1 Wednesday, 25 March 2009
2 [Rule 98 bis]
3 [Open session]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE ORIE: Good morning to everyone in the courtroom and around
6 the courtroom.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, the
10 Prosecutor versus Ante Gotovina et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Mr. Margetts, I see that you will be the first one to address the
14 MR. MARGETTS: Yes, thank you, Mr. President.
15 JUDGE ORIE: Please proceed.
16 MR. MARGETTS: Yes, now we've taken care of that detail.
17 Thank you, Mr. President, Your Honours. We hope to be as brief
18 as possible this morning, and we'll be attempting to avoid resubmissions
19 or engaging in the weighing of evidence in a manner that is not intended
20 by Rule 98 bis but instead, by pointing to particular points that have
21 been made by the Defence during the course of their presentations and
22 presenting some clarification of the evidence or law that has been
24 I will address the reply to the Prosecution submissions made by
25 the Defence for Ivan Cermak. Ms. Mahindaratne will follow me, and she
1 will be addressing the reply to the Prosecution's submissions of the
2 Defence for Mladen Markac. And Mr. Russo and Ms. Gustafson will follow
3 and address the submissions of the Defence for Ante Gotovina.
4 Mr. President, Your Honours, Mr. Kay commenced his submissions
5 yesterday by referring to documents that demonstrate that General Cermak
6 received orders from the chief of the Main Staff, Zvonimir Cervenko, and
7 reported to General Cervenko. Mr. Kay stated, in what has become a
8 familiar phrase from the Cermak Defence, that the order was provided to
9 General Cermak for information. Orders issued by General Cermak and to
10 General Cermak are not for information. They are not suggestions or
11 requests; they are what they say they are. They are orders. They are
12 provided for implementation, not information.
13 I refer Your Honours to the order D561 that was the subject of
14 the Cermak Defence submissions. This order states that the commands of
15 the Military Districts and the command of the Knin garrison "shall
16 prepare reports," detailing areas that need to be searched and areas that
17 have been searched.
18 Paragraph 4 of the order, D561, states that the commands of the
19 Military Districts and the command of the Knin garrison are responsible
20 for the implementation of this order. The order is addressed to
21 General Cermak in his capacity as a commander for implementation. It is
22 not sent to him for information.
23 General Cermak provided a report to General Cervenko in response
24 to this order. That's Exhibit P1219. In the course of his submissions,
25 my learned friend Mr. Kay read one sentence of this report and then
1 asserted that General Cermak did not respond in the fullest way. The
2 full text of General Cermak's response is as follows. He states:
3 "The Split Military District Command and Knin garrison are in
4 constant coordination. The intelligence assessment regarding this order
5 was made by the chief of the intelligence department of Split Military
6 District Command. If we were to submit the same, I would consider it a
7 repetition of work."
8 In other words, having satisfied himself that the chief of the
9 intelligence service had provided a full report, he didn't provide a
10 second report. Again, this report to General Cervenko is revealing of
11 General Cermak's true position. It reveals that he is in constant
12 contact with General Ante Gotovina.
13 In his 2004 interview, General Cermak confirmed this, stating
14 that there is nothing that he knows that General Gotovina doesn't also
15 know. He also confirms in his 1998 interview - that's at page 15 - that
16 two intelligence operatives were stationed in his garrison building. In
17 other words, as seen in this report, General Cermak was able to obtain
18 full information from the intelligence services and be sure that the
19 higher level in the chain of command - well, the highest level below the
20 Supreme Commander, the chief of the Main Staff - was fully informed of
21 events on the ground.
22 Mr. Kay went on in his submission to state: "The fact that no
23 report was filed by him actually indicates he had no effective control."
24 As I have just taken some time detailing, a report was filed, and
25 that report revealed that essential and highly probative information that
1 I have just detailed. The report demonstrated that General Cermak
2 operated at the highest echelons of the Croatian army.
3 Mr. Kay addressed Article 52 of exhibit --
4 JUDGE ORIE: Mr. Margetts, since you apparently have dealt with
5 D - what was it? - 561, I sense that there is a misunderstanding in the
6 words "for information."
7 I understood Mr. Kay saying that the -- what was called an order
8 was not for any operational activity but was just seeking information,
9 whereas when you are talking about "for information," I understand that
10 you are saying it was sent just to inform him instead of seeking
12 There seems to be a -- a -- I'm not going into the merits of --
13 of what you said and what Mr. Kay said. But it seems that you are
14 talking about different matters. I just put this on the record. I see
15 Mr. Kay is confirming this. Mr. Margetts, just that it may be clear that
16 the Chamber is, of course, not assisted by two parties talking about
17 different things.
18 MR. MARGETTS: Yes, yes, yes, Mr. President. That --
19 JUDGE ORIE: But now that we understand each other -- and I fully
20 appreciated what you said after that, which shows that there still is
21 quite some disagreement. But here seems to be a misunderstanding of each
22 other's words.
23 MR. MARGETTS: Yes, Mr. President. Thank you for that
24 clarification. I do see that the fact was that General Cermak was
25 seeking very specific information, very specific information --
1 JUDGE ORIE: Now you're repeating what you said. I think it is
2 clear. Yes.
3 MR. MARGETTS: Thank you, Mr. President.
4 JUDGE ORIE: Please proceed.
5 MR. MARGETTS: Mr. Kay addressed Article 52 of Exhibit D32. He
6 submitted that the reference to discipline only concerns rules, and he
7 bases this on his examination of the witness Theunens. And he cited to
8 pages 12881 to 12884 of the testimony of that witness.
9 We reviewed those pages. We don't see any support for the
10 position of the Cermak Defence. The evidence of the witness Theunens
11 supports the proposition that setting rules may be a means of ensuring
12 discipline but certainly not the only method.
13 I refer Your Honours to pages 13077 to 13078 of Mr. Theunens'
14 evidence. He refers to the fact that the garrison commander can use the
15 military police in order to maintain or restore order and discipline.
16 That in itself is a more expansive interpretation of those rules than the
17 Cermak Defence suggests.
18 I also refer Your Honours to the report of Mr. Theunens. That's
19 P1113, and to pages 252 and 254. In that he refers to the authority of
20 General Cermak in relation to the military police and civilian police.
21 In their submissions on Friday, and again yesterday, the Defence
22 stressed on a number of occasions that General Cermak was not an
23 operational commander. Now, there is not an answer to the case against
24 him. It is not part of the Prosecution case that he had command of
25 operations, in the sense that that's referred to.
1 Moving on to another issue addressed by the Cermak Defence, and
2 that is the reference to Exhibit P390. That's the letter that
3 General Cermak sent to General Forand on the 11th of August, 1995
4 granting freedom of movement for UN vehicles. When my learned friend
5 Mr. Kay addressed that, he left a question unanswered. He said this
6 letter: "Its delivered to troops in zone of separation, whatever that
8 In his 1998 interview, General Cermak is very clear about what
9 that means. At pages 59 to 60, he explains that that reference means the
10 units in the operative zone.
11 I'd now like to move to the issue of subordination of the
12 military police. Mr. Kay referred to the witness Dzolic. In our
13 submission, the statement the witness gave and repeated on a number of
14 occasions, both inside court and outside court, that he was under the
15 command of General Cermak is reliable, is corroborated, and is the truth
16 of the matter. We submit that that should be accepted by the
17 Trial Chamber. Mr. Kay has emphasised that the witness deviated from
18 that statement toward the end of cross-examination. However, as we
19 observed in our submissions on Monday, the witness quickly confirmed that
20 he acted in accordance with General Cermak's directions during
21 re-examination. Very briefly, we summarize the history of the witness's
22 evidence as follows.
23 First, he provided the statement that he was under the command of
24 General Cermak in May 2004.
25 Second, he confirmed this statement in August 2008, and the
1 Trial Chamber may recall the August 2008 statement. It contained a
2 number of corrections to his 2004 statement, including a correction to
3 paragraph 37 wherein he said he was under the command of General Cermak.
4 He did not correct that sentence.
5 Third, in what was a prolonged and detailed 92 ter procedure, he
6 confirmed the statement again, under oath.
7 Fourth, during examination, he volunteer that he was "subordinate
8 to" General Cermak in daily tasks. And I refer the Trial Chamber to the
9 transcript reference 8953.
10 Fifth, it was only at the end of cross-examination that he agreed
11 to the suggestion that this statement regarding being subordinated to
12 General Cermak was -- General Cermak was incorrect. That's the
13 transcript reference 9037. And Your Honours may recall that this was
14 after counsel Mr. Kay had on two occasions mistakenly misinterpreted
15 orders, using the word "ask" instead of "order" in his questions and he
16 had been corrected by the Presiding Judge on both those occasions.
17 That's transcript reference 9023, and 9024.
18 And, finally the matter that we raised on Monday, and that is the
19 Presiding Judge, Judge Orie, elicited the fundamental truth from the
20 witness at pages transcript reference 9113 to 9115. The witness could
21 recall only one instance when he did not carry out a request, that was
22 when it was impossible.
23 The Cermak also addressed in their reply to the Prosecution's
24 submissions the issue of the civilian police and in particular the
25 evidence of specific witnesses.
1 Mr. President, it may be better if we move into private session
2 for the next portion of the submission.
3 JUDGE ORIE: We move into private session.
4 [Private session]
11 [Open session]
12 THE REGISTRAR: Your Honours, we're back in open session.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 Please proceed, Mr. Margetts.
15 MR. MARGETTS: Yes. Mr. President, Your Honours, I will address
16 the topic of Grubori. I won't go into the details. I will merely
17 respond to the specific references that Mr. Kay made to this matter.
18 First, Mr. Kay stated, referring to the interview between the
19 witness Lyntton and General Cermak on the 26th of August, 1995, he
21 "It is clear from the interviews he had been in contact, or had
22 been contacted by, the special police who had given information to him."
23 The following evidence demonstrates that Cermak was in contact
24 with the special police and also indicates the type of information they
25 must have discussed.
1 First, General Cermak telephoned General Markac and discussed the
2 Grubori incident on the 25th of August, 1995. That's the day of the
3 attack. That's the 2004 Markac interview and also the 2004 Cermak
4 interview, at page 74 in the Cermak interview; page 70 in the Markac
6 Second, in the interview, the transcript of interview being P504,
7 Cermak states that "during the operation, there was an exchange of fire."
8 And he continues:
9 "One Serbian terrorist was arrested and one body was found, and
10 we believe it was the body of a Croatian army soldier because he had his
11 hand tied with a wire behind his back."
12 The Trial Chamber has received evidence that in the morning of
13 the 26th, that's the same morning that General Cermak was conducting the
14 interview with Lyntton, that a similar false account of events was
15 dictated to Celic by the Deputy Commander of the special police, Sacic.
16 That false account is set out in the Exhibit P563. Both versions refer
17 to armed resistance and the killing of one person and the arrest of
19 The third matter I would like to refer to is a matter that
20 appears on the face of the interview transcript. It's clear that
21 General Cermak did not present accurate information in relation to the
22 victims of the Grubori incident. But it is also clear that he had very
23 precise information in relation to evidence that may identify the
24 perpetrators. At page 2 of the interview, Lyntton mistakenly stated that
25 10 Croatian police vehicles could be seen near the incident.
1 Approximately half a page on, Cermak refers to the comments of Lyntton
2 and says: "The gentleman put the question to me today, he said, 'Today I
3 saw six police cars outside of this village.'"
4 The question is, who told Cermak that there were six police cars
5 there? He discussed this matter with Markac, and he was accurate about
6 this critical identification evidence. The video, P837, shot by Lyntton
7 demonstrates that there were six vehicles present. We raise that matter
8 because we say that that is probative of the focus of General Cermak at
9 this time.
10 The second point Mr. Kay raised was he said: "We can take it
11 from the progress of the interview that it was clear at this stage we did
12 not know that -- that Cermak did not know about deaths until the
13 interviewer himself said two civilians had been killed." Of course,
14 that's not correct. Cermak had volunteered the false information about
15 the body of the Croatian army soldiers before Lyntton mentioned deaths.
16 Third, Mr. Kay stated that from the terms of the interview you
17 can quite clearly see that General Cermak had said that the civil police
18 had been to the village and were unable to see anything. Well, in
19 relation to that, first we know that the civilian police had not been to
20 the village at this time, contrary to Cermak's statement. Cermak said,
21 "Yesterday, the civilian police was in the village." That's not correct.
22 Second [sic], Witness 84 had received information from Romassev
23 at 10.00 a.m.
24 interview, and the civilian police at this stage already knew that two
25 civilians had been killed and three civilians had disappeared. That's
1 Exhibit P1041.
2 The fourth matter is the reference that the Cermak Defence made
3 to the report of Lieutenant Dondo. Mr. Kay stated that the first full
4 report was provided to the civilian police when Dondo returned and at the
5 time that Dondo caused the entry in the Knin log-book at 8.00. That's
6 the entry in D57. Again, there are a couple of points here.
10 Dondo's report went to Cermak. It didn't go to the civilian
11 police. It reported that 20 houses and many farm buildings were set
12 ablaze and referred to the bodies of five civilians. There is no mention
13 in this report of any evidence of combat activities. Despite this,
14 General Cermak's liaison officer caused a false entry to be placed in the
16 MR. KUZMANOVIC: Your Honour, I'm sorry to interrupt. Page 12,
17 line 1, we need a redaction.
18 JUDGE ORIE: Mr. Registrar, would you please prepare the
20 Please proceed, Mr. Margetts.
21 MR. MARGETTS: Thank you, Mr. President.
22 The diaries, P501 and P503, make it clear that the police
23 expected an on-site investigation would take place until the time of the
24 morning meeting with General Cermak on the 27th of August, 1995.
25 Again, Mr. President, if I could move into private session.
1 JUDGE ORIE: We move into private session.
2 [Private session]
21 [Open session]
22 THE REGISTRAR: Your Honours, we're back in open session.
23 JUDGE ORIE: Thank you, Mr. Registrar.
24 MR. MARGETTS: Finally, Mr. President, Your Honours, Mr. Kay
25 suggested that General Cermak's conversation with the minister of the
1 interior, Ivan Jarnjak, on the morning of the 27th August 1995, after the
2 meeting in Cermak's office, demonstrated that Cermak was not part of the
3 joint criminal enterprise. In our submission, it demonstrates the exact
4 opposite. Cermak assured Jarnjak that the police chief is doing a good
5 job. He did that at the precise time that the police chief ceased to
6 pursue the investigation. The contemporaneous documents demonstrate
7 that. Diary entry P501, for the 27th of August, 1995. After the meeting
8 with Cermak, it records that sanitation teams will proceed to Grubori.
9 Thank you, Mr. President. Thank you, Your Honours. That
10 concludes my submissions.
11 JUDGE ORIE: Thank you, Mr. Margetts.
12 Ms. Mahindaratne, if you would adopt the speed of speech of
13 Mr. Margetts which would express the unity of the Prosecution that ...
14 MS. MAHINDARATNE: Yes, Mr. President, I will do that.
15 Good morning, Your Honours. I wish to address some of the points
16 raised by Mr. Kuzmanovic. Yesterday Mr. Kuzmanovic referred to the
17 reference by the Prosecution to looting in the Plavno valley and Orlic,
18 and this is at page 64 of yesterday's transcript, Your Honours. We don't
19 have the final version so the page numbers are as per the draft.
20 Mr. Kuzmanovic stated that he could not find Exhibit P1249 and
21 that he had searched e-court several times. Now he could not find that
22 because he was searching for the wrong number, because if you peruse the
23 transcript that is at T17413, Mr. Hedaraly really referred to P2149, and
24 not P1249. And that's why Mr. Kuzmanovic couldn't find it.
25 Thereafter, Mr. Kuzmanovic also complained that the next document
1 cited by Mr. Hedaraly, P267, does not contain a reference to either
2 Orlic, or the special police. Now, again, on the same transcript page,
3 Mr. Hedaraly's submission is there, one can find it. Mr. Hedaraly never
4 mentioned special police in relation to either of these two documents.
5 He only referred to looting but uniformed personnel. There was never
6 reference to special police, and the reference to Orlic was to looting in
7 the village of Biskupija
8 that the particular village is in the municipality of Orlic
9 just a case of misunderstanding on the part of Mr. Kuzmanovic.
10 The third issue is recorded at page 71, Mr. Kuzmanovic submits as
11 follows: "There is no witness, no document, no exhibit that states that
12 General Markac was ever in Donji Lapac during this time-frame."
13 Now, in the Prosecution's submissions, we referred to the
14 testimony of witness Turkalj, who states at P1151 at page 44 to 45, that
15 Mr. Markac entered Donji Lapac with all forces, and that he was present
16 in Donji Lapac. The exhibit that was also referred to in our
17 submissions, that's D555, records at page 47, and I will give the
18 specific entry number, 332, of General Markac being present in
19 Donji Lapac at 2120 hours on 7th August.
20 The fourth point is Mr. Kuzmanovic submissions at page 72, where
21 he submitted that there is no evidence that mop-up operations were not --
22 that they were -- mop-up operations were ordered by General Markac. Now,
23 in our submissions we referred to four exhibits. That is P1153, page 6,
24 and there let me just refer to the particular paragraph where it records:
25 "After the completion of the Operation Storm, in accordance with
1 the orders issued by special minister Mr. Mladen Markac, the unit
2 participated, as part of the joint special police forces in the cleansing
3 of the liberated territories in the region of Petrova Gora, Gracac,
4 Korenica, Vrlika and Svilaja."
5 One of the other exhibits referred to, that is a Defence document
6 tendered by the Markac Defence, D562, that is a report on tasks performed
7 for 25th -- 21st August, 1995, sent to General Cervenko records right at
8 the top of the document:
9 "Pursuant to the order of assistant minister Colonel General
10 Mladen Markac between 600 hours and 1600 hours, joint special police
11 forces carried out the investigation of the general region of Gracac,
12 Udbina, and Sveti Rok, with the purpose to discover and destroy broken-up
13 sabotage enemy groups and to discover materiel."
14 We also referred to P574 and P575; I will not read those but
15 Mr. Kuzmanovic could find those references right at the top of the
17 Now contrary to Mr. Kuzmanovic's assertions, and this is again on
18 the same page, page 72, to the effect that the Prosecution has not cited
19 to a single eye-witness that any member of the special police was
20 committing serious crimes, such as murder, wide-scale burning and
21 looting, we indeed cited to the testimony of witness Vanderostyne, who
22 not only saw special police looting in Gracac but also provided the
23 Trial Chamber with photographs of those scenes. Further, we also cited
24 to the (redacted)
6 [Private session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session.
18 JUDGE ORIE: Thank you, Mr. Registrar.
19 MS. MAHINDARATNE: A sixth point is -- Mr. President and
20 Your Honours, and this is it at page 74 of yesterday's transcripts.
21 Mr. Kuzmanovic claims that the special police did not maintain
22 check-points, which is again incorrect. There is evidence that special
23 police maintained check-points. I refer Court to the testimony of
24 Witness Steenbergen, at transcript 5471, line 6 to 15, as well as
25 Exhibit P1237, page 6.
1 Mr. Kuzmanovic also claims that the special police was -- that
2 the Prosecution claims that the special police was never given
3 instructions on rules of war and then he went on to cite witness Janic's
4 testimony on special police receiving instructions on international
5 humanitarian laws in their training courses.
6 Now, it was never the position that the special police was not
7 trained in rules of war. In fact, the submission was that in the face of
8 the notice received of crimes committed by special police, General Markac
9 failed to issue a specific order prohibiting crimes, and in the face of
10 serious crimes being committed by members of the special police in the
11 course of mop-up operations, he still failed to mention any cautions or
12 an order to prevent crimes in his orders for mop-up operations. And the
13 Prosecution referred to his orders for mop-up operations P556 and P557,
14 issued in September, after events such as Grubori and Ramljane where
15 he -- the orders do not contain any reference to -- references to the
16 need to prevent crimes.
17 The Prosecution further submits that generic instructions on
18 international humanitarian law provided to an armed force in the course
19 of training or prior to an operation, do not suffice as reasonable
20 measures to prevent crime when a commander is on receipt of notice of
21 crimes committed by his subordinates.
22 In relation to the incident in Ramljane, Mr. Kuzmanovic submits
23 that General Markac took action and then that he had the matter
24 investigated. In saying so, Mr. Kuzmanovic completely ignores the
25 testimony of witnesses Celic and Turkalj. And I don't intend to go into
1 that testimony in detail. But suffice it to say that that testimony
2 establishes that soon after houses were burnt in Ramljane in the course
3 of the operation on 26th August, General Markac was present in the area,
4 and interrogated one of the suspected perpetrators, namely, Franjo Drljo.
5 And in the course of the exchange between General Markac and Drljo, Drljo
6 admitted to General Markac that he had indeed burnt the houses.
7 Now, notwithstanding that information, General Markac went on to
8 issue P579, where he records that the houses were burnt in the course of
9 combat. And following that a further series of false reports were
10 issued, P767 through 771, which Mr. Kuzmanovic tried to depict as
11 General Markac's efforts to investigate the matter when, in fact, those
12 reports were his efforts to cover up the crime not investigate.
13 Just a simple comparison of those report, General Markac report
14 P579 and the other four reports, P767 through 771, will demonstrate this
15 fact further because there are certain glaring contradictions within
16 these reports which reflects the cover-up.
17 Now, in relation to that matter, Mr. Kuzmanovic further submits
18 that General Markac could not have prevented the crimes on
19 26th August because he did not have any notice of the crimes committed in
20 Grubori prior to the Lucko Unit being deployed in the operation on
21 26th August. Now that submission completely ignores again the evidence
22 that has been adduced in relation to the matter.
23 The evidence is that on 25th August, and this has been referred
24 to by the Defence as well as Mr. Margetts, General Cermak informed
25 General Markac that some incident had occurred in Grubori where civilians
1 were killed. And pursuant to that, General Markac, on 26th morning,
2 before the Lucko Unit was deployed in the second operation in the Promina
3 hills area, he summoned witness Celic to his office and ordered him to
4 write a further report, another report, on the operation on 25th August.
5 Now, witness Celic testified that in the course -- soon after
6 that meeting with General Markac, the Chief of Staff of special police
7 Sacic dictated a new report to him which was P563. Now, in P563, it is
8 reported that the Lucko Unit had met with resistance in the village of
9 Grubori and civilians had been killed and houses had been -- had caught
10 fire in the course of combat. This reflects that before the unit left
11 for the operation on 26th August, that is the morning -- this is on the
12 26th morning, General Markac knew that an incident had occurred in
13 Grubori on the 25th, where civilians were killed and houses had been --
14 had caught fire in the course of the operation where the Lucko Unit was
15 involved, and he also knew that the Lucko Unit was to be deployed in the
16 second operation on 26th August. But instead of withdrawing the unit, he
17 was involved in creating false reports in the morning of 26th August. So
18 in that, he failed to prevent the crimes which occurred in Ramljane.
19 Finally, Mr. Kuzmanovic refers to Exhibit D1078 as an example of
20 General Markac taking measures against members of the special police for
21 crimes committed. Now, I have to be honest, we are a bit puzzled by the
22 fact that the Defence, in fact, tendered this particular exhibit into
23 evidence or, for that matter, why Mr. Kuzmanovic considered this
24 particular document as reflecting General Markac taking measures against
25 crime. I will refer to that document -- in fact, D1078 does reflect
1 General Markac's ability or him -- General Markac exercising his
2 disciplinary authority over members of special police. However, the
3 crime referred to, in relation to which he is taking action, has no
4 relevance whatsoever to this case. Let me just read what it is. By
5 D1078 General Markac suspends a member of the special police and the
6 offence is, he records this:
7 "Since there is reasonable suspicion that the above named had
8 committed a criminal act of mediation of prostitution," from Article 205,
9 and the sections are referred to, "an unlawful deprivation of freedom,"
10 from Article 46, "damaging several female citizens of Republic of
12 Now, I -- we -- we don't see how the fact that General Markac
13 took action in relation to this offence --
14 MR. KUZMANOVIC: Maybe if we read the next sentence we'll get the
16 JUDGE ORIE: Mr. Kuzmanovic, it -- parties each are blaming each
17 other for taking text out of context. That is not a reason in itself to
19 Please proceed, Ms. Mahindaratne.
20 MS. MAHINDARATNE: The Prosecution submits, Mr. President, that
21 while the document indeed reflects General Markac's ability to exercise
22 disciplinary authority over members of the special police, it certainly
23 does not demonstrate him taking reasonable measures to punish members of
24 the special police for crimes which are the subject matter of this
1 In conclusion, I submit that the submissions made by Defence in
2 support of its 98 bis motion is without merit, and we move for denial of
3 the motion.
4 Thank you, Mr. President.
5 JUDGE ORIE: Ms. Mahindaratne, you referred to P1237, page 6, as
6 a demonstration of check-points being manned. Could you guide me to the
7 line in that document, and I must admit that P1237 is, as far as
8 numbering of pages is concerned, is not a simple one.
9 MS. MAHINDARATNE: No, Mr. President --
10 JUDGE ORIE: Because, for example on the page 3 in the e-court
11 numbering, has on top of it, 15, and at the bottom, 1 out of 1, which is
12 at least three different systems of numbering.
13 So 6, for me, is e-court 6. That's the sixth out of seven pages
14 of which the second page is an empty page in translation. Could you
15 guide me to the relevant line where it says that the check-points --
16 MS. MAHINDARATNE: Yes, Mr. President. It is page 6 on e-court
17 and that is if you follow the e-court pagination at the top right-hand
18 corner. And --
19 JUDGE ORIE: I see in e-court the sixth out of seven pages of
20 P1237, starting with: "In those 30 days we didn't have any ..."
21 That's the page I'm looking at at this moment.
22 MS. MAHINDARATNE: If I could have just a minute, Mr. President.
23 JUDGE ORIE: Yes. Perhaps otherwise you will resolve the matter.
24 MS. MAHINDARATNE: I could do that so that I will not waste --
25 JUDGE ORIE: Yes.
1 MS. MAHINDARATNE: Yes.
2 JUDGE ORIE: Mr. Russo, you're the next in line. Please proceed.
3 MR. RUSSO: Thank you, Mr. President. Good morning,
4 Your Honours.
5 My comments will be brief as the Defence responses regarding
6 unlawful attack have added nothing to their unsustainable submissions
7 under 98 bis. Nevertheless, I must correct my colleagues on a number of
8 errors of fact and law, and I will begin with General Markac.
9 First, it appears that the General Markac believes that forward
10 observers are not needed in artillery operations as long as someone has a
11 map. I will simply refer Your Honours to the testimony of
12 Lieutenant-Colonel Konings at Exhibit P1259, section 8(f), where he
13 indicates that one should not fire on targets in a civilian-populated
14 area without having the target under the observation of a forward
15 observer. That is, of course, unless the target is well beyond the
16 damage -- the distance in which collateral damage could occur.
17 Now, the special police chief of artillery, Mr. Turkalj,
18 attempted to explain away the lack of forward observers, as
19 Mr. Kuzmanovic did yesterday, by stating that commanders on the ground
20 were the ones guiding the artillery fire. However, commanders on the
21 ground could do no better than forward observers themselves under the
22 circumstances, and that is, they could not see over the mountainous
23 terrain. And the fact remains that when the special police began firing
24 artillery into the town of Gracac
25 the special police could see in to Gracac in order to correct the fire in
1 that town, and no map can cure that fundamental defect or replace the
2 need for eyes on target when firing into a civilian-populated area.
3 With regard to the only alleged military target in Gracac,
4 General Markac relies on the testimony of UNMO witness Herman Steenbergen
5 for the proposition that the "main artillery impacts in Gracac"
6 concentrated on the main junction and that is, of course, the cross-roads
7 on the edge of the town.
8 Aside from the fact that firing on an empty cross-roads delivers
9 no appreciable military advantage, the evidence of Mr. Steenbergen in
10 this respect takes nothing away from the fact that, in addition to
11 shelling the main junction, special police also shelled civilian
12 residential areas, in fact, where Mr. Steenbergen himself lived, as well
13 as where other UNMOs in the town lived, none of which were located near
14 the main junction. And I will refer the Trial Chamber to Exhibits P516,
15 paragraphs 24 to 25; P537; 538; and transcript pages 5498 to 5500.
16 Moving now to General Gotovina's response and the repeated
17 insistence that there is some requirement to prove civilian death or
18 injury in this case, the Kordic Appeals Chamber was explicit on the point
19 that there is no such requirement. Any intellectually honest reading of
20 the Kordic Appeals judgement precludes the argument now advanced by
21 General Gotovina, and this Trial Chamber should not accept his misreading
22 or mis-characterization of that judgement. Moreover, General Gotovina's
23 argument that the Galic judgement should supplant Kordic on this issue
24 overlooks or disregards the fact that Galic was charged with a violation
25 of Article 3. Now whether General Gotovina chooses to accept reality or
1 not is irrelevant. He is not charged with unlawful attack as a violation
2 of Article 3 but as a persecutory act under Article 5, and the law
3 imposes no requirement of civilian death or injury.
4 Nevertheless, the Prosecution notes that General Gotovina did not
5 challenge, and indeed could not have challenged, the actual evidence
6 cited by the Prosecution, showing that approximately 50 to 75 civilians
7 were killed, and approximately 30 to 40 civilians were injured by the
8 unlawful artillery attack on Knin. Instead, without citation to any
9 authority, they argue that the dead or injured must be "named."
10 Your Honours, there has never been a requirement to specifically
11 name victims of an unlawful attack, much less to do so in a case where
12 civilian death or injury is not even a requirement. The fact that
13 General Gotovina killed and injured civilians is evidence of the unlawful
14 attack itself.
15 I will now turn to a few arguments of fact made by
16 General Gotovina.
17 He relies heavily on Exhibit D956, which is the Main Staff
18 directive, and argues that this contemplates the use of artillery against
19 Knin at a time prior to the Brioni meeting. What General Gotovina fails
20 to recognise is that the Prosecution agrees with him, at least on the
21 proposition that this directive sheds great light on the significance of
22 the Brioni meeting, because there is a difference and a very significant
23 difference between the targeting language in the Main Staff directive
24 before the Brioni meeting, and the targeting language which appears in
25 General Gotovina's order following the Brioni meeting. Specifically,
1 General Gotovina's order to put entire towns under artillery fire is
2 conspicuously absent from the Main Staff directive. The directive
3 contains no mention of putting entire towns under artillery fire and does
4 not even mention the civilian-populated towns of Obrovac, or Drvar or
6 It is only after the Brioni meeting, after General Gotovina,
7 General Markac, and others, plan to seize the opportunity to use
8 artillery to trigger the panic-stricken flight of Serb civilians, that
9 General Gotovina's order to put entire towns under artillery fire
10 suddenly appears in HV orders. The Main Staff directive proves the
11 Prosecution's position that the Brioni meeting changed the plan for
12 artillery use into a means of forcibly expelling the Serb civilian
14 Incidentally, to address General Gotovina's continued insistence
15 that the inclusion of Drvar in his order to put -- towns under artillery
16 fire is somehow inconsistent with an intent to drive out Serb civilians
17 to clear the area for Croat, I refer the Trial Chamber to Exhibit D656,
18 which is General Gotovina's order appointing a military governor for
19 Drvar in order to put an end to the burning and looting in that town,
20 because Drvar was "an area designated for the resettling of Croats."
21 Now to the use of MBRLs in Knin. General Gotovina misrepresents
22 the exchange between the Presiding Judge and witness Anttila at
23 pages 2687 to 2688, arguing that the Presiding Judge's questions
24 demonstrated that the MBRLs found by Mr. Anttila were in fact fired by
25 the ARSK from Strmica. I will simply invite the Trial Chamber to read
1 that exchange where it will find no reference to the ARSK firing a rocket
2 or the rocket being fired from Strmica.
3 Another misrepresentation came when General Gotovina recounted
4 the testimony of Marko Rajcic regarding the use of MBRLs, suggesting that
5 Rajcic denied firing MBRLs at Milan Martic's "headquarters." That was
6 not the testimony of Mr. Rajcic. Mr. Rajcic testified that MBRLS were
7 not fired at the apartment complex in which Milan Martic lived, not where
8 he worked. Again, Your Honour, Mr. Rajcic admitted that using MBRLs
9 against that apartment complex would violate the rules of distinction and
10 proportionality, because of the extreme inaccuracy of MBRLs and the
11 likely effect on the buildings around the target. Again, that can be
12 found at transcript pages 16592 to 16594. In that same exchange,
13 however, Mr. Rajcic also admitted that using MBRLs against targets --
14 pardon me, he admitted to uses MBRLs against targets which are surrounded
15 by residential and civilian buildings in downtown Knin.
16 The facts which General Gotovina cannot escape and which he
17 repeatedly seeks to minimise are, 1, that his chief of artillery admitted
18 that MBRLs are indiscriminate weapons when fired at targets in close
19 proximity to civilian-populated areas; and 2, that his chief of artillery
20 admitted in fact to using those indiscriminate weapons against alleged
21 targets in close proximity to civilian-populated areas in Knin.
22 Your Honours, this admission alone, suffices to defeat the
23 Gotovina's Defence 98 bis arguments regarding unlawful attack.
24 Thank you.
25 JUDGE ORIE: Thank you, Mr. Russo.
1 Ms. Gustafson.
2 MS. GUSTAFSON: Thank you, Your Honour.
3 I would first just like to briefly respond to the erroneous
4 assertion by the Gotovina Defence the relevant standard for General
5 Gotovina's mens rea under Article 7(3) is whether he was aware of the
6 "substantial likelihood that crimes will be committed."
7 The authority the Defence cited for that proposition was
8 paragraphs 344 to 348 of the Blaskic Appeals judgement. Those
9 paragraphs clearly address the mens rea standard for ordering, under
10 Article 7(1). Those paragraphs have nothing to do with command
11 responsibility and there is no authority for the proposition that
12 Article 7(3) requires an accused to be aware of a substantial likelihood
13 of crimes. The Prosecution articulated the correct legal standard, as it
14 was recently set out in the Strugar Appeals judgement.
15 The Gotovina Defence also claimed that the Prosecution was unable
16 to rebut their assertion that after 18 August there is no further
17 evidence of any information going to the Split Military District Command,
18 that General Gotovina's orders were ineffective or that any units in the
19 Split Military District were engaging in criminal activity on the
20 territory of the Republic of Croatia
21 Your Honours, that claim is irrelevant to this case for two
22 reasons. First, it is premised on an incorrect understanding of the law;
23 and second, it is contradicted by the facts.
24 First, built into this claim is a presumption that a commander
25 whose duty to prevent and to punish crimes has been triggered by his
1 knowledge that his subordinates are engaged in ongoing criminal conduct
2 can simply issue a bald order to stop that conduct, satisfy his duty to
3 prevent crimes, and then only if further crimes are explicitly brought to
4 his attention is his duty to prevent or punish once again triggered.
5 That is not the case. The duty to prevent in such circumstances
6 requires a commander to take measures to ensure his orders are
7 implemented, and that would include the duty to obtain information on the
8 implementation of those orders.
9 THE INTERPRETER: Interpreters would kindly like to ask for all
10 the microphones to be switched off.
11 MS. GUSTAFSON: And this is particularly the case where a
12 commander knows that similar orders he has issued have not been followed.
13 In that regard, on the 18th of August, General Gotovina was directly
14 notified by Colonel Fuzul and the military police that his last order
15 issued two days earlier that it was "forbidden to burn down houses" was
16 not being followed. At page 115 of P71, Colonel Fuzul reports
17 destruction of property in all areas. The military police report the
18 burning of houses and killing of cattle is being continued.
19 The claim that General Gotovina had from that point on satisfied
20 his duty to prevent further crimes by the mere absence of additional
21 explicit reports that none of his previous orders were being followed is
22 totally unsupported by the law of command responsibility. Had
23 General Gotovina taken the absolute minimal step that would be required
24 at this stage to obtain further information on the implementation of his
25 orders, he would have found ample evidence that they were not being
2 But in any event, the evidence shows that General Gotovina was
3 directly confronted with that fact, at least twice after the
4 18th of August. And on both occasions responded by justifying the crimes
5 of rightful revenge. On the 5th of September, General Forand confronted
6 General Gotovina with the fact that looting and burning was still
7 occurring "all over the sector."
8 General Gotovina acknowledged that fact, and gave the "now
9 familiar justification for revenge in response to Serb actions in 1991."
10 That's P333, paragraph 8; and P383.
11 Then, on the 19th of September, ECMM representatives met with
12 General Gotovina and asked him about the ongoing looting, arson and
13 harassment. In the context of the report this discussion is clearly
14 about crimes in Croatia
15 the ECMM discussed the involvement of military personnel.
16 Again, General Gotovina did not deny the crimes. Instead,
17 excusing them on the basis that "he regards it as a human feeling to hate
18 an enemy who has burned, looted and expelled one's family." That is P895
19 and transcript page 14929.
20 Yesterday the Gotovina Defence asked you to take a simple
21 straightforward view of the evidence. The straightforward evidence in
22 this case is that General Gotovina knew that his subordinates had
23 committed and were committing crimes, such as looting and burning, on a
24 massive scale. He issued orders to his subordinates to stop those
25 crimes; he knew that those crimes were not stopping and that his orders
1 were not being followed; yet he took no steps to ensure the
2 implementation of those orders. And when he was directly confronted with
3 the continuing crimes of his subordinates, his response was that these
4 were justified acts of revenge.
5 The Trial Chamber does not have to adopt a "convoluted conspiracy
6 theory" or "twist the facts" to conclude from this evidence that
7 General Gotovina encouraged or condoned the crimes of his subordinates by
8 issuing orders to stop those crimes that he did not implement and had no
9 intention of implementing or that he failed to take the necessary and
10 reasonable measures to prevent or punish those crimes.
11 Finally, Your Honours, we would like to briefly respond to the
12 Gotovina Defence's characterization of our references to
13 President Tudjman's views on multi-ethnic states as obsessive and the
14 suggestion that we rely exclusively on those views to establish
15 General Gotovina's discriminatory intent.
16 Firstly, President Tudjman's views on multi-ethnic states are
17 neither the sole nor even the primary evidence of the accused's
18 discriminatory intent towards Serbs. The record is replete with such
19 evidence. In the case of General Gotovina, the evidence that he ordered
20 an indiscriminate artillery attack on an almost exclusively Serb
21 population or that he selectively failed to prevent or punish crimes
22 committed against Serbs come to mind.
23 However, President Tudjman's views on multi-ethnic states are
24 certainly relevant to that assessment as well as to this case more
25 generally. The evidence recited by Mr. Tieger in this connection was
1 hardly limited to Tudjman's academic or theoretical perspective on
2 multi-ethnic states. It was about Tudjman and others' concrete views of
3 Serbs in Croatia
4 considered undesirable, that Tudjman and others wanted them gone, that
5 once Serbs were removed from Croatia
6 not come back, and that President Tudjman did not hide those views and
7 spoke with pride and satisfaction at what had been accomplished by
8 getting Serbs out of Croatia
9 Even if those views were limited to President Tudjman and not
10 those around him, as the evidence indicated, they would be highly
11 significant to this case. President Tudjman was not some abstract
12 isolated political figure. He was the hands-on Supreme Commander who
13 tasked and appointed the accused. He led the Brioni meeting. His views
14 animated that meeting. And those present, including Generals Gotovina
15 and Markac, were receptive to and accepted those views and implemented
16 the tasks they were assigned at that meeting. More generally, as
17 demonstrated in the presidential transcripts, for example, the "not even
18 10 per cent" reference, and as confirmed by Ambassador Galbraith, it was
19 Tudjman's views that set Croatian state policy and informed the conduct
20 at issue in this case.
21 Your Honours, that concludes our submissions today. For all of
22 the reasons adduced during the course of our submissions this week, the
23 98 bis motion should be denied.
24 Thank you.
25 JUDGE ORIE: Thank you, Ms. Gustafson.
1 Ms. Mahindaratne, any line reference on page 6?
2 MS. MAHINDARATNE: Yes, Mr. President. It is P1237, and I did
3 make a mistake in citing the page number, Mr. President. It is page 5.
4 To be precise, it is paragraph 3 and if you -- in terms of the page
5 numbering at the bottom of the page, it's the -- it's page 3 of 5. It's
6 the paragraph starting with: "UNCRO commander was presented" --
7 JUDGE ORIE: Yes, I will read it. Yes, and then I -- BPP, is
8 that a --
9 MS. MAHINDARATNE: That is a barrier check-point, Mr. President.
10 That is the -- the Defence will not dispute that BPP stands for barrier
12 JUDGE ORIE: Yes. And then it's followed by the words "to
13 protect the UN forces."
14 MS. MAHINDARATNE: That's correct, Mr. President.
15 JUDGE ORIE: Yes, thank you.
16 You see wrong sources keep the Chamber sharp and it's appreciated
17 that now and then you check whether we are precise enough to follow
18 you --
19 MS. MAHINDARATNE: I apologise for citing the wrong page.
20 JUDGE ORIE: Yes.
21 MR. KAY: Your Honour, I said in my address to you yesterday
22 there was a missing exhibit number. The transcript page was page 53,
23 line 2. The document was P363, page 5. It's a letter within a Forand
24 cable. So it is slightly confusing. It doesn't stand alone as a -- as
25 an exhibit.
1 JUDGE ORIE: Yes. Where you said, "I'm sorry I can't give the
2 exhibit number. It's on the record now. Thank you for clarifying this.
3 MR. KAY: Yes.
4 JUDGE ORIE: Any other matter? Not an invitation to restart
5 argument but to helpfully assist the Chamber in resolving puzzles.
6 MR. KEHOE: Yes. On the resolving puzzles issue, Mr. President,
7 yesterday with regard to the Court's inquiry concerning the 98 bis
8 decision by the Oric Chamber and exactly what transpired in that case, of
9 course, there was not a dismissal of the count by the Trial Chamber but
10 one of an invitation by the Defence not to address a particular murder in
11 one of the accounts. It was somewhat of a different procedural
12 discussion that took place, but it was not a dismissal of a count per se.
13 That was subsequently appealed. While there is some degree of clarity on
14 that by the Appellate Chamber, it really is not of tremendous assistance
15 at this point. I would only say that --
16 JUDGE ORIE: Just assistance would -- even if it is not
18 MR. KEHOE: I just wanted to clarify the point, Judge.
19 JUDGE ORIE: No, it is clear and I think reference was made by
20 Mr. Misetic already yesterday about the appeal lodged against what was
21 the outcome, whereas Mr. Akhavan, of course, referred mainly to the
22 explanation of the character of the 98 bis procedures prior to the
23 decision that was delivered at the 8th of June, but we have sufficient
24 links to fully [Overlapping speakers] ...
25 MR. KEHOE: If -- I just have one other point. With regard to
1 what the actual laws on this score, of course, no Appellate Chamber has
2 entertained this or discussed it in any fashion. If the Chamber is so
3 inclined to dismiss a count or a portion of a count and the Court could
4 put that into particular order or deny that, we certainly in the interim
5 could certify that question and find out what the actual position --
6 JUDGE ORIE: Mr. Kehoe, I earlier said that I did not invite to
7 continue argument.
8 MR. KEHOE: I understand.
9 JUDGE ORIE: And that still stands.
10 MR. KEHOE: With regard to a completely different subject, and
11 this has to do with the 189 killings on the clarification schedule, there
12 has been, Your Honour, two opinions by Your Honour on that -- by the
13 Chamber on that issue, the clarification schedule, as well as an
14 Appellate Chamber. If it has not been clear prior to that time we would
15 like to formally request, without giving particular names, what of the
16 374 listed between the indictment and the clarification schedule fall
17 within the parameters of the 50 to 75 allegedly killed by shelling.
18 I think at this point as we move into a Defence case, the Defence
19 is entitled to that type of information so we can meet it, as opposed to
20 some amorphous claim that 50 to 75 individuals were killed. We are not
21 asking for names. We are simply asking for who in this list of 374 names
22 falls into the position alleged by the Prosecution of these individuals
23 that were killed by shelling.
24 JUDGE ORIE: Yes.
25 Mr. Russo.
1 MR. RUSSO: Mr. President, I'm not sure -- apparently I didn't
2 make myself clear. We are not alleging that these approximately 50 to 75
3 dead support the murder counts in the case. They're simply, as I
4 indicated, evidence of the unlawful attack itself. And there's, as I
5 indicated, no basis in law for identifying in any fashion the identities
6 of the victims killed by unlawful shelling.
7 MR. KEHOE: Mr. President, that response is yet more perplexing
8 because in the clarification schedule those individuals are listed as
9 killed. The Prosecution has taken the position that those support the
10 murder count. And during the argument made by Mr. Russo, he also said --
11 JUDGE ORIE: Mr. Kehoe.
12 MR. KEHOE: Yes.
13 JUDGE ORIE: I have a very practical solution.
14 MR. KEHOE: Yes, Mr. President.
15 JUDGE ORIE: We are now slowly moving from a response by the
16 Prosecution to the submissions made on the 98 bis applications. We -- it
17 was not my intention at this moment to start other matters. I asked
18 whether there were simple clarifications such as mistakes in page numbers
19 or anything else. If there is any need to further discuss matters which
20 are not directly related to the 98 bis submissions, we could consider to
21 give such an opportunity if there is need to do this at this moment. I
22 have also another procedural matter which is reading the reasons for
23 protective measures for Witness 82.
24 Are there any other matters? I do understand that you,
25 Mr. Kehoe, you would like to -- it is not entirely clear whether you
1 wanted the Chamber to issue an order to -- in this respect or just to
2 invite the Prosecution. But whatever it is, I see that that's a point
3 you would like to be discussed at this moment.
4 Is there any other procedural matter the parties would like to
5 discuss? Because then we could perhaps have a very short session after
6 the break, in which I could read the reasons, in which urgent matters,
7 which cannot wait and cannot be dealt with by written submissions could
8 be briefly discussed.
9 Is there any matter, Gotovina Defence? Cermak Defence? Markac
10 Defence? Nothing. Prosecution.
11 Then, the issue you just raised, Mr. Kehoe, have you discussed
12 the matter with Mr. Russo?
13 MR. KEHOE: I have not, Mr. President. I will take the break to
14 do that.
15 JUDGE ORIE: Yes. If that results in no further submissions to
16 be made I would then read now the decision -- let's do it the following
18 You discuss the matter with Mr. Russo. It is not a matter which,
19 as you said, the -- if the Defence case is to start soon, if there will
20 be any Defence case then we are entitled to know, et cetera.
21 So a short written submission in that respect clearly setting out
22 what you expect the Chamber to do, in addition to what Mr. Russo will
23 already agree to during your discussions during a very, very, very long
24 break, that, in my view, would be the right way to proceed.
25 [Trial Chamber confers]
1 JUDGE ORIE: I will read the -- I will now deliver the reasons by
2 the Chamber for its decision on -- the decision of the 26th of February,
3 2009, granting trial-related protective measures for Witness 82. The
4 decisions can be found at transcript pages 16739 through 16743.
5 On the 29th of January, 2009, the Prosecution applied for
6 trial-related protective measures of pseudonym, and face and voice
7 distortion for Witness 82. The Markac Defence responded on the
8 4th of February, 2009, requesting that the Chamber deny the motion.
9 On the 12th of February, 2009, the Cermak Defence joined the
10 Markac response, adding its own submissions, and the Gotovina Defence
11 also responded, requesting the Chamber to deny the motion.
12 According to Rule 75 of the Tribunal's Rules of Procedure and
13 Evidence, a Chamber may order appropriate measures for the privacy and
14 protection of witnesses, provided that the measures are consistent with
15 the rights of the accused. As the Chamber held in its reasons for the
16 first protective measures decision in this case, which can be found at
17 transcript pages 2609 through 2611, the party seeking protective measures
18 for a witness must demonstrate an objectively grounded risk to the
19 security or welfare of the witness or the witness's family, should it
20 become known that the witness has given evidence before this Tribunal.
21 In this same decision, the Chamber further held that the mere expression
22 of fear by a person is insufficient to justify granting protective
24 Witness 82 is a Croatian citizen. He was a soldier in the
25 Croatian army and served during Operation Storm. He currently resides in
2 testimony of Witness 82 would concern alleged burning and looting
3 perpetrated by HV soldiers and special police during Operation Storm.
4 The witness was concerned that his testimony could antagonise people in
6 lives, particularly concerned that his testimony could antagonise - and
7 I'm asking special attention for the line to follow to interpreters and
8 transcriber - that his testimony could antagonise people living in close
9 proximity to the witness and his family, including former colleagues,
10 some of whom might potentially be a subject of his testimony.
11 For these reasons, the Chamber found that the Prosecution had
12 demonstrated an objectively grounded risk to the security of Witness 82
13 and his family, should it become known that he had given evidence before
14 this Tribunal.
15 The Chamber, therefore, granted the Prosecution's application for
16 the trial-related protective measures of pseudonym, and face and voice
18 Following the Chamber's decision to grant Witness 82 the
19 protective measures of pseudonym, and face and voice distortion, the
20 Markac Defence requested that for practical purposes, for practical
21 reasons all of the testimony of Witness 82 instead be delivered in closed
22 session, to which the Prosecution agreed. The Markac Defence asserted
23 that the information to be elicited during cross-examination of the
24 witness would lead to his identity being revealed. The Chamber accepted
25 that information revealed during cross-examination of Witness 82 could
1 lead to the identity of the witness being disclosed, and also took into
2 consideration that there was a joint request for closed-session
3 testimony. For the aforementioned reasons, the Chamber granted
4 closed-session testimony as a protective measure and retained the measure
5 of a pseudonym for Witness 82.
6 And this concludes the Chamber's reason for the decision granting
7 protective measures for Witness 82.
8 The Chamber will deliver its decision on the 98 bis application
9 by the Defence in due course. Only after such a decision has been given
10 we will know whether there is a Defence case to be expected. Of course,
11 still the Defence should decide after the 98 bis decision whether to
12 mount a Defence. Therefore, we will adjourn sine die, but the Chamber
13 reminds the parties that the provisional scheduling as in the order
14 recently delivered by the Chamber stands as for -- in the situation that
15 the 98 bis application would be denied.
16 We adjourn, sine die.
17 --- Whereupon the hearing adjourned at 10.47 a.m.
18 sine die.