as
16 far as I'm concerned, that's a non-issue.
17 The next document that's cited is P267. P267 is a five-page
18 document dated September 29th of 1995, from UNCIVPOL. Nowhere in P267 is
19 the word "Orlic" contained; nowhere in P267 is the special police
20 specifically mentioned at any point.
21 Now, I think the Prosecution with respect to the special police
22 has a fundamental misunderstanding about what kind of territorial control
23 the special police had. It had none. It was not a Military District,
24 like Split
25 operated in any way on a territorial basis, other than having an axis of
1 attack; and there's no evidence anywhere that General Markac was ordered
2 to take control of the territory that he and his forces liberated.
3 Now we left off at Gracac. Before the special police got to
4 Gracac, there is a claim that General Markac ordered Gracac to be taken.
5 However, D550 and D551, are both orders from the -- from the Chief of
6 Staff, General Cervenko, of the Main Staff of the Croatian military, that
7 order General Markac to continue his attack, one, through Gracac; and
8 two, on to Donji Lapac, all the way to the state border. General Markac
9 did not do this on his own. He was ordered to do so by the Main Staff.
10 Now, there was an intensive large movement of men and materiel
11 going on that road from Gospic to Donji Lapac. Those men and materiel,
12 other than being military for the most part, also included civilians.
13 However, when you look at the UNMO reports, P108, P109, and P110. P108
14 is an UNMO report which is dated the 6th of August, the Jordanian
15 battalion which was at or near Donji Lapac, in Boricevac, reported that
16 there were ten ARSK tanks, followed by 200 soldiers heading to Bosnia
17 P109, also the 6th of August. On the first page, the ARSK
18 continued to depart to Bosnia
19 says: "The general area of Donji Lapac, as assessed, is still under RSK
20 control." Now, this is the day before the special police went on to
21 liberate Donji Lapac.
22 In this same report the Jordanian battalion again, located in
23 Boricevac, not far from Donji Lapac, ARSK convoy of 15 trucks pulling
24 guns, one bus with 200 personnel observed heading to Bosnia at Boricevac
25 border check-point. Another entry, ARSK convoy, 150 personnel on six
1 trucks towing two guns headed to Bosnia. Again, 6th of August at 1115,
2 ten ARSK tanks, 200 soldiers with individual weapons headed to Bosnia
3 And what do we see at the bottom here on this same page of P109, which is
4 the fifth page: "UNMO Team Gracac met with the commander of HV special
5 forces and allowed to carry out patrol in Gracac."
6 P110, here's where we discuss the issue of Donji Lapac. I'm
7 going transition now to Donji Lapac. This is the UNMO report. First
8 page dated 7th of August. HV artillery shelled Donji Lapac from Udbina.
9 Now, that's not the axis of operation from which the special police came.
10 Udbina is assessed to be taken by HV troops. RD preparation for further
11 attack on Donji Lapac.
12 Further on in the same exhibit, UNMO Team Gracac reported freedom
13 of movement between Gracac and Gospic, and I referred to this earlier.
14 UNMO team discovered that the main RD impacts on 4 August was around main
16 If we look further next on the next page, the Jordanian battalion
17 again. HV artillery shelled Donji Lapac from Udbina. And again
18 extensive artillery shelling against Donji Lapac. The same date,
19 August 10th, on the way, in the same general area of Donji Lapac, ten
20 ARSK trucks carrying 100 persons arrived at border platoon in Donji Lapac
21 area and started harassing and asking for fuel and rations. This is
22 after the special police in Donji Lapac left the area. So you can see
23 that in Donji Lapac and the vicinity there was a heavy presence of Serb
24 military, as reported by the United Nations military observers, and the
25 shelling that occurred in Donji Lapac was not from the special police,
1 but came from Udbina which was not in the special police axis of attack.
2 Now, with respect to Donji Lapac, neither the special police or
3 General Markac were in Donji Lapac on August 6th as was -- as was argued
4 yesterday. The special police entered Donji Lapac on August 7th, and set
5 up on the outskirts of Donji Lapac and left for Kulen Vakuf on the
6 border -- near the border with Bosnia
7 for reference P585, P470, P586, and P556. One other reference that I
8 forgot to add with respect to Donji Lapac and the UNMO report, P114, was
9 that on the 10th of August at Donji Lapac, the UNMO observed soldiers
10 wearing BiH insignia, Bosnia and Herzegovina, helping refugees from Bihac
11 with trucks to collect cows and other household items left behind by the
12 Krajina Serbs.
13 Let's go over P585 for a moment.
14 But before I do that, Your Honours, I wanted to refer to Janic's
15 testimony again with respect to the road between Gracac and Donji Lapac
16 and the fact that the Serbian military there was entering into a
17 fighting -- was -- was engaging in a fighting withdrawal. On page 6391
18 of the transcript, Mr. Janic was asked:
19 "While that you were advancing toward Otric and further beyond to
20 Lapac and Gornji Vakuf, did you see damaged and abandoned vehicles beside
21 the road and equipment as well?
22 "Answer: Yes, we did. On each of these roads while we were
23 advancing during the operation, we saw broken vehicles or destroyed
24 vehicles and weapons that were left behind while they were fleeing.
25 "Question: Did you notice particularly at road junctions any
1 traces of firing from artillery, and I mean tanks and guns. Did you see
2 any shell casings by the road while you were travelling towards Otric and
3 further beyond towards Lapac?
4 "Answer: Yes. On several places we saw traces of their
5 artillery positions. We found empty shells after they had been firing
6 from artillery and that happened on several occasions along the road."
7 So during the course of the special police's activity along its
8 axis of operations on the way to Donji Lapac there was evidence obviously
9 of a fighting withdrawal.
10 If you look at P85, as I was discussing earlier -- P585, excuse
11 me. It's a report dated the 8th of August, signed by General Markac,
12 which described that, on 7 August 1995
13 support and the usage of armour, special police joined forces, seized the
14 village of Mazin, Dobro Selo, Gornji Lapac, Donji Lapac, and after the
15 reached line, they regrouped and started a quick break-through towards
16 the state border and the Una river with the purpose to liberate
17 Kulen Vakuf."
18 Now, if you look at P586, again another reference used regarding
19 Lapac. P586 is a -- is a 2 October 1995
20 [phoen] of the special police. This letter says in part:
21 "On 7 August, during the liberation of Donji Lapac by joint
22 forces of the special police, around 1600 hours logistics support entered
23 and stationed itself in the town centre. Although in Donji Lapac there
24 were no greater battles in the town centre, two houses were burning as a
25 consequence of artillery rocket support actions."
1 In the eve of the same day from the direction of Udbina, the
2 9th Guards Brigade and -- with tanks and the 118th Home Guard regiment
3 arrived. Upon entry of the above said units, the town -- in town,
4 shooting from infantry weapons started, throwing of bombs, setting houses
5 on fire, which continued the entire night. The chief of the
6 anti-terrorist section, Mr. Zdravko Janic, spoke with Colonel Brajkovic
7 and the officers of the 118th about calming of the situation in town.
8 They promised that they would solve that. However, the situation did not
9 significantly improve during the night. The special police forces did
10 not take part in fire-starting in Donji Lapac. And this is a document
11 cited by the Prosecution that the special police participated in the
12 destruction of Donji Lapac. It is entirely the opposite.
13 Now let's look at the third document that is referred to there,
14 P556. D556, excuse me.
15 D556, again, dated September 10th. This is from Mr. Janic. In
16 the middle of this document, it says:
17 "While entering and liberating Donji Lapac, special police
18 forces," on August 7th, by the way, 1995, "special police forces did not
19 engage in larger combats so the town was preserved in entirety. In the
20 town itself, in the moment when our troops entered, only two larger
21 facilities in the very centre were on fire when shot by our artillery.
22 After entering Donji Lapac, special police forces did not stay there but
23 they have taken defensive positions around the town itself and on its
24 border areas while only logistics stayed in the town."
25 Again, consistent with the previous exhibit, between 5.00 and
1 6.00 p.m.
2 9th Guards Brigade and the 118th. Again, consistent with the other
3 document, while the aforementioned forces were entering the town, general
4 shooting began, hand-grenades were thrown, to burning houses and
5 facilities in Donji Lapac.
6 "Around 6.00 p.m.
7 and an unnamed officer of the 118th trying to calm down the situation in
8 town, to stop burning and shooting. Special police forces, who were on
9 their defensive positions around and on border areas of Donji Lapac, did
10 not participate in shooting and burning."
11 You can also look, Your Honours, at P2166, page 35, and English
12 page 39 which is General Lausic's diary, which does not attribute what
13 happened in Donji Lapac to the special police.
14 Let's look at P470, a presidential transcript. This is cited as
15 evidence that the special police destroyed Donji Lapac. Page 54 of P470.
16 This is -- by the way, page 53 has been cited I don't know how many times
17 by the Prosecution with respect to Mr. Susak's comment about the --
18 everything is destroyed.
19 The next page, Mr. Norac says:
20 "Mr. President, when entering the town, the units were caught by
21 night, Storm and shooting, and everything was burnt down during that
22 night. First, the special police entered. There was a big fire after
23 that. That part could not be controlled anymore, while in this other
24 part everything remained."
25 This is cited as evidence that the special police burned down
1 Donji Lapac. It's our submission that has absolutely nothing to do with
2 the special police burning down Donji Lapac because it did not happen.
3 There is nothing specific related to the special police about
4 burning down the town, nothing specific about the special police shelling
5 the town, there is no witness, no document, no exhibit that states that
6 General Markac was ever in Donji Lapac during this time-frame.
7 I'd like to refer for a moment to -- the issue regarding Konings.
8 Mr. Konings doesn't address Donji Lapac. He doesn't address Gracac. The
9 Prosecution did not make any response with respect to Konings on shelling
10 issues relating to Donji Lapac or Gracac.
11 The entire joint criminal enterprise claim against General Markac
12 is summed up by Ms. Mahindaratne in a three-sentence quotation from a
13 presidential transcript which in this context is entirely meaningless.
14 P461, page 19, the quotation is this:
15 "There is no change in the task except that Mr. Norac is heading
16 upward. That means that we are going to drive them into a pocket here
17 and from that point we can head towards Norac and while Norac can head
18 towards Lapac and we have practically evacuated the entire area.
19 Everything fits in, and to all practical purposes, we gain with this plan
20 proposed by Mr. Gotovina."
21 Now first reaction to that was: How in the world are those three
22 sentences evidence of a joint criminal enterprise? There is no
23 transcript reference for a discussion of shelling of civilians by
24 General Markac. No order, no statement, no display of ethnic intolerance
25 or hatred, no order for a crime, no plan for a crime, no enterprise at
1 all, no comment, no intent, nothing.
2 Briefly, mop-up operations, a claim that General Markac ordered
3 them. This was ordered not by General Markac but by the chief of the
4 Main Staff. Look at D561 as an example. Expert Theunens stated that
5 mop-up operations were a legitimate military activity after
6 Operation Storm, nothing inherently criminal or wrong or unlawful about
8 I list a few things here that were unaddressed in the response.
9 In the interests of time there are nine of them. First of all, there was
10 no response this, that the special police had no territorial
11 responsibility like the Military District of Split, like the Military
12 District of Gospic. It had an axis of attack which was laid out and
13 planned for it by the Main Staff of the Croatian military and by direct
14 order from the Chief of Staff, General Cervenko. That's P614.
15 Special police was not on the territory of Sector South
16 August 9th, when it was ordered to withdraw, again by the chief of the
17 Main Staff, General Cervenko, in Exhibit D559, until August 21st when
18 again the chief of the Main Staff, General Cervenko, ordered the special
19 police to engage in specific mop-up operations; D561.
20 During this time-frame the special police was not on the
21 territory of Sector South. It was in Petrova Gora in Sector North.
22 The Prosecution has not cited to a single eye-witness that any
23 member of the special police was committing serious crimes, serious
24 violations of international law, such as murder, harassment of civilians,
25 wide-scale burning and looting, forcible displacement or unlawful
1 detention of civilians. Not one single eye-witness.
2 Four, in the police diaries which are in evidence from the police
3 districts of Zadar, Gospic, Sibenik, and Split, there is not one entry
4 that the Prosecution has produced in which any member of the special
5 police is ever listed as being involved in any type of a crime.
6 Five, in the joint meetings that are held between members of the
7 Ministry of Interior, such as Mr. Moric and Mr. Benko, with
8 General Lausic from the military police, with the civilian police
9 coordinators, and government representatives posted in the newly
10 liberated areas, the Prosecution has adduced no evidence of any crimes,
11 isolated or widespread, committed by any member of the special police,
12 nor is there any evidence produced of any notice, reporting, request,
13 verbal or written, given to General Markac for any matter as a result of
14 these joint meetings.
15 Sixth, at all relevant times, with regard to entities responsible
16 for the maintenance of law and order, the MUP regular police, the newly
17 established police stations, Knin, Gracac, Donji Lapac, the Prosecution
18 has adduced no evidence of crimes, isolated or widespread, committed by
19 any member of the special police, nor is there any evidence produced of
20 any notice, reporting, request, verbal or written, given to
21 General Markac for any matter, any matter, as a result of the activities
22 of the regular police, criminal police, investigating judge, or state
24 Seven, General Lausic's testimony, from the side of the military
25 police, contains no evidence where he ever refers to crimes committed by
1 members of special police, nor does he report, written, verbal, or in any
2 other fashion, of such alleged crimes to General Markac or any member of
3 the special police.
4 Eighth, there is never an order issued to General Markac from the
5 Main Staff, or the Chief of Staff of the military, that the special
6 police must stop people from its ranks from committing crimes, burning,
7 looting, nor is there a report issued from any entity, civil or military,
8 to the Main Staff reporting criminal acts being committed by members of
9 the special police.
10 Ninth, the Prosecution did not address in any way that the
11 United Nations and the other internationals were totally and completely
12 unprepared for what happened after Operation Storm. In many instances
13 showing that they were not competent, incorrectly identifying uniformed
14 personnel as members of the special police, and through their incorrect
15 reporting, spreading this information everywhere. They were unable to
16 correctly identify the following: The uniforms; the weapons, the type of
17 vehicles; what the role was of the special police; what the structure was
18 of the special police; who the leadership was of the special police; the
19 fact that they did not hold check-points, which comes also from Lausic's
20 evidence; and in fact the identity of the special police in areas which
21 they never operated.
22 I'd like to turn now to the issue of 7(3) liability. The first
23 things I wanted to address is the claim that the special police were
24 never given any instructions on how to obey -- that they should obey the
25 international laws and rules of war.
1 P552 is the statement of Mr. Janic. Paragraph 32 of that
2 statement, which I will find in a moment, specifically discusses all of
3 the things that they were instructed about. And I found it here.
4 It says:
5 "At our last meeting before the operation we were formally
6 reminded of the international code of conduct of a war. All of our staff
7 had been trained in the international rules of war before this operation,
8 because we were expecting to have to handle prisoners of war and
9 civilians. We were all reminded of these rules. We were also issued
10 with a military booklet, which contained the international rules of war,"
11 and the paragraph goes on a little further. In the interests of time,
12 I'm not going to read it.
13 Now, the last area I want to cover is the measures and discipline
14 that General Markac supposedly did not take. And the first issue I want
15 to deal with is the issue of Ramljane.
16 Now in Ramljane -- there are many exhibits that deal with
17 Ramljane. The first several exhibits that deal with Ramljane are D563.
18 D563 is the order regarding the freedom train involving a joint operation
19 between the Croatian intelligence service, the military, the special
20 police, the Home Guards and many others in which the special police was
21 to provide security for the freedom train.
22 If you look at Mr. Janic's testimony, and I'll just refer to the
23 specific exhibits, P767 through 771 are all exhibits that deal with the
24 investigation relating to Ramljane. Mr. Janic's testimony at 6193
25 discusses the issue of Ramljane, and on line 10 he says:
1 "There was no doubt it was a conflict, a fighting, and that the
2 burning was undoubtedly caused by the use of the hand-held rocket
3 launchers. Therefore I had no doubts about the reports received from the
5 General Markac asked Mr. Janic to look into Ramljane. He looked
6 into Ramljane, and he reported on Ramljane. He did act, he did take
7 measures, and you can see that through the documents that I have cited
8 for the Court.
9 Now let's look at the issue of Grubori as supposedly being notice
10 for Ramljane. Grubori took place on the 25th; Ramljane took place on the
11 26th. No one had established that what happened in Grubori on the 25th
12 or on the 26th. Let's look at the logic of what the Prosecution says was
13 supposedly notice of a crime in Grubori as evidence of failure to take
14 measures in Ramljane.
15 Now, the first time the civilian police first found out about
16 Grubori was on the 26th at 10.00 in the morning. On the 26th, as I
17 documented, in Exhibit D563, the special police were already engaged in
18 an operation for the freedom train near Ramljane. This order was issued
19 on the 25th, the day before, for Ramljane. So General Markac is supposed
20 to prevent some future conduct by someone he didn't know did anything
21 wrong, for someone -- something he barely knew anything about, which
22 happened less than 24 hours before Ramljane. That's not notice. That's
23 actually absurd.
24 Notwithstanding the fact that the witness Zganjer found no
25 evidence anywhere of any kind of a cover-up, not one civilian or criminal
1 police entity, while General Markac was in charge of the special police,
2 ever sent him anything which would have enabled him to suspend anyone.
3 I would encourage the Court, given my time, to look at one more
4 exhibit relating to measures and look at -- with the context within which
5 this -- these measures were taken, and that's D1079. General Markac took
6 measures with respect to D1078 after he was informed by the competent
7 criminal authorities that something had occurred.
8 My learned colleague Mr. Kay discussed Grubori quite a bit. The
9 only thing I would like to say about Grubori was that the Prosecution
10 completely unaddressed -- did not address the issue of Mr. Zganjer's
11 testimony, that he, as state prosecutor, found no evidence of a cover-up,
12 and that Witness 84 said: "As the criminal police didn't do their job."
13 The last thing I want to talk about with respect to Grubori is a
14 document that the -- the Prosecution calls upon as "evidence," P505
15 [Realtime transcript read in error "pay 050"], unsigned, unnumbered,
17 Now, the fact that these documents in which General Markac
18 supposedly wrote have differing versions of the events that occurred are
19 attributable to the fact that he, as a commander, is entitled to rely on
20 the information provided to him by his subordinates. That's the only way
21 a commander can operate. And I submit to you, that had General Markac
22 received something similar to what he received with respect to D1078, he
23 would have done the same thing that did he in D1078.
24 Your Honours, I would like to thank you for the opportunity to
25 provide a response. I stayed within my time and I appreciate the Court's
1 indulgence and we submit that under Rule 98 bis there is no evidence with
2 respect to General Markac's criminal liability, either 7(1), 7(3) or JCE.
3 Thank you.
4 JUDGE ORIE: Thank you, Mr. Kuzmanovic.
5 MR. KUZMANOVIC: We should know -- P505 was not accurately
6 designated in the transcript, just so you know.
7 JUDGE ORIE: Yes.
8 We will adjourn. Talking about accuracy or inaccuracy,
9 Mr. Akhavan, as you may have noticed, and as most counsel do know, we try
10 to follow you as closely as possible, you made a reference to the
11 explanation given by the Oric Chamber on the meaning of 98 bis in its new
12 formulation. You started quoting page 7857 and then you continued to --
13 and you made a reference to 7859, line 10, that's at least how it appears
14 on the transcript.
15 Now, I find a similar text and I must admit that I have not all
16 the transcripts ready here, so I took the Internet version, I find
17 something in relation to what you said in 7858, line 19, or at least it
18 keeps us sharp to find the right page and the right line.
19 But what I would like to invite to you to is -- if you look at
20 what is said approximately these pages where we find, because that
21 apparently was your argument, that the Chamber was willing to deviate
22 from the text rather than to, as it seems to me at first sight, say,
23 We're willing, we're prepared to hear some submissions if there is
24 something really without evidence not primarily to decide, then, on
25 anything smaller than a count but rather to encourage the Prosecution to
1 withdraw a similar exercise is, of course, this Chamber has encouraged
2 the Prosecution to do as well.
3 So if you find anywhere where they clearly say, Well, even on the
4 new text we feel free not to acquit on counts but even on portions of
5 counts, then I'd like to know where it find that exactly.
6 MR. AKHAVAN: If I may just briefly explain, Mr. President, we
7 will produce, if you wish, the relevant citation for the entire portion
8 of the oral decision under Rule 98 bis. My understanding is that the
9 defendant in that case declined to request partial dismissal of counts
10 but was invited to do so by the Trial Chamber. But I will confirm that
11 and produce the relevant portions of the transcript.
12 JUDGE ORIE: Mr. Misetic.
13 MR. MISETIC: Mr. President, if I can just address that point
14 briefly. It's my understanding of what happened in the Oric case that
15 the Trial Chamber subsequent to 98 bis hearing then issued an order to
16 the Defence in the Defence case that it need not address certain
17 subjects. The defendant then appealed it, and I think Mr. Akhavan --
18 well, what we are saying in terms of the relief that we seek is we're --
19 ultimately the bottom line is if there's a matter that need not be
20 addressed, even if it's partial to a count, there is no point in terms of
21 efficiency that we then mount a defence on an account -- or portions of
22 it that the Chamber feels no need to address.
23 The Oric Trial Chamber issued an order telling the Defence don't
24 address the following topics. The Defence appealed it, but what we're
25 asking for here is that if in fact the Chamber wishes to invite the
1 Defence in the Defence case, should there be a Defence case, that it need
2 not address certain matters, we would certainly invite such an approach
3 from the Chamber as well.
4 JUDGE ORIE: Yes. That is a different -- I would say
5 procedurally a different approach, and -- now the matter becomes clearer
6 to me.
7 Mr. Tieger, tomorrow, first session, one hour and a half still
8 for the Prosecution to go.
9 We will adjourn and resume tomorrow, Wednesday, the 25th of
10 March, 9.00 in the morning at Courtroom I.
11 --- Whereupon the hearing adjourned at 7.06 p.m.
12 to be reconvened on Wednesday, the 25th day of
13 March, 2009, at 9.00 a.m.