Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9102

 1                           Thursday, 20 February 2014

 2                           [Rule 98 bis Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.33 p.m.

 6             JUDGE DELVOIE:  Good afternoon to everyone in and around the

 7     courtroom.

 8             May we have -- Madam Registrar, sorry, could you call the case,

 9     please, to start with.

10             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

11     IT-04-75-T, the Prosecutor versus Goran Hadzic.

12             JUDGE DELVOIE:  Thank you.

13             May we have the appearances, please, starting with the

14     Prosecution.

15             MR. STRINGER:  Yes.  Good afternoon, Mr. President, Your Honours.

16     For the Prosecution Douglas Stringer; Sarah Clanton; Case Manager

17     Laurent Vuillemin; and legal intern, Andrew Ozanian.

18             JUDGE DELVOIE:  Thank you.

19             And for the Defence, Mr. Gosnell.

20             MR. GOSNELL:  Good afternoon, Mr. President, Your Honours.  Today

21     on behalf of Mr. Hadzic is myself Christopher Gosnell, flanked by

22     Jolana Makraiova and Liane Aronchick.

23             JUDGE DELVOIE:  Thank you very much.

24             Today the Chamber will render its decision on the Defence's

25     Rule 98 bis motion.

Page 9103

 1             On the 16th of December, 2013, the Defence moved pursuant to

 2     Rule 98 bis of the Tribunal's Rules of Procedure and Evidence for

 3     acquittal on specific charges contained within Counts 2 through 9 of the

 4     indictment.  The Prosecution responded on 18 December 2013.

 5             The Chamber recalls that Rule 98 bis, as amended in 2004,

 6     provides that a close of the Prosecution's case in chief -- provides that

 7     at the close of the Prosecution's case in chief, the Trial Chamber shall,

 8     by oral decision and after hearing the oral submissions of the parties,

 9     enter a judgement of acquittal on any count if there is no evidence

10     capable of supporting a conviction.

11             The Defence has made submissions on the scope of Rule 98 bis,

12     submitting that the Rule allows the Chamber to look within counts to

13     examine whether an accused may be acquitted on a portion of a count.  The

14     Defence argued that, if the Chamber agrees with this view, it should

15     acquit Goran Hadzic of specific charges contained within Counts 2 through

16     9 of the indictment, namely, those related to the events in Opatovac,

17     Lovas, Velepromet, and Ovcara because there is insufficient evidence

18     linking Hadzic to these crimes to enable any conviction.  The Defence

19     also submitted that the Chamber should acquit Hadzic of specific charges

20     contained in Counts 5 through 9 where they relate to detention facilities

21     located in the territory of Serbia because the Prosecution has failed to

22     establish that international humanitarian law applied to crimes allegedly

23     committed within Serbia.

24             In response, the Prosecution requested the Chamber to reject what

25     it described as the Defence's piecemeal and incident-based application of

Page 9104

 1     Rule 98 bis.  The Prosecution urged the Chamber to decline to enter a

 2     judgement of acquittal regarding the specific charges within Counts 2

 3     through 9 that were challenged by the Defence.  It submitted that the

 4     approach proposed by the Defence was not only contrary to the plain

 5     language and intent of Rule 98 bis, but also contrary to the manner in

 6     which other Trial Chambers have consistently interpreted and applied the

 7     rule since it was amended in 2004.  The Prosecution submitted that there

 8     was abundant evidence of Hadzic's criminal liability in relation to

 9     counts charged and that no judgement of acquittal should be entered on

10     any charge or count.

11             The Chamber will now address the Defence's submission related to

12     the scope of Rule 98 bis.  While the Defence stated its conviction that

13     based on the totality of the evidence none of the 14 counts against the

14     accused have been proved, it did not move for a full acquittal or even

15     for an acquittal on any count in its entirety.  Instead, the Defence

16     moved for acquittal only on specifically identified charges within

17     Counts 2 through 9 of the indictment.

18             The Defence submitted that the Chamber is not bound by the four

19     corners of the counts, as articulated in the indictment, when determining

20     what portion of the case to allow to proceed and that other

21     Trial Chambers have gone within counts to examine whether there is a

22     portion of a count that may be dismissed under Rule 98 bis.  The Defence

23     argued that the Chamber should exercise this discretion to identify and

24     analyse discrete events charged in the indictment, regardless of whether

25     such events have been characterised as component parts of a larger count

Page 9105

 1     by the Prosecution.  According to the Defence, such an approach is

 2     appropriate in the light of the purpose of Rule 98 bis and is fairer to

 3     the Defence.  In this connection, the Defence argued that the Rule 98 bis

 4     process is an efficiency mechanism that allows Chambers to eliminate

 5     charges or counts that have no merit, thereby obviating the need for the

 6     Defence to call evidence in response.  The Defence submitted that it

 7     would be paradoxical to the purpose of Rule 98 bis if the Chamber were to

 8     find itself unable to decide that particular, discrete, and identifiable

 9     charges of an indictment should not go forward where there is no evidence

10     capable of supporting a conviction in relation to them.

11             The Chamber notes that, prior to the amendment, the rule

12     expressly provided for a Trial Chamber to enter a judgement of acquittal

13     where the Chamber found insufficient evidence to sustain a conviction on

14     challenged charges.  The current text of the rule, however, focuses on

15     acquittal on any count if there is no evidence capable of supporting a

16     conviction.

17             The Chamber will now review the manner in which Trial Chambers

18     have applied Rule 98 bis, following the 2004 amendment.

19             In the Oric case, the Chamber vacated some counts in their

20     entirety.  It also determined that there was no case to answer in respect

21     of certain portions of certain counts, where the Prosecution had conceded

22     there was no evidence capable of supporting a conviction.

23             In Krajisnik, the Chamber determined that there was a case to

24     answer on all counts, including in respect of those charges and counts to

25     which Defence made specific submissions.  The Krajisnik Chamber noted

Page 9106

 1     that the parties were in agreement that charges related to two

 2     municipalities would not proceed due to insufficient evidence.

 3             The Mrksic Chamber found that the amendment to the rule had

 4     materially altered the requirements for Rule 98 bis and that the rule, in

 5     its amended formation, required the Chamber to enter a judgement of

 6     acquittal when there is no evidence capable of supporting a conviction on

 7     a particular count, as opposed to the earlier form of the rule which

 8     turned on offences charged.  This count-focused approach was followed by

 9     both the Martic and Dragomir Milosevic Chambers.  The Dragomir Milosevic

10     Chamber did, however, hold that, given the multi-layered nature of

11     indictments at the Tribunal, the 2004 amendment had the potential of --

12     the potential to defeat the intended expeditiousness of Rule 98 bis and

13     had the potential to render the process "virtually devoid of any

14     practical application at the Tribunal."

15             The Milutinovic Chamber found that there was insufficient

16     evidence capable of supporting a conviction in relation to some of the

17     crime sites listed under the wanton destruction and damage to religious

18     and cultural heritage portion of the persecution count, but that there

19     was evidence on other sites.  The Milutinovic Chamber therefore allowed

20     the entire count to withstand the Rule 98 bis challenge.

21             In the Prlic case, the Defence, in a preliminary motion related

22     to the Rule 98 bis proceedings, requested the Chamber to apply the

23     pre-December 2004 version of Rule 98 bis, so that the Chamber would

24     conduct its analysis on charges rather than on counts.  The Chamber

25     denied the motion, noting that, under the amended rule, a Chamber is only

Page 9107

 1     expected to determine whether there is sufficient evidence for some of

 2     the charges constituting a count, rather than evidence for each and every

 3     charge within a count.  The Prlic Chamber therefore held that a Chamber

 4     may only enter a judgement of acquittal with respect to an entire count

 5     of an indictment.

 6             In Lukic and Lukic, the Chamber also focused on the sufficiency

 7     of the counts; however, counts and charges were synonymous in the Lukic

 8     indictment in the sense that each count generally comprised a single

 9     charge.  Hence, the Lukic decision is not directly relevant to the

10     present discussion.

11             The Trial Chamber in Popovic and Gotovina followed a

12     count-focused approach, as did the Seselj Chamber, by majority.  Most

13     recently, in Karadzic, as with the other cases just discussed, the

14     Chamber addressed the Rule 98 bis challenge by determining the

15     sufficiency of the counts with reference to some, but not all, of the

16     specific charges or events contained within the counts.

17             These cases reveal settled practice within the ICTY

18     Trial Chambers to entertain motions for judgement of acquittal in respect

19     of entire counts and not individual charges within a count.  The Chamber

20     notes that the nature of the Defence submissions in these cases have

21     varied, reflecting the specifics of each individual case.  However, in

22     general, the Defence in prior cases has requested either a full acquittal

23     on all the counts of the indictment or acquittal on entire counts.  In

24     contrast, in the instant case, the Defence has not requested a full

25     acquittal on any count in the indictment.

Page 9108

 1             The Trial Chamber is not indifferent to the criticism of the 2004

 2     amendment of Rule 98 bis, as articulated in the Dragomir Milosevic

 3     decision.  However, based on the legislative history of Rule 98 bis and

 4     the settled practice of the Trial Chambers following the 2004 amendment,

 5     the Trial Chamber is of the view that it is appropriate to entertain a

 6     motion for judgement of acquittal only with regard to all the counts of

 7     an indictment or with regard to entire counts.

 8             Due to the fact that the Defence in the present case has not

 9     challenged any count in its entirety, there is no possibility of a

10     judgement of acquittal on an entire count or on all counts, as contained

11     in the indictment.

12             Based on the foregoing and pursuant to Rule 98 bis, the motion of

13     the Defence is hereby dismissed.

14             Despite the foregoing dismissal, the Trial Chamber finds it

15     appropriate in the present circumstances of this case to address the

16     specific challenges of the Defence in relation to several crime sites

17     contained within the indictment.

18             The Trial Chamber notes that the legal test under Rule 98 bis is

19     whether there is evidence upon which, if accepted, a reasonable trier of

20     fact could be satisfied beyond reasonable doubt of the guilt of the

21     accused.  The test is not whether a Trial Chamber would convict beyond

22     reasonable doubt, but rather whether it could do so.  The Chamber will

23     therefore consider if there is no evidence to sustain a conviction or if

24     the only relevant evidence is so incapable of belief that it could not

25     properly sustain a conviction, even when the evidence led by the

Page 9109

 1     Prosecution is taken at its highest.  At this stage, the Trial Chamber

 2     will not evaluate the credibility of witnesses or the strengths and

 3     weaknesses of contradictory evidence.  Furthermore, if the Trial Chamber

 4     considers now that there is evidence capable of sustaining a conviction,

 5     it does not mean that the Trial Chamber will enter a conviction at the

 6     end of the case.

 7             The Chamber notes that, where evidence is mentioned in this

 8     analysis, the fact that it has been considered is not a fixed indication

 9     that the Chamber will ultimately accept it in whole or in part.

10     Similarly, the Chamber may accept and rely upon evidence in its final

11     judgement, even if it is not referred to in this decision.

12             For purposes of Rule 98 bis and this analysis, it is sufficient

13     if there is evidence capable of supporting a conviction on the basis of

14     one of the modes of responsibility charged in the indictment.  Although

15     Hadzic has challenged more than one mode of responsibility, the present

16     analysis concentrates on the allegations of the Prosecution that Hadzic

17     is responsible under Article 7(1) of the Tribunal's Statute through his

18     alleged participation in a joint criminal enterprise, or JCE.

19             As a preliminary matter, the Chamber is of the view that the

20     Defence challenge in relation to the detention centres in Serbia involves

21     a legal issue that is not appropriate to address at this stage of the

22     proceedings.

23             Although the Defence focuses its challenges on Hadzic's alleged

24     responsibility for the crimes alleged to have been committed in Opatovac,

25     Lovas, Velepromet, and Ovcara, the Chamber will nevertheless consider

Page 9110

 1     whether the Prosecution has adduced evidence upon which a Chamber could

 2     find that the crimes in those four locations were committed.

 3             The Defence challenges Hadzic's responsibility for charges

 4     related to Opatovac.  The Defence submits that, at the time of the

 5     alleged crimes, the JNA town command controlled civilian affairs in

 6     Opatovac and that it was the JNA, Serbian reservists, and non-local TO

 7     members who were involved in the perpetration those -- who were involved

 8     in perpetrating those crimes.  According to the Defence, there is no

 9     evidence that Hadzic intended these crimes or that these crimes were

10     encompassed by the alleged JCE.  In addition, the Defence argues that

11     there is no evidence of an organisational structure or connection between

12     Hadzic as president of the district government and the people who are

13     criminally liable for the crimes committed in Opatovac.

14             The Prosecution responds that there is sufficient evidence to

15     show that members of the alleged JCE, JNA units, the local TO, local Serb

16     forces, and Serb paramilitary groups committed the crimes in Opatovac.

17     The Prosecution submits that there is sufficient evidence to show

18     co-ordination and co-operation between the civilian affairs organs of the

19     JNA and the civilian authorities in the Opatovac area.  On these grounds,

20     the Prosecution submits that, under the doctrine of JCE, there is no need

21     to show that Hadzic was aware of all of the specific criminal incidents

22     in Opatovac in order to be held criminally responsible for them.

23             The Chamber notes that there is evidence that from around

24     October 1991 to February 1992, the JNA, the TO, and local Serb volunteers

25     physically and psychologically abused non-Serb residents at the police

Page 9111

 1     station in Opatovac.  The residents were given a curfew and labour

 2     assignments from the JNA and TO.  Many non-Serbs were forced to leave

 3     their homes.  There is also evidence of co-operation between the civilian

 4     authorities and the JNA town command in Opatovac.

 5             The Trial Chamber therefore finds that the Prosecution has

 6     adduced sufficient evidence upon which a Chamber could find that there

 7     was co-operation between the civilian authorities and the JNA town

 8     command that controlled civilian affairs in Opatovac, and that the JNA,

 9     TO, and local Serbs forcibly took the town and then committed various

10     crimes charged in the indictment against the civilian population.  In so

11     finding, the Chamber has relied upon the evidence of Witness

12     Mate Brletic, Reynaud Theunens, GH-061, GH-085, and upon Exhibit P327.

13             The Defence challenges Hadzic's responsibility for charges

14     related to Lovas, including an incident at the minefield on

15     18 October 1991.  According to the Defence, in the absence of an

16     established civilian authority in Lovas, the JNA exercised full control

17     there.  The Defence also argues that Hadzic only visited Lovas after the

18     minefield incident and had no prior or contemporaneous knowledge of those

19     events.  Finally, the Defence avers that individuals, such as

20     Ljuban Devetak in Lovas, unlawfully appropriated titles and positions for

21     themselves and that Devetak's presence at the 20 November meeting in

22     Velepromet, where Hadzic was also present, is not probative of Hadzic's

23     responsibility.

24             The Prosecution responds that there is evidence that civilian

25     authorities were established soon after the take-over of Lovas, with

Page 9112

 1     Ljuban Devetak in control and with Milan Radojcic as the commander of the

 2     Lovas TO.  According to the Prosecution, there is sufficient evidence in

 3     relation to these crimes to establish a link between the government and

 4     other members of the JCE.

 5             The Chamber notes that there is evidence that on 10 October 1991,

 6     the predominantly Croat village of Lovas was attacked by the JNA and the

 7     Valjevci and Dusan Silni units.  Following the take-over, Ljuban Devetak

 8     declared himself the president of Lovas.  Croats and other non-Serbs were

 9     transported to the Zadruga complex where they were severely mistreated.

10     On the order of Devetak, on 18 October 1991, a group of about 50

11     detainees were escorted by members of the Valjevci and Dusan Silni units

12     to demine a field outside a village.  As a result of a mine explosion and

13     gun-fire at the minefield, 22 detainees were killed.  The surviving

14     detainees were escorted back by the Dusan Silni unit and some of them

15     returned the next day to bury the dead in a mass grave.

16             The Trial Chamber therefore finds that the Prosecution has

17     adduced sufficient evidence upon which a Chamber could find that the

18     crimes at Lovas were committed as charged in the indictment.  In so

19     finding, the Chamber has relied upon the evidence of Witnesses

20     Zeljko Cirba, Milan Conjar, Emanuel Filic, Reynaud Theunens, Ivan Mujic,

21     GH-095, GH-113, and GH-168, and upon Exhibits P302, P309, and P298.1.

22             The Defence challenges Hadzic's responsibility for charges

23     related to the alleged unlawful imprisonment, inhumane treatment, and

24     killing of detainees by Serb forces at the Velepromet facility on or

25     around 19 November 1991.  The Defence submits that the JNA controlled the

Page 9113

 1     Velepromet facility.  The Defence also argues that the JNA had authority

 2     over the Vukovar TO and other units, including military police and

 3     reservists, that were present and involved in perpetrating the crimes

 4     there.  Finally, the Defence avers that there is no evidence that Hadzic

 5     had any knowledge of what was occurring at Velepromet at this time or

 6     that he had any effective control over the perpetrators.

 7             The Prosecution responds that there is sufficient evidence to

 8     show that Hadzic bears responsibility for these crimes because the

 9     perpetrators were linked to members of the JCE and because Hadzic was a

10     member of this JCE and intended the crimes to be committed.  On this

11     basis, the Prosecution avers that there is no need to show that Hadzic

12     had knowledge of every alleged incident that occurred at Velepromet

13     between 19 and 21 November 1991.

14             The Chamber notes that there is evidence that, around

15     10 November 1991, a centre for the admission of civilians and

16     preservation of material goods was established at Velepromet by

17     Operational Group South, or OG South.  The Velepromet centre was directly

18     managed by the security organ of the Guards Motorised Brigade, which was

19     subordinate to Major Veselin Sljivancanin, who was the head of security

20     of both the Guards Motorised Brigade and OG South.  On 20 November 1991,

21     hundreds of non-Serbs were taken by the JNA from Vukovar Hospital to

22     Velepromet.  There is evidence that Hadzic was present at Velepromet on

23     this day along with Zeljko Raznatovic.  Raznatovic, also known as Arkan,

24     was the commander of the Erdut TO centre.  Detainees at Velepromet were

25     secured by an OG South military police unit, JNA officers, and Vukovar TO

Page 9114

 1     members.  There is evidence that some of the detainees were shot dead at

 2     Velepromet by members of the TO or Serb volunteers or paramilitaries and

 3     that one detainee had his throat cut with a broken bottle.  Other

 4     detainees were subjected to overcrowding and beatings by members of the

 5     JNA and the Vukovar TO.

 6             The Trial Chamber therefore finds that the Prosecution has

 7     adduced sufficient evidence upon which a Chamber could find that the

 8     crimes at Velepromet were committed by the JNA, TO, and Serb volunteers

 9     as charged in the indictment.  In so finding, the Chamber has relied upon

10     the evidence of Witnesses Vilim Karlovic, Reynaud Theunens, GH-126,

11     GH-054, GH-028, and upon Exhibits P3003 and P2285.2284.

12             The Defence challenges Hadzic's responsibility for charges

13     related to the alleged killing of approximately 260 detainees by Serb

14     forces at the site -- at a site between Ovcara farm and Grabovo on the

15     evening of 20 November 1991, as well as Hadzic's responsibility for the

16     alleged unlawful imprisonment under inhumane conditions of approximately

17     300 non-Serbs at Ovcara farm.  The Defence submits that the JNA was

18     responsible for the entire operation and that there is no evidence to

19     show that Hadzic knew these events were going to occur.  The Defence

20     avers that evidence regarding a meeting of the SAO SBWS government at

21     Velepromet on 20 November 1991 cannot be taken to show that Hadzic knew

22     or could have foreseen that the detainees would be mistreated and killed.

23             The Prosecution responds that there is sufficient evidence to

24     show that Hadzic played a decisive role in pressuring the JNA to hand the

25     prisoners over to the SAO SBWS authorities and the local TO.  According

Page 9115

 1     to the Prosecution, the Chamber could find Hadzic responsible for these

 2     crimes under any of the modes of liability charged in the indictment.

 3             The Chamber notes that there is evidence that, on

 4     20 November 1991, the JNA removed hundreds of Croats and other non-Serbs

 5     from Vukovar Hospital.  Many detainees were transported to Ovcara farm.

 6     There is evidence that representatives of the SAO SBWS government

 7     negotiated with the JNA for those prisoners to remain detained in the

 8     territory of the SBWS rather than be transported to detention facilities

 9     in Serbia.  Some of these negotiations took place at a meeting at

10     Velepromet on 20 November 1991, which was chaired by Hadzic and attended

11     by Arkan.  Moreover, at a meeting with the JNA, Arkan articulated his

12     take-no-prisoners policy and expressed his view that it was unacceptable

13     for the JNA to take Croat POWs from the SBWS to Serbia.

14             The Chamber heard evidence that, on 20 November 1991, JNA

15     soldiers, local Serb TO forces, and others subjected detainees at Ovcara

16     farm to imprisonment, torture, inhumane acts, and cruel treatment.

17     During the evening of 20 November 1991, these perpetrators transported

18     most of the detainees to a site between Ovcara farm and Grabovo where,

19     under the guidance of the deputy commander of the Vukovar TO,

20     Stanko Vujanovic, they shot and killed at least 194 of them.  The

21     Vukovar TO, commanded by Miroljub Vujovic and his deputy

22     Stanko Vujanovic, was acting in close co-operation with OG South at the

23     time.

24             The Trial Chamber therefore finds that the Prosecution has

25     adduced sufficient evidence upon which a Chamber could find that the

Page 9116

 1     crimes at Ovcara were committed as charged in the indictment.  In so

 2     finding, the Chamber has relied upon the evidence of Witnesses

 3     Dusan Jaksic, Milorad Vojnovic, Reynaud Theunens, GH-103, GH-054, GH-028,

 4     GH-129; Exhibit P1984.1981; adjudicated facts 121, 124, 125, 204, 214,

 5     217, 221, and 222; and agreed facts 103 and 104.

 6             The Trial Chamber will now assess whether the Prosecution has

 7     adduced evidence upon which a Chamber could find that Hadzic was

 8     responsible for the alleged crimes in Opatovac, Lovas, Velepromet, and

 9     Ovcara by examining the Prosecution's allegation that Hadzic committed

10     the alleged crimes through his participation in a joint criminal

11     enterprise, or JCE.

12             The indictment alleges that the JCE came into existence no later

13     than 1 April 1991 and continued at least until 31 December 1995, and that

14     the purpose of this enterprise was the permanent removal of a majority of

15     the Croats and other non-Serb population from a large part of the

16     territory of Croatia through the commission of crimes in violation of

17     Articles 3 and 5 of the Tribunal's Statute.

18             The indictment alleges that Hadzic's participation in the JCE

19     began no later than 25 June 1991 and continued until at least

20     December 1993.  The other named members of the alleged JCE were:

21     Slobodan Milosevic, Milan Martic, Milan Babic, Jovica Stanisic,

22     Franko Simatovic, Vojislav Seselj, Radovan Stojicic, Veljko Kadijevic,

23     Blagoje Adzic, Radmilo Bogdanovic, Mihalj Kertes, and Zeljko Raznatovic,

24     or Arkan.  Other members of the enterprise are said to have included

25     political leaders from the Socialist Federal Republic of Yugoslavia and

Page 9117

 1     the Republic of Serbia, members of the Croatian Serb and Bosnian Serb

 2     leadership, and others referred to collectively as Serb forces.

 3             The Chamber will first address the evidence in relation to the

 4     second physical element of the JCE liability, namely, whether a common

 5     plan, design, or purpose existed.

 6             The Chamber has the received evidence through Witness

 7     Veljko Dzakula and GH-010, as well as Exhibit P16, about the intentions

 8     of alleged members of the JCE.  For example, the Serbian Chetnik

 9     Movement, led by Vojislav Seselj, the president of the Serbian Radical

10     Party, had as its political platform the aim to renew a free,

11     independent, and democratic Serbian state in the Balkans, comprising "all

12     Serbdom and Serbian lands."  Seselj also publicly conveyed his views that

13     Croats were dishonest.

14             In a video-clip of television news coverage, Arkan, in the

15     presence of Lieutenant-General Andrija Biorcevic, the commander of the

16     JNA Novi Sad Corps, said:

17             "I think we all have one common goal, and that is the united

18     Serbian states, which would consist of Serbia, Montenegro, the Serb

19     Republic of Krajina, and the Serb Republic in Bosnia, in order to create

20     the united Serbian state."

21             There is evidence that Hadzic and Arkan were close friends and

22     collaborators, that they were often seen together, and that Arkan was

23     closely linked to Serbian political circles.  The Chamber refers to the

24     evidence of Witnesses Christian Nielsen, GH-101, and GH-003, as well as

25     to Exhibits P117.111 and P1004.

Page 9118

 1             Radovan Stojicic, commander of the SBWS TO, approached the SBWS

 2     government at the request of his superiors in Belgrade and at the request

 3     of the SBWS government itself, in order to discuss linking up all the

 4     forces in the area so that they could take Vukovar.  There is evidence

 5     that Stojicic was closely linked to Slobodan Milosevic.  The Chamber

 6     refers to the evidence of GH-016.

 7             There is evidence that Mihalj Kertes, who was a leading political

 8     figure in Serbia, the deputy of the federal minister of interior, and a

 9     close associate of Milosevic, was involved in all aspects of personnel

10     policy in the area of SBWS.  Kertes stated, during a visit to Borovo

11     Selo, that Milosevic was aware of and fully supported the arming of the

12     Serbs on the western bank of the Danube.  The Chamber refers to the

13     evidence of Witnesses Borivoje Savic, GH-026, and GH-015.

14             There is evidence that Slavko Dokmanovic, former president of

15     Vukovar municipality, stated that:  "Vukovar indeed is the most destroyed

16     city," but that it would be rebuilt as "a real Serbian city and would

17     never be an Ustasha city."  The Chamber refers to the evidence of

18     Witnesses Hicham Malla and Vesna Bosanac, and to Exhibit P1515.

19             There is evidence that the JNA was transformed into a Serb-only

20     force.  As articulated by Seselj:  "The JNA is also Serbian and it is our

21     only army."  Veljko Dzakula, the former prime minister of

22     Western Slavonia and deputy prime minister of the RSK from February 1992

23     to March 1993, testified that the JNA crossed over to the Serbian side in

24     the war as the conflict intensified.  The JNA and the Serbian MUP worked

25     closely with paramilitary organisations, and Arkan attended JNA meetings.

Page 9119

 1     The Chamber refers to the evidence of Witnesses Veljko Dzakula and

 2     Reynaud Theunens, and to Exhibits P22, P1004, and P2937.

 3             The Chamber has heard evidence that Serb forces in Croatia

 4     received significant funds from Serbia and that Hadzic was involved in

 5     securing this funding.  This is based on the evidence of Witnesses

 6     Morten Torkildsen, GH-016, and GH-021; and Exhibits P37, P263.253,

 7     P216.140, P266.253, P264.253, P266.253, P156, P209.140, P156, and

 8     P209.140.

 9             The Chamber has heard evidence about the pattern of crimes

10     committed in the relevant areas and about the expulsion of the non-Serb

11     population, as was indicated in the evidence of Witnesses Veljko Dzakula,

12     Herbert Okun, and numerous other eye-witnesses to the crimes alleged to

13     have been committed in SAO SBWS and RSK.

14             On the basis of the foregoing, the Chamber finds that the

15     Prosecution has adduced sufficient evidence upon which a Chamber could

16     find that there existed a common plan, design, or purpose, as charged in

17     the indictment, and that at least the following persons were members of

18     the JCE:  Slobodan Milosevic, Vojislav Seselj, Radovan Stojicic,

19     Zeljko Raznatovic, Slavko Dokmanovic, Andrija Biorcevic, and

20     Mihalj Kertes.  It therefore also follows that the Prosecution has

21     adduced sufficient evidence upon which a Chamber could find that the

22     first physical element of a JCE has been fulfilled, namely, a plurality

23     of persons.

24             Turning to Hadzic's alleged significant contribution to the

25     alleged JCE and his state of mind, as set forth in the indictment, there

Page 9120

 1     is evidence that Hadzic became president of the SAO SBWS on

 2     25 September 1991.  He presided over the SBWS government -- sorry, he

 3     presided over the SBWS government meetings and had the power to appoint

 4     ministers, TO commanders, and presidents of municipal executive councils.

 5     During times of war, Hadzic could issue orders and decisions on his own

 6     and in the absence of the Assembly.  And there is evidence that the SBWS

 7     government declared an imminent state of war in August 1991.  The Chamber

 8     relies -- the Chamber refers to the evidence of Witnesses Aleksandar

 9     Vasiljevic and GH-016, and to exhibits P75.50, P1267, P168, P197.140,

10     L43, L56, and L3.

11             The Trial Chamber heard evidence from Witnesses GH-003, GH-016,

12     GH-015, and GH-024, that in September 1991, Hadzic established a special

13     unit for his security which was involved in killings charged in the

14     indictment.  The Chamber also refers to P201.140 and P241 in this regard.

15             According to an order of 21 September 1991, signed by Hadzic,

16     Arkan was appointed the commander of the TO training centre in Erdut,

17     where Arkan remained based until 1993.  This can be found in the evidence

18     of Witnesses Christian Nielsen and GH-016, and in Exhibit P194.140.

19             In September, October, and November 1991, Hadzic was actively

20     involved in the appointment of Radovan Stojicic as TO commander; in

21     briefing the TO and police commanders about the political situation, the

22     situation in the field, and strategic objectives following his trips to

23     Novi Sad and Belgrade; and in replacing police personnel.  The Chamber

24     refers to evidence of Witnesses GH-016 and GH-015, and to

25     Exhibit P251.245.

Page 9121

 1             In a televised interview in early November 1991, Hadzic stated

 2     that the appeal to get volunteers from Serbia to help in the war effort

 3     in Vukovar had been successful.  And he particularly thanked the Serbian

 4     volunteers from Belgrade.  In this regard, the Chamber notes the evidence

 5     of Witness Borivoje Savic and Exhibit P58.

 6             There is evidence from Witness GH-028 that, on 20 November 1991,

 7     at a time when the JNA had taken hundreds of non-Serbs from

 8     Vukovar Hospital to the detention facility at Velepromet, the SAO SBWS

 9     government held a meeting at Velepromet.  The government session was

10     attended by, among others, Slavko Dokmanovic, Hadzic, Arkan, and the JNA.

11     The fate of the prisoners was discussed.  Subsequent to this meeting,

12     Hadzic, dressed in the green fatigue uniform of the SBWS TO, gave a

13     televised interview; Exhibit P1731.  In this interview he stated that one

14     of the groups of Croatian prisoners had already been taken to

15     Sremska Mitrovica and that he had personally undertaken to return these

16     people to the SBWS for trial, if they could be named people at all, he

17     added.  Hadzic further stated in the interview that it had been agreed

18     with the military authorities that "those Ustasha" would remain in camps

19     in the vicinity of Vukovar.  The Chamber notes that the evidence of the

20     fate of the prisoners who remained in the SBWS was discussed earlier in

21     this decision in relation to the crimes in Velepromet and Ovcara.  The

22     Chamber also refers to the evidence of Borivoje Savic.

23             The Chamber heard evidence that Hadzic assisted in the financing

24     of SBWS forces through enterprises set up in the SBWS and through aid

25     from Serbia.  Reference is made to the evidence of Witnesses

Page 9122

 1     Milosav Djordjevic, Emerik Mijatovic, GH-021, and GH-016, as well as to

 2     Exhibits P214.140, P215.140, and P216.140.

 3             The Chamber heard evidence that, on 21 September 1991, Hadzic and

 4     Arkan, accompanied by approximately 20 men, arrived at the Zadruga

 5     building in Dalj.  Hadzic and Arkan released two of the detainees.  The

 6     other detainees were taken away by Arkan and his military -- in his

 7     military truck, and there is evidence that they were subsequently killed.

 8     When confronted about the lack of legal justification for the detention

 9     and the release of the men, there is evidence that Hadzic responded that,

10     as prime minister, he could order anything to be done and that the

11     detainees were Ustashas who had killed Serbs in Baranja.  The Chamber

12     refers to the evidence of Witnesses Slavko Palinkas and GH-003, and to

13     Exhibits P250.245 and P113.1.

14             Witness Borivoje Savic gave evidence that Hadzic knew about the

15     Lovas minefield incident as well as the other killings and mistreatment

16     of the non-Serb population in the SBWS but did nothing about it.

17             Witness GH-021 gave evidence that, at the beginning of

18     November 1991, five non-Serb employees of the Ratarstvo Klisa work unit

19     were taken by Arkan's men.  Witness GH-021 further said that the acting

20     director of DP Dalj told Hadzic that the missing persons were his

21     employees and asked why they were detained.  There is evidence that

22     Hadzic replied that it was none of the acting director's business and

23     then walked away.  Of the five employees who were taken in November 1991,

24     three were never seen again.

25             The Chamber received evidence from Witness GH-016 and through

Page 9123

 1     Exhibit P144 that Hadzic was kept well-informed on security issues in the

 2     SBWS region by touring the region, by speaking with the presidents of

 3     various municipalities, and by speaking with the TO, police, and his

 4     government ministers.  There is also evidence from Witness GH-016 that

 5     Hadzic put into place a weekly reporting system between the SBWS TO and

 6     the government.

 7             The Chamber received evidence that Hadzic stated in an interview

 8     that the SBWS leadership would not accept any option where certain areas

 9     remained in the Republic of Croatia, even if that meant a fight would be

10     necessary.  During a press conference on 21 September 1991, Hadzic is

11     reported to have stated that Vukovar, the capital of SAO SBWS, was not

12     yet liberated, but that he hoped it soon would be.  There is evidence

13     that on 9 October 1991, Hadzic gave a speech during which he stated that,

14     regardless of negotiations, he would level Ilok.  There is also evidence

15     that Hadzic, speaking to a reporter about fighting in Vukovar, commented

16     that "our units" had control of nearly 50 per cent of the city and were

17     advancing house by house for "mopping up of Ustasha villages."  This

18     evidence was adduced through Witnesses Mate Brletic and Veljko Dzakula,

19     as well as through Exhibits P86.50, P39, P40, P321, and P322.

20             The Chamber received evidence that, in 1992 and 1993,

21     United Nations representatives and international negotiators brought to

22     Hadzic's attention crimes against the non-Serb population in the

23     Serb-controlled areas of Croatia.  The Chamber refers to the evidence of

24     Witnesses Geert Ahrens and John Brian Wilson and to Exhibit P2432.2398.

25     There is evidence that during a 4 September 1992 meeting with

Page 9124

 1     Marrack Goulding, who was then the Secretary-General for UN Peacekeeping

 2     Operations, Hadzic stated that Croats started the practice of ethnic

 3     cleansing in Western Slavonia prior to any such acts by the Serbs and

 4     this is what had led to the belief on the part of Serbs that they should

 5     act according to the principle of an eye for an eye and a tooth for a

 6     tooth.  This evidence can be found in Exhibit P2432.2398.

 7             On the basis of the above, the Chamber is of the view that the

 8     Prosecution has adduced sufficient evidence upon which a Chamber could

 9     find that Hadzic significantly contributed to the common objective of the

10     alleged joint criminal enterprise and that Hadzic shared the intent of

11     the other alleged members of the joint criminal enterprise to carry out

12     this objective.

13             The Trial Chamber will now analyse whether the Prosecution has

14     adduced sufficient evidence upon which a Chamber could find that the

15     alleged crimes in Opatovac, Lovas, Velepromet, and Ovcara could be

16     imputed to Hadzic or another alleged member of the alleged JCE acting in

17     furtherance of the common plan, design, or purpose when using the

18     physical perpetrators.

19             As already discussed, the Prosecution has adduced sufficient

20     evidence upon which the Chamber could find that the crimes committed at

21     Opatovac, Velepromet, and Ovcara were committed by JNA, TO, and local

22     Serb volunteers.  There is evidence that, at a meeting of the TO and

23     police commanders in SAO SBWS in Bobota on 5 or 6 August 1991,

24     Radovan Stojicic introduced himself as a representative of the special

25     police from the Serbian MUP and said that he had been sent from Belgrade

Page 9125

 1     to serve as commander of the SBWS TO.  Stojicic was appointed commander

 2     of the SBWS TO by Hadzic in late September or early October 1991 and then

 3     proceeded to transform the TO in a militarised and well-structured

 4     organisation.  There is evidence that before Stojicic's arrival in SBWS,

 5     the JNA planned operations without involvement of the TO.  After his

 6     arrival, the TO commander was included in the regular decision-making

 7     with the Novi Sad Corps of the JNA.  Officers of the JNA Novi Sad Corps

 8     visited Stojicic in Erdut.  And there is evidence of close co-operation

 9     between the TO, Serb volunteers, including Arkan's and Seselj's men, and

10     the JNA.  As noted previously, as the conflict intensified, the JNA

11     became a Serb army.  Moreover, there is evidence that both Hadzic and

12     Arkan were present at Velepromet for periods of time on 20 November 1991

13     when hundreds of non-Serbs were detained there.  The Chamber refers to

14     the evidence of Reynaud Theunens, GH-003, and GH-016, as well as to

15     Exhibit P121.111.

16             Based on the foregoing, there is evidence that Radovan Stojicic,

17     Arkan, and Andrija Biorcevic were members of the alleged JCE and that

18     members of the TO and the JNA were used by them as tools in the

19     furtherance of the alleged JCE.  Considering that there is sufficient

20     evidence that Hadzic is also a member of the alleged JCE, there is

21     sufficient evidence that Hadzic is criminally responsible pursuant to

22     Article 7(1) of the Statute for the alleged crimes at Opatovac,

23     Velepromet, and Ovcara.

24             With regard to Lovas, Ljuban Devetak was referred to as the

25     president of the village, the unofficial master, and the be-all and

Page 9126

 1     end-all in Lovas following the take-over.  In minutes of meetings of

 2     village representatives with higher government representatives, Devetak

 3     was listed as the village commander of Lovas.  There is evidence that the

 4     volunteers sent to Lovas were under the de facto control of the local

 5     government which was run by Devetak.  Milan Radojicic, the commander of

 6     the Lovas TO, and Milan Devcic, the head of the local police and

 7     Devetak's nephew, acted as his right-hand men.  There is also evidence

 8     that Devetak had de facto control over the Valjevci and Dusan Silni

 9     units, which were involved in the minefield incident on 18 October 1991.

10     Dressed in a TO uniform, Devetak attended the meeting of 20 November 1991

11     at Velepromet.  The Chamber refers to the evidence of Witnesses

12     Ivan Mujic, Emanuel Filic, Milan Conjar, Aleksandar Vasiljevic, GH-095,

13     GH-113, and GH-028, as well as to Exhibits P79.50 and P2979.

14             Based on the evidence of Devetak's position in Lovas, the crimes

15     committed during his reign there, and his interaction with other alleged

16     JCE members, there is sufficient evidence that Devetak was a member of

17     the alleged JCE and that he used the forces under his control as tools in

18     the furtherance of the JCE.  Considering that there is sufficient

19     evidence that Hadzic is also a member of the alleged JCE, there is

20     sufficient evidence that Hadzic is criminally responsible pursuant to

21     Article 7(1) of the Statute for the alleged crimes at Lovas.

22             For all the foregoing reasons, even if the Trial Chamber had

23     adopted the charges approach to Rule 98 bis, as advocated by the Defence,

24     it still would have denied the motion of the Defence in its entirety.

25             The Chamber will soon issue a Scheduling Order regarding the

Page 9127

 1     preparation and commencement of the Defence case.

 2             The hearing is hereby adjourned.

 3                           --- Whereupon the hearing adjourned at 4.54 p.m.