Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17835

 1                           Friday, 29 May 2009

 2                           [Markac Defence Opening Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           [The accused Markac not present]

 6                           --- Upon commencing at 9.11 a.m.

 7             JUDGE ORIE:  The Chamber apologises for the late start, which was

 8     due to practical matters.

 9             Before Mr. Mikulicic, let me ask to first call the case.

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

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

12     everyone in and around the courtroom.  This is case number IT-06-90-T,

13     the Prosecutor versus Ante Gotovina et al.

14             Thank you, Your Honours.

15             JUDGE ORIE:  Thank you, Mr. Registrar.

16             I would like to deal with a few procedural matters.  First,

17     yesterday evening, although rather late, Mr. Mikulicic, there was a

18     request by the Markac Defence whether the Chamber would grant leave for

19     Mr. Markac, for personal reasons, not to appear in court today.  The

20     Chamber has granted leave.  Therefore, Mr. Markac is not present today.

21             The parties were invited to agree on the volume and relevance of

22     the 92 ter submissions in relation to Mr. Lazarevic.  Has an agreement

23     been reached and could I hear from the parties what the agreement is.

24             MR. HEDARALY:  Yes --

25             MR. MISETIC:  Mr. President, it's our witness, let me --

Page 17836

 1             JUDGE ORIE:  Well, then let's see.  Mr. Hedaraly, you are

 2     carefully listening and ...

 3             Mr. Misetic.

 4             MR. MISETIC:  Yes.

 5             Mr. President, I believe we've agreed that the Gotovina Defence

 6     is tendering the witness statement as the 92 ter.  We are tendering

 7     excerpts of the Milosevic trial testimony which we will e-mail around to

 8     the parties in a shortened PDF file so that it's easier for the Chamber

 9     to read.  It is roughly -- roughly 30 to 40 pages of the trial testimony.

10             We have one -- one disagreement, which is our concern is that

11     with the witness taking a 92 ter attestation, we have tendered the entire

12     Milosevic transcript just so that his testimony is full and complete and

13     to the extent there is any clarification of the statement contained in

14     the Milosevic trial transcript, that that be considered, that he has made

15     those corrections in the Milosevic trial.

16             For that reason, I have offered the Office of the Prosecutor the

17     opportunity to add anything they believe in the Milosevic trial

18     transcript, which either clarifies or contradicts or in some other way

19     would change the substance of the 92 ter witness statement so that

20     because of our agreement to reduce the number of pages, it doesn't turn

21     out in cross-examination that somehow he is now being impeached with the

22     Milosevic trial transcript even though we offered to 92 ter the entire

23     transcript.

24             So the Prosecution has taken a different view of that so we have

25     not reached agreement on that point.  However, I do wish to preserve on

Page 17837

 1     the record that we offered to put whatever the Prosecution deemed

 2     necessary from the Milosevic trial transcript into the 92 ter submissions

 3     so that his entire testimony is accurate, complete, et cetera.

 4             Thank you.

 5             JUDGE ORIE:  Mr. Hedaraly.

 6             MR. HEDARALY:  Thank you, Your Honour.

 7             Yes, we talked to the Gotovina Defence and they have agreed to --

 8     I counted, it's 36 pages of the Milosevic transcript.  I won't read them

 9     in the record since Mr. Misetic offered to e-mail them around.  In

10     exchange we will withdraw our objection to the portions of the witness

11     statement to which we had objected, so at end of the day, there would be

12     the complete witness statement in evidence and 36 pages of the Milosevic

13     trial transcript.

14             With regard to the last issue raised by Mr. Misetic, in -- our

15     position, as we have explained to Mr. Misetic, is that once the witness

16     gives the attestation that his testimony in the Milosevic trial was

17     accurate and truthful, that can cover the whole transcript although only

18     excerpts of it are being tendered in evidence.  So that should obviate

19     any difficulties or any potential impeachment which may occur because of

20     his testimony in direct examination rather than the 92 ter procedure.

21             I told Mr. Misetic I did not think it was a practical problem.  I

22     did not appreciate -- perhaps I don't understand what the specific

23     problem is, but we have no problem in the attestation by the witness

24     covering the full transcript, even if they are not portions that are

25     being tendered, excerpts are being tendered through 92 ter and I think

Page 17838

 1     that way, practically speaking, we would be at the same point.

 2             JUDGE ORIE:  The attestation would then be broader than just the

 3     selected portions to be admitted into evidence but would cover all --

 4             MR. MISETIC:  Your Honour, I --

 5             JUDGE ORIE:  -- of what will be admitted and therefore --

 6             Let me just have a look.

 7             It seems that most likely if we do not say anything further about

 8     it, that everything will run smoothly; and, if not, then, of course, the

 9     Chamber will assist the parties in getting on the right track again.

10             MR. MISETIC:  Mr. President, I don't have a problem with that

11     procedure.  I just wasn't sure whether that was something the Chamber

12     would agree to.  But if it's all right with the Chamber, it's all right

13     with me.

14             JUDGE ORIE:  Well, if a witness says that, apart from the

15     portions he used in evidence, that he on other portions did speak the

16     truth, the whole truth and nothing but the truth as well, I mean, there's

17     nothing wrong with that.  I would say that it wouldn't violate anyone's

18     rights.  That's at least my -- my first reaction to the suggestion.

19             MR. MISETIC:  Then there's no problem.  Thank you.

20             JUDGE ORIE:  Then the agreement is on the record now.

21             We'll hear about which pages; 36, I do understand.

22             I move to the ... the next one, which is oral submissions,

23     Mr. Waespi, on a safe conduct requested for Witness AG-20.

24             MR. WAESPI:  Yes, the Prosecution has no objections.

25             JUDGE ORIE:  Thank you, that's on the record.  Then the Chamber

Page 17839

 1     will give its decision in due course.  It was already on the record that

 2     the other Defence teams waived their right to respond to the motion.

 3             Then having dealt with all the procedural issues, Mr. Mikulicic,

 4     are you ready to make your opening statement on behalf of the

 5     Markac Defence?

 6             MR. MIKULICIC:  I am, Your Honour.

 7             JUDGE ORIE:  Then please proceed.

 8             MR. MIKULICIC:  Thank you, Your Honour.

 9             Good morning, Your Honours, in and around the courtroom everyone.

10     Let me first apologise, myself, for the late announcement of my client's

11     request yesterday evening, but I was simply also bound by the request in

12     the very late stage, and I thank you for your consideration in that

13     matter.

14             Your Honours, with your kind permission, while giving my opening

15     statement I would rather use my native language because that way I

16     could -- I believe much better express myself on the matter.  Thank you.

17             [Interpretation] Your Honours, in the indictment it issued, the

18     ICTY Prosecution charges my client with alleged commission of the most

19     grievous crimes from the provisions of criminal legislation; namely,

20     five counts of crimes against humanity under Article 5 of the Tribunal's

21     Statute and four counts of violation of the laws or customs of war under

22     Article 3 of the Tribunal's Statute.

23             My client, along with the other co-accused, is also charged with

24     participating in the perpetration of these crimes as a member of a

25     criminal enterprise, together with the other co-accused and other

Page 17840

 1     individuals, some of whom are named by the Prosecution, and some are

 2     referenced in the indictment as other persons, both known and unknown.  I

 3     have to admit that in my 35-year-long legal career, I have never come

 4     across an indictment containing this sort of an allegation and

 5     description thereof, but I guess it is never too late.  Though,

 6     admittedly, it will be somewhat harder to prepare and argue an

 7     appropriate defence against the Prosecution case relating to cooperation

 8     between the accused and unknown persons.  However, in the further course

 9     of these proceedings, the Defence will demonstrate that such cooperation

10     simply did not exist, without attempting to identify unknown potential

11     accomplices, since, at any rate, our case is that they do not exist.

12             General Markac is a person of high moral integrity, a

13     conscientious professional, a devoted husband and father, a valuable

14     member of the community, a person of unscathed personal and professional

15     reputation without any political, religious, racial or any other

16     prejudice which would have purportedly been the catalyst and motive of

17     his alleged criminal conduct.  I firmly maintain that my client did not

18     commit any crimes and we shall prove as much during our presentation of

19     evidence before this Honourable Court.

20             The Defence will demonstrate that the allegations contained in

21     the indictment are not based on relevant and credible evidence, and that

22     the standard of reasonable doubt required in order to rule on criminal

23     responsibility has not been met in the proceedings before this

24     Honourable Chamber.

25             In the indictment, the Prosecution places all the allegations

Page 17841

 1     against the accused under the umbrella of a joint criminal enterprise.

 2     Thus, the architecture of the indictment places the Prosecution into what

 3     appears to be a privileged position since it does not have to,

 4     quote/unquote, bother proving the casual link, nexus causalis, between

 5     the committed crime and the actions of the accused.  The reason behind

 6     such a broad approach to the charging is, in the view of the Defence, a

 7     simple one; namely, lack of relevant evidence pointing to a link between

 8     the accused and the allegedly committed crimes and their alleged

 9     perpetrators.

10             A similar approach to the architecture of indictments was

11     routinely applied in the criminal jurisprudence of the former Socialist

12     Yugoslavia in the criminal prosecution of political dissidents.  An

13     indictment would be constructed in the following way.  A preamble would

14     be formulated, setting out the alleged criminal intent of the accused to

15     subvert the political values of the socialist system.  The indictment

16     would then go on to list incidents which were the alleged consequences of

17     the accused's criminal intent.

18             Naturally, with the disintegration of the former Yugoslavia the

19     criminal law and principles of this sort were abandoned.  The

20     contemporary criminal statutory and case law of the successor states of

21     the former Yugoslavia has been harmonised with the recent doctrine of

22     criminal law espoused by the worldwide community of democratic legal

23     systems.  Contemporary criminal legislation insists on the establishment

24     of the individual criminal responsibility and distances itself from any

25     presumptions of guilt or objective criminal responsibility.  This is a

Page 17842

 1     legal standard which I'm sure this court of law will apply as well.

 2             Therefore, I firmly believe that the blanket allegations

 3     presented in the indictment about the criminal enterprise and my client's

 4     membership of such an association simply do not relate to either the

 5     facts or the trends in the development of contemporary criminal statutory

 6     and case law.

 7             In presenting our Defence, we will demonstrate that it is not

 8     possible and that it is indeed completely erroneous to draw conclusions

 9     on the motives behind the actions of an accused by basing the finding on

10     the existence of mens rea solely on consequential events.  That is to

11     say, on the fact that there was indeed an increase in the incidents of

12     crimes in the relevant period and in the area covered by the indictment.

13     We will demonstrate all the efforts taken by the Croatian state

14     administration to prevent, prosecute and punish the perpetrators of these

15     crimes.

16             Your Honours, in examining individual criminal responsibility, it

17     is the view of the Defence that special attention must always be paid to

18     the historical and sociological context of the community where the

19     alleged crimes were committed.  The Defence will demonstrate that duly

20     appreciating the general background of events, the Croatian state

21     invested enormous efforts to reconstruct and restore the legal system in

22     the newly liberated territory and that these actions of the Croatian

23     authorities cannot under any circumstances be treated as actions prompted

24     and motivated by ideas in practical furtherance of the alleged criminal

25     plan, one of whose alleged participants was also General Markac.

Page 17843

 1             The Defence will demonstrate what an immense organizational and

 2     financial feat was undertaken by the Croatian state in the relevant

 3     period at a time when it had to endure unprecedented economic material

 4     damage caused by war activities on the part of the former JNA and rebel

 5     Serbs.  To illustrate the point, I will give you the 1999 figure,

 6     according to which the damage was to the tune of 236.4 billion kuna, or

 7     approximately 32 billion euro.  The Croatian state financially provided

 8     for an enormous number of displaced persons and refugees present in its

 9     territory.  Thus, in early 1992, more than 500.000 displaced persons

10     needed providing for in the free territory of the Republic of Croatia,

11     including refugees.  Their numbers subsequently increasing to as many as

12     750.000 displaced persons and refugees.

13             According to the 1991 census, the Republic of Croatia had a

14     population of roughly 4.5 million.  This figure clearly indicates the

15     share of in-flowing refugees and displaced persons in the entire

16     population of the Republic of Croatia.  All of this was happening at a

17     time when 26.5 per cent of the Croatian territory was occupied and when

18     the Republic of Croatia was investing enormous efforts to set up and

19     equip its military and police forces, despite the blockade imposed by the

20     international community on the procurement of military materiel and arms,

21     doing it all with the aim of restoring state authority in its

22     internationally recognised territory.  As a United Nations member state,

23     the Republic of Croatia was duty-bound under international law to

24     establish a state legal system in its internationally recognised state

25     territory and to secure the rule of law, public law and order, as well as

Page 17844

 1     equal living conditions for all its citizens, including the citizens of

 2     other states who happened to be on the territory of the state.

 3             The Defence will therefore demonstrate that when liberating the

 4     occupied territories, the armed forces of Republic of Croatia acted in

 5     the name and on the authority of a sovereign state with international

 6     legal personality.

 7             In the liberated areas where an anti-constitutional, quasi-state

 8     entity of the local Serb population had been established, the Republic of

 9     Croatia was establishing its constitutional legal system, the component

10     part of which was international law.  The latter includes all the rights,

11     obligations and responsibilities arising from the Croatian constitution

12     and international treaties, which the Republic of Croatia acceded to and

13     ratified.  As noted earlier, the Defence will demonstrate that the

14     Republic of Croatia honoured the principle of proportionality under

15     international law and its own constitution by reducing the use of armed

16     force to the necessary level as illustrated by the exercised restraint

17     from the use of force in the areas of the Republic of Croatia, where the

18     rebel leadership of the so-called Republic of the Serbian Krajina agreed

19     to peaceful reintegration, which was completed in late 1997.

20             The Defence will demonstrate what sort of diplomatic efforts were

21     made by the Croatian state to place the occupied territories back under

22     the jurisdiction of the Croatian state with peaceful means.  In certain

23     cases, depending on how reasonable or in touch with reality the local

24     Serb leadership was, peaceful reintegration of territories was agreed

25     upon; whereas, in other areas military and police actions had to be

Page 17845

 1     resorted to, as all negotiation efforts failed, due to the local Serb

 2     leadership's unreasonable and unrealistic position.  Moreover, the

 3     Defence will demonstrate that the Republic of Croatia tried to

 4     reintegrated the occupied territories without the use of force, despite

 5     the fact that the artillery of the so-called Republic of Serbian Krajina,

 6     almost daily, shelled Croatian towns indiscriminately, as far as the

 7     range of its artillery would reach; towns such as Osijek, Slavonski Brod,

 8     Nova Gradiska, Sisak, Karlovac, Ogulin, Gospic, Otocac, Sibenik, Zadar,

 9     Dubrovnik, including the capital itself, Zagreb.

10             Many civilians were killed.  Enormous damage was inflicted on

11     business facilities.  The Prosecution is fully familiar with these facts,

12     and I recall the Martic case which was adjudicated before this Tribunal.

13     However, despite the shelling the Croatian citizens did not leave their

14     homes in fear of indiscriminate shelling.  By way of new legislation

15     enacted by the Croatian legislative branch, as early as mid-1992, the

16     existing constitutional law on human rights and freedoms, and rights of

17     ethnic and national communities or minorities in the Republic of Croatia

18     was amended, to the effect that it now provided for the establishment of

19     two districts, Kotar with a special autonomous standing; namely, the

20     districts of Knin and Glina, where the population was predominantly Serb.

21     This way the local Serb population was, under the law, given a position

22     of substantial autonomy and self-governance within the Republic of

23     Croatia.  This initiative was not accepted by the local Serb leadership,

24     and neither, for that matter, was the Z-4 plan of the international

25     community, according to which the area of the so-called Republic of

Page 17846

 1     Serbian Krajina would have been granted substantial legal attributes of a

 2     state, as well as independence, including its own administration, flag,

 3     currency, police force, et cetera.

 4             Along these lines, the Defence will demonstrate the legal steps

 5     taken by the Croatian authorities with regard to the suspected

 6     participants in the armed rebellion of local Serbs against the Croatian

 7     state legal system.  The Defence will present the 1992 Law on Pardon

 8     exempting from criminal prosecution and the Law on Abolition which was

 9     enacted in 1995.  In accordance with these laws, the Croatian judiciary

10     could prosecute only the individuals who were suspected of having

11     committed war crimes which is an obligation arising from international

12     criminal law and is incumbent upon every state.  However, in relation to

13     all the other suspects, local Serb rebels, members of the former Yugoslav

14     People's Army or other paramilitary formations who took part in the armed

15     rebellion against the Republic of Croatia and thus committed crimes under

16     the Criminal Code of the Republic of Croatia, abolition from criminal

17     prosecution applied.

18             Similarly, the Defence will demonstrate the efforts made by the

19     Republic of Croatia to have the occupied territories economically

20     integrated into the Croatian state system.  Thus, in late 1994, an

21     economic agreement was reached with the so-called Republic of

22     Serbian Krajina in order to convince the rebel Serb authorities of the

23     need for peaceful reintegration and to avoid the use of force by the

24     Croatian armed forces.

25             The Defence will present these facts to the Honourable Chamber by

Page 17847

 1     way of numerous documents and testimonies, in order to confirm its case

 2     that there did not exist a criminal enterprise in the top echelons of the

 3     Croatian state administration, political and government structures, as

 4     alleged in the indictment, and that the accused is not criminally

 5     responsible for participation in the alleged criminal enterprise.

 6             One of the fundamental bases of the indictment is the case of the

 7     alleged orchestrated campaign to drive the Serb population out during and

 8     after Operation Storm.  It is an uncontested fact, Your Honours, that an

 9     enormous number of citizens of Serb ethnicity, most of whom resided in

10     the territory of the self-proclaimed so-called Republic of Serbian

11     Krajina, left the area, leaving their homes and properties behind.  The

12     Prosecution alleges that the exodus of the Serbs was the result of the

13     criminal conduct on the part of the Croatian authorities and the accused

14     as participants in that state policy.

15             However, that same Prosecution quoted a witness in the indictment

16     against Milan Martic - I'm referring to paragraph 85 - who stated that

17     Milan Martic himself told him back in 1991 that the Serb people had

18     expressed their readiness and wish not to live in Croatia, and that the

19     Serbs from Krajina wished to live in a common state shared with all the

20     other Serbs.  Furthermore in that same indictment, at paragraph 94, the

21     Prosecution quoted a letter sent by Milan Babic to the peace conference

22     in The Hague on the 5th of September, 1991, where he said that the

23     Serbian people of Krajina chose to build their sovereignty where other

24     Serbs from the Balkans would live as well.  Evidently this had to do with

25     the project of the Greater Serbia, of the so-called Greater Serbia, and

Page 17848

 1     not with a sovereign Croatian state.  Clearly, the Prosecution case,

 2     according to which the Croatian authorities were responsible for the

 3     departure of the Serbs from Krajina, is simply not true and does not

 4     correspond to the facts, although the Prosecution itself is evidently

 5     aware of the motives and mechanism of the departure of the Serbs, and

 6     therefore these facts could be stipulated through agreement among the

 7     parties.  In the absence of such an agreement, the Defence will

 8     demonstrate and prove at trial that the mass-scale departure of the Serb

 9     population from the temporarily occupied Croatian state territory was the

10     result of the political ideology of the Krajina authorities and that the

11     departure was meticulously prepared and organized as a political option

12     in the event of the Krajina territory being reintegrated into the state

13     territory of the Republic of Croatia.

14             We will demonstrate that plans for the evacuation of the

15     population existed as early as 1993.  Such a political option of the

16     Krajina authorities was in fact an operative elaboration of the generally

17     accepted ideology, espoused by the Serbian leadership during the rule of

18     Slobodan Milosevic, the chief operative and advocate of the Serb

19     political ideology, "all Serbs in one state."

20             The identical conduct of the Serb authorities towards their own

21     population could also be observed in the instance of the peaceful

22     reintegration of the Croatian Danube valley, the Podunavlje, the

23     reintegration of areas in and around Sarajevo, in Bosnia and Herzegovina

24     and later on, in Kosovo.  In all those situations, where either as a

25     result of actions by the international community or as a result of

Page 17849

 1     bilateral negotiations, or even military and police action, in other

 2     words, when the Serb quasi-state building entity collapsed, the ultimate

 3     result was always the organized moving out of the Serb population from

 4     the territory where the existing political option had failed, that option

 5     being the creation of a Serb political entity, either in an independent

 6     so-called state-building form or with an idea of a future integration

 7     into a Greater Serbia.  There has always been a mass moving out of the

 8     Serb population from those areas.

 9             The Defence will further show that the leadership of Krajina

10     Serbs continuously, throughout the entire period of their occupation and

11     establishment of an illegal government, indoctrinated their population

12     with claims that the Croatian government was Ustasha-like and genocidal

13     in nature, thus instilling in Krajina Serbs a sense of fear and anxiety

14     about -- about the Croatian government, and hatred which was imposed on

15     Krajina Serbs by propaganda spread by the authorities, hatred towards

16     Croats in general.

17             In such an atmosphere of fear and hatred, which was imposed on

18     Krajina Serbs by propaganda spread by their authorities, the success of

19     the military and police action launched by the Croatian government was

20     seen as a direct threat to the life and existence of individuals,

21     especially those who, during the rule of the occupying Serb authorities,

22     had committed crimes against members of the Croatian minority in Krajina.

23             In the time-period after Operation Storm, in September 1995, a

24     large number of Croats was expelled from the Republic of Bosnia and

25     Herzegovina so that the Republic of Croatia was forced to temporarily

Page 17850

 1     provide accommodations for those expelled persons in the homes of the

 2     Krajina Serbs who had abandoned them because there were -- there was no

 3     other housing, there were no other housing facilities available.

 4             The Defence will, by way of example, tell you, that, in

 5     July 1995, in the territory of the Republic of Croatia, there was a total

 6     of 385.000 expelled persons and refugees.

 7             Your Honours, an additional argument that the Defence will put

 8     forth during its case that invalidates the Prosecution case about the

 9     premeditated expulsion of the Serb population from Krajina by the

10     Croatian government, is the fact that the Serb population, which had fled

11     before and during Operation Storm, began returning to their homes as soon

12     as the action was completed, at first individually and then in an

13     organized fashion, and all of this with the consent of the Croatian

14     authorities, who were issuing the necessary Croatian papers to the

15     returnees in an organized effort.

16             The return of the Serb population into the territory of Krajina

17     is a continuous process, which cannot possibly be completed as quickly as

18     their departure from Krajina was organized and carried out.  Namely, the

19     process of return is an exceptionally complex matter, which is not solely

20     within the competence of the Croatian authorities, but is first and

21     foremost a matter of interstate agreement and coordinated joint action by

22     the Republics of Croatia, Bosnia and Herzegovina, and Serbia, in the

23     territories of which the fleeing population sought temporary refuge due

24     to war operations in the territory of the former Yugoslavia, temporary

25     refuge and, frequently, a permanent one.

Page 17851

 1             The Defence will show the efforts made by the Croatian

 2     authorities to enable and encourage the return of refugees and will show

 3     that, by the year 2000, about 245.000 refugees returned to the territory

 4     of the Republic of Croatia, of whom about 122.500 refugees were Serbs

 5     of -- of Serb ethnicity who had fled as a result of Operations Storm and

 6     Flash.  These facts that the Defence will prove to this Honourable Court

 7     will confirm the thesis that there was no intent on the part of the

 8     Croatian authorities to permanently expel citizens of Croat ethnicity --

 9     of Serb ethnicity from the Republic of Croatia, because, had that

10     Prosecution claim factually been correct, then the Croatian authorities

11     would most certainly not have enabled, through legislation and logistics,

12     the return of such a significant number of Serbs to the homes they had

13     abandoned earlier in the territory of the Republic of Croatia.

14             Your Honours, General Markac was, during the period covered by

15     the indictment, the commander of the joint forces of the special police

16     of the Republic of Croatia, of the Ministry of the Interior, which had

17     been established for the purpose of their participation in

18     Operation Storm.  The Defence will show that the role in Operation Storm

19     of the special police was strictly purpose-oriented, in accordance with

20     the particular skills and training that members of the special police had

21     received.  The role of the special police -- special forces in the

22     military operation Storm was defined by the Main Staff of the RH armed

23     forces, to whom special forces of the Ministry of the Interior were

24     subordinated, ad hoc, with the approval of and agreement between the

25     interior and defence ministers of the Republic of Croatia.  Such a

Page 17852

 1     systemic solution for the role played by the special police originated

 2     with the Commander-in-Chief of the armed forces of the Republic of

 3     Croatia, President Tudjman himself.

 4             Special forces were tasked with advancing and combat engagement

 5     through the roughest mountain terrain on Mount Velebit, from where the

 6     enemy was not expecting an attack.  The Defence will show that the

 7     special forces had the task to engage in combat activity and advance

 8     along clearly defined axes without having to establish or monitor public

 9     law and order in the territory liberated by their actions.  The Defence

10     will show that, after the previously occupied territory was liberated,

11     the Croatian authorities, in a short span of time, established their own

12     administration by establishing police administrations, stations, and

13     outposts.

14             The Defence will show that the specials - the special forces -

15     had combat tasks, and the task to advance along these pre-defined axes,

16     and that the commanders of Military Districts of the Croatian army did

17     not have any power to issue orders to special police members who received

18     their orders exclusively from the chief of the Main Staff of the Croatian

19     army, which Staff commanded Operation Storm.

20             The Defence will show that General Markac did not participate in

21     the planning of Operation Storm, the military operation Storm, within the

22     HV Main Staff and, thus, did not participate in the planning of the use

23     of the HV strategic artillery or in the identification of artillery

24     targets in the enemy's rear.  Equally, the Defence will show that

25     artillery support to special police forces along the combat axis of the

Page 17853

 1     joint forces was also ordered by the chief of the Main Staff of the

 2     Croatian army, in accordance with previously identified strategic

 3     artillery targets, and/or the artillery provided support at an ad hoc

 4     request for support from the commanders of the special police.  The use

 5     of infantry artillery that was a component of the special police against

 6     enemies points of resistance in the course of combat advancement was

 7     autonomously decided by commanders of the special police on their axis of

 8     combat advancement.

 9             The Defence will show that there were no instances of

10     disproportionate or indiscriminate use of artillery in the course of

11     combat operations or in the preparations for the execution of

12     Operation Storm.  In the course of preparations for the operation,

13     artillery was used against previously identified military targets, based

14     on intelligence, on enemy deployments, and enemy forces; and during the

15     combat operation itself, artillery fire was directed against enemy

16     resistant points, in accordance with information that gunners received

17     from scouts on the ground and/or from commanders of a particular axis of

18     attack.

19             We will demonstrate to this Honourable Court that the amount of

20     ammunition used during Operation Storm was significantly lower than the

21     artillery standards applicable in the armies, members of the NATO

22     alliance, or the standards of the former JNA, or of the armies, members

23     of the former Warsaw Pact.  The Prosecution case that the artillery fire

24     of the Croatian military and police forces was conducted indiscriminately

25     in order to intimidate the civilian population is not consistent with the

Page 17854

 1     facts and is simply not true.  The civilian population of Krajina was

 2     never the target of the military operation or of the artillery.

 3             The Defence will show during its presentation of its case that

 4     the joint forces of the special police advanced very quickly,

 5     neutralizing the enemy resistance, and that in just four days, they

 6     reached the border of the Republic of Croatia and the Republic of Bosnia

 7     and Herzegovina, which was the task given to them in the order of the

 8     chief of the Main Staff of the Republic of Croatia.

 9             In this short span of time, the joint forces of the special

10     police covered, mostly on foot, a long route through fairly rugged

11     mountain terrain using sporadically only light off-road vehicles for

12     transporting persons and equipment.  After reaching the Bosnia and

13     Herzegovina border in the region of Kulen Vakuf, specials, members of the

14     joint forces of the special police of the Republic of Croatia MUP

15     received orders from the chief of the Main Staff to withdraw to their

16     original units.

17             Following this, following their withdrawal, the specials received

18     a new task from the chief of the Main Staff to search the terrain in the

19     area of Petrova Gora, which area is beyond the geographic scope covered

20     by the indictment.  It wasn't until the 21st of August, 1995, again, on

21     orders of the chief of the Main Staff of the Croatian army, the specials

22     returned to Krajina with the task to search the terrain in order to

23     neutralize any remaining mines and explosives, enemy ammunition depots,

24     to neutralize minefields, and to find and apprehend terrorists, remaining

25     armed members of the rebel Serbs.

Page 17855

 1             The Defence will therefore prove that in the time-period

 2     following the 8th of August, up until the 21st of August, 1995, members

 3     of the joint forces of the special police were physically not present in

 4     the territory of Krajina and, therefore, could not have committed the

 5     crimes for which my client stands accused, under the theory of command

 6     responsibility.

 7             The indictment claims that throughout the period it covers, from

 8     July up until September 1995, the 30th of September, 1995, in the

 9     territory covered by the indictment, there was a state of armed conflict.

10     The Defence will show that this claim is neither factually nor legally

11     grounded so that it is not possible to charge the accused under

12     Articles 3 and 5 of the Statute of this Tribunal.

13             The Defence will demonstrate the following relevant facts.

14     Operation Storm began on the 4th of August and lasted 82 hours.  Already,

15     in the course of first two days of the operation, the Krajina military

16     and political leadership and the entire armed forces of the Republic of

17     Serbian Krajina, both military and police, withdrew, and left the

18     territory of Krajina and the Republic of Croatia and crossed into the

19     territory of Bosnia and Herzegovina and, later on, Serbia.

20             In the territory of Krajina, only small groups of local rebel

21     Serbs and volunteers remained, volunteers who had come from the territory

22     of Serbia and Bosnia and Herzegovina, and these groups went into hiding

23     in the mountains and forests and put up occasional resistance to military

24     and police forces of the Republic of Croatia by carrying out terrorist

25     attacks.  Based on this factual situation, the Defence will, firstly the

Page 17856

 1     legal foundation and prove its case that a certain time-period after the

 2     completion of Operation Storm - that is to say, after 8th of August,

 3     1995 - in the territory covered by the indictment there was no state of

 4     armed conflict, but, rather, a state of internal unrest and tension which

 5     is a factual and legal category that clearly involves a lower level of

 6     armed activities than the category of armed conflict.  Such a factual and

 7     legal situation clearly comes under the exclusive jurisdiction of

 8     Croatian courts, not under the jurisdiction of the International Criminal

 9     Court.

10             Accordingly, the Defence will prove, by invoking the sources of

11     international criminal law and uncontested customary law, that in this

12     particular case it is not possible an apply the provisions of the Statute

13     of the Tribunal, Articles 3 and 5 of the Statute, when it comes to

14     criminal responsibility of the accused, which factually pertains to the

15     crimes committed after the 8th of August, 1995, because, at that time,

16     according to the Defence, there existed a legal state of deballatio; in

17     other words, a cessation of hostilities.  Namely, the jurisprudence of

18     the international law clearly shows that the legal definition of an armed

19     conflict of that category, the category of armed conflict, requires

20     cumulatively two factual elements; namely, intensity of the conflict and

21     level of organization of the participants in the conflict.  The Defence

22     will show that, after the completion of Operation Storm, the intensity of

23     the conflict between Croatian military and police authorities and

24     elements of rebel Serbs was insignificant.

25             Similarly, the Defence will prove that following the departure of

Page 17857

 1     the entire political and military leadership of rebel Serbs from Krajina,

 2     the organizational and, thus, the command structure of the armed forces

 3     of the rebel Krajina Serbs, simply did not exist anymore.

 4             As for the charges concerning the alleged omissions of my client

 5     to prevent or punish perpetrators of crimes, the Defence will demonstrate

 6     that General Markac took every measure that a reasonable commander can

 7     take in order to obtain information on any unlawful conduct of his

 8     subordinates.  Quite the contrary.  There is no information to the effect

 9     that anybody of the international community, such as the UNCRO, UNCIVPOL,

10     HRAT, HCMM [as interpreted], or any domestic body, the basic or crime

11     police, the military police, the SIS, the Security and Information

12     Service of the Ministry of Defence, the service for the protection of the

13     constitutional orders or the military or civilian prosecutor.  In other

14     words, that any of these bodies mentioned above had ever submitted a

15     report or information to General Markac that members of the joint forces

16     of the special police, or of the Lucko Anti-Terrorist Unit, had committed

17     a criminal offence, and that General Markac did not take the necessary

18     steps, or, rather, that he omitted to perform his duties as a commander.

19     The Defence will show that General Markac never, in any way, concealed

20     unlawful -- any unlawful conduct of a member of his subordinate units,

21     nor -- nor did he influence any bodies -- investigation or jurisdiction

22     bodies.

23             The Defence will also show that General Markac, as commander of

24     the joint forces, had no duty or authority to investigate perpetrators of

25     crimes, and that this duty and authority fell exclusively within the

Page 17858

 1     jurisdiction of the crime investigation police of the Ministry of the

 2     Interior and the military police of the Ministry of Defence of the

 3     Republic of Croatia, as well as of military and civilian prosecutors.

 4     The only duty my client had was to inform of any crime possibly

 5     committed, the relevant bodies of the Croatian government, or to satisfy

 6     him, beyond any doubt, that those bodies had been informed about the

 7     unlawful conduct of a member of the joint forces of the special police,

 8     or of the anti-terrorist unit Lucko, which was a unit that, by its

 9     establishment, was assigned as part of the sector of special police of

10     the Ministry of the Interior of the Republic of Croatia.

11             Your Honours, given the legal and factual context that the

12     Defence will present, we realistically believe that the Trial Chamber

13     will be satisfied that my client is innocent and will hand down a fair

14     decision, acquitting General Markac of any guilt or responsibility.

15             [In English] I have nothing further.  Thank you.

16             JUDGE ORIE:  Thank you, Mr. Mikulicic.

17             May I, not on behalf of the Chamber, but just as a personal

18     observation, repeat some of the concern I addressed yesterday, in terms

19     of evidence to be lead on matters that had happened between 1991 and

20     1995.

21             Just to give you one example, on page 9, line 23 and following,

22     you said:  "The Defence will therefore demonstrate that when liberating

23     the occupied territories, the armed forces of the Republic of Croatia

24     acted in the name and on the authority of a sovereign state with

25     international legal personality."

Page 17859

 1             I never gained the impression until now that this was in dispute

 2     but I'm looking at the Prosecution to find out whether the Prosecution

 3     takes the view that in Operation Storm when occupied territories were

 4     militarily regained, that the armed forces of the Republic of Croatia

 5     acted not in the name or on the authority of a sovereign state or of such

 6     a state without international legal personality.

 7             I never got that impression, but am I wrong, Mr. Hedaraly?

 8             MR. HEDARALY:  No, Mr. President, you are correct.

 9             JUDGE ORIE:  Yes.

10             Mr. Mikulicic, which means that you are announcing that you will

11     lead evidence on a matter which is not in dispute.  Yesterday and today

12     we've heard whether or not the Martic case would be a source for facts to

13     be established.  I take it that the parties are aware that, if the

14     parties do not rely on Article 94, and it seems that in the Defence cases

15     the events between 1991 and 1994 gain prominence, that, of course, the

16     Chamber could consider to take judicial notice proprio motu from some of

17     what has been decided in the Martic case.

18             Again, I'm focussing now on apparently this matter.  I wouldn't

19     say that up until now that the Chamber was not aware that the destruction

20     of villages, of Croat villages, killings as described in the

21     Martic Judgement, the Chamber never got the impression that it was

22     considered to be irrelevant for the Defence case but it now apparently

23     takes a prominence which may need further attention, is what is the most

24     efficient way in establishing what facts were in this period of time,

25     irrespective of whether those facts would explain or not explain what

Page 17860

 1     happened later, whether there was any link or not, but just to start with

 2     the facts.

 3             Further, I have one question to you, Mr. Mikulicic, and I'm

 4     referring to page 13, line 21.  You said:

 5             "Although the Prosecution itself is evidently aware of the

 6     motives and mechanisms of the departure of the Serbs, and therefore these

 7     facts could be stipulated through agreement among the party, in the

 8     absence of such agreement, the Defence will demonstrate and prove at

 9     trial that the mass-scale departure of Serb population from the

10     temporarily occupied Croatian state territory was the result of the

11     political ideology of the Krajina authorities and that the departure was

12     meticulously prepared and organized as a political option, in the event

13     of the Krajina territory being reintegrated into the state territory of

14     the Republic of Croatia."

15             I'm not addressing the fact that this is one sentence which takes

16     seven lines, but it is well structured.  I'm not commenting on this being

17     an important issue in which, as I understand, the Markac Defence will

18     lead evidence, but the beginning of this sentence, "Although the

19     Prosecution itself is evidently aware of the motives and mechanisms,"

20     they refuse to agree," which sounds as if they are not acting in good

21     faith and that they just do not want to agree on something they

22     themselves know is the truth.  That is, I don't know whether you intended

23     to say or whether you just wanted to express that no agreement could be

24     reached on this point.

25             So is it bad faith or just a difference of opinion which you

Page 17861

 1     wanted to express?

 2             MR. MIKULICIC:  I believe, Your Honour, that is the second point

 3     that you mentioned, is the disagreement of the opinions, and my statement

 4     that the Prosecution is aware of that situation comes from the Martic

 5     case and from the position of the Prosecution in the Martic case.

 6             So it is more my conclusion than the product of mutual agreement

 7     that we reached between us.

 8             JUDGE ORIE:  Yes.  You say it is more than just a disagreement.

 9             MR. MIKULICIC:  Yes.

10             JUDGE ORIE:  It is also what you have taken from the OTP's

11     position in the Martic case.

12             MR. MIKULICIC:  That's correct, Your Honour.

13             JUDGE ORIE:  Thank you for this explanation.

14             MR. MISETIC:  Mr. President, I feel the need to rise because,

15     along this line, we have actually added on our 65 ter exhibit list the

16     Prosecution's pre-trial brief and final briefs from these other cases,

17     and I just wish to add along this lines that in the pre-trial phase of

18     this case, the Gotovina Defence used the Martic pre-trial and final trial

19     briefs and simply reformulated them as agreed facts because that was a

20     task that the Pre-Trial Judge had assigned us to engage in.  And we, in

21     fact, couldn't reach agreements on matters that had been alleged in the

22     briefs by the Prosecution in that case, including, to follow up on

23     Mr. Mikulicic, that the allegations in that case were that there was a

24     deliberate policy by the Martic JCE to instill fear in its own

25     population.  That was an allegation in that brief.  We've proposed it as

Page 17862

 1     an agreed fact.  We did not get agreement from -- from the Prosecution.

 2     So to that extent, and just to fully clarify the record, and in the event

 3     the Prosecution sees us -- I'm sorry, the Trial Chamber later sees us

 4     using those exhibits, that's the basis for it.

 5             JUDGE ORIE:  Yes.  It certainly is a matter to be explored.

 6     Perhaps the Trial Chamber could assist the parties so as to not

 7     unnecessarily spend time on leading evidence on matters which can be

 8     established or agreed upon or judicial notice be taken of, without

 9     hearing that evidence.  It's not because we don't want to hear the

10     evidence, but we want to come as quickly as possible to what are the

11     facts and then rather hear how these facts are interpreted, and how these

12     facts are considered by the parties on the issues, which are the core of

13     this case.

14             I make a similar observation, for example, I have not spent any

15     attention on it yet, but if you, Mr. Mikulicic, want to establish there

16     was agreement, an economic agreement reached with the RSK in 1994, well,

17     I don't know whether that is in dispute.  Of course, the meaning of that

18     may be a different thing.  But I heard a lot of things of which I hardly

19     could imagine that such an agreement, of course, I have not focussed on

20     it yet, but either it exists or doesn't exist, it has been signed, it has

21     not been signed.  It's -- unless there's any special issue about this

22     agreement, but if it has been concluded, then it would be an easy thing,

23     I think, to bring this to the attention, and to make the Chamber consider

24     this factual element in what is an element in a story totally different,

25     perhaps for you, as it is for the Prosecution.  But as a fact, I cannot

Page 17863

 1     imagine that it would be difficult to establish and that we would have

 2     to -- I mean, parties can jointly or from the bar table without any

 3     objections from the Prosecution, it could be tendered and say, Okay, we

 4     know that such agreement existed and it contained this, this, and this.

 5             These are just brief observations on my part, mainly aiming at

 6     trying to make the presentation of the Defence case as efficient as

 7     possible and allowing the Chamber to focus on the issues which really are

 8     in dispute, and to find other ways of informing the Chamber about matters

 9     which are of a factual nature and are not much disputed.

10                           [Trial Chamber and legal officer confer]

11             MR. HEDARALY:  Mr. President, it's Courtroom I at 9.00 on

12     Tuesday, June 2nd.

13             JUDGE ORIE:  Just checking whether that was correct or not, and

14     you certainly understood my call for efficient use of time in this

15     courtroom.  I would also check whether this appears in my agenda as it

16     should appear.

17             You're perfectly right, Mr. Hedaraly.  If there are no further

18     procedural matters to be raised, we will adjourn, and we will resume on

19     Tuesday, the 2nd of June, 9.00, Courtroom I.

20                            --- Whereupon the hearing adjourned at 10.41 a.m.,

21                           to be reconvened on Tuesday, the 2nd day of June,

22                           2009, at 9.00 a.m.