Tribunal Criminal Tribunal for the Former Yugoslavia

Page 29381

 1                           Wednesday, 1 September 2010

 2                           [Open session]

 3                           [Prosecution Rebuttal]

 4                           [The accused entered court]

 5                           --- Upon commencing at 10.07 a.m.

 6             JUDGE ORIE:  Good morning to everyone in and around the

 7     courtroom.

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

 9             THE REGISTRAR:  Yes, Your Honour.  Good morning, Your Honours.

10     Good morning to everyone in and around the courtroom.  This is case

11     number IT-06-90-T, the Prosecutor versus Gotovina et al.  Thank you,

12     Your Honours.

13             JUDGE ORIE:  Thank you, Mr. Registrar.

14             There were a few minor matters which we have to address.

15     Mr. Misetic was there something you would like to put on the record.

16             MR. MISETIC:  Yes, Mr. President we were asked to clarify from

17     our argument at draft transcript page 8, lines 7 to 9, concerning the

18     footnote references to General Jones's cross-examination.  Our position

19     is that the Prosecution's case on necessary and reasonable measures

20     through trial is as outlined in paragraph 605 of our brief and then the

21     specific portions of that which were put to General Jones are at

22     footnotes 1048, 1050 and 1051.  And the other correction is at draft

23     transcript page 9, lines 11 to 14, I had misspoken as to the elements of

24     command responsibility that need to be proven beyond a reasonable doubt.

25     Those elements are at paragraph 609 of our brief and it is our position

Page 29382

 1     that each of the elements must be proven beyond a reasonable doubt.

 2             Thank you, Mr. President.

 3             JUDGE ORIE:  Thank you.

 4             Then, Mr. Tieger, some mistakes to be corrected for the

 5     Prosecution.

 6             MR. TIEGER:  Yes, Your Honour, thank you.

 7             We'd like to make one correction to the record from the

 8     submissions on Monday and that would be the reference at transcript

 9     page 29, 118, line 5, and that's to Exhibit P1142.  Which should in fact

10     be a reference to Exhibit P1141.

11             JUDGE ORIE:  Thank you for that correction.

12             Then I would like to put on the record that we had a delayed

13     start today due to the non-functioning of LiveNote on our computers.  The

14     Chamber considered it's wiser, especially since closing argument is

15     important, not to start just with records but not accessible for us to

16     make any annotations.  That's the reason why we had a late start.

17             And there a few matters, and I take it that the phosphoric shells

18     will find their way through argument today.

19             Mr. Tieger, to the extent I have not been clear, I intended -- I

20     felt that yesterday you -- no, the day before yesterday, that there was

21     insufficient time to make a general closing observation and you'll have

22     an opportunity to and take whenever you have some -- need some -- an

23     extra five or ten minutes for that, you have an opportunity to do that

24     today.

25             MR. TIEGER:  I appreciate that, Your Honour.  I don't, at this

Page 29383

 1     point, intend to -- I wanted to concentrate on the rebuttal primarily,

 2     and --

 3             JUDGE ORIE:  I leave it to you.

 4             MR. TIEGER:  I appreciate that, but I wanted to express my

 5     gratitude to the Court for that opportunity.

 6             JUDGE ORIE:  Yes.  Then, Mr. Kay, I do understand that you

 7     distributed a list of footnotes to the other parties.  Has it been sent

 8     to the Chamber already or ...

 9             MR. KAY:  Not to the Chamber.  To the other parties first and

10     then when we have their agreement, we would then send it to the Chamber,

11     with Your Honours' leave.

12             JUDGE ORIE:  Yes, the other parties are invited to look at that

13     rather quickly so that the Chamber has access to the list of footnotes,

14     or give an unlimited consent already at this very moment.

15             MR. KAY:  Thank you.

16             JUDGE ORIE:  Finally, a feature not found in our Rules but, at

17     the same time, not uncommon in this Tribunal is to give the accused an

18     opportunity to briefly address the Court at the end of the hearings.  No

19     applications are made for such brief statements.  These are usually

20     unsworn statements and very much in line with, I would say, the civil law

21     tradition of the last word for the accused.  No applications have been

22     made but if the accused would wish to apply for such an opportunity, the

23     Chamber would be sympathetic to granting it.

24             That's what I have on my agenda at this moment.

25             Mr. Tieger, is the Prosecution ready to present its rebuttal

Page 29384

 1     final argument?

 2             MR. TIEGER:  Yes, Mr. President.  Thank you.

 3             And, Mr. President, perhaps we can begin with a matter that the

 4     Court raised and that's the issue of the phosphoric shells.  The Court is

 5     aware of the context in which this arose.  That was a claim by the

 6     Gotovina Defence asserting that it was incorrect to assert that

 7     General Gotovina took steps to conceal his subordinates' crimes at

 8     Grahovo by ordering report through a messenger that Glamoc and Grahovo

 9     were shelled, citing in particular Exhibit D1980 and the Mladic diary at

10     the 2nd of August.  I wanted to address that matter initially,

11     Your Honour.

12             The report that General Gotovina ordered was false, both in the

13     narrow sense and in the broader sense.  In the narrow sense, let's look

14     at the two exhibits upon which the Defence relies.  D1980 refers to

15     phosphorous shells fired on the "woods at Staretina" on July 27th, and in

16     that connection I would like to direct your attention to the map, place

17     it on the screen.  That's a map that's cropped from P2417.  And as you

18     can see at the bottom right, circled is Glamoc; the circle to the far

19     left is Grahovo; and the circle to the top left is Drvar.  The oval is

20     the general area of the Staretina mountains and by way of -- I'm going to

21     indicate, Your Honour, by way of scale, this is a map that's taken from

22     two maps.  The larger blocks to the right are approximately -- indicate

23     about 4 kilometres horizontally and vertically, and the ones to the left

24     about 2 kilometres.  In any event, as you can see, the Staretina

25     mountains and the Staretina woods are some distance away and calculated

Page 29385

 1     about 9 kilometres from the town of Glamoc.  Grahovo, of course, is quite

 2     far away.  And it is clear that no shells that were hitting the Staretina

 3     woods would have had an impact on Grahovo or Glamoc.

 4             As far as the Mladic diary is concerned, that's an entry of the

 5     2nd of August:

 6             "The enemy burned the villages on the approaches to Glamoc and

 7     Grahovo and yesterday they started burning Grahovo.  They are burning

 8     some of the villages from Grahovo to Drvar with incendiary artillery

 9     ammunition."

10             Now as the Court will recall, the Split Military District forces

11     had already occupied Grahovo on 28th of July, and it was clearly not

12     shelling its own units in Grahovo.  In any event, this postdates the

13     period of time when the entire Grahovo was burning, as indicated by the

14     Split Military District diary.

15             So apart from the interesting information that villages are being

16     burned from Grahovo to Drvar, that is not relevant to the issue of the

17     report, and it's in that sense, that narrow sense, that the report that

18     was issued is false.  But more importantly, Your Honour, even if it

19     technically been true in some respect, it was false in this sense.  It

20     was intended, clearly, to cover up what was really happening in Grahovo

21     and what had really happened in Grahovo which was that most of the units,

22     all but two, were involved in the destruction of Grahovo.

23             And what happened, as the Court is aware from the evidence, is

24     that at a Split Military District working meeting, the political

25     department suggested that journalists not be permitted to come to Grahovo

Page 29386

 1     and that cameras be controlled, and General Gotovina ordered to report

 2     through a messenger that Glamoc and Grahovo were shelled by phosphoric

 3     shells, clearly to explain the destruction, should journalists somehow

 4     manage to become aware of that.  That was cited by --

 5             JUDGE ORIE:  The context is clear.  What I was mainly seeking is

 6     further details as to the evidence whether phosphoric shells were used or

 7     not, which, of course, is irrelevant for is whether the report is false

 8     or not.  You have explained that by drawing our attention to the fact

 9     that what there is in evidence about the use of phosphoric shells could

10     not reasonably be interpreted as being related to Grahovo and Glamoc, and

11     apart from that, that the other evidence rather goes in a different

12     direction, because in order to establish that something is not there

13     means that we need that all -- that there are no positive indications

14     neither negative indications.

15             That's clear.  Thank you for that answer.

16             Please proceed.

17             MR. TIEGER:  Thank you, Your Honour.

18             I'd like to turn next to some comments yesterday by the

19     Markac Defence with respect to Mr. Janic.  That would be found at

20     transcript 122, 13, through 123, 19.  And the Markac Defence indicated

21     that Mr. Janic was never asked about Gracac and, in addition, indicated

22     that -- well, I'll turn to that in a moment.

23             The assertion was that he was never asked.  In that respect, I

24     would note that this is, in fact, contradicted by Mr. Janic's testimony

25     at T6355 through 56.  That's explicitly cited in the Prosecution's brief

Page 29387

 1     at footnote 2108.  Mr. Janic said in response to a question about Gracac:

 2             "I know that near the town there were some military depots that

 3     were legitimate targets but the town itself wasn't and there was no

 4     fighting inside it, and there were no artillery strikes targeting the

 5     town."

 6             In addition, the Markac Defence stated that Mr. Russo had ignored

 7     other alleged key evidence about the shelling of Gracac, including

 8     Exhibit P102, that's an UNMO report, which they stated:

 9             "Reports that 15 shells fell in the area of Gracac on

10     August 4th."

11             In fact what the UNMO report states - and that should be on the

12     screen now - is that the shells fell not in the area of Gracac but in

13     Gracac town.  And more importantly, Your Honour, these 15 rounds did not

14     represent the sum total of shells fired at the town but were recorded

15     between 2.00 p.m. and 5.00 p.m. on the afternoon of the 4th of August.

16     That's nine hours after the shelling attack on Gracac began.

17             So contrary to the assertions of the Markac Defence, this exhibit

18     does not contradict but is completely consistent with the evidence of

19     witnesses such as UNMO team leader Steenbergen and local resident Vida

20     Gacesa that tens of shells fell -- landed in Gracac in the morning of the

21     4th of August.

22             Let me turn next to an issue raised by the Gotovina Defence and

23     the Markac Defence, both of whom suggested that the unlawfulness of the

24     artillery attack was belied by General Forand and his presentation in

25     1996 asserting that the use of HV artillery was "excellent."  And that

Page 29388

 1     was found at transcript pages 32, and 123 through 24, respectively.

 2             I think it's fair to say that based on his testimony that

 3     General Forand could not be pleased to hear that he is being invoked on

 4     behalf of the alleged legality of this shelling.  The suggestion that he

 5     believed, either at the time he observed the shelling or later, that it

 6     was lawful is contradicted by his testimony before this Chamber, and that

 7     would be found at P331, P333, and transcript 4114 through 5, by his

 8     statements at the time of the shelling, P83, P341, and in fact by his

 9     statements in the very same presentation that the Defence relies upon.

10     That's P401, in which he described "heavy barrages on towns and

11     villages."  That's at page 22.  That the HV shelled UN observation posts

12     in an effort to stop their reporting; page 28 and page 30.  And that

13     there was heavy shelling of Knin on the 5th of August, when Knin "was

14     undefended and virtually empty."

15             And finally, as General Forand explained in his statement at

16     P330, page 4:

17             "Their use of artillery was excellent when being used against

18     military targets.  However, the artillery was to a large extent used

19     against villages and towns like Knin and not against targets in the zone

20     of separation.  This shelling created mass panic among the population and

21     forced it to flee."

22             A related matter, Your Honour, is the assertion by the

23     Gotovina Defence that the illegality of shelling was inconsistent

24     contemporaneous observations and that to believe the Prosecution's case

25     you would have to believe, for example, that the eyes of the ARSK

Page 29389

 1     intelligence on the 4th of August were deceiving them.  The

 2     Gotovina Defence, at transcript 29188, said that D389, in that document,

 3     the ARSK reported that the artillery attack was concentrated against the

 4     northern barracks, the ARSK command, the Tvik factory, the railway

 5     station, and others.  What was not read from this document was the

 6     remainder, which indicates that the fire was directed at "the Kaplara

 7     barracks, the Tvik factory, the railway junction, residential buildings

 8     at the foot of the Knin fortress and elsewhere."

 9             Yesterday, Your Honour, the Gotovina Defence asserted that

10     because the Prosecution has not produced photographs of Knin in rubble or

11     evidence of massive deaths due to shelling, it has not established

12     unlawful shelling.  Indeed, the Gotovina Defence, at T58, accused the

13     Prosecution of failing to produce evidence of an image it conjured up:

14     "Stalingrad in the Second World War."

15             Now this grossly misrepresented this threshold by which a

16     shelling attack is considered to be without grounds in international law,

17     and I would remind the Court that at the very commencement of this case,

18     the Prosecution stated explicitly:

19             "This was not Stalingrad or Vukovar, where weeks of shelling

20     reduced the city to rubble.  It was not the most destructive shelling of

21     the war," but that is precisely the point.  The intention was not to

22     destroy Knin, the city of Zvonimir, into which President Tudjman intended

23     to resettle Croats, but to drive out Serbs.

24             Your Honours, the absence of concentrated damage and buildings in

25     rubble is wholly consistent with the Prosecution's case that more than

Page 29390

 1     1.000 projectiles were fired into Knin but were not directed at military

 2     objectives but, instead, widely dispersed throughout the city.  A single

 3     rocket or shell impact, as the Court has learned, and I would cite the

 4     Court to Konings, T14314 through 15, will not demolish a building.  And

 5     that's also reflected in the evidence of UNMOs such as Kari Anttila, who

 6     said that in the months after Storm, "it was possible to find out more

 7     locations where artillery and mortar shells had landed," and that based

 8     on these observations it is obvious that shelling did not concentrate

 9     against military objectives; P171, paragraph 3.

10             Indeed, Your Honours, if the thousand projectiles were

11     concentrated, we just might have photographs or reports of the ARSK

12     headquarters or the northern barracks or the post office or other alleged

13     military objectives in rubble, but that was not the case.

14             Now the Gotovina Defence asserted that this slide used by

15     Mr. Russo showing that shells were observed landing all over Knin was

16     probative of virtually nothing.  They asserted that the Chamber would

17     need to know the concentration of fire of objects within these circles

18     for it to be probative of anything.

19             Your Honours, over one thousand shells were fired into Knin by HV

20     forces.  For argument's sake, even if 100 of these shells impacted

21     military objectives, something that is not asserted -- not supported by

22     the evidence as detailed at paragraphs 550 and 556 of the Prosecution's

23     brief, that still leaves 900 projectiles landing throughout Knin within

24     those red circles, and that is a breach of the principle of distinction.

25     Indeed as Professor Corn, who's been cited, said at transcript 21509 of

Page 29391

 1     his testimony:

 2             "Where you say one rounds hits what's been identified as a

 3     high-value target, and this is the extreme hypothetical, if you could

 4     show that 900 other rounds hit civilian population centres while military

 5     objectives were ignored, I don't think you would need too much more

 6     corroboration of that circumstantial evidence."

 7             Further, Your Honour, the Gotovina Defence asserts at T3117 that

 8     the Prosecution's case must fail for lack of dozens of crater analyses.

 9     Now, the link between crater analyses and proving the illegality is

10     unclear.  Crater analyses are intended to determine the origin of fire.

11     They are used in situations in which it is not clear which warring

12     faction is responsible for firing the projectile.  The Defence has never

13     alleged that the HV were not responsible for an artillery attack on Knin.

14     Indeed, evidence from observers, HV reports, General Gotovina's chief of

15     artillery, and General Gotovina himself in his book, show that the HV

16     were responsible for shelling Knin and the other towns in the attack

17     order, rendering crater analyses superfluous.  There is no question that

18     more than one thousand projectiles landed -- listed in the HV expenditure

19     reports were fired on Knin, and those are listed in footnote 1993.  And

20     those were, in fact, were fired by the HV.

21             The Defence argue that the crater analysis in evidence shows that

22     the ARSK fired rockets into Knin.  Prosecution addresses the relevancy

23     and accuracy of this assertion at paragraph 602 through 605 of its brief.

24     Yesterday, the Defence argued that Oganj rocket could not have been fired

25     by HV forces from the seized position at Vrhpolje because it was

Page 29392

 1     implausible that HV forces would be firing on Knin at that time.

 2     However, as the Gotovina Defence pointed out, the HV seized the Oganj

 3     weapon at 0855 - that's 8.55 a.m. - and HV troops did not begin to enter

 4     Knin until 10.00 a.m., leaving the HV over an hour to fire Oganj rockets

 5     into Knin.  And the shelling of Knin by HV forces continued until

 6     approximately 11.00 a.m.  See, for example, P695, paragraph 33.

 7             The Defence's alternative suggestion is unreasonable, given their

 8     continued reliance on D89, an UNCRO report that at 1800 hours on the

 9     5th of August, there was an ARSK tank and mortar fire from Strmica

10     "towards Knin."

11             Now, this evidence is stretched to argue that it substantiates

12     Oganj rocket fire.  Not just towards Knin but on Knin.  And that argument

13     would require the Chamber to believe that the UNCRO observer confused

14     mortar and tank fire for an Oganj rocket-launcher, and that rocket fire

15     landed in Knin at 6.00 p.m. on the 5th of August, but no one, not the HV,

16     nor the UN, observed or recorded such fire.

17             Maybe it's the Prosecution's turn to raise Occam's Razor.  In a

18     situation where everyone who observes or is subjected to this artillery

19     attack or recognises, as it's happening, that it is directed at civilians

20     and civilian areas, where it is then found that that attack was the

21     result of an order that said, Shell the towns, where subsequently a

22     record of the meeting that trigged that order indicates that the subject

23     of civilian flight triggered by shelling was important, when there's the

24     use of weapons that can't discriminate between military targets and

25     civilian areas under the circumstances, when the commander of the

Page 29393

 1     operation writes about the operation but omits to mention the use of the

 2     most indiscriminate weapons, when the Supreme Commander of the military

 3     forces is a person committed to the idea that too many Serbs in Croatia

 4     is a danger to the long-term sustainability of that nation, where there

 5     are efforts to keep those people out afterwards, the simplest solution to

 6     what happened seems quite clear.

 7             The Defence, Your Honour, cited with some interest and noted to

 8     the Court paragraph 7 of the Prosecution's brief which referred to an

 9     effort to plausibly deny, plausible deniability, and that was somehow

10     turned into the idea of invisible ethnic cleansing.  We would suggest to

11     the Court that plausible deniability was quite rooted in the approach by

12     Croatian authorities.  Plausible deniability or pretext.  And in that

13     respect, the Court need only turn to the psy-ops "ostensibly guaranteeing

14     civil rights."  The Markac shelling which was to be a pretext discussed

15     in P461.  Obstacles to return.  I have already shown you an exhibit

16     during our presentation referring to it as a pretext, and the Court is

17     aware of other evidence demonstrating that.  The mask about negotiations

18     that President Tudjman referred to in P461; the report about the

19     phosphoric shells we have just looked at, and on and on.  Plausible

20     deniability, as we've seen, is pervasive throughout some of the efforts

21     in this case.

22             Another matter, Your Honour, yesterday the Gotovina Defence

23     argued that it would have amounted to a "military coup d'etat against a

24     civilian government" if General Gotovina had imposed a military curfew in

25     Croatia.  Now that was in reference to Prosecution's use of P1142.

Page 29394

 1     That's General Gotovina's military curfew order in Jajce, cited in

 2     footnote 642 as an example of one of the measures that General Gotovina

 3     could have but failed to take to prevent HV crimes in the Krajina.

 4             Let me show you quickly what P1142 states, just to remind you.

 5             "During this time I prohibit the individual movement of members

 6     of the Croatian forces in the street and at other public locations."

 7             This order, Your Honours, has nothing to do with civilian

 8     government.  There's no reason he could not have imposed a similar

 9     measure in the Krajina.  It's an order imposed on his subordinates to

10     address "the increasing undisciplined conduct of members of the Croatian

11     forces in the town of Jajce," and "for the purpose of creating conditions

12     for the return of citizens."

13             Your Honours, I would like to turn next to the insistence by the

14     Gotovina Defence yesterday that the Chamber "must conclude" that

15     General Jones's opinion on necessary and reasonable measures is a

16     reasonable interpretation of the evidence.

17             Now, first of all, it's, of course, for the Trial Chamber to

18     determine whether, under the circumstances of the case, General Gotovina

19     took necessary and reasonable measures.  But to the extent an expert's

20     views are relevant to that determination, it rests upon, among other

21     things, the accuracy of that witness's underlying factual assumptions,

22     since, of course, what constitutes necessary and reasonable measures

23     depends on the circumstances of the particular case.  And General Jones'

24     conclusions were not based on accurate facts.  They were based on

25     significant misconceptions and uncertainties about the scope and nature

Page 29395

 1     of HV crime and the response to it.  For example, the assumed facts that

 2     the Gotovina Defence provided to Jones made no mention of General

 3     Gotovina's subordinates committing any crimes before, during, or after

 4     Operation Storm.  That's D1632.  And in his report, General Jones still

 5     did not assume any facts involving HV crimes.  He said:

 6             "I cannot refute that there was undisciplined behaviour in the

 7     area of operations," but stated that "whether this behaviour was

 8     conducted by soldiers, criminals, or refugees is not for me to

 9     determine."  D1633, para 43.

10             In court he first claimed to have knowledge of the extent of HV

11     crimes prior to Storm, referring to the crimes in Grahovo as "isolated

12     incidents," and then contradicting himself by stating:

13             "I don't have the answer to the question, whether those were

14     isolated or whether they were routine."  T21040 to 41.

15             And he disagreed with the proposition that General Gotovina's

16     repeated orders regarding crime were ineffective based on his claim that:

17             "Following this particular date you'll see an increase in the

18     number of -- of arrests, investigations, and finding people culpable for

19     all offences."

20             His purported source was a Lausic report:

21             "... stating the number of arrests, the number of convictions and

22     what they have been able to accomplish based on all things that happened

23     here to show control of the area and reinforcement of the rule of law."

24             As we pointed out in our brief, there is no such report.  That is

25     found at paras 188 through 189.  And we address General Jones's

Page 29396

 1     conclusions in more detail at paragraph 152, 163, and 188 through 191.

 2             So the problem with the Defence claim that "you must conclude

 3     that General Jones's opinion is a reasonable interpretation of the

 4     evidence" is that his opinions were not actually based on the evidence.

 5             The Defence has asserted in its submissions that:

 6             "The Prosecution also claims in its brief that there is no

 7     evidence of a single demobilised soldier subsequently being prosecuted

 8     for a crime."

 9             That's at paragraph 233.  That's false.  Or -- it's not correct.

10     So see, for example, Your Honour, several of the examples contained

11     within Exhibit D1381.  Moreover the Defence said Witness Perkovic was a

12     viva voce Defence witness who testified that he was demobilised while in

13     custody as a result of his involvement allegedly for the Varivode

14     murders, and was subsequently prosecuted for those murders.

15             Now the Gotovina Defence has made two mischaracterisations here.

16     First of all, the Prosecution did not claim that no demobilised soldier

17     was ever subsequently prosecuted.  At paragraph 233 of the Prosecution

18     final brief, the point was made that the numbers of criminal proceedings

19     for property destruction between the 4th and 17th August are negligible,

20     and therefore that the "continuous" property destruction by the

21     134th Home Guard Brigade reported to the Split Military District on the

22     18th of August, crimes that the Defence claim were appropriately punished

23     through the demobilisation of much of that unit, did not result in

24     criminal sanctions, and none of the evidence cited by the Defence impacts

25     that assertion.

Page 29397

 1             Beyond that, the Defence claim that Perkovic was "demobilised

 2     while in custody as a result of his involvement allegedly for the

 3     Varivode murders and subsequently prosecuted" suggests that Perkovic's

 4     demobilisation was part of his punishment.  To the contrary, the evidence

 5     shows that Perkovic was demobilised and that his demobilisation date was

 6     falsified in order to conceal the fact that he was an HV member at the

 7     time of the crime.  And that's in final brief footnote 304.

 8             Your Honours, yesterday you saw -- you heard some comments about

 9     Mr. Vanderostyne and a photograph.  And the suggestion was that he'd said

10     he was scared but was grinning, and that he was possibly colour-blind

11     because he couldn't tell the uniforms of the special police from some

12     other uniforms.

13             Now first of all, Your Honours, you will recall that

14     Mr. Vanderostyne was another of the internationals who witnessed the

15     extensive and open destruction and crimes taking place and spoke about

16     that quite forcefully.  But in his statement he explained that there was

17     no -- he was not confusing the uniforms of the special police.  He

18     distinguished those expressly from the uniforms of the regular police.

19     And when he got into Gracac encountered the special police, and the Court

20     had seen photographs of the special police looting openly in Gracac.  And

21     with respect to the photograph of Mr. Vanderostyne looking -- or with

22     some kind of smile on his face, he talked about that.

23             "We drove very slowly, not in aggressive mood and because it was

24     a quite intense situation.  Then we drove very slowly, windows open,

25     nobody should feel threatened.  And we parked the car and we tried to be

Page 29398

 1     relaxed, so in a more or less relaxed way we went to a little group of

 2     those soldiers that were drinking, that were relaxing under a tree."

 3             The effort to suggest to the Court that this witness was

 4     misleading the Court when he had, in fact, explained the very nature of

 5     the circumstances in which he found himself was unfair to that witness

 6     who -- whose testimony -- whose damning testimony could not be explained

 7     through some kind of attack on his bias because Mr. Vanderostyne was very

 8     explicit that he was someone who sympathised with the Croats because of

 9     their victimisation from the beginning part of the war.  It was also

10     significant to see those photographs to learn that Mr. Vanderostyne had

11     interviewed the lieutenant involved in that, to see how openly it was

12     done, to see a genuine manifestation of the climate of impunity.

13             It was also asserted that Mr. Vanderostyne is the only witness

14     upon whom the Court can find evidence related to Gracac and special

15     police crimes in Gracac.  The Court can look to the testimony of

16     Mr. Steenbergen and also Annex A, pages 12 through 17.

17             There was some attention paid yesterday to the Ramljane incident,

18     and it was asserted by the Markac Defence that there's no evidence that

19     General Markac knew where Grubori was or had any way -- or knew what was

20     the Lucko Unit.  No one identified the unit, nor is there any evidence

21     that General Markac knew which unit went through Grubori on the evening

22     of August 25th.

23             I would direct the Court's attention to the following.  You will

24     recall, Your Honours, that before that search operation, the inner

25     control branch based in Gracac would brief units and give each unit a

Page 29399

 1     package showing their precise axes of attack.  And that included a map,

 2     indicating such.  The Court has seen such a map, P559.  In addition to

 3     the fact that inner control was there, the coordinator of the, operation

 4     Janic, was based in Gracac, was there on the evening of August 25th.  And

 5     as I mentioned, inner control itself was there.  All General Markac had

 6     to do, upon learning of the burnings, killings in Gracac was to pick up

 7     the phone, go down the road, and find out -- not in Gracac, excuse me,

 8     Your Honour, in Grubori and find out which unit was deployed in Grubori

 9     and ensure that that unit -- find out what had happened with that and

10     ensure, if necessary, that that unit was not deployed to the next village

11     which would be burned.

12             The Court will recall the effort by the Markac Defence yesterday

13     to focus on Mr. Celic because he implicates General Markac in the

14     creation of false reports.  And, in that respect, I simply want to turn

15     the Court to the circumstances regarding the creation of that false

16     report, P563, and I would turn the Court to paragraph 444 of the brief so

17     as not to require going into private session and in particular see

18     footnotes 1632.  That evidence indicates that the report was written in

19     Markac's immediate presence.

20             Your Honour, I want to mention one matter that was raised

21     yesterday.  It's -- and that was the -- the restrictions of movement

22     chart which the Court had asked about in question number 5.  Prosecution

23     noted that the focus of the submissions were largely on the footnoted

24     materials relating to the date that the restrictions of movement existed.

25     I would simply urge the Court to, in addition, look at footnote 1311.

Page 29400

 1     That's Annex A.  Or directs the Court to Annex A, wanton destruction and

 2     plunder, to ensure that the Court is in a position to cross-reference the

 3     dates of restrictions of movement with the crimes that were taking place.

 4             Yesterday there was discussion by the Markac [sic] Defence

 5     concerning the awareness of what had happened in Grubori, what Mr. Dondo

 6     did -- knew and did, and the assertion that the entry in the Knin police

 7     log requesting an urgent sanitation of bodies should not be attributed to

 8     General Cermak.  The suggestion was that the Prosecution was somehow

 9     artificially trying to upgrade General Cermak's involvement and move the

10     Court away from the actual evidence.

11             I would like to correct the transcript I said there was a

12     discussion by the Markac Defence, that should have been the

13     Cermak Defence.  What the evidence indicates, Your Honour, is the

14     following.  That it was Dondo who requested an urgent clearing up of

15     bodies.  That's listed at P764 at page 2 -- excuse me, listed at D57,

16     page 61, and in fact Dondo reported to Cermak at P764, page 2, that he

17     made the report and he made such a request.

18             Now, what the Court should also consider is the following.  Of

19     course, as we learned at T27883 through 27884, and as we know from other

20     evidence, Mr. Dondo was General Cermak's subordinate, and both

21     General Cermak and Mr. Dondo knew, when Dondo went to make that report,

22     that the Knin police were already aware of the murders.  Dondo tried to

23     say that he only went down to report that the murders had taken place and

24     that he hadn't ordered the sanitation and that -- had no idea how the

25     entry in the log had taken place.  But the Court will look at

Page 29401

 1     paragraph 438 of the Prosecution's brief and indeed paragraph 246 of the

 2     Cermak brief, you will see that Cermak, who hosted the dispute that

 3     existed about that issue regarding disposal, was aware of the -- aware

 4     that Knin police knew and Dondo knew; see his statement at D1695,

 5     paragraph 25.  And as you'll see from the testimony, when you review it

 6     again, at 27883 and 27884, others concluded or were aware that Dondo had

 7     gone to the police station in the evening hours and there even said that

 8     sanitation must be carried out.  There would have been no other reason

 9     for Dondo to go to the Knin police station other than for that purpose,

10     because he and General Cermak were aware that they knew about the

11     killings already.

12             Your Honour, let me turn to the issue of meetings with

13     President Tudjman by General Cermak.

14             Mr. Kay said that there was no evidence regarding Mr. Cermak

15     meeting with President Tudjman.  That's at pages 78 through 79, so I

16     would simply direct the Court's attention, in addition to the -- the

17     obvious meeting on the 5th of August, meeting on the 6th of August in

18     Knin; P2526, page 91; P2525, page 176.  Cermak travelled to Zagreb to

19     meet with the president; D1618, page 1.  And General Cermak, of course,

20     met with President Tudjman at the Freedom Train speech; P1144, P5, P473.

21             Mr. Kay also discussed Exhibit P2527.  That's the publication in

22     which General Cervenko described General Cermak as President Tudjman's

23     personal man of confidence.  D1306 is the published retraction of that

24     article in which Cervenko said it was unauthorised, accidental and

25     disjointed, which was secretly recorded by the reporter.  Mr. Kay

Page 29402

 1     suggested that the Prosecution failed to address that exhibit but, in

 2     fact, D1306 was cited in the Prosecution brief at footnote 892.

 3             Now yesterday Mr. Kay called the contents of that original

 4     article, which was recorded, gossip and of no real consequence.  But it

 5     is noteworthy that the Cermak Defence cited the same exhibit in the

 6     Defence brief at -- in support of certain propositions it wanted to

 7     advance at paragraph 121.

 8             There was also discussion, Your Honours, about the Brioni meeting

 9     and the discussion concerning the role that -- that General Cermak

10     assumed.  And to demonstrate that there was no discussion at Brioni that

11     touched upon General Cermak's ultimate responsibilities Mr. Kay said that

12     he would read the exact text to the Court said:  "The exact text is

13     this."

14             I'd like to actually look at that text, Your Honour, very

15     quickly.  What's in black is what was read by Mr. Kay.  What's in red is

16     what is in the transcript and what was not read.  And what we see is that

17     Minister Susak is referring to another staff and he had been talking

18     before about a kind of staff for the immediate operation and then

19     suggested:

20             "We need another staff and that would be for relations with

21     UNCRO, someone who would be a permanent liaison, someone who would be in

22     touch with us and resolve things with them, for us to get instructions,

23     because matters will evolve too rapidly for us to start looking around

24     for them and calling them."

25             So the minister of defence is talking about one person who is to

Page 29403

 1     be a permanent liaison for UNCRO on the ground.  Unrelated to the issues

 2     that might arise during the operation itself.

 3             Now, on the heels of the psy-ops discussion, Minister Susak then

 4     raised the issue of setting up a propaganda staff which would be

 5     connected to the office of the president, and the head of that office was

 6     Mr. Sarinic.  And you see that in this slide.  That's at page 29,

 7     indicating:

 8             "We need someone -- would we need someone from your office in

 9     order to reestablish this staff for propaganda.  We need someone from

10     your office to be the contact person."

11             And President Tudjman responded:

12             "This is a question to be dealt with, what you just said, and

13     also in reference to UNCRO, and that [sic] means Sarinic."

14             So that was a matter to be dealt with.  Sarinic was going to be

15     the contact person, and it is therefore instructive that when

16     Mr. Cermak -- or General Cermak, excuse me, was asked who was his

17     immediate superior while he was in Knin, he answered:

18             "My contacts with international organisations and delegations and

19     so on, I had contacts with the office of the president, with Sarinic,

20     with the president."

21             And that's all consistent with General Cermak's description of

22     himself as the "one contact person for the internationals."  P2526

23     through 61 -- page 61.  Everything came to him or went through him.

24     P2525, page 12, and P2526, page 9.

25             The Cermak Defence also suggested in its brief that the -- well,

Page 29404

 1     suggested to you during the submissions that Mr. Dzolic's evidence was a

 2     telling moment in the case and, in its brief, that the Prosecution had

 3     improperly put words in his mouth.  That's found at 46 -- paragraphs 465

 4     and 475.  Mr. Dzolic, as you will recall, was the first commander of the

 5     Knin military police company.

 6             We would submit, Your Honour, that the telling moment in respect

 7     of Mr. Dzolic's evidence was when he was asked why the fact of his being

 8     called into Cermak's office on occasions would not be recorded in his

 9     log-book.  And he explained why he was called in to General Cermak's

10     office:

11             "I was invited by General Cermak to come there for a conversation

12     because I was subordinate to him in the daily tasks."

13             So focussed on the issue of explaining why it wasn't in the

14     log-book, he indicated in quick response what the reality was.

15             Your Honours, the Cermak Defence also suggested that the

16     Prosecution ignored evidence of General Cermak's experts and instead

17     focussed primarily on issues of credibility during its cross-examination

18     of those witnesses.  Well, as the Court should recall, that's certainly

19     not entirely correct.  Recall, for example, Mr. Albiston who was

20     cross-examined about the following.  His testimony concerning

21     General Cermak's authority and the revelation that he had failed to

22     consider a key document that contradicted his opinion which demonstrated

23     that civilian police carried out General Cermak's orders.  And that's

24     P510.  That is an issue going very deeply to the substance of that

25     witness's testimony.  But to the extent that there was a focus on

Page 29405

 1     credibility during the course of those examinations, it was well founded

 2     and well directed.  And I will direct the Court's attention to the

 3     testimony of Mr. Feldi, who did not disclose in his CV that he had been a

 4     member of the Markac Defence team, as well as a member of the

 5     Cermak Defence team before he wrote his report, and also failed to

 6     mention his involvement in and reliance upon the blue book which also

 7     came to light during his testimony.

 8             Your Honours, the Gotovina Defence claimed yesterday that because

 9     the Prosecution pleaded an armed conflict in the indictment, we are

10     precluded from "relying upon an armed conflict which may be international

11     in character," based upon their interpretation of the 21 February 2003

12     Hadzihasanovic Appeals Judgement.  The Defence noted that there were no

13     Article 2 charges in that case, and suggested that the Chamber's ruling

14     was that the Prosecution is specifically required to plead an

15     international armed conflict even where the character of the conflict is

16     not relevant to the charges.  That is not accurate.

17             In the context of that decision, the 21 February 2003

18     Hadzihasanovic decision, prior to the subsequent clarification of the

19     law, the character of the armed conflict was relevant because, at that

20     time, it was unclear whether the legal rules underlying Article 3 applied

21     in internal armed conflicts.  Therefore, the absence of Article 2 charges

22     did not render that a dead or meaningless issue, and there was still a

23     question of whether or not the Prosecution needed to rely on the nature

24     of the conflict as international in order for the charges to be valid.

25     But in its 16 July 2003 decision, the Hadzihasanovic Appeals Chamber

Page 29406

 1     found that the Article 3 charges apply to both internal and international

 2     armed conflicts thereby rendering the pleading issue moot.  And in this

 3     case too, Your Honour, the nature of the armed conflict is legally

 4     irrelevant.

 5             As we know from Article 5 charges, it's either an international

 6     or a non-international armed conflict.  The same is true of the Article 3

 7     charges in this case.  They're grounded in customary international law

 8     which apply to all conflicts regardless of their classification.  They

 9     simply require a nexus to an armed conflict.  There is no requirement

10     that that conflict be either international or non-international.  We have

11     pled and proved an armed conflict.  And there was no requirement for the

12     Prosecution to specifically plead the character of the armed conflict in

13     this case.  Irrelevant and pointless.

14             Your Honours, I want to turn to one additional issue, and that's

15     the argument by the Gotovina Defence that the Prosecution cannot decide

16     whether General Gotovina was issuing effective or ineffective orders.

17     Cannot keep its story straight, I think the language was.  They referred

18     several times to the political affairs attachment at D201, which states:

19             "Familiarising units with a need to eliminate all negative

20     occurrences that will surface in the course of combat operations with a

21     focus on preventing torching and destruction of larger populated areas

22     and towns."

23             According to the Defence it is illogical for the Prosecution to

24     argue that part of those "familiarising units with the need to eliminate

25     all negative occurrences that will surface" was ineffective, while

Page 29407

 1     another part, "focus on preventing torching and destruction of larger

 2     populated areas and towns," was effective.  Yet this distinction is quite

 3     clear and quite logical.  What is illogical is the premise underlying the

 4     Defence argument that a commander's order can only be all effective or

 5     all ineffective.  Whether a commander's orders are effective or not

 6     depends on the extent to which that commander ensures compliance with

 7     those orders.  And, of course, he can choose to selectively enforce some

 8     orders while allowing others to be disobeyed.

 9             To go back to the example raised by General Gotovina Defence

10     based on D201, let's recap the context.  General Gotovina's subordinates

11     were burning and looting in Operation Summer.  The Split Military

12     District Command ordered them to stop burning, they continued to burn,

13     and they were not punished.  This created a situation where yet another

14     bald order not to burn, such as instruction in D201, would be

15     ineffective.  But the Gotovina Defence did not mention the instruction in

16     P1126 to the OG commanders:

17             "Prevent burning and looting of facilities in the liberated

18     territory.  Immediately station personnel of the MUP, special MUP units

19     and military police in large towns to secure the town and important

20     buildings."

21             And here, Your Honours, he accompanied what would otherwise be a

22     bald and, under the circumstances, ineffective instruction to prevent

23     burning and looting with a concrete enforcement measure.  And that is

24     where the difference lies.  Furthermore, the fact that General Gotovina

25     felt the need to accompany a generic "don't loot and burn instruction,"

Page 29408

 1     which the Defence says he intended to be effective, with a specific

 2     measure to protect certain facilities from his own subordinates indicates

 3     General Gotovina's awareness of the inadequacy of the generic measures

 4     under the circumstances.  More generally, the Defence asks:

 5             "How a subordinate would know which are the orders which are

 6     supposed to be followed and which are the orders that are supposed to be

 7     ignored."

 8             The answer to that question is simple.  A subordinate knows to

 9     follow an order when his superior monitors and enforces his subordinate's

10     compliance and punishes or holds him accountable for failing to implement

11     it.  On the other hand, where the superior doesn't monitor the

12     subordinate's implementation of the order, doesn't punish or hold the

13     subordinate accountable for not implementing the order, and doesn't

14     punish the underlying conduct when the disobedience involves criminal

15     behaviour, when the commander repeats the same order, that is a signal to

16     the subordinate that he need not follow the order.  And the superior only

17     strengthens that signal through additional repetitions of the same cycle

18     of non-compliance and non-enforcement.

19             Finally, Your Honour, we have referred throughout the submissions

20     to the more detailed submissions in the Prosecution's final brief, per

21     the Court's guidance.  As the Court is aware, our sentencing submissions

22     are found at paragraph 698 through 705.  Those paragraphs detail relevant

23     factors, including the scale of the crimes, the vulnerability of the

24     victims and the impact on the victims.  And in considering those factors,

25     the Prosecution simply notes that particularly in considering impact,

Page 29409

 1     although it is often generic references to Krajina Serbs, these crimes

 2     were visited upon individuals and each person suffered individually.

 3             Your Honours, today's submissions, the submissions that preceded

 4     those to this Bench, the Prosecution's final brief, and the evidence

 5     adduced during the course of this case demonstrate beyond a reasonable

 6     doubt that General Gotovina, General Markac, and General Cermak are

 7     responsible under the law for those crimes.

 8             Your Honours, thank you for your attention.

 9             JUDGE ORIE:  Thank you, Mr. Tieger.

10             I suggest that we take a break first.

11                           [Trial Chamber confers]

12             JUDGE ORIE:  Have the Defence teams agreed on a division of time

13     for ...

14             MR. KEHOE:  We will discuss it at the break, Mr. President.  We

15     just are preliminarily taking the Chamber's guidance from yesterday, but

16     I will chat with my colleagues to see if there is any change in that.

17             JUDGE ORIE:  Yes.  Now, I have, at this moment, a problem with my

18     computer.  I hope that not everyone has it, but before we re-start, there

19     was one issue that came to my mind and perhaps before the break we -- I

20     briefly ask clarification, and again this is what I remember from the top

21     of my head rather than consulting my notes, my annotations in the

22     computer, which I will do during the break.

23             Mr. Kuzmanovic, yesterday you said, Well, the suggestion of a

24     pretext for attacking is fully in line with first protocol, Article 37,

25     paragraph 2, the ruses of war, as you said.  Would you agree with me that

Page 29410

 1     whether 37(1) applies or whether 37(2) applies, that the non-prohibited

 2     ruses of war that much would depend on the existence of any cease-fire

 3     agreement or any arrangement.

 4             MR. KUZMANOVIC:  That could be a factor, Your Honour.  But there

 5     is no evidence of perfidity, so my argument would that that is not

 6     perfidious.

 7             JUDGE ORIE:  Now, isn't it true that Article 37 mainly aims at

 8     protecting the functioning of the Geneva Conventions and the

 9     Additional Protocols, and that specifically violation of a cease-fire

10     would fall within the scope of the prohibited acts.

11             MR. KUZMANOVIC:  It could, Your Honour.

12             JUDGE ORIE:  It could?

13             Then I'd like to hear in further detail from you what then there

14     makes the distinction and perhaps on the basis of what the ICRC

15     commentary says about it --

16             MR. KUZMANOVIC:  Sure.

17             JUDGE ORIE:  -- in relation to violations of cease-fires.

18             Now one question, was there any -- I think, but again I can't

19     check it at this moment, but the cease-fire, the Zagreb Agreement, I

20     don't know whether it is in evidence.  I know that there was some

21     evidence.  We heard evidence from Galbraith about it, not very detailed.

22     We heard some evidence by Akashi about it.

23             Do you consider the 29th of March, 1994, Zagreb Agreement and the

24     cease-fire included thereto, was it in effect at that moment?  Apart from

25     whether it was -- whether it was observed by all parties always, that's a

Page 29411

 1     different matter.

 2             MR. KUZMANOVIC:  My argument would at that point in time it was

 3     not in effect.

 4             JUDGE ORIE:  Because?

 5             MR. KUZMANOVIC:  Of the Split Agreement.

 6             MR. MISETIC:  Your Honour --

 7             JUDGE ORIE:  Yes, Mr. Misetic.

 8             MR. MISETIC:  -- if I could just on behalf of the Gotovina

 9     Defence because this somewhat relates to our brief.

10             JUDGE ORIE:  Yes.

11             MR. MISETIC:  Our position is there certainly was no de facto

12     cease-fire agreement given that the whole now the issue of international

13     armed conflict we consider that the whole -- now the issue of

14     international armed conflict, we consider that the distinction between

15     ARSK, VRS and VJ is a -- perhaps a -- some kind of a pseudo-legal

16     distinction, but factually, they are the same organisation.  And as the

17     Chamber is well aware, certainly the Split Military District forces,

18     combined with HVO, were engaged against those forces, including the ARSK

19     in the Grahovo operation, just days before, and including the day before

20     the Brioni agreement.

21             And secondly, the ARSK under the relevant agreements was

22     certainly not allowed to use the territory of the Republic of Croatia to

23     launch attacks on the Bihac pocket which we would also consider then to

24     be the first move by the ARSK forces breaching any cease-fire agreement

25     that had been reached and justifying action by the Republic of Croatia,

Page 29412

 1     as we've said repeatedly throughout the trial.

 2             JUDGE ORIE:  Well, let's not go into further details there.  I

 3     have -- but I don't think it's in evidence but there is -- it's -- I have

 4     a vague recollection of the -- at least the Zagreb Agreement saying that

 5     the violation of that -- there were rules of procedure, something like

 6     that, which would resolve any violation rather to allow for retaliation

 7     if there was a violation.

 8             MR. KUZMANOVIC:  Your Honour, I think your paraphrasing of that

 9     is correct, but for all practical purposes, the document was only as good

10     as the paper it was written on, given what was going on.

11             And I guess to further -- as I was thinking about answering your

12     question, it would be -- I think it would also be -- in this particular

13     instance make a great difference if there was actually proof that

14     something like a provocation attack had even existed.  There is no proof

15     of that.  There was a discussion of it, but it never happened.

16             JUDGE ORIE:  No, no, no.  That's -- last question.  This -- what

17     was said during the Brioni meeting in this respect, do you consider that

18     to deceive the opposite party in the armed conflict; or do you consider

19     that an attempt to deceive others who are observing what happens, because

20     70 -- 37, 2, specifically deals with deceiving the other warring -- the

21     enemy, the --

22             MR. KUZMANOVIC:  Most definitely the enemy, Your Honour.

23             JUDGE ORIE:  So then I'm trying to follow your reasoning.  Why

24     was there a reason to deceive the opposite forces?

25             MR. KUZMANOVIC:  Well, they were spread at that time pretty thin.

Page 29413

 1     It was a question of tactically what do you want to do?  Given the fact

 2     that Operation Storm was going to take effect within four or five days,

 3     the tactical decision was such that -- where are they are going strike,

 4     what's going to happen.  Given what was going on in the whole situation

 5     of Bihac and in -- just the whole tactical military situation at the time

 6     I think prompted that kind of a discussion.  And besides, if we want to

 7     get specifically into the facts, I'll talk about that in my rebuttal,

 8     Your Honours.

 9             JUDGE ORIE:  Thank you.  We'll then here from you.

10             Of course, our whole morning session due to the late start is --

11     has developed a bit differently.  I suggest that we take a break of half

12     an hour.

13             MR. TIEGER:  And could I take this opportunity before we break to

14     make a small correction to the transcript.  I referred to -- on page 10,

15     line 10, to 21509, and that's transcript reference, and it should have

16     been 21 -- I referred -- it's the other way around.  I referred to 21059.

17     It should have been 21509.

18             JUDGE ORIE:  That's now on the record.

19             We'll take a break.  We'll then resume at 12.00, and we will

20     continue, I would say, 1.30.  Would that do?  I'm looking at the parties.

21     If you inform the Chamber about how you would use that time.

22             We resume at 12.00.

23                           --- Recess taken at 11.30 a.m.

24                           --- On resuming at 12.04 p.m.

25             JUDGE ORIE:  A few matters still to be corrected, something on

Page 29414

 1     the record, Mr. Tieger.

 2             MR. TIEGER:  Yes, Your Honour.

 3             JUDGE ORIE:  About the chart --

 4             MR. TIEGER:  Yes.

 5             JUDGE ORIE:  -- and freedom movement, yes.

 6             MR. TIEGER:  As the Court and the parties are aware, we sent an

 7     e-mail yesterday advising that item 2 of the chart on page 148 of the

 8     Prosecution's final trial brief in reference to restrictions of movement

 9     imposed in Kistanje should have been removed and should now be considered

10     deleted from the chart.

11             JUDGE ORIE:  That's on the record.

12             Mr. Kay, I do understand that none of the parties objects against

13     reading into the record your list of footnotes.

14             MR. KAY:  I've been informed that that's the case, Your Honour.

15     We have now forwarded it to the Chambers.

16             JUDGE ORIE:  Yes.  And then I take it, it will be forwarded to me

17     for reading it.  I have not yet received it, but ...

18             MR. KAY:  It's somewhere in the -- whatever it's called that

19     these things go down.

20             JUDGE ORIE:  The digital highway, it's called, Mr. Kay.  It's ...

21             MR. TIEGER:  Your Honours, so as not to lose time, if it's

22     helpful, we have a hard copy here.

23             JUDGE ORIE:  Then I read from the hard copy.  Go back to the

24     ancient times.

25             MR. KAY:  Thank you, Mr. Tieger.

Page 29415

 1             JUDGE ORIE:  I'll read into the record the footnotes the Cermak

 2     Defence wanted to draw the attention specifically to in relation to table

 3     entry Strmica, 23rd of August, footnote 1316.  And we're invited to

 4     consider also D1002, P932, P821, D94, P815, and P233.

 5             In relation to the table entry Srb, 24th of August,

 6     footnote 1317.  We're also invited to consider P813, P47, P126, P815,

 7     P235, and P234.

 8             In relation to the table entry Ramljane, 26th of August, our

 9     attention is sought for footnote 1318.  And we're invited to also

10     consider P766, P128, P239, P27, P129, P238, and P237.

11             In relation to Cicevac, 1st September, it's footnote 1319, and

12     we're invited to consider also P2514, P49, P246.

13             Last item.  In relation to Otric, 11th of September, the footnote

14     referred to is 1320, and we're invited to consider also D1002, P954, and

15     P950.

16             That's all now on the record.  Thank you, Mr. Tieger, for ...

17             Mr. Kay, just as consolation, the electronic highway does

18     function; it took two minutes.

19             MR. KAY:  Thank you, Your Honour.

20             JUDGE ORIE:  The Chamber was informed that the division of time

21     will be 45 minutes for the Gotovina Defence, and 20 minutes for each of

22     the other Defence teams.

23             Mr. Kehoe, is it you or is it Mr. Misetic who will kick off?

24             MR. KEHOE:  Mr. President, we again would like to cover the

25     issues raised in rebuttal by the respective counsel.  I will start

Page 29416

 1     preliminarily with Mr. Akhavan and then move to Mr. Misetic, and I will

 2     conclude.

 3             Please do so.

 4             Mr. Akhavan, you may proceed.

 5             MR. AKHAVAN:  Thank you, Mr. President.  There are just two

 6     points I wish to briefly address.  The first relates to questions of the

 7     distinction between operational commanders and occupational commanders

 8     which, by extension, determines what this Trial Chamber can consider to

 9     be necessary and reasonable measures within the scope of authority of

10     General Gotovina.  Mr. Tieger, in his presentation, relates the evidence

11     of the curfew that was imposed in Jajce as an indication that it was

12     within the authority of Mr. Gotovina to take such measures.  The basic

13     problem is that Jajce is in Bosnia-Herzegovina.  It is in a different

14     state.

15             General Gotovina's situation and status in Bosnia and Herzegovina

16     is that of a commander from the army of another state in a situation of

17     foreign occupation which is fundamentally different than the situation of

18     General Gotovina in Croatian territory, which has been reintegrated.  And

19     that is, I think, an indication of the fundamental mistake that the whole

20     necessary and reasonable measures argument rests on.  And I wanted to

21     also turn back to the transcript of August 30 at page 99, lines 3 to 8,

22     where Ms. Gustafson states as follows:

23             "The Defence makes the unfounded claim that General Gotovina had

24     no duty to punish crimes, that the military police were aware of.  This

25     argument is based on the alleged duty within the Croatian system which is

Page 29417

 1     irrelevant to his duties under international law."

 2             That was the statement that Ms. Gustafson made.  The

 3     Trial Chamber will be aware of the applicable law here.  I refer to the

 4     Hadzihasanovic Trial Judgement at paragraphs 137 and 138, and I quote:

 5             "The national law of a state establishes the powers and duties of

 6     civilian or military representatives of that state, but international law

 7     lays down the way in which they may be exercised within the area governed

 8     by it."

 9             And is it on that basis that our arguments on General Gotovina's

10     relation to the military police have been set forth.

11             Finally, Mr. President, we note that the Prosecution has not

12     denied our characterisation of FRY-RSK citizens as enemy aliens under

13     international law.  No arguments or explanations have been presented in

14     that regard.  We consider that to be a concession that they were, indeed,

15     not citizens of Croatia, and, therefore enemy aliens.

16             And the --

17             JUDGE ORIE:  Mr. Akhavan, if I may just interrupt.

18             If something not specifically dealt with, to consider that as a

19     concession, the Chamber would prefer to verify whether that's correctly

20     understood or not.

21             MR. AKHAVAN:  Of course.

22             JUDGE ORIE:  Mr. Tieger.

23             MR. TIEGER:  Thank you, Your Honour.

24             Two things.  This is rejoinder to our rebuttal, so I don't think

25     it's an opportunity to stray beyond the boundaries of what has been

Page 29418

 1     addressed.  And the answer to the Court's question is no, there is no

 2     concession.

 3             JUDGE ORIE:  Please proceed, Mr. Akhavan.

 4             MR. AKHAVAN:  I will clarify that nothing that has been presented

 5     denies, in effect, that point that these individuals were not in fact

 6     citizens of Croatia.  There is nothing in the record whatsoever that

 7     contests that point.  And the fact that they were FRY-RSK citizens is

 8     also in the record.

 9             We simply want to conclude by saying that that has a legal

10     consequence, that the Prosecution is no longer in a position to rely on

11     denial of immediate mass return as a basis for inference of unlawful

12     conduct, insofar as it is within the rights of sovereign states to deny

13     the return of enemy aliens during armed conflict.

14             I will now, with your permission, turn the floor to Mr. Kehoe --

15     Mr. Misetic.

16             JUDGE ORIE:  Mr. Akhavan, I had a question in relation to this.

17     I might come back to that later.  I had -- since my computer is

18     functioning again, I am better able now to consult my notes.

19             Mr. Misetic.

20             MR. MISETIC:  Thank you, Mr.  President.

21             Let me start off by addressing the point Mr. Tieger made

22     concerning the phosphoric shells.  Mr. President, I think the evidence is

23     very clear, and we ask you to, first of all, look at the fact that the

24     two opposing military commanders, General Gotovina and General Mladic, in

25     both of their diaries, in one case a personal diary and in the other case

Page 29419

 1     the officially Military District diary, both on the same day make

 2     reference to HV use of incendiary munitions in the wider Grahovo-Glamoc

 3     area.  The entry that Mr. Tieger referred to in the Split Military

 4     District diary is from the 2nd of August, which is, of course, the same

 5     day that it appears in Mladic's diary.

 6             I also would note that Mr. Tieger, while advancing an alternative

 7     argument, did not suggest that his argument or the argument of the

 8     Prosecution is the only reasonable interpretation of that evidence.  And

 9     we suggest to you that any reasonable person looking at two entries on

10     the same day by the opposing military commanders could, in fact, make a

11     reasonable conclusion that phosphoric shells were being used in that area

12     on that day or immediately prior to it.

13             We would also note that to the extent the Prosecution alleges

14     some sort of cover-up, we would ask the Chamber to consider, first, that

15     prior to the 2nd of August, both the military police had been seized of

16     the issue, and the minister of defence, in an entry on the 1st of August,

17     the day before, had already been fully seized of the matter.  So in terms

18     of any allegation that General Gotovina was covering up within the

19     Croatian system, it is unfounded.

20             Moreover, saying that because General Gotovina didn't want media

21     in Grahovo on the 2nd of August in light of the -- both the prior

22     military conduct, which would include Operation Summer 95 but also the

23     tactical operation of the ARSK which had taken place on the

24     1st of August and which is referenced in our brief, and in light of the

25     fact that two days later, General Gotovina knew he would be launching

Page 29420

 1     Operation Storm, to not invite the media into the war zone is hardly a

 2     controversial decision by a military command.  And indeed, I would argue

 3     it is a common-place decision in wars, particularly on the eve of combat.

 4             Turning next to the issue of General Jones.  The bottom-line

 5     point here, Mr. President, is, it is absolutely clear in any fair reading

 6     of both his witness statement and his testimony, it is clear that he was

 7     aware of the allegation of crimes being committed in the Grahovo area

 8     and, in fact, he was specifically asked on direct examination whether

 9     General Gotovina took all necessary and reasonable measures in response

10     to events in that operation and he testified that he did.  So the

11     suggestion that his -- that he lacked knowledge to form an opinion is

12     unjustified.

13             Moreover, it was never put to General Jones that he is -- whether

14     his opinion would change if he were aware of certain information that the

15     Prosecution had which the Prosecution believes might impact his opinion.

16     It is expected when an expert is put on the stand and has an opinion that

17     if the Prosecution or a party wishes to challenge the opinion, then other

18     facts are put him and the expert is asked whether that would or would not

19     change that opinion.  That didn't happen here.

20             And I would submit to you, Your Honours, that the Prosecution has

21     taken the position that the measures that General Gotovina failed to take

22     were "so obvious" that it's clear he didn't take necessary and reasonable

23     measures.  Well, if that is the case, why weren't these "so obvious"

24     measures not only put to General Jones but, I repeat, many, if not most

25     of them -- I should say, most of them were never put to anyone.  Why

Page 29421

 1     wasn't General Jones asked whether, for example, he would have imposed a

 2     military curfew in Croatia.  And I would add that to the extent that the

 3     Prosecution is now arguing that the military curfew should have only

 4     applied to the military, the -- the terminology then is not being used

 5     properly as to what a military curfew really means.

 6             With respect to the issue of demobilisation, there is an

 7     allegation that Mr. Perkovic was demobilised in order to cover up HV

 8     involvement.  That is not something that Prosecutor Galovic agreed with.

 9     This is -- he testified on this point and it's transcript 19812,

10     beginning at line 14.  Moreover, what is ignored is that, in fact,

11     Mr. Perkovic was prosecuted for the crime.  So it is difficult to see

12     what it is exactly that was not done in terms of punishing or trying to

13     punish the perpetrators in the Varivode murders.

14             I would also asking on this point the Trial Chamber to keep in

15     mind that in Exhibit 2614, there were 120 cases of criminal charges

16     against members of the Split Military District for crimes committed in

17     the liberated territory and it was 120 cases for murder and looting.

18             Finally, Mr. President, Exhibit D201.  I must confess that I am

19     pleased that I think we've come to some sort of inadvertent agreement.

20     We've now pushed the issue far enough that we not only have the

21     Prosecution conceding that General Gotovina issued orders to prevent

22     burning and looting and other crimes.  We now have a concession from the

23     Prosecution that General Gotovina took steps to make sure at least one of

24     those orders was implemented.  We have common ground here now.

25             Now, let us take a look at P1126, which Mr. Tieger relied on this

Page 29422

 1     morning.  And this is page 3.  Let's see what the measure was.

 2             "Prevent burning and looting of facilities in the liberated

 3     territory.  Immediately station personnel of the MUP, special MUP units

 4     and military police in large towns to secure the town and important

 5     buildings."

 6             Your Honours, first of all, our position is that what

 7     General Gotovina was doing here was implementing the agreement that had

 8     been reached between the minister of the interior and minister of defence

 9     as to who was going to be responsible for security in the liberated area.

10             Second, I believe there is no dispute, and it will be an

11     uncontested fact, that General Gotovina had no command over the MUP and

12     no command over the special MUP units.  What does this mean?  The

13     Prosecution says that General Gotovina implemented his orders by relying

14     on the other institutions of the Republic of Croatia, including MUP,

15     including special MUP units and the military police, and that that made

16     his order effective.  Now, we're not going to relitigate the issue of who

17     had the responsibility to continue to deploy the military police after

18     Operation Storm commenced.  You will make that decision, and you know our

19     position on it very well.

20             If you agree with us, that it was Mr. Lausic and Mr. Juric who

21     were responsible for implementing that portion, then what we have this

22     morning is the Prosecution saying, When General Gotovina issues an order

23     and relies on the MUP and the military police, he should know that his

24     order is going to be effective.  We ask to you keep that in mind.  And

25     how many other orders General Gotovina could have issued relying on the

Page 29423

 1     MUP and the military police and the political affairs branch and the SIS

 2     to make sure that those orders get implemented.

 3             Finally, Mr. President, we note that D204 was not addressed and

 4     we -- with respect to General Gotovina taking measures.  As Mr. Tieger

 5     said, he took measures.  It was not only to rely on the MUP, the special

 6     MUP units, the military police, SIS, Political affairs, he also issued

 7     D204 for disciplinary measures, P918, and we know that the result was a

 8     151 per cent increase in disciplinary measures in the Split Military

 9     District.

10             Mr. President, Your Honour, I thank you very much for listening

11     to me today and for two and a half years, and I thank you, and I cede the

12     floor to Mr. Kehoe.

13             JUDGE ORIE:  Mr. Kehoe.

14             MR. KEHOE:  Good afternoon, Your Honours.

15             Once again in rebuttal argument by the Prosecution, we have

16     observed their use of this evidence to try to demonstrate the illegal

17     intent of General Gotovina.  Yet in this task, they once again, as they

18     have done continuously, overlook what they describe as the context of

19     everything that happened.  And we're not go to, at this juncture,

20     Mr. President, rehash the context of all of these items.  But just a

21     couple of salient features and questions to be asked when the Chamber is

22     reviewing the rebuttal argument by Mr. Tieger directed to the intent of

23     General Gotovina.

24             His argument was that the activities of General Gotovina and the

25     HV were unlawful, along with the other alleged JCE members, because they

Page 29424

 1     intended to drive the civilian population out of the so-called Krajina,

 2     with most of the emphasis by the Prosecution on Knin.  Well, the

 3     questions to be asked that haven't been addressed by the Prosecution that

 4     play into that are twofold.  If not only officials within the Croatian

 5     government but others, such as Ambassador Galbraith and Ambassador

 6     Holbrooke, believed that no more than 20 per cent of the Serbs would come

 7     back under any circumstances, why would this large entity within the

 8     government risk losing relations or damaging relations with the

 9     United States and other legal entities and countries throughout the

10     Western world?

11             Taking it down to the more specific, the position of the

12     Prosecution once again this morning is that after the Brioni meeting, the

13     artillery attack that was directed by General Gotovina was to force the

14     civilian population out of Knin.  If that were the case, and this wasn't

15     a classic military offensive, as has been demonstrated by the evidence

16     put forth by the Defence, if that were the case, and the point was to

17     scare the civilian population and drive them out, why not just line up,

18     after the fall of Grahovo and Glamoc, and shell Knin?

19             Your Honour, Judge Orie, I know that you are quite familiar with

20     the facts in Sarajevo and certainly don't stand here to duplicate that.

21     Nevertheless --

22             JUDGE ORIE:  No, apart from that, Mr. Kehoe.  I'm not going to

23     rely on whatever I learned in the past about Sarajevo --

24             MR. KEHOE:  I understand.

25             JUDGE ORIE:  -- because it is not part -- to the extent it is not

Page 29425

 1     part of the evidence in this case.  Let that be perfectly clear.

 2             Please proceed.

 3             MR. KEHOE:  And I understand, Mr. President.

 4             The fact of the matter is, if you want to terrorise the civilian

 5     population, you do what the Serbs did in Sarajevo and shell

 6     intermittently three or four shells, how about on the 28th of July, the

 7     29th of July, the 30th, the 1st, 2nd and 3rd of August.  That would

 8     terrorise the civilian population and drive them out.  That didn't

 9     happen.  And certainly Your Honours are aware that they had more than the

10     capability to do it.

11             Secondly, if the shelling of Knin was so concentrated in civilian

12     areas on the 4th of August, why was the civilian population leaving front

13     line areas to go to Knin?

14             Next question.  In going into the intent of the JCE, and the

15     intent being that this JCE was going to allow crimes to take place, that

16     they wanted those crimes to take place, because it was part and parcel of

17     this artillery plan to drive the Serbs out.  Really?  Why did the

18     Prosecution not address the fact that there were numerous meetings, both

19     before Operation Storm and throughout August of which we have numerous

20     documents to evidence, numerous meetings where the discussion was, How do

21     we prevent crime and how do we do a better job?  None of which, I might

22     add, was attended by General Gotovina.

23             Let us move to the artillery issue as argued by Mr. Tieger this

24     morning.  A thousand shells fell on Knin, per Mr. Tieger.  900 shells,

25     Mr. Tieger noted for us, were actually on civilians.  There's absolutely

Page 29426

 1     no evidence whatsoever of 900 shells falling on civilians.  Nine-tenths

 2     of the shells fired into Knin were allegedly -- without any evidence and

 3     without any foundation from the Prosecution, they maintain fell on -- on

 4     the civilians.  Where is the evidence of that in the record?

 5             They gave us a 300-page brief.  We are now on our third day of

 6     final arguments and there is no evidence to support that.  And assuming,

 7     assuming for the sake of argument that that was the case.  Why would

 8     Steiner Hjertnes go back and report, in his provisional report and his

 9     final report, which I add was verified by Mr. Roberts, why did he tell

10     this Chamber that the shelling was concentrated on military targets?

11     Which, by the way, is consistent the ARSK intelligence report in D389

12     which was a contemporaneous record demonstrating the same thing.

13             But why is that discussion -- question never answered, that given

14     these -- and I say outlandish, and I don't mean to say that lightly but

15     that's exactly what it is.  This outlandish allegation that 900 shells

16     fell on civilians, that that fact was lost on experienced military

17     officers, as well as the media, as well as the international community,

18     when they came to visit Knin after the 5th of August.

19             Even Forand, General Forand, when he gave his first speech on

20     this in 1996, noted that the use of artillery was excellent.  It was only

21     until that statement, that speech was put in the hands of Mr. Robertson

22     that things changed.  Let's take a look at exactly what he said.  This is

23     P339, page 4.  Excuse me, D339 page 4.

24             Now I note for Your Honour, I know it's been some time since this

25     was actually looked upon or viewed.  It notes and I add -- I note for you

Page 29427

 1     just to reference you back, is the stuff in blue underline is the

 2     information that was inserted after this statement or speech was

 3     gotten -- was in the hands of Mr. Robertsson.  But initially, he noted

 4     that:  "Their," being the HV, "use of artillery was excellent."  He noted

 5     that there were problems with the tanks and infantry, but I note, the use

 6     of the artillery was excellent.

 7             Why was that so dramatically, dramatically changed by

 8     Mr. Robertson?  And why has there never been any explanation by the

 9     Prosecution for this?

10             Let us turn to the discussion of craters and the evidence of

11     craters, because, of course, crater analysis has been used not only by

12     military but, of course, by courts to demonstrate any number of things.

13     Nevertheless, today, Mr. Tieger noted at page 10, line 18:

14             "Crater analyses are intended to determine the origin of -- of --

15     for the use in situations in which it is not clear which warring faction

16     is responsible for firing the projectile."

17             That's true.  That is one of the reasons.  It's also

18     preliminarily used to demonstrate that shelling actually took place.  The

19     reason we look for crater analyses at various locations evidentiary-wise

20     is to show that it took place and how many shells were actually shot at a

21     particular target or an area.  Moreover, those shelling analyses, the

22     crater analysis is also done to determine what the munition is, what type

23     of cannon, what type of gun, what type of piece of artillery fired this.

24     And, of course, where was it located.

25             None of those items, none of those pieces of evidence, those

Page 29428

 1     crucial pieces of evidence to substantiate an illegal attack on the

 2     civilian population has been presented to this Chamber, barring one

 3     crater analysis by Mr. Munkelien and Mr. Anttila, and when you go back to

 4     the record, they have three different locations for where the actual

 5     rocket was found.  There's one in the report, there's one in the

 6     testimony of Mr. Munkelien and one in the testimony of Mr. Anttila.  All

 7     three are different.  They can't even agree.  And that is even before we

 8     engage in a discussion as to what type of munition this was and who fired

 9     it.

10             The principle of distinction.  Mr. Tieger noted that

11     General Gotovina violated the principle of distinction by the use of the

12     weaponry employed and deployed during Operation Storm.  Well, that's

13     interesting, Mr. President, and we discuss that in our brief, but I asked

14     that question of Colonel Konings, specifically directed on the use of --

15     on the principle of distinction and the use of MRLs and cannons as well

16     as T130s.  And he -- I asked him, Can this weaponry be used to hit this

17     target, a target?  He said yes.  He confirmed, as we outline in our

18     brief, that he -- the violation -- that the principle of distinction was

19     not violated by the use of MRLs and other pieces of artillery.

20             Suffice it to say, the OTP never addresses, never addresses, the

21     consistent and sophisticated use of artillery both at the point of

22     contact on front lines as well as in depth.  Nor have they contested the

23     fact that it worked.  In their zeal to try to prove that this was an

24     attack against the civilian population, they overlook a very crucial

25     issue:  That the purpose of this artillery, among other things, was to

Page 29429

 1     comprise the three C/I capabilities of the ARSK; command, control,

 2     communication, and intelligence.

 3             And the evidence that's before this Chamber directly from

 4     General Mrksic was that it worked.  His ability to communicate with the

 5     front lines on the Drina on the 4th, compromised.  His ability to talk

 6     his troops in the Velebit, compromised.  All as a result of the use of

 7     artillery which led to the decision that to avoid encirclement to

 8     evacuate the area.

 9             So, if the OTP's analysis is to be true -- is to followed, this

10     was simply an illegal attack on the civilian population, which, by the

11     way, happened to compromise the intelligence and communication

12     capabilities of the ARSK headquarters, and that was just an ancillary

13     benefit.  That is a specious argument that there is no basis in reality

14     and no basis in the evidence of this record.

15             Lastly, this argument with regard to what General Gotovina should

16     have done.  Both my colleagues addressed this at some point concerning

17     Jajce, and I don't quite know if they don't understand what a military

18     curfew is or have overlooked that but a military curfew is not just a

19     curfew against military, Mr. President, Your Honours.  When you employ a

20     military curfew in occupied territory, that means everybody is under

21     curfew.  Everybody in the occupied territory is under the curfew.

22     Something that General Gotovina could not do given the fact that after

23     the 6th of August, the constitutional order of Croatia was restored and

24     civilian authorities took over.  Nevertheless, as just mentioned by my

25     colleague Mr. Misetic, General Gotovina took steps to implement as best

Page 29430

 1     he could those measures of controlling his troops by ordering on the 10th

 2     of August, in D204, as mentioned by Mr. Misetic, that arbitrary movement

 3     of troops should stop and be avoided, and to take resolute measures

 4     against anybody who conducts himself in an undisciplined manner.

 5             Mr. President, in conclusion, General Gotovina is not going to

 6     speak to the Chamber.  He -- we will speak on his behalf.  I think what

 7     we see through the evidence in all this and I submit to the Chamber is a

 8     soldier, a patriot, who acted honourably under very difficult

 9     circumstances with an attempt to do the right thing, to restore democracy

10     to his country by the use of the military and the soldiers under his

11     command.  These were very difficult times, as this Chamber knows.  The

12     war in the former Yugoslavia raged between 1991 and 1995, and many, many

13     difficult problems came before those involved in that endeavour that have

14     now been sent to this Court to be revisited and discussed.

15             But I submit to Your Honours that when the Chamber reviews the

16     evidence in this case and the conduct of General Gotovina throughout, the

17     Chamber will found that conduct to be both honourable, correct and right.

18     We understand these are difficult issues.  We have been here two and a

19     half years.  We understand that the Chamber has many, many questions to

20     be answered over the months that it takes to render this decision.  But

21     we submit to the Chamber that when Your Honours reviews this evidence,

22     you will find that not only General Gotovina acted in the right but so

23     was the Defence that was presented to this Chamber.

24             In history we're all -- have experience with difficult times.  Of

25     course, we look back at this difficult time in Croatia and in the former

Page 29431

 1     Yugoslavia.  But I go back to the history in my country and we had our

 2     difficult times, and certainly the worse time was the American Civil War,

 3     where any number of individuals were killed, 650.000, to be exact.  And

 4     somehow throughout all this, right and the truth willed out under those

 5     very difficult circumstances.  And on the eve of that war, the horrible,

 6     horrible war, Abraham Lincoln stood at the Cooper Union in February of

 7     1860, and he spoke these words:

 8             "And so let us have faith that right makes might, and in that

 9     faith, let us, to the end, dare to do our duty as we understand it."

10             This is a difficult case.  We submit to the Chamber, at this

11     point, on behalf of General Gotovina, is that the right thing is to find

12     General Gotovina not guilty of these charges and send him home to his

13     family.

14             Thank you.

15             JUDGE ORIE:  Thank you, Mr. Kehoe.  I'll a bit puzzled by one of

16     your lines.  That is that you submit to the Chamber when we review the

17     evidence that we will find that not only General Gotovina acted in the

18     right, I take it that our verdict will give an answer to that question --

19             MR. KEHOE:  Yes.

20             JUDGE ORIE:  -- but so was the Defence that was presented to this

21     Chamber.  I -- are you expecting us to include in the judgement --

22             MR. KEHOE:  No.

23             JUDGE ORIE:  -- apart from what --

24             MR. KEHOE:  No, no --

25             JUDGE ORIE:  -- whether Mr. Gotovina was right or wrong, whether

Page 29432

 1     your Defence was right or wrong ...

 2             MR. KEHOE:  Mr. President, what we have tried to do throughout

 3     all this was just to give you what you needed to make this decision.

 4             JUDGE ORIE:  In your Defence you have drawn our attention to

 5     everything which you say demonstrates that General Gotovina did the right

 6     thing.  That's what you --

 7             MR. KEHOE:  Yes, Mr. President.  Thank you, sir.

 8             JUDGE ORIE:  Yes.  Well, then I have understood you well, a bit

 9     perhaps beyond to what you literally said.

10             Mr. Kay, are you next in line?

11             MR. KAY:  Yes, thank you, Your Honour.

12             JUDGE ORIE:  Please proceed.

13             MR. KAY:  I will address the issues raised by Mr. Tieger today.

14     And, first of all, the first place to start is the issue of the Brioni

15     meeting.  Paragraph 347 in the Prosecution final brief where they clearly

16     state that there was an envisaged role, and a planned role, for the

17     person who eventually went to Knin in relation to tasks to be performed

18     and that, ultimately, Mr. Cermak was chosen.

19             This requires us, I believe, to go carefully to that exhibit,

20     P461, consider the language now, because we say this clearly is not the

21     case, that at the alleged JCE meeting, Mr. Cermak's role was envisaged.

22             Page 27 of P461.  They are talking about the planned combat

23     operation.  Susak says:

24             "I'm talking about is when they start shelling.  We might have up

25     to 100.000 refugees.  Panic might arise.  They might shell him so heavily

Page 29433

 1     that a stampede might occur overnight."

 2             And goes on to say:

 3             "We must be organised in such a manner so as not to provoke panic

 4     here.  Otherwise, they will have achieved a countereffect."

 5             And the president talks about stopping them at Dakovici.  Susak

 6     says:

 7             "Second, we must give clear instructions to the commanders on the

 8     ground, Mr. President, about how to react if UNCRO becomes involved."

 9             And refers to the Canadians:

10             "We must give them clear instructions.  That's one thing.

11     Second, I was thinking, Mr. President, that would be one staff."

12             So one staff, the commanders on the ground, reacting to what was

13     happening and dealing with UNCRO, plainly applies to the combat.

14             "Another staff would be for relations with UNCRO.  Someone who

15     would be a permanent liaison.  Someone who would be in touch with us and

16     resolve things with them.  For us to get instructions because matters

17     will evolve too rapidly for us to start looking around for them and

18     calling them.  That's the second problem, as I see it."  It's another

19     member of staff for the combat operation.

20             They go on to discuss matters.  The Court will see that.

21     Page 28, they discuss the operation.  Page 29:

22             "Can we have your agreement provided that we will face risks if

23     we lose."

24             That's what Susak said.  No certain outcome for them in Brioni

25     that they were going to win this war, this battle.  They go on to talk

Page 29434

 1     about it, the need for leaflets, the need to try and present their

 2     operation as being a victory.

 3             Let go to where Susak speaks again.  Number 3:

 4             "Another matter, Mr. President.  In that case, would we not need

 5     someone from your office, in order to re-establish the staff for

 6     propaganda?  We established this staff in Posusje but now this is being

 7     returned to Zagreb today.  We need someone from your office to be the

 8     contact person."

 9             President Tudjman says:

10             "This is a question to be dealt with."

11             And that's to do with the propaganda leaflets.

12             "With what you just said and also in reference to UNCRO," and

13     that refers to the UNCRO reference on page 27.  "And this means Sarinic.

14     What I'd like to know is whether it is safer to coordinate and manage

15     affairs from Brioni or Zagreb."

16             And the advice was given by Susak that it would be better to

17     coordinate in Zagreb.

18             "It would be bad to coordinate from here," meaning Brioni.  And

19     that decision was made as we know.  On page 30, the matter is further

20     discussed concerning the operation.

21             Page 31, Susak:

22             "And, last, Mr. President, if it were Sarinic who's already in

23     contact with the main commander here, they would each, at their own

24     level, have to establish some kind of contact to tell the ones over here

25     how far ahead they should give it."

Page 29435

 1             There is an interjection from Mr. Markac:

 2             "They didn't want to give it on time.  This time we should just

 3     give them an hour, just enough to take cover."

 4             And that refers to giving notice to the international

 5     organisations concerning notice of the attacked, and Sarinic was to

 6     establish, through his contact at his level, and pass on that

 7     information.

 8             There it is in full.  In our submission, it quite clearly does

 9     not refer to Mr. Cermak's role in post-Operation Oluja in Knin.  He was

10     never envisaged in Brioni, and a role was not carved out for him, as is

11     attempted to be alleged, to take part in the alleged JCE.

12             Moving on now to a further issue that arose concerning Grubori.

13     Mr. Tieger referred to the false reports and the special police this

14     morning and referred to Witness Celic.

15             We want to stress one matter, first of all.  It's clear through

16     P607, Exhibit P607, that on the 25th of August, the Split special police

17     unit had reported to Janic and filed a report, certainly by 4.00, which

18     was sent to Zeljko Sacic, concerning the finding of a body in Vundici

19     village, near the little bridge by the main road.  The deceased had

20     military boots, and his hands were tied.

21             "I reported hourly to Mr. Janic on my position.  There were no

22     injured workers in the task."

23             And that was sent on the 25th of August, a special police

24     operations team with 102 people involved, hourly in contact with Janic,

25     who we know went back to Gracac and he was in possession of that

Page 29436

 1     information.  The special police at Gracac, on that 25th of August, had

 2     the information they needed to supply Cermak with a false story which he

 3     gave on the morning of the 26th of August, giving what he had been told

 4     by them to the UNTV.  An important document in relation to a sequence of

 5     difficult documents as to who wrote what, when.  But the time a document

 6     arises is not necessarily the time of the conception of the deceit within

 7     the document.  That is something we stress.  Documents may arise later,

 8     after the conception of the deceit.

 9             Just moving on to issues raised concerning Mr. Dondo's report.

10             Mr. Dondo reported to the police five killings had taken place.

11     That we know.  It is D57 which is the record that states that the

12     sanitation had been ordered.  That is to civilian protection from the

13     local police.  There are distinct lines of hierarchy here, and from what

14     we know of the Croatian system, that is certainly not something that

15     Dondo, a Croatian army liaison officer, had any power or authority to

16     order to the MUP.  We do know, however, that the villagers in Grubori

17     were concerned about the dead bodies and concerned about the effect it

18     was having.

19             On the 25th of August, P874, one of the Grubori villagers said to

20     the journalist:

21             "What am I to do now?  Are you going to bury him?  Who is going

22     to bury him, my husband?  We don't have anybody to do the burial."

23             Dondo mentioning the need for sanitation was clearly in response

24     to the attitude and position of the villagers.  Transcript page 22593.

25             P237, Mr. Romassev's note, the chief of the UNCIVPOL.  He was

Page 29437

 1     aware that the villagers wanted the bodies buried.  Linking the

 2     sanitation or the burial of the bodies with an attempt to thwart an

 3     investigation, in our submission, is taking a far more complicated and

 4     wrong position on this evidence.  Not only that; we know that when Dondo

 5     went to the police, Mr. Cermak had not been involved with this matter

 6     since earlier in the afternoon, when the president came to Knin, and he

 7     went off to Split.  To suggest that he'd ordered anything of Dondo is

 8     completely wrong.  Dondo didn't know he was going to find five bodies

 9     when he went up there.  The MUP report at 3.00 in D57, is of the two

10     bodies.

11             Let us consider, then, the position of Dondo in the report that

12     he wrote; Exhibit P764, referred to by Mr. Tieger.  The line he writes

13     is:

14             "Most probably the bodies will be cleared up on the

15     27th of August."

16             Not "will be," not as a result of an order.  But just passing on

17     a factual answer of "most probably."  And we know that on the

18     26th of August, the on-site investigation had been booked.  That was in

19     the police log in Knin.  And we know that the entries for the civilian

20     protection to also attend are part of a conjoined procedure for dealing

21     with deaths, as is usual within the Croatian system.

22             I only have a few minutes now.  The issue concerning Mr. Albiston

23     re the document 510, the Trial Chamber is invited to completely consider

24     all the transcript on this matter.  Because, first of all, the document

25     that was produced was not a correct translation when questioned by the

Page 29438

 1     Prosecutor, and we can see that at 23957.  And what the expert witness

 2     Albiston said was that he had considered this document.  He had seen it.

 3   (redacted)

 4   (redacted)

 5   (redacted)  And on the totality of the

 6     document that he was considering --

 7             JUDGE ORIE:  Ms. Gustafson.

 8             MS. GUSTAFSON:  Can we go into private session for a moment.

 9             MR. KAY:  I've just realised, I'm sorry.

10             JUDGE ORIE:  We move into private session.

11                           [Private session]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29439











11 Page 29439 redacted. Private session.
















Page 29440

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

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

20     you.

21             JUDGE ORIE:  Thank you, Mr. Registrar.

22             MR. KAY:  Back in public session now, Your Honour, and I'm just

23     making a closing remark.

24             That passage of transcript that I've just read from Mr. Albiston,

25     a police officer of great experience, like General Sir Jack Deverell, an

Page 29441

 1     army officer of great experience, in our submission, brings to bear some

 2     common sense in relation to the facts in this case.  Our submission is

 3     that Mr. Cermak was a man put into Knin with a distinct mission which he

 4     tried to fulfil without any criminal intent or motivation in his mind.  A

 5     position that was not well thought out, that was not clearly defined, but

 6     he attempted to do his best.  Our submission is the verdict of this Court

 7     on all counts in relation to him should be one of not guilty.

 8             And we thank the Court for hearing us during this trial, and our

 9     colleagues from all parts of the courtroom, Prosecution, fellow Defence

10     counsel, and those who have helped in the background during the course of

11     this trial.  And we leave the verdict to be announced in the hands of

12     Your Honours.

13             Thank you.

14             JUDGE ORIE:  Thank you, Mr. Kay.

15             Mr. Mikulicic, are you ready to proceed?

16             MR. MIKULICIC:  I am, Your Honour.  Thank you.

17             [Interpretation] Your Honours, I will very briefly dwell upon two

18     issues raised by the Prosecution.  It is about the alleged provocation

19     that was carried out just before Operation Storm and which was discussed

20     on the 31st of July in Brioni.  I'm referring to P614.

21             The Defence certainly does not say that initiating certain

22     activities as a precondition for launching Operation Storm that

23     certain -- doesn't say that these things were not discussed.  But the OTP

24     is going one step further and claims that based on P831, this provocation

25     was, indeed, carried out and that my client, General Markac, took part in

Page 29442

 1     that.

 2             The Defence denies such an interpretation of P831 and claims that

 3     there has been no provocation either by General Markac or by anybody

 4     else, and would like to point out that this exhibit does not lend itself

 5     to such interpretation.

 6             In paragraph 3(C) of the ECMM says that Gospic was shelled.  And

 7     I will continue in English.

 8             [In English] The UN and UNMOs believe the explosions heard may

 9     have been caused by the HV.

10             [Interpretation] Finally there is a comment which says:

11             [In English] Indeed, why should I, at the present moment.

12             [Interpretation] If a sensible observer wants to interpret that

13     document, he or she will arrive at the conclusion that this is

14     speculation and that there is no reliable evidence showing, A, that there

15     were indeed explosions; B, what the -- the intensity, the qualification

16     and the location of those explosions were; and C, what the cause of these

17     explosions was.

18             Linking this to considerations raised at a meeting actually is

19     speculation in the interpretation of the evidence which the Defence

20     naturally opposes.  Mr. Kuzmanovic had earlier spoken about the

21     importance of the creation of certain preconditions and about the tactics

22     employed in that military operation, but that is something that I don't

23     want to go into.  I do want to say, though, that a conversation and

24     considerations about some military activities that did not happen cannot

25     be incriminated because that would be a thought crime.

Page 29443

 1             Another issue is the testimony of Mr. Vanderostyne and based on

 2     his testimony the OTP bases the conclusion that it has been proven that

 3     the members of the special police looted the abandoned property of the

 4     Krajina Serbs.  First of all, the OTP relies on P324 in reaching this

 5     conclusion.  I will add that these are photographs taken on the

 6     8th of August, 1995, on the streets of Gracac.  The Defence submits that

 7     Witness Vanderostyne is unreliable in his memory and his interpretation

 8     of the events and that, therefore, his words are not a reliable basis for

 9     approving some facts.

10             I would like to say that Mr. Vanderostyne, having arrived in

11     Zagreb on the 5th of August, 1995, and having travelled to Gracac, passed

12     through the Croatian towns of Karlovac and Otocac of which he said that

13     they were considerably damaged due to shelling and that the population

14     was -- was upset.  But he fails to say that these are towns that for four

15     years had been shelled by the forces of the so-called Army of the

16     Serbian Krajina.

17             So Mr. Vanderostyne is unaware of the context as well as the

18     political and factual situation in which he was.

19             The contentious photograph, which you will remember, showing a

20     person putting on or taking off a truck a rectangular object is the

21     basis -- is taken as evidence by the OTP that members of the special

22     police stole things.  Mr. Vanderostyne, in his statement, said that he

23     noticed uniformed persons stealing property from houses, and he describes

24     the uniforms as grey, greyish blue or khaki, respectively.  The Chamber

25     is aware that the special police didn't wear such uniforms, and evidence

Page 29444

 1     has been led to show that.

 2             That photograph does show a member of the special police wearing

 3     his standard green uniform.

 4             However, Ms. Mahindaratne, when she was examining the witness,

 5     was the one who suggested to him, who put to him, that the object in the

 6     photograph was actually a TV set.  Witness Vanderostyne never said

 7     himself or never volunteered the opinion that it might be a TV set.  I

 8     refer to transcript page 4028, line 23.

 9             After some time in the continued examination,

10     Witness Vanderostyne said that he personally never saw the scene which

11     was photographed, that the photograph was taken by his photographer, and

12     that, at the time, he was not with the photographer.

13             Your Honours, what is the value of his testimony?  An

14     interpretation of a photograph that anybody here can interpret because he

15     was not personally present, nor did he see the context in which the

16     photograph was taken.  So that his interpretation, which, by the way, was

17     put it him by the OTP, saying that it was a TV set is one possible

18     interpretation only.

19             To the question of the Defence whether in that particular case

20     that may have been a cardboard box for documents or anything of that

21     kind, the OTP protested and said that it was a fact to be established by

22     the Trial Chamber.  I agree with that, Your Honours.  Let the

23     Trial Chamber, by looking at the photograph, draw the conclusion whether

24     it is, indeed, evidence of special police looting, or whether another

25     conclusion can be drawn from that in accordance with the submission of

Page 29445

 1     the Defence, such as the removal of the staff of the special police from

 2     Gracac and the loading of equipment and materiel.

 3             Your Honours, by way of conclusion at the end of this lengthy

 4     procedure, I wish to thank you, first of all, as well as all

 5     representatives of this Tribunal who assisted in the trial, by which I

 6     mean Registry staff and the interpreters as well as court reporters.  I

 7     would like to thank you for your patience and for your -- for your

 8     listening to us.  And all our argumentation boils down to something very

 9     simple, that our client was an honourable person who devoted the best

10     years of his life to one goal:  The defence of his country and the

11     defence of the democratic system of that country, the Republic of

12     Croatia, in the very harsh conditions of Mount Velebit.  I'm sorry that

13     we were unable to go there so that the Trial Chamber see for themselves

14     what it's like there.  That it's a person -- we're talking about a person

15     who carried out his duties honourably and honestly, who led highly

16     trained professionals in the special police who went about their job in

17     accordance with their ethics and their convictions.

18             I don't believe that my client ever acted dishonourably, let

19     alone in a way that can be characterised as committing a crime.  Hence, I

20     claim that the OTP has not led any evidence based on which the Trial

21     Chamber can convict my client.  As I said yesterday, that is the absence

22     of legal prerequisites for convicting my client.  It is the position of

23     the Markac Defence that the only possible decision that can be taken by

24     the Trial Chamber after duly considering all facts will be the acquittal

25     of General Markac.  And that will be a satisfactory outcome which will

Page 29446

 1     return General Markac to his family and friends in Zagreb, although in

 2     spite of the great sacrifice he has made.

 3             Thank you very much once again, Your Honours.

 4             JUDGE ORIE:  Thank you, Mr. Mikulicic.

 5             Mr. Kuzmanovic.

 6             MR. KUZMANOVIC:  Thank you very much, Your Honour.

 7             There are three areas I'm going to cover.  The first deals with

 8     Mr. Celic; the second deals with Ramljane; and the third deals with

 9     Gracac.

10             Mr. Tieger in his rebuttal argument discussed paragraph 444 of

11     the Prosecution brief by telling you that the second report relating to

12     Grubori, P576, actually it wasn't relating to Grubori, it was relating to

13     the Plavno mop-up operation, was written in Markac's presence.  But not

14     even Mr. Celic says that.  The report at issue is alleged to have been

15     dictated to Celic by Sacic at Gracac HQ outside of Markac's presence.

16             The information, as I talked about yesterday, that are in the

17     reports of General Markac are all information that he receives from

18     subordinates, and in the case of Grubori, it's misinformation.  And all

19     of this misinformation starts with Celic.  Markac isn't present in

20     Grubori.  He's provided information by his subordinates regarding this

21     mop-up operation, and what's interesting is that, as I described

22     yesterday, Mr. Celic has somewhat of an uncanny ability to agree with

23     everyone.  He agrees that nothing happened.  Then when he's confronted in

24     cross-examination or by questions from the Bench about the alleged role

25     of Sacic and Sacic dictating to him what happened, and whether or not he

Page 29447

 1     believed what Sacic was telling him was the truth, he says, Absolutely.

 2             Again, when Josip Turkalj, on September 1st, after General Markac

 3     requests reports, orders a report from the group leaders, what happens?

 4     Again, the same thing.  Misinformation.  Not just from the group leaders

 5     but again from Celic.  What evidence is there that General Markac ever

 6     influenced or obstructed information relating to Grubori?  None.

 7     Zeljko Zganjer testified to that effect, the state prosecutor, who

 8     investigated this in 2001.

 9             Now -- and we need to go into private session for this,

10     Your Honours.

11             JUDGE ORIE:  We move into private session.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29448

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  Sorry, counsel.  I just need to indicate that we

12     are now in open session.  Thank you, Your Honours.

13             JUDGE ORIE:  Are you thanked for that.  Please proceed.

14             MR. KUZMANOVIC:  I apologise for that.  Thank you.

15             I would now like to move to the discussion on Ramljane.  Again,

16     unlike the event in Grubori the day before, Markac did arrive in

17     Ramljane.  And yesterday I cited from Janic's testimony that he, as the

18     responsible commander, looked into Ramljane and decided that there was no

19     need to conduct any kind of disciplinary measures.

20             What I did not include and what I will include out of Janic 's

21     testimony at 6193, beginning at line 23 to 6194, and he's talking about

22     Ramljane.  And Janic says:

23             "Later on before departure or before we went other own separate

24     ways, the general," referring to General Markac, "trusted me with

25     verifying all this information and to interview the commander of Lucko

Page 29449

 1     and other commanders in order to verify whether the reports were true.

 2     After these interviews, I established that this is exactly what

 3     happened."

 4             Now it's the Office of the Prosecutor's position that the inner

 5     control now of the special police was somehow the source for Markac to

 6     know at 5.00 on August 25th that out of the six special police units of

 7     580 members, it was Lucko that was in Grubori, and because of that, he

 8     shouldn't have sent Lucko into Ramljane.  Well, I didn't -- I believe I

 9     adequately explained yesterday how that was not possible under the

10     evidence that's been admitted in this case.  There's no evidence where

11     General Markac was on August 25th, was he in Gracac, was he elsewhere?

12     Now there is no reason for him to call Sacic to go down there if he

13     already knows that it's the Lucko Unit -- if he has all the information

14     by 5.00 on August 25th, what reason is there for him to ask Sacic to go

15     down and find out what happened, as Sacic said.  And we still -- the

16     Prosecution has still not demonstrated beyond a reasonable doubt that

17     Markac knew Lucko was in Grubori before the Ramljane Freedom Train

18     operation.

19             Let's talk about Gracac for a moment.

20             Mr. Russo yesterday said -- or two days ago said that the Janic

21     reference he provided discussed Gracac and targets in Gracac.  Well,

22     that's not what it discussed.  I showed you the transcript that he

23     referred to.  Now they bring us to another transcript, and says, well,

24     yes, Janic does refer to Gracac and targeting and targets.  Well, that

25     reference is page 6355 to 56.  And when we go to that reference, at

Page 29450

 1     line 19, Mr. Janic is asked:

 2             "To the best of your recollection of the days spent in Gracac,

 3     can you tell us what the situation in town -- what was the situation in

 4     town?  Were there -- was there any damage on the buildings?  Just in a

 5     couple of sentences.

 6             "A.  Since after I reached the road near Prezid, I entered Gracac

 7     and I can confirm that the town was intact.  There was no damage caused

 8     by artillery.  There was no immediate fighting over this particular town.

 9     Therefore, that there was no reason, and I know that near the town there

10     were some military depots that were legitimate targets.  But the town

11     itself wasn't.  And there was no fighting inside it.  And there were no

12     artillery strikes targeting the town."

13             Mr. Janic doesn't talk about military targets in the town.  He

14     says the town itself wasn't targeted.  There's a big difference.  The

15     Prosecution is very critical of various orders saying put certain towns

16     under fire.  Well, here's Mr. Janic saying, There were no artillery

17     strikes targeting the town.

18             Of course, the Prosecution has conveniently ignored the citations

19     to Turkalj yesterday that I made and the other witnesses that I

20     identified, and I will not go over them.  However, I will refer to

21     Mr. Vurnek, his testimony at 26257, asking him:

22             "Did you see any craters from shelling in various parts all over

23     the town, as Mr. Steenbergen says in his statement?

24             "A.  No.  I saw several craters at the cross-roads just outside

25     the town.  As for the town itself, I don't recall there being any."

Page 29451

 1             The Court will recall that Mr. Vurnek was a witness of the

 2     Defence from the special police.

 3             Mr. Vitez, similarly a Defence witness, from 25988 through 25989,

 4     talks about damage.  But he says:

 5             "In Gracac, as far as I remember, they had been destroyed a long

 6     time previously.  There had been vegetation growing out of the ruins.  I

 7     don't remember any other damage.

 8             Witness Cvrk also describes, 25375 through 25376.

 9             Witness Turkalj, in a reference that I didn't make yesterday,

10     states at 13772:

11             "I was surprised at that fact at that there was no civilian

12     population there," and he is referring to Gracac.  "It was already said

13     that the targets engaged in Gracac were engaged with an exceptionally

14     small number were projectiles, in view of the number of targets in

15     Gracac.  To draw a comparison, I was present in the area of the town of

16     Karlovac, where hundreds or even thousands of rounds landed on Karlovac

17     and the population never abandoned it.  It was always there.  So the

18     movements of the population can never be correlated with the activities

19     of shelling.  Or at least I could not when it came to the shelling of

20     towns that came from our side."

21             Witness Herman, also a Defence witness, transcript reference

22     26435 through 26436, describes, apart from some craters that could be

23     seen on the tarmac, he talked about the main road in Gracac.  It was in

24     fair condition.

25             So as far as the citation references regarding Gracac, they're

Page 29452

 1     either non-existent or completely misinterpreted.

 2             The last thing I wanted to state, Your Honour, in conjunction

 3     with my colleague Mr. Mikulicic is, while I thanked many people yesterday

 4     I didn't thank the three of you, Judges, for listening to us, for your

 5     patience, for your obvious engagement in the case, and for at times

 6     knowing certain portions of the case better than the Defence lawyers or

 7     the Prosecution.  I join my colleague Mr. Mikulicic in seeking our

 8     client's acquittal because the Prosecution has not proven its case beyond

 9     a reasonable doubt.

10             Thank you very much, Your Honours.

11             JUDGE ORIE:  Thank you, Mr. Kuzmanovic.

12             MR. TIEGER:  Your Honour, before you conclude, one small

13     housekeeping matter.  I just wanted to indicate in keeping with what we

14     have done thus far, should the Court wish the Prosecution to provide the

15     slides shown today we're prepared to do so but leave it to the Court.

16             JUDGE ORIE:  Let's resolve this in the following manner.  If any

17     of the parties would like to receive it, they will address you,

18     Mr. Tieger, and once you send a hard copy or an electronic copy to any of

19     the Defence teams, the Chamber would like to receive a similar copy.

20             We're not yet at the end.  I just want to have a few matters

21     clear for myself.

22             Mr. Akhavan, you've more or less assumed that silence would be

23     understood as -- as an expression of a position.  Did I miss something,

24     and that is very well possible, that you did not explicitly respond on

25     the Hadzihasanovic argument raised by Mr. Tieger, that where the

Page 29453

 1     character of the conflict may have been of some importance in the

 2     Hadzihasanovic case that it does not anymore, is that a matter which you

 3     would like to further address?

 4                           [Defence counsel confer]

 5             JUDGE ORIE:  You'll understand that I was hesitant to consider it

 6     to be -- having acceded to the position of the Prosecution.  Yes.

 7             MR. AKHAVAN:  Yes, Mr. President.  First of all, the

 8     Hadzihasanovic case did not deal with the scope of application of

 9     international versus international armed conflict, a matter which, as you

10     appreciate, was resolved in a Tadic jurisdiction decision quite some

11     earlier.  It dealt with the allegation that Article 7(3) does not apply

12     in internal armed conflict.  But the point from that decision is that

13     the Trial -- the Appeals Chamber clearly stipulates that in order to rely

14     on international armed conflict, it must be expressly charged in the

15     indictment, and to the extent that the Prosecution is relying on an

16     international armed conflict to vest this Court with jurisdiction, it

17     must have expressly stipulated that in the indictment.  That is the

18     issue.

19             And I would add also that the Dragomir Milosevic case in 2005, I

20     believe, had a similar finding as Hadzihasanovic.  Unfortunately, I

21     haven't had time to find that precedent for you.  So we do not concede

22     the point.

23             JUDGE ORIE:  Yes, that's clear.  I took it from Mr. Tieger's

24     position that he doesn't not rely on anything you say he should then

25     present or put to the Chamber.  But that's at least clarified.

Page 29454

 1             I have one also for you, a small question.  You pointed at the

 2     Eritrea-Ethiopia Claims Commission.  Would you agree with me that the way

 3     in which you presented that was more or less a one-liner.  You see how

 4     broad the powers are of a belligerent state to expel a mass expulsion of

 5     enemy aliens.  You relied on Lauterpacht, the 1996 edition.  Would you

 6     agree with me that that matter is far more complex as explained by the

 7     study of the ILC in 2006, and that have to fully appreciate the matters

 8     that apart from your one-liner pointing at the broad -- the broad powers

 9     that for a Chamber to --

10             THE INTERPRETER:  Please switch off all unnecessary microphones.

11             JUDGE ORIE:  Yes.  My microphone is on necessarily at this

12     moment.

13             Would you agree with me for a Chamber to have a broader and a

14     more balanced view on the matter that it should consider these elements

15     as well, and would you consider that to be appropriate in dealing with

16     the matter, which, by the way, was only a subsidiary argument for you

17     because you said we would -- Croatia would have had those powers,

18     although that was not the reason why the Serbs left the territory.

19             MR. AKHAVAN:  Yes, Mr. President.  We did not invoke that

20     authority to justify a nonexistent mass expulsion, as I tried to explain.

21     The point is that it is permissible for a state to deny the mass return

22     of enemy aliens in armed conflict, and that the issue here, that the

23     Prosecution is relying on a policy of no immediate mass return in order

24     to infer criminal intention, and we believe that is inappropriate.  The

25     International Law Commission study that you refer to, of course, is

Page 29455

 1     relevant and there was also a study prepared by the secretariat prior to

 2     that which was submitted to the International Law Commission.

 3             I referred briefly in my presentation to the fact that in the

 4     cases of state succession, which is what we have before us, the customary

 5     rule arguably is that habitual residents of the new successor state must

 6     have the right to citizenship of that state, at least where they become

 7     stateless.

 8             Now, in this case, you have an armed rebellion against a state

 9     and those who are supporting the armed rebellion are in effect citizens

10     of the predecessor state, the SFRY.  And in that context, none of them

11     had Croatian citizenship, none of them wanted Croatian citizenship, and

12     they were involved in an armed conflict and occupation of a state which

13     the SFRY did not recognise.

14             In those circumstances, we would submit, it is clear that they're

15     enemy aliens, apart from the question of whether they had the right to

16     apply for Croatian citizenship, and I'm not going to speak here about my

17     own knowledge of what, in fact, happened subsequent to the armed conflict

18     for those that wanted to acquire Croatian citizenship.  But the

19     Eritrea-Ethiopia case is actually far less forceful than this cases

20     because those that were lawfully expelled were in fact dual citizens.

21             JUDGE ORIE:  Yes, yes.  I'm not now asking you to compare the one

22     because that's the case you mentioned -- you referred to Lauterpacht when

23     you referred to that case in your oral argument.  I was just wondering

24     whether the reference to that case, to Lauterpacht, which is, of course,

25     already 14 years ago, that whether that would be the guiding principles,

Page 29456

 1     but you say this case is even stronger.  That's clear.

 2             Then, finally, one question for Mr. Mikulicic.

 3             Mr. Mikulicic, you -- when arguing the -- the jurisdiction you

 4     said the following, and you were talking about armed conflict.  You said:

 5              "As a matter of fact, in these cases," and you had referred to

 6     the IRA and the ETA, "they had a rather good hierarchical organisation.

 7     In some cases they even controlled parts of that territory.  That is to

 8     say, there were some elements that could meet the criteria of customary

 9     international law that are applied for defining armed conflict."

10             And then you said:

11             "However, that never happened, and no international court ever

12     established jurisdiction," which was then followed by, "and the

13     jurisdiction of national courts was never brought into question."

14             Your last remark suggests that if there's an armed conflict, that

15     national courts would lose their jurisdiction because national courts -

16     and that's perhaps my question to you - can exercise their jurisdiction,

17     whether there exists or does not exist an armed conflict, of course,

18     depending on what kind of cases they're dealing but that could include

19     war crimes or crime against humanity.

20             Would you agree with that or would you further explain what the

21     last part of this sentence, "jurisdiction of national courts was never

22     brought into question" what that exactly means in this context?

23             MR. MIKULICIC:  Indeed, Your Honour, I completely agree with your

24     position and that was not my intention to provoke that questions [sic].

25     It is obviously that national courts has jurisdictions, no matter whether

Page 29457

 1     it's a context of the armed conflict or it's not.  In fact, if the

 2     national courts did their duty in the very present case, I supposed we

 3     wouldn't be here today.

 4             JUDGE ORIE:  Thank you for this clarification.

 5             We will conclude hearing this case at this moment.  I wanted to

 6     join in the appreciation expressed by the parties already for the work

 7     done by all those who have assisted us; interpreters, technicians,

 8     transcribers, Registry.  They've all made it possible to hear this case

 9     which kept us for quite a while in this and other courtrooms.

10             I want to extend also on behalf of the Chamber my appreciation to

11     the parties because a Chamber is limping and paralysed if it is not

12     assisted by committed and dedicated parties which present their cases

13     before the Chamber.  It is to a large extent also because of the parties

14     that a Chamber can perform its duties, and I would like to express my

15     appreciation for that very specifically.

16             I will adjourn in a minute.  The Chamber is aware that there is a

17     pending motion by the Gotovina Defence which doesn't need an immediate

18     answer now.  It will -- from what will follow, it will -- it can be

19     concluded whether or not the Chamber has granted or has not granted that

20     motion.

21             The Chamber adjourns, sine die, and will deliver its Judgement in

22     due course.

23             We stand adjourned.

24                            --- Whereupon the hearing adjourned at 1.53 p.m.,

25                           sine die.