Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17472

 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.

Page 17473

 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]

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Page 17474











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Page 17478

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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

Page 17479

 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

Page 17480

 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

Page 17481

 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 can

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

18     trial.

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

24     absurd.

25             If I may, just for the sake of the transcript, indicate that at

Page 17482

 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

Page 17483

 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

Page 17484

 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

20     Croatia."  That is the Prosecution's star witness.

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

Page 17485

 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

Page 17486

 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

 8     deportation."

 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

22     submissions.

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

Page 17487

 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

17     dismissed.

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.

Page 17488

 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,

Page 17489

 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

Page 17490

 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.

Page 17491

 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

Page 17492

 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 --

Page 17493

 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 --

Page 17494

 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

Page 17495

 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

 9     appropriate.

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

Page 17496

 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

 5     further.

 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

Page 17497

 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.

Page 17498

 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.  Again, not described by

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 --

Page 17499

 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

23     proportionality.

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

Page 17500

 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

Page 17501

 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, which is D1258, and also in General Mrksic's

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

Page 17502

 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

Page 17503

 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 cable that was sent shortly after

17     Operation Storm, 14 August 1995, which notes:

18             "Although Knin was reportedly heavily shelled in the early hours

19     of hostilities, few buildings and residential areas showed signs of shell

20     damage."

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

Page 17504

 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

Page 17505

 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

Page 17506

 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

20     theory.

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

Page 17507

 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, where the Appeals Chamber found that the

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

25     documents.

Page 17508

 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

Page 17509

 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

Page 17510

 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

Page 17511

 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

10     Croatia.

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

Page 17512

 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

Page 17513

 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

Page 17514

 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

Page 17515

 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

 6     thing.

 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

12     himself.

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 to

24     establish coordination, to avoid accidents in future of internationals

25     having their freedom of movement restricted.  That indicates, again, no

Page 17516

 1     effective control, because if he was in control, he could have contacted

 2     the civil police in Split himself.

 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

20     says:

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

Page 17517

 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

 4     upon.

 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.

Page 17518

 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.

Page 17519

 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.

Page 17520

 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

Page 17521

 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

Page 17522

 1     witnesses.

 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

Page 17523

 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,

Page 17524

 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

14     civilians.

15             The system in operation contradicts the Prosecution case in

16     theory.

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

Page 17525

 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

18     time.

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

Page 17526

 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 would be liable for destruction

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.

Page 17527

 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

14     deaths.

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

Page 17528

 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

 7     killed.

 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)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25                           [Private session]

Page 17529

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

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

Page 17530

 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

 6     time.

 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.

Page 17531

 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

17     you.

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

Page 17532

 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

Page 17533

 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

15     operation."

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

Page 17534

 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, Knin, Benkovac, Obrovac, and Drnis, and out

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

22     secret."

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?

Page 17535

 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

Page 17536

 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,

Page 17537

 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."

Page 17538

 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 or Gospic; there is no evidence that the special police

25     operated in any way on a territorial basis, other than having an axis of

Page 17539

 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.  On the second page, significantly it

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

Page 17540

 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

15     junction.

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,

Page 17541

 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 on the morning of the 8th.  I cite

 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

Page 17542

 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, along with rocket artillery

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 letter from Mr. Branislav Bole

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."

Page 17543

 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

Page 17544

 1     6.00 p.m., HV troops came to Donji Lapac from the direction of Udbina,

 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., I," meaning Janic, "spoke to Colonel Brajkovic

 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

Page 17545

 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

Page 17546

 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

 7     them.

 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 after

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

Page 17547

 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

23     prosecutor.

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

Page 17548

 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.

Page 17549

 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:

Page 17550

 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

 4     commanders."

 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

Page 17551

 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,

16     unstamped.

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

Page 17552

 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

Page 17553

 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

Page 17554

 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.