Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11165

1 Wednesday, 10 January 2007

2 [Open session]

3 [Prosecution closing statement]

4 [The accused entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE MOLOTO: Good morning to everybody and happy new year to

7 all. I hope we all had a good rest and are raring to go.

8 Before we deal with the business of the day, I just wanted to

9 mention that to the best of the Bench's recollection, the only outstanding

10 housekeeping matter is a response from the parties as to whether they will

11 agree to the filing of the maps that were used by Chamber -- by the

12 Chamber on our site visit as exhibits.

13 MR. WHITING: Your Honour, we do agree to that being an exhibit.

14 I had understood from my communications with the map unit that perhaps

15 there was going to be a list of the dates of the maps included, but I

16 don't know if that's happened. But in any event, we have no objection to

17 it becoming an exhibit.

18 JUDGE MOLOTO: Mr. Milovancevic.

19 MR. MILOVANCEVIC: [Interpretation] Your Honours, we agree to have

20 the maps admitted into evidence; however, in addition to that we also need

21 to admit into evidence the transcript from the visit and videotapes. They

22 have not been admitted so far, and we suggest that it be done.

23 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. If that is

24 so, I was under the impression that that had been done.

25 Can I just get confirmation.

Page 11166

1 [Trial Chamber and registrar confer]

2 JUDGE MOLOTO: Thank you, Mr. Milovancevic. I'm advised that,

3 yes, by decision of the Chamber the CDs were -- the electronic full part

4 of it was admitted into evidence and they are already on the e-court, but

5 that the transcript is not yet ready. The Bench will seek guidance here

6 on a procedural point as to how to deal with this point at this point just

7 before the parties present their final arguments. Just a second.

8 [Trial Chamber confers]

9 JUDGE MOLOTO: Obviously, it is important for the transcript to be

10 admitted into evidence so that the parties, when arguing, can refer to it

11 if need be.

12 Mr. Whiting, you are going to stand up on a procedural point, I

13 suppose.

14 MR. WHITING: Well, Your Honour, I was just going to suggest

15 that -- that we assign it provisionally a number; and then when it's

16 ready, it just comes into evidence and becoming part of the record.

17 Obviously, since we don't have the transcript, I doubt either side will be

18 able to use it during argument. That's fine with us. We don't need to

19 rely on it.

20 JUDGE MOLOTO: Then when you say we assign it a number and it

21 comes it forms part of the evidence, you mean we should admit it into

22 evidence in anticipation?

23 MR. WHITING: Yes, that's what I meant.

24 JUDGE MOLOTO: That's what you mean?

25 MR. WHITING: Yes.

Page 11167

1 JUDGE MOLOTO: Mr. Milovancevic.

2 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. It's not a

3 problem to assign a number. The problem is that visiting the site was an

4 official procedural step conducted in the presence of Defence and

5 Prosecution. This is official evidence, and we wonder how is it possible

6 to write a final brief and to have our closing arguments without this

7 being admitted into evidence because this was evidence led at the

8 initiative of the Court. This is a very serious matter. It's not just a

9 matter of assigning a number to it.

10 [Trial Chamber and legal officer confer]

11 JUDGE MOLOTO: Let me understand your objection, Mr. Milovancevic.

12 The electronic record of the visit has been admitted into evidence. I

13 hope you accept that and you understand that. What is outstanding is

14 the -- is a hard copy form, the written form, transcript of that evidence.

15 So it's not as if the evidence is not in -- on the record yet. It is

16 already on the record. It's just the transcribing of it that is not on

17 the record. Does that still make you feel that the step is irregular?

18 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. The Defence

19 right now doesn't know when the electronic version was admitted into

20 evidence. It wasn't done until several days ago. It wasn't done until

21 yesterday, and maybe it was done yesterday or today and we are not aware

22 of that. This was an official step of the Bench. When it was a

23 procedural step of the Bench, the Bench went to the site.

24 We had an electronic evidence and we had a transcript, which is a

25 record of that visit. So far, we have not had occasion to see it. Your

Page 11168

1 Honours, it is one thing to watch a videotape depicting the visit, and it

2 is quite a different matter to have a hard copy of a transcript in front

3 of us. It's quite a different manner of working. As it stands now, the

4 Defence needs to produce a transcript for ourselves in order to be able to

5 work on the case.

6 JUDGE MOLOTO: Let me understand you, Mr. Milovancevic. Are you

7 suggesting that we should therefore -- we cannot proceed with the

8 arguments because of the fact that the transcript of the visit is not

9 there? Is that what you're saying? Which is not a mistake of the Bench,

10 it's just the process it takes to transcribe these documents within

11 registry. Let me just understand what you are saying. Are you saying we

12 cannot proceed with the proceedings?

13 MR. MILOVANCEVIC: [Interpretation] Your Honours, I'm not saying

14 that this was a mistake of the Bench, no. I realise that this is a

15 procedure that is time-consuming. However, what is more important is that

16 the registry needs some time in order to complete this, and this is a

17 piece of evidence that the Defence needs, the Prosecution, and the Bench.

18 This is evidence which covers all crime sites. It pertains to the

19 shelling of Zagreb. It is very important in order to assess the systemic

20 and widespread nature of the crime, territorial nexus locations, the

21 prison in Knin, all kinds of matters.

22 I do not want to go through them now because I do not want to

23 waste the time of the Court. To me it seems quite difficult to work under

24 these circumstances. I don't think the Defence can do its work properly,

25 or the Prosecution for that matter, unless this piece of evidence is

Page 11169

1 admitted. This is our position. We simply have to bear in mind the

2 interests of the procedure.

3 Every allegation brought forward by the Prosecution, Your Honours,

4 is directly linked to what we saw when we visited the site, and it can be

5 verified very concretely. The Prosecution did not use that document at

6 all, and this can work to their advantage or that their disadvantage;

7 however, it cannot put the Defence in a disadvantaged position.

8 JUDGE MOLOTO: You see, what I don't understand, Mr. Milovancevic,

9 is you're saying how can you be able to look at or to judge the bombing of

10 Zagreb and conditions in prisons, and I'm wondering what better way to do

11 so than to look at a movie of it than to read it. Now, what is

12 outstanding, as I'm trying to explain to you, is just the written version

13 of the same report.

14 Now, you are saying - you said a little earlier - that as at yet

15 the electronic version of it had not been admitted into evidence. I can

16 tell you now that by written decision of this Court dated the 28th of

17 November, 2006, this Chamber gave an order that the registrar must provide

18 copies of the five DVD disks and the transcript thereof to the parties.

19 So to suggest that it was not admitted until yesterday, I cannot

20 understand. I do not understand your argument. So the DVDs will be

21 there, and I can't see any better way of seeing what happened on that

22 visit than looking at it on the DVD.

23 MR. MILOVANCEVIC: [Interpretation] I agree, Your Honours, and I

24 understand what you're saying. I do not deny the fact that you issued

25 such an order on the 28th of November. However, we completed and filed

Page 11170

1 our final brief without seeing these DVDs because they were simply not

2 delivered to us. We did not have them as evidence available to us. We

3 could simply contemplate about them, based on our personal impression, but

4 we were unable to use them, either the DVDs or the transcript, and that's

5 a fact. That's what I'm saying.

6 JUDGE MOLOTO: That's a slightly different slant to your problem

7 now. That's an administrative problem. The order was made, as I say, on

8 the 28th of November last year. And as of the day of making that order, I

9 can tell you now that the DVDs were available, because I have -- I have a

10 copy of them in my office. And if you do not have them or you never got

11 them, it's a matter to investigate with registry. But I hear what you

12 say, that if you haven't seen those DVDs, you were put at a disadvantage,.

13 But, you know, I'm not able to answer that question because, as I

14 say, that's within registry. But the order was made early, as ordered. I

15 hear what you say, Mr. Milovancevic, you simply don't have physical

16 possession of the DVDs, and you're saying that made it impossible for you

17 to prepare your final brief. Are you going to add something different?

18 MR. MILOVANCEVIC: [Interpretation] Your Honour, I don't think you

19 fully understood what I said. It's not that we did not have opportunity,

20 it's that we had to prepare final brief and closing arguments without

21 having seen those DVDs. Another matter is that the Bench gave us maps

22 from the from the site visit, but this was not done by the registry.

23 We asked on a number of occasions. We inquired about these DVDs,

24 and we kept receiving answers,"Yes. They're being prepared. They're

25 being prepared." The last time we inquired was the day before we filed

Page 11171

1 our final briefs. That's what I'm telling you.

2 JUDGE MOLOTO: Well, you haven't told me anything new from what

3 you told me before, Mr. Milovancevic.

4 JUDGE NOSWORTHY: Mr. Milovancevic, you mentioned -- Mr.

5 Milovancevic, you mentioned the matter of prejudice to the Defence earlier

6 on. As it presently stands, have you prepared submissions that will

7 involve the use of material concerning the site visit, either as contained

8 in the DVD, or otherwise, that is presently before the Trial Chamber? Or

9 do you intend to prepare such material?

10 MR. MILOVANCEVIC: [Interpretation] Your Honour --

11 JUDGE NOSWORTHY: -- or is it that you're saying, as it presently

12 stands, you're not in a position to make an appropriate assessment because

13 of the fact that the transcript is not yet before the Trial Chamber?

14 Where is the prejudice at this stage? You haven't actually articulated

15 that before the Trial Chamber, and that to me that might be relevant.

16 MR. MILOVANCEVIC: [Interpretation] Your Honour, let me first

17 answer the first portion of your question. We did not write down a list

18 of matters to which this visit would pertain and in relation to which

19 facts we would use the transcript, because we were hopeful that we would

20 receive the material every day. We were hoping that we would receive it

21 until the time came for us to file our final briefs. I'm pointing out

22 this problem so that you can understand it.

23 I'm not suggesting at this point in time that the Defence is

24 unable to carry on with our Defence case. We acted in accordance with the

25 order of the Trial Chamber. We produced a final brief to the best of our

Page 11172

1 abilities. We also wrote closing arguments the way we thought that it

2 should be done. All we are doing now is - and we think it is our duty to

3 do so - is to point out to a fault in the procedure. We believe that we

4 need to do this.

5 JUDGE NOSWORTHY: So is it that you're saying that your final word

6 should not be closed off until you have had the opportunity to peruse the

7 transcript that comes before the Trial Chamber then? Is that your concern

8 that you would wish to have the opportunity; the transcript coming before

9 the Trial Chamber as it should have done before, that you will now have an

10 opportunity to peruse it, advise yourself, and then make a determination

11 whether you wish to say anything further? Is that the case?

12 MR. MILOVANCEVIC: [Interpretation] Your Honour, your question gave

13 rise to a serious dilemma as to how I should answer. I'm saying this

14 because the Defence has a certain position in relation to this piece of

15 evidence led by the Trial Chamber which is linked to all crime bases.

16 Unfortunately, we were not given opportunity. And let us be sure that we

17 understand each other fully because --

18 JUDGE MOLOTO: [Previous translation continues]... The question

19 from the Bench by Judge Nosworthy is do you want a second bite at the

20 cherry after the transcript has been placed on record. I think if you can

21 go clearly to that point. We have understood the background of what your

22 problems are. Do you want a second bite at the cherry?

23 MR. MILOVANCEVIC: [Interpretation] Just a moment, Your Honours,

24 please.

25 [Defence counsel confer]

Page 11173

1 [Trial Chamber confers]

2 MR. MILOVANCEVIC: [Interpretation] Your Honours, since the

3 question by its nature suggests such an opportunity, then, yes, we accept

4 this opportunity. Thank you.

5 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

6 Yes, Mr. Whiting, you had something to say.

7 MR. WHITING: Well, I was going to make the suggestion that

8 perhaps what we could do is proceed with the closing arguments; and then

9 when the transcript becomes available, a date could be set whereby the

10 parties could have a limited - and limited just to that piece of

11 evidence - opportunity to file a written submission on that issue.

12 JUDGE MOLOTO: Thank you very much.

13 Now, the Chamber also notes, Mr. Milovancevic, that you did

14 indicate earlier that you are not suggesting that you are unable to

15 proceed with final arguments today. So shall we proceed to that straight

16 away and the Chamber makes the oral order that as and when the transcript

17 is available and has been filed of record, the parties shall be given an

18 opportunity, a very limited opportunity, to file written submissions based

19 strictly on the transcript.

20 And the limitation includes that the parties will be excluded from

21 referring to the DVDs, because the DVDs have been filed some time back and

22 they -- that reference to them should have been -- I am being corrected.

23 That Mr. Milovancevic indicated that he has not received the DVDs. It

24 will be limited to the entire evidence. Thank you very much.

25 Mr. Whiting.

Page 11174

1 MR. WHITING: Thank you, Your Honours, counsel --

2 MR. MILOVANCEVIC: [Interpretation] Mr. Whiting, please.

3 Your Honours, before my learned friend begins with his closing

4 arguments, I wanted to raise another brief issue and could we please go

5 into private session briefly?

6 JUDGE MOLOTO: May the Chamber please move into private session.

7 [Private session]

8 (redacted)

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Page 11175











11 Pages 11175-11176 redacted. Private session.















Page 11177

1 (redacted)

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5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 THE REGISTRAR: Your Honours, we're back in open session.

13 JUDGE MOLOTO: Thank you so much.

14 Mr. Whiting.

15 MR. WHITING: Thank you, Your Honours.

16 Thank you, counsel.

17 "There is no evil in doing evil to evil people."

18 Your Honours will recognise these words from this trial. They

19 were written by a Defence witness in this case, Nikola Medakovic, on

20 November 13th, 1991, the day after Serb forces wiped out Saborsko,

21 murdering, expelling, burning, looting as they went. We had lots of back

22 and forth during Mr. Medakovic's testimony about these words. We say that

23 he was trying to justify what had happened the day before in Saborsko,

24 perhaps he claims something else. For the moment, however, I don't want

25 to focus on those particulars, but on how these words provide part of the

Page 11178

1 answer to a question that I am going to guess crossed Your Honours' minds

2 hundreds of times during this trial.

3 That question is: How could this happen? How in the world could

4 this happen? How could people be brought to commit these horrific crimes

5 all over the Krajina; in Dubica, in Saborsko, in Lipovaca, Vukovici,

6 Poljanak, Skabrnja, Nadin, Knin, Bruska? Part of the answer, we say, lies

7 in those ten words: "There is no evil in doing evil to evil people."

8 Many of the people who committed those crimes in the Krajina

9 during 1991, 1992, 1993, all the way to 1995, they had been persuaded that

10 there is no evil in doing evil to evil people. They had been told again

11 and again and again that Croats were Ustashas, that they were threatening,

12 that they were going to destroy the Serbs, to exterminate them, to

13 liquidate them, to commit genocide against them. And I use those highly

14 inflammatory terms because those were the terms used then. Serbs were

15 taught to fear Croats, Croat authorities, and the Croat people alike; and

16 as Milan Babic explained, this fear quickly turned to hatred, a hatred

17 that made it possible for people to expel, to murder, to detain, to

18 torture, to loot, to destroy, to burn.

19 But that's not the whole answer to the question: How did this

20 happen? How in the world could this happen? There is another part of the

21 answer that is implicit in what I have been saying and that is critical to

22 this case, and that is: It could happen. It did happen, because the

23 leaders at the time made it happen. They caused it to happen. They led

24 the people down the path of ethnic hatred, violence, and criminal conduct.

25 These crimes all over the Krajina did not just happen by

Page 11179

1 themselves. People did not on their own just rise up simultaneously and

2 spontaneously to commit these crimes in village after village. No. They

3 were led there. They were brought there by their leaders, and that is

4 what this case is all about. Because in the SAO Krajina, and later in the

5 RSK, the principal leader who brought the people to this point was the

6 accused in this case, Milan Martic.

7 There is no dispute that Milan Martic was the most significant and

8 important Serb leader within the Krajina. Throughout the period in

9 question, he was the military commander within the Krajina, while Milan

10 Babic, who was also important, though who wielded much less power than

11 Milan Martic, was the political leader. From beginning to end, Milan

12 Martic was in charge of the police, which was militarised into a fighting

13 force by early 1991, and he exercised direct command, or significant

14 influence, over the TO.

15 Both Prosecution and Defence witnesses testified about Mr.

16 Martic's stature, influence, and power within the Krajina. Mr.

17 Dobrijevic, for example, a Defence witness, said that Mr. Martic's

18 authority was built very quickly, and he agreed that Mr. Martic had

19 effective and real power in the Krajina. Milan Martic himself spoke many

20 times about his own role and contributions in the Krajina. A few

21 examples.

22 Just after the so-called log revolution in August 1990, that's

23 exhibits 4 and 5 - it's a clip that Your Honours saw many times during the

24 case - Milan Martic told the media to say: "This is the people's police,

25 that this police is protecting this people and is against the Croatian

Page 11180

1 government which does us harm."

2 I'm going to come back to those words later.

3 Just after the events in Plitvice in March of 1991, and this is

4 Exhibit 207, he said: "There is no way we will allow a Croatian Ministry

5 of Internal Affairs police station to be set up at Plitvice. We will wait

6 to see what the army will do; and if they do not resolve the problem, we

7 will drive them all out in a way we will consider to be the most

8 efficient."

9 A few days later, and this is Exhibit 209, Mr. Martic said: "The

10 Knin police force is so busy with the defence of the Krajina borders and

11 the protection of the Serbian people from the Croatian Ministry of

12 Internal Affairs that it simply cannot spend more time solving this type

13 of criminal activity. But it is working on it, and more will be revealed

14 soon." This --

15 JUDGE MOLOTO: What criminal kind of activity was referred to?

16 MR. WHITING: This type of criminal activity, Your Honour, was the

17 bombing of a restaurant owned by a Croatian couple.

18 By the way, Your Honours, I'm only going to touch on a few of the

19 statements made by Mr. Martic, but I suggest that it is useful to read

20 them all together because his own words from the time support many of the

21 elements of the case against him.

22 On July 7th, 1991, Martic said -- Mr. Martic said, I'm sorry, and

23 this is Exhibit 213, that: "His men were the only Serbian armed formation

24 in Yugoslavia," and that: "They were well armed and capable of defending

25 the Serbian ethnic areas there."

Page 11181

1 In that same article, Mr. Martic talked about the successes of his

2 units and the modern and heavier equipment that they had acquired. On

3 that same day - it was a significant day because it was a year anniversary

4 of the protest against the Croatian symbols and Croatian police uniforms,

5 so there were a lot of interviews on that day - on that same day Mr.

6 Martic said in another interview, and this is Exhibit 973, that: "Our

7 sole goal is to defend the hearths of our forefathers in Krajina. There

8 is no reason for us to hide anything. We have trained very many men for

9 defence. Lately there are many young women in our ranks."

10 On the 14th of August, 1991, this is Exhibit 626, Mr. Martic spoke

11 of defending not just the SAO Krajina, but also the territory of Slavonia,

12 Baranja, and Western Srem, and of the mutual assistance and cooperation

13 between these areas. A few days later on the 19th of August, this is

14 Exhibit 215, Mr. Martic said that he never dreamed that he would have such

15 military might at his disposal.

16 Then on September 4th, 1991, Mr. Martic did take his men to Borovo

17 Selo to engage in fighting, called his men Kninija special troops. This

18 is Exhibit 473. In October or November 1991, Mr. Martic said in an

19 interview, it's Exhibit 478: "I can fight against Ustashas. I know how

20 to fight and I have proved it."

21 On the 9th of December, 1991, Mr. Martic spoke at a session of the

22 Presidency of the SFRY. This is Exhibit 917. He spoke against accepting

23 the proposed peace plan and made it clear that he would rather fight than

24 accept the plan. He said: "It seems that the Serbs' eternal fate is to

25 fight until our extinction. If we have to do it, we will do it

Page 11182

1 once more." He said also that: "Until we definitely defeat them, in the

2 military sense, until we force them to capitulate, we are not going to see

3 any fortune."

4 He explained that he could not accept UN forces in: "The

5 territory that we liberated in blood. I'm not saying conquered but

6 liberated, that we have hundreds of casualties who gave their lives for

7 our Krajina."

8 Then on the 12th of December, 1991, Mr. Martic said in Exhibit

9 518: "The people and police of the SAO Krajina defended with their blood

10 the freedom they had won, and they will continue to do so in the future."

11 About the police, Mr. Martic said that: "They are part of the armed

12 forces and will always be a strong component in coordination with all SO

13 Krajina and Yugoslav forces."

14 So again and again throughout this period, Milan Martic talked

15 about how his men, his men, defended the Krajina.

16 But now, Your Honours, we have an amazing disappearing act. All

17 of a sudden, the police of the Krajina are nowhere to be found. We're

18 told by the Defence, contrary to overwhelming evidence, that really

19 they're nowhere near the major fighting. The police, we are told, did not

20 even exist in Dubica, Bacin, and Cerovljani in September and October 1991.

21 Those men there who everyone thought were the SAO Krajina police, well

22 those were just renegades.

23 In Plaski, near Saborsko, we know that in May of 1991 a special

24 purpose unit of the SAO Krajina police was formed at Mr. Martic's

25 suggestion, under the command of Nikola Medakovic. He told us that

Page 11183

1 himself, and he was directly under Mr. Martic's command. But when things

2 got really hot in August and September of 1991, we are told that the

3 special purpose unit was disbanded. When a TO commander in Plaski and the

4 chief of the regular police in Plaski, Bogdan Grba and Dusan Latas, when

5 they referred to special units of the police in documents in November

6 1991, well, they were just mistaken.

7 In the attack on Saborsko, the police got near Saborsko, but, no,

8 they did not go in. And when Dusan Latas referred in his report to the

9 police going into Saborsko, well, again, he was mistaken. In Skabrnja,

10 the police did not participate in the fighting at all. They were too busy

11 with their regular police duties in Benkovac. The police in Bruska, who

12 in December 1991 wore SAO Krajina police uniforms and announced themselves

13 as the SAO Krajina police, well, they were fakes.

14 The police also had nothing to do with the prisons in Knin, and

15 they were never there. One Defence witness went so far as to claim that

16 the special purpose units of the police did not even exist until 1992.

17 And following this same disappearing act, now we are told that Mr. Martic

18 did not order the attacks on Zagreb in May of 1995, despite his repeated

19 statements that he did just that.

20 Why, Your Honours, is the Defence running from Dubica, from

21 Saborsko, from Skabrnja, from the prisons, from Bruska, from Zagreb? For

22 one simple reason, and that is that the evidence that crimes occurred

23 there is overwhelming. The evidence also proves beyond a reasonable doubt

24 that the SAO Krajina police was involved in each one of those places. In

25 some places, the evidence of police participation is in fact overwhelming.

Page 11184

1 I am going to address each location in turn, even though the

2 Defence in its final brief addressed only some of the crime sites in this

3 case.

4 But, first, let's look at the bigger picture, because Milan Martic

5 is charged in this case with participating in a joint criminal enterprise

6 whose purpose was the forcible removal of Croats from the Krajina in order

7 to create a Serb-dominated state. The Prosecution must prove then, beyond

8 a reasonable doubt, that a group of persons acted together with the common

9 purpose of achieving the criminal end of forcibly removing the Croat

10 population from the Krajina and that Milan Martic participated in the

11 common purpose.

12 With respect to the particular crimes in the indictment, aside

13 from those in Counts 9 and 10, which charge deportation and forcible

14 transfer and which form the core of the common purpose of the JCE, the

15 Prosecution must prove that either they were part of the common purpose of

16 the JCE and were intended by the members of the JCE, including Mr. Martic,

17 to be within the common purpose, or that the crimes were a natural and

18 foreseeable consequence of pursuing the common purpose of forcibly

19 removing the Croat population from the Krajina.

20 Now, let me pause for a moment here to say one thing. I will not

21 talk - you'll be glad to hear - too much in this closing about the legal

22 elements of crimes. But when I do, it will necessarily be in a kind of

23 shorthand and abbreviated way, hopefully accurate, but nonetheless

24 shorthand and abbreviated. And I just want to be sure our complete --

25 JUDGE MOLOTO: Make sure it's accurate.

Page 11185

1 MR. WHITING: No, it's accurate. But our complete and definitive

2 position on the legal elements of the crimes is fully set forth in our

3 brief.

4 Now, under the JCE mode of liability, the Prosecution does not

5 need to prove that Mr. Martic actually committed the crimes or any of the

6 other modes of liability under 7(1), planning, instigating, ordering, or

7 even that men under his command participated in them. Now, the fact is,

8 with the possible exception of the attacks on Lipovaca, Poljanak, and

9 Vukovici, the Prosecution has proven beyond a reasonable doubt that the

10 SAO Krajina police participated and assisted in the attacks in which

11 crimes were committed, at a minimum aiding and abetting in the commission

12 of the crimes, and in some cases that the police even committed crimes.

13 This I will discuss later, when I touch on the specific crime sites

14 charged in this case.

15 But let's stay, for a moment, with JCE, which by the way is not

16 discussed at all in the final brief of the Defence. First, did a

17 plurality of persons work towards a common purpose? Certainly. The

18 evidence establishes that by August of 1991, Serb leaders in the Krajina,

19 in Belgrade, and the JNA were working towards a common goal, even if they

20 had some internal rivalries among themselves at times.

21 Milan Martic himself said this at the time before, during, and

22 afterwards, frequently praising the cooperation that he had with the JNA

23 and the support that he received from Belgrade and from Slobodan Milosevic

24 in particular. Let's just look at one example of such a statement from

25 Mr. Martic. It's from February of 1992, and it's in evidence in this

Page 11186

1 case.

2 I'm going to play it on the Sanction.

3 [Videotape played]

4 MR. WHITING: I'm not hearing anything.

5 Does something need to be switched at the desk?

6 JUDGE MOLOTO: Mr. Whiting, apparently we've got a technical

7 problem. The people in the AV booth can't hear it themselves, so they are

8 trying to solve the problem. Maybe you can come back to it a little

9 later. I know how it affects your argument, your presentation.

10 MR. WHITING: I actually have a couple of clips that I was about

11 to play. So I'm wondering maybe if it would not be inconvenient, perhaps

12 we could take the break a little early and then resolve the technical

13 problem and then I could continue if that's not a problem.

14 JUDGE MOLOTO: Would you rather we take the break now and come

15 back at half past 10.00?

16 MR. WHITING: I would be grateful.

17 JUDGE MOLOTO: Okay. Hopefully the technical problem will be

18 resolved during the time. Court is going to adjourn now and reconvene at

19 half past 10.00. Court adjourned.

20 --- Recess taken at 10.00 a.m.

21 --- On resuming at 10.29 a.m.

22 JUDGE MOLOTO: Just before you proceed, Mr. Whiting, let me just

23 mention that in view of the fact that we took an early break, we will go

24 for one hour, 30 minutes this time and break at 12.00.

25 MR. WHITING: Thank you, Your Honour.

Page 11187

1 Just before we broke, I was talking about the evidence that the

2 Serb leaders in the Krajina in Belgrade and within the JNA were working

3 towards a common purpose during 1991. And I spoke about how Mr. Martic

4 himself at the time frequently spoke about the close cooperation that he

5 had with the JNA and the support that he received from Belgrade and from

6 Slobodan Milosevic. And the clip I'm going to play is from Exhibit 951.

7 It's an interview of Mr. Martic from February 1992, so if we can switch

8 over to the Sanction and try and play that clip.

9 [Videotape played]

10 MR. WHITING: Now, the next question is: Was the common purpose

11 of the JCE the forcible removal of Croats from the Krajina? Yes, beyond

12 any doubt. Now, how has this been proven to you? First, witnesses have

13 come in here and have told you that this was the purpose, including Serb

14 witnesses from the Krajina. Milan Babic not only testified that it was

15 the common purpose of the members of the JCE, including Milan Martic, he

16 pled guilty to his own role in the JCE, took responsibility for it, and

17 was sentenced by this Tribunal to 13 years' imprisonment.

18 He admitted that the creation of a Serbian state in the Krajina

19 would include the forcible permanent removal of non-Serb -- of the

20 non-Serb populations from the Serb-dominated areas of Croatia through a

21 discriminatory campaign of persecutions. And I would turn your attention

22 to Exhibit 174, which is his plea agreement and factual basis in the case.

23 In his testimony in this case, he read, and again adopted, a

24 statement that he made when he pled guilty before this Tribunal, and I'm

25 going to play that for you again.

Page 11188

1 [Videotape played]

2 "Q. Mr. Babic, could you read the statement, please?

3 "A. I said the following. 'Thank you, Your Honour. I come before

4 this Tribunal with a deep sense of shame and remorse. I have allowed

5 myself to take part in the worst kind of persecution of people simply

6 because they were Croats and not Serbs. Innocent people were persecuted.

7 Innocent people were evicted forcibly from their houses, and innocent

8 people were killed. Even I learned what had happened -- even after I had

9 learned what had happened, I kept silent. Even worse I continued in my

10 office and I became personally responsible for the inhumane treatment of

11 innocent people.

12 'The regret that I feel is the pain that I have to live with for

13 the rest of my life. These crimes and my participation therein can never

14 be justified. I'm speechless when I have to express the depth of my

15 remorse for what I have done, and the effect of my sins and the effect

16 they have had on the others. I can only hope that by expressing the

17 truth, by admitting to my guilt and expressing the remorse, can serve as

18 an example for those who still mistakenly believe that such inhumane acts

19 can ever be justified.

20 'Only truth can give the opportunity to the Serbian people to

21 relieve themselves of its -- their collective burden of guilt. Only this,

22 an admission of guilt on their part, makes it possible for me to take

23 responsibility for all the wrongdoings that I have done. I hope that the

24 remorse that I have expressed will make it easier for others to bear their

25 pain and suffering. I have come to understand that enmity and division can

Page 11189

1 never make it easier for us to live together. I have come to understand

2 that the fact that we all belong to the same human race and that it is

3 more important than any difference and I have come to understand that only

4 through friendship and confidence can we live together in peace and

5 friendship and thus make it possible for our children to live together in

6 a better world.

7 'I have asked help from God to make it easier for me to repent and

8 I am thankful to God for making it possible to help me express my

9 repentance. I ask my brothers, Croats, to forgive us, their brothers

10 Serbs, and I pray for the Serb people to turn to the future and to achieve

11 the kind of compassion that will make it possible to forgive the crimes.

12 And, lastly, I place myself at the full disposal of this Tribunal and the

13 international justice. Thank you very much.'

14 "Those were my words then, and I stand by them even today."

15 JUDGE MOLOTO: Mr. Whiting.

16 MR. WHITING: Yes, Your Honour.

17 JUDGE MOLOTO: Do you -- are you able to refer the Bench to any

18 corroborating evidence of that position?

19 MR. WHITING: Yes, Your Honour, I'm just about to. It's also set

20 forth in the brief, but I'll also refer to some of the corroboration in

21 this case.

22 Witness MM-079 testified that Mr. Martic told him in 1991 that:

23 "The Serbs of Krajina wanted to live in one single country with all the

24 other Serbs from Yugoslavia, including Serbia." To live with the Serbs,

25 he said.

Page 11190

1 MM-03 testified that Mr. Martic and the army had the same goal, to

2 link up Serb lands and cleanse the area of Croats. He said that this

3 meant that Croats would no longer be living there.

4 MM-078 testified that there was: "Constant pressure on the

5 Croatian citizens of Knin," starting as early as 1990.

6 Look also at the statements of Mr. Martic at the time. And before

7 I do that, I would note, going back to Mr. Babic, that in our view also he

8 was cross-examined on the goals of the joint criminal enterprise and the

9 larger issues; and, therefore, we think, even if there was no

10 corroboration, it could be relied upon by this Trial Chamber. However,

11 the corroboration is overwhelming, both in terms of testimony and the

12 events on the ground that actually occurred, which I will touch on in a

13 moment.

14 Look at the statements of Mr. Martic at the time. Remember that

15 statement that he made to the media in August of 1990. It's Exhibits 4

16 and 5 that I referred to earlier, and I said I would come back to. It's a

17 videotape that you've seen of him many times of him standing by a truck

18 and saying this is the people's police.

19 Remember what he says, he says the people's police: "Is

20 protecting this people and is against the Croatian government which does

21 us harm." Who is referring to when he says "this people"? That the

22 police is protecting "this people" from the Croatian government? Is he

23 referring to all of the people of the Krajina, regardless of ethnicity?

24 No. No, he's referring to the Serbs in the Krajina.

25 On July 7th, 1991, Mr. Martic said: "The Krajina police are

Page 11191

1 defending Serbian land and the Serbs' ethnic area." That's Exhibit 498.

2 On that same day he said that his men and the JNA had the same

3 goals, to defend a people who had expressed its will at a referendum on

4 the 12th of May, 1991; that it wanted to join Serbia, Montenegro, and

5 others who want to live in Yugoslavia. That's Exhibit 973. Again, which

6 people are we talking about here? Serbs, of course.

7 These repeated statements were not just statements made in the

8 heat of the moment. Years later, in October of 1994, Mr. Martic still

9 used the same language, stating in an interview that is Exhibit 496

10 that: "I thought we had to liberate our ethnic territories."

11 Now, in July and August and into the fall of 1991, at the very

12 same time that Mr. Martic was saying that the role -- that the job of the

13 Krajina police was to defend Serbs, Serb lands, Serb ethnic areas, he was

14 issuing ultimatums demanding that the Croatian police leave Croat villages

15 in the Krajina. So was there really a place for Croats in this new

16 Serbian state that was being created? No, clearly not. The state was for

17 Serbs. The police was going to defend Serb areas, defend Serbs. Croats

18 had no place there.

19 But even more than from the testimony of witnesses in this case

20 and the statements made at the time, including those by Mr. Martic, we

21 know what the common purpose was of the joint criminal enterprise from

22 what actually happened in the Krajina. What happened in Croat village

23 after Croat village after Croat village screams out louder than any

24 witness could. Again and again and again, Croat villages were isolated by

25 barricades, shelled, provoked, and then attacked in a manner that was

Page 11192

1 designed to drive out the Croat population. The evidence of this pattern

2 is compelling.

3 It happened before the intense fighting of the fall of 1991,

4 during that fighting, and after that fighting. It happened in Potkonje,

5 Lovinac, Glina, Struga, Kijevo, Vrlika, Drnis, Dubica, Bacin, Cerovljani,

6 Saborsko, Poljanak, Vukovici, Lipovaca, Skabrnja, Nadin, Bruska, and other

7 places. After the RSK was formed at the beginning of 1992, it continued

8 to happen, with the participation and sanction of the police in places

9 like Kijevo and Knin, until by 1994 nearly all of the Croats were driven

10 out of the RSK. It can be presumed that one intends the natural

11 consequences of one's actions, particularly when these consequences occur

12 again and again and again.

13 I'm not going to go through every village, every instance. It is

14 set out in detail in our final brief. I do, however, want to focus for a

15 few moments on the first example that we point to, Potkonje, because it

16 says a lot about the pattern that was to follow. The attack occurred

17 there on the 2nd of May, 1991. Although the SAO Krajina police was not

18 doing anything at the time about Serbs who were arming themselves in the

19 SAO Krajina and was even participating in that arming, it targeted

20 Potkonje, which was at least 95 percent Croat, for an operation to seize

21 weapons there. It could not have been missed by anybody that this would

22 send a clear message to the Croat population. They would be disarmed

23 while neighbouring Serb villages would remain armed.

24 Witness MM-78 testified that the police "wreaked havoc" during the

25 operation, and that the psychological effects on the Croat population

Page 11193

1 were "devastating," and that it caused the Croat population, quite

2 predictably, to leave. On cross-examination, this witness, Prosecution

3 witness MM-78, testified that what happened in Potkonje was in line with

4 the policy of the Krajina authorities at the time to expel Croats from

5 their homes and villages which would occur thereafter in all areas where

6 Croats lived. He said that what happened "was only to confirm what was

7 going to happen later. Potkonje, Kijevo, Vrpolje, all the places where

8 Croats were in absolute majority or a significant majority, disappeared."

9 That's at transcript 4521 to 22.

10 Now, a Defence witness, MM-96, also testified about Potkonje and

11 about the police operation there. He testified that during the operation,

12 yes, the police fired their weapons in the air, searched houses, arrested

13 several inhabitants, and took them to the prison in Knin. He confirmed

14 what MM-78 said, that the operation had a devastating psychological impact

15 on the Croat population and that it caused Croats to leave.

16 He also made an important concession during the cross-examination

17 about the nature of the Potkonje operation. The clip that I'm going to

18 play for you is from page 7067 of the transcript, and because the English

19 is a little bit hard to hear, I've asked that the transcript also be

20 played at the same time while the tape is being played.

21 [Videotape played]

22 "Q. I want to turn now to what happened in Potkonje. You would

23 agree with me, would you not, that the population of Potkonje in 1991 was

24 95 percent Croat and about 5 percent Serb?

25 "A. Mr. Prosecutor, I'm not familiar with the exact information.

Page 11194

1 One thing that is certain is Potkonje was a predominantly Croat village.

2 I'm not sure about the exact percentages, but there were a good deal more

3 Croats. That much is certain.

4 "Q. I understand you may not know the exact percentage, but that

5 percentage, when you say 'predominantly Croat,' would you agree that it's

6 almost completely Croat; that is, over 90 percent Croat?

7 "A. I would tend to agree, yes.

8 "Q. Now, you testified that you never received an order 'that

9 involved making a difference between citizens based on their ethnic,

10 political, religious, or any other affiliation.'

11 Do you remember that testimony?

12 "A. I do. And I still believe that my behaviour conformed with

13 that.

14 "Q. But then just a few minutes after you said that, and

15 actually it appears on the next page in the transcript at 6847, you

16 testified that you received an order to disarm the Croats in Potkonje who

17 had armed themselves. Wasn't that an order directed at an ethnic group,

18 the Croats?

19 "A. If you look at that particular operation, I suppose you

20 could say that this was the case."

21 MR. WHITING: Your Honours, the concession that this Defence

22 witness makes here is significant for two reasons. First, it confirms

23 that from the very beginning, from May 1991, Croats were singled out and

24 targeted by the police. And they were targeted in a way that would

25 obviously cause them to have fear and to leave.

Page 11195

1 Second, even though the witness originally testified that he had

2 never received an order that involved making a distinction between

3 citizens based on ethnic affiliation, he admitted that in fact the order

4 to conduct the operation in Potkonje was directed at an ethnic group, the

5 Croats.

6 For that moment in the questioning, we submit, the official line,

7 the justifications, the excuses, the rationalizations, the double-speak

8 fell away, and the truth about what happened in Potkonje emerged. And

9 Potkonje was just the beginning. The later attacks were of course even

10 more fierce and more devastating. Mr. Van Lynden was told in July of 1991

11 by Serb soldiers, after the attack on Struga, that their aim was to rid

12 the region of Croats, and he described himself how this -- he saw this as

13 an early attempt at ethnic cleansing. And that is exactly what happened

14 in all of the Croat areas of the Krajina after that.

15 In light of all of the evidence taken together, the witness

16 testimony, the statements at the time, the documents, and, most

17 importantly perhaps, what actually happened on the ground, there can be no

18 doubt about the common purpose of the joint criminal enterprise. It was

19 to target Croat areas and to force Croats to leave by whatever means

20 necessary, including widespread crimes. Not only was that the purpose of

21 the JCE, that is in fact what happened in the Krajina during the years

22 charged in this indictment.

23 So how did Mr. Milan Martic participate in this joint criminal

24 enterprise? Remember, first, the ways that Milan Babic admitted to

25 participating in the JCE, which were found by the Trial Chamber in his

Page 11196

1 case to be sufficient to enter a finding of guilt and to sentence him to a

2 period of 13 years' imprisonment.

3 JUDGE NOSWORTHY: Might I at this stage, Mr. Whiting, before you

4 go any further pose a question to you?


6 JUDGE NOSWORTHY: Is this Trial Chamber at liberty to refer to and

7 use any finding of another Trial Chamber touching and concerning the guilt

8 of Babic and his participation, if any, in the joint criminal enterprise;

9 and if yes, please tell me why. We do not know the evidence that went

10 before that Trial Chamber, whether it is similar to or different from the

11 evidence before us. I would like you to take me through the paces of that

12 one.

13 What Babic said before this Court and adopted, I would make a

14 distinction in that case because that is very real evidence before us.

15 However, now, when it comes to the finding of another Trial Chamber under

16 circumstances where he's pleaded guilty, how does it import on this Trial

17 Chamber in adopting it for use in reaching a finding against Milan Babic

18 in this indictment -- sorry, case against Mr. Martic in this indictment.

19 Thank you.

20 MR. WHITING: Your Honour, I do believe that this Court can rely

21 upon the findings because the material that was before the Trial Chamber

22 in Milan Babic's case has been placed before this Trial Chamber and is in

23 evidence. The factual basis for the plea is in evidence as Exhibit 174.

24 So the facts are before the Trial Chamber, and of course in our

25 submission they conform with the facts as were testified to by the

Page 11197

1 witness. In addition, the decision of the Trial Chamber is before the --

2 is put in -- placed into evidence, and the Trial Chamber can see from that

3 decision what facts were relied upon by the Trial Chamber in reaching its

4 findings.

5 I would say, therefore, that this Trial Chamber could make both

6 evidentiary and legal use of these findings. Evidentiary use because

7 these facts were what Mr. Babic admitted to, what he confirmed, what he

8 said he did; and therefore -- and they've been put into evidence and

9 confirmed by the witness. And, therefore, it can be relied upon as an

10 evidentiary matter. It can also -- that is in terms of what he says he

11 did and what he says the purpose of the joint criminal enterprise was.

12 And now, let me just be clear. I'm not suggesting for a moment that the

13 Trial Chamber is bound by the findings, merely that it may rely upon them

14 safely.

15 Secondly, I think the Trial Chamber can rely upon them as a legal

16 matter because the Trial Chamber in Mr. Babic's case made certain factual

17 findings. These are the ways that Mr. Babic participated in the joint

18 criminal enterprise according to his admission, and then made a legal

19 finding that these ways were sufficient to enter a finding of guilt to

20 participating in the joint criminal enterprise and committing the crime of

21 persecutions.

22 And that legal analysis can be relied upon by this Trial Chamber.

23 For example -- at least for guidance if the Trial Chamber makes certain

24 findings, factual findings, about how Mr. Martic participated in the joint

25 criminal enterprise could be guided on the issue of whether that would be

Page 11198

1 sufficient to enter a finding of guilt with the joint criminal enterprise.

2 JUDGE NOSWORTHY: The problem, as I said, is really the admission

3 by Mr. Babic and the finding of guilt by that Trial Chamber. I do not

4 think that it can import on this Trial Chamber's decision. But what I've

5 extracted is that that aside the actual statements of fact and the

6 adoption and the findings could be considered and could be used, but thank

7 you for your submissions, Mr. Whiting.

8 MR. WHITING: Thank you. I hope they were helpful.

9 JUDGE NOSWORTHY: They are very helpful.

10 MR. WHITING: Should I proceed?

11 JUDGE MOLOTO: I just wanted to -- is it so that what Mr. Babic

12 said happened in his case, did he testify about that being the manner of

13 participation or something -- some similar action being the manner of

14 participation by Mr. Milan Martic in this trial? Did he testify about

15 that?

16 MR. WHITING: Your Honour, he testified about how he participated,

17 and then he testified about the things that Mr. Martic did. Yes, he did.

18 JUDGE MOLOTO: Thank you very much. That answered my question.

19 MR. WHITING: So, Your Honours, I would -- when in considering in

20 whatever manner that you choose to do, Mr. Babic's testimony and his

21 guilty plea and the factual basis for his guilty plea, I would turn your

22 attention again to Exhibit 174, which is his guilty plea and the factual

23 basis that he admitted to.

24 And in paragraph 33 of the factual basis, it sets out the various

25 ways that Milan Babic admitted to participating in the joint criminal

Page 11199

1 enterprise. I will not go through all of them. You'll have an

2 opportunity to look at it. But can there really be any doubt based on the

3 evidence that has been presented in this case that Milan Martic's

4 participation in the JCE far exceeded anything that Milan Babic did? Can

5 there be any doubt that Milan Martic held more power, more influence, had

6 stronger support from Mr. Milosevic in Belgrade? That he was the highest

7 and most important military commander within the Krajina? And these were,

8 after all, military operations that we're talking about.

9 Now, we say that Milan Martic participated in the JCE in a myriad

10 of ways. I will not list them all here, but they include: Commanding

11 military structures in the Krajina, including the police, which Mr. Martic

12 militarised during 1991; organising the military training of police and

13 volunteers at Golubic; obtaining funding and arms from Belgrade for the

14 police and for the Serbs of the Krajina; creating special purpose units

15 that participated in military operations; provoking conflict with Croat

16 villages and making demands and ultimatums upon them; allowing police

17 forces under his command to participate, along with the JNA and TO forces,

18 in military attacks on Croat villages with the purpose of devastating

19 those villages and driving out the Croat population; encouraging the JNA

20 and political leaders in Belgrade to support the Serbs in their conflict

21 in the Krajina; ensuring close cooperation among Serb forces during the

22 conflict in the Krajina; maintaining close cooperation and coordination

23 among members of the joint criminal enterprise; supporting separate

24 government structures within the Krajina that supported the purpose of the

25 JCE, in part through his various positions that he held in the Krajina

Page 11200

1 governments; engaging in inflammatory and well-publicised rhetoric that

2 caused Serbs to fear Croats and to make them believe that they could be

3 safe only in a state of their own, free of Croats, and made it clear to

4 Croats that the Krajina was not safe for them. It's clear that Mr. Martic

5 did not simply participate in the joint criminal enterprise, he was an

6 essential component to its success.

7 Now, before talking about the particular crimes that either fell

8 within the joint criminal enterprise or were a foreseeable consequence of

9 pursuing the common purpose of the joint criminal enterprise, let me just

10 pause for a moment to comment on this mode of liability, this joint

11 criminal enterprise. It is an essential and well-established mode of

12 criminal responsibility at this Tribunal, having been repeatedly affirmed

13 in many cases, most recently in the Krajisnik case. As we said in our

14 opening address in this trial, this mode of liability is a recognition of

15 the fact that these kinds of crimes are rarely accomplished by one person

16 acting alone or even by a single entity. Rather, they can only be

17 accomplished by various entities working together towards a common goal.

18 Let's now talk specifically about the various crime sites charged

19 in the indictment. The crimes committed in Dubica, Bacin, Cerovljani,

20 Saborsko, Poljanak, Vukovici, Skabrnja, Nadin, and Bruska, and Knin in

21 1991, and the crimes committed against Croat civilians all over the RSK

22 during the years 1992 through 1995, were all within the common purpose of

23 the joint criminal enterprise.

24 In each of these locations, aside from Knin which is just about

25 the detentions, overwhelming force was used and widespread crimes were

Page 11201

1 committed, including murder, looting, and destruction. One purpose of the

2 attack and the purpose of the crimes was to drive out the Croats. In the

3 alternative, the crimes committed in these villages were plainly a

4 foreseeable consequence of the pursuit of the common purpose of the joint

5 criminal enterprise to forcibly remove Croats from the Krajina. They were

6 foreseeable in two ways.

7 First, they were simply a foreseeable consequence of such a

8 purpose. It could be expected that if there were a common purpose to

9 forcibly remove Croats, pursued by the highest military and political

10 authorities in the Krajina and in Belgrade, through a process of

11 demonising the Croat side and causing fear and hatred among Serbs, then it

12 would invite serious crimes against Croat persons and their property. It

13 would be open season on Croats. They did not enjoy the protection of the

14 government or the police. The police was there, remember, to defend Serb

15 lands, Serb ethnic areas, Serb people.

16 The crimes were also foreseeable because of the pattern of what

17 happened before. Remember that by the crime crimes occurred in Dubica and

18 Saborsko and Skabrnja in October and November of 1991, there had already

19 been a well-established pattern of attacks where it could be seen that

20 such crimes would occur as a part of these attacks in Struga, in Kijevo,

21 Vrlika, Drnis. As a result, by October of 1991, everyone, including Milan

22 Martic, was on notice that such crimes would occur, but the attacks

23 continued on in the same manner, if anything becoming even stronger and

24 more aggressive.

25 Although, in some instances, there were skirmishes back and forth

Page 11202

1 between Serbs and Croats before Serb forces attacked a village, such as in

2 Saborsko and in Skabrnja, this cannot be a justification for the attacks

3 that occurred later. First, the evidence is that these villages were

4 under siege and were provoked by superior Serb forces long before any

5 full-scale attack occurred. Mr. Babic testified about the pattern that

6 occurred after August 1991, and witnesses in these villages confirmed this

7 pattern. Serb forces provoked conflict with Croat areas, the Croat side

8 responded, and then Serb forces attacked with overwhelming force and

9 committed crimes, including murder, expulsion, looting, and torching.

10 This is at 1572 to 1574 of Mr. Babic's testimony.

11 It cannot be that simply because Croat defenders in these villages

12 at times fought back, at times responded to provocations, that then the

13 door was wide open to an attack that was plainly designed to wipe out the

14 village.

15 Second, the scale and nature of the attacks show that another

16 objective was afoot. These attacks were not simply designed to achieve a

17 military objective; rather, the size of the attacks and the widespread

18 crimes committed during these attacks show what was really going on behind

19 the justifications, the rationales, the double-speak. The Serb forces

20 wanted to get rid of Croat villages within the Krajina, and that is what

21 they did.

22 Now, let's look at Dubica, Bacin, and Cerovljani. The evidence

23 establishes that more than a month after these areas fell to Serb forces,

24 on October 22nd -- they fell around September 13th, 1991. And more than a

25 month later, on October 22nd, 1991, some 56 civilians, nearly all of them

Page 11203

1 Croat, nearly all of them elderly, were massacred, executed. The evidence

2 also shows that both during the take-over of this area in September 1991

3 and afterwards, other civilians were murdered. And I would point the

4 Court in particular to the evidence of Antun Blazevic and Ana Kesic,

5 Exhibits 273 and 258, regarding these additional murders.

6 There was no military justification whatsoever for these murders

7 or for the looting and destruction that occurred in these Croat villages.

8 Did the SAO Krajina police participate in the October massacre in Dubica

9 and Bacin? We say the evidence says yes, beyond a reasonable doubt. The

10 Defence concedes in paragraph 52 of their brief that the evidence shows

11 that members of Velja Radjunovic's group participated in the massacre. So

12 the only question really is: Was Radjunovic's group the police of the SAO

13 Krajina? Again, the answer is yes.

14 First, let's recall the circumstances in Dubica at the time, and

15 if we could switch to the Sanction I'll show a map. Your Honours will

16 recognise that it's your map, just a portion of it.

17 Serb forces took Dubica and Bacin, as I said, and Cerovljani in

18 mid-September 1991.

19 JUDGE MOLOTO: Is it possible to enlarge the map a little bit to

20 occupy the entire screen?

21 MR. WHITING: I don't know.

22 JUDGE MOLOTO: [Microphone not activated].

23 MR. WHITING: I'm not sure we are ready to do that, Your Honour.

24 You caught us -- the point I'm going to make is going to be kind of

25 visible from this I think. There we go. Okay. Thank you.

Page 11204

1 As I said, Serb forces took Dubica and Bacin and Cerovljani in

2 mid-September of 1991, just one or two days after they took Kostajnica,

3 which you can see on the map there and which is approximately 20

4 kilometres away. Now, Mr. Martic's police, the evidence shows, were also

5 present at this time in Glina and in Dvor, which are not visible now on

6 the zoomed-in map but are visible on the other map. I think Glina is just

7 at the very top there. It's just been cut off a little bit, and Dvor is

8 just north of Bosanski Novi.

9 All of these villages are in the area which was referred to as

10 Banija. Capturing Kostajnica and Dubica and Bacin and Cerovljani in

11 mid-September 1991 were significant military victories for the SAO Krajina

12 and Serb forces, particularly since they established important connection

13 points with Serb areas in Bosnia right across the river. And there can be

14 no doubt about Mr. Martic's involvement and interest. On July 23rd of

15 1991, Mr. Martic met with the commanders in Banija, including the

16 commander of the war staff in Kostajnica. And Captain Dragan assessed

17 that: "Unity had been established in the conduct of all operations in

18 this area." That's Exhibit 582 and it's referring to Banija.

19 Some time in August or September, before the attack on Kostajnica,

20 Mr. Martic stated in a press conference that "Kostajnica will fall again

21 because the MUP forces," meaning the Croatian MUP forces, "have no food,

22 water, or electricity, and they are surrounded on all sides by the

23 fighters from Banija." That's Exhibit 479.

24 We know that after Kostajnica fell in mid-September 1991, Stevan

25 Borojevic led a special police unit there and that was subordinated to Mr.

Page 11205

1 Martic. But the Defence would now have you believe that from

2 mid-September 1991, when these areas came under Serb control, until

3 October 21st of 1991, and even after, Mr. Martic and the JNA and the TO

4 allowed Dubica and Bacin to be controlled by a rogue police unit, even

5 though these locations are just 20 kilometres from Kostajnica and were

6 extremely important strategically. They were close to Bosnia, close to

7 the front line, and close to the JNA base in Zivaja. But the evidence

8 from Defence witnesses, and it is cited in footnote 389 of our final

9 brief, is that the police and the JNA did not tolerate rogue units, and so

10 it is impossible to believe that they would tolerate this for such a long

11 period of time in such an important location.

12 Moreover, the witnesses who testified at the trial and who were

13 actually in Dubica and Bacin at the time say that Radjunovic's police were

14 the SAO Krajina police. MM-22 testified repeatedly, both in direct

15 examination and in cross-examination, that there was just one police in

16 town, that police led by Radjunovic, and that it was the SAO Krajina

17 police; that this was written on their uniforms and vehicles and that they

18 had their headquarters in town, in Dubica, in the centre of Dubica. This

19 evidence was corroborated by the evidence of Josip Josipovic.

20 Now, the Defence cites an unsigned Official Note of an interview

21 with Mr. Josipovic in paragraph 50 of their brief, but they edit the

22 quotation in a way to make it read a certain way. Go back and look at

23 what it says. In fact, we say the quotation is completely unclear and in

24 any event was never adopted by the witness who provided clear testimony on

25 the issue in court.

Page 11206

1 A truck marked SAO Krajina police was used to bring people to the

2 fire station on the 21st of October, 1991, and Ana Kesic testified that

3 she was brought there by Velja Radunovic himself. And if Radunovic's unit

4 was really a rogue unit, why didn't anything happen to them after the

5 massacre? Why weren't they arrested and prosecuted for what they had

6 done? We know that the police knew what was going on. Look at MM-22's

7 evidence about his encounters with the police shortly after the massacre,

8 and certainly the JNA and TO know what happened, but nothing happened to

9 Radunovic's unit.

10 Mr. Martic only disbanded the unit a month later and only because

11 they got into a kind of political dispute about annexing themselves to

12 Bosnia. And even then the evidence is Radunovic's men were simply sent to

13 the front line and sometime later they were back again. No, Your Honours,

14 they were not a rogue unit, they were the SAO Krajina police, just as the

15 witnesses said they were.

16 Let's turn now to Saborsko. Saborsko's not dealt with at all by

17 the Defence in their final brief, and it is discussed extensively in our

18 brief, so I will not talk long about it. But there can be no doubt that

19 the regular police of the SAO Krajina, under Dusan Latas, the special

20 police unit under Nikola Medakovic, and the state security or DB under in

21 Plaski under Djuro Ogrizovic, all of which were within the Ministry of the

22 Interior and subordinated to Mr. Martic participated in the attack on

23 Saborsko.

24 MM-37 confirmed this in his evidence, and it is confirmed by

25 numerous documents, including attack orders and reports written after the

Page 11207

1 attack by Mr. Latas and Mr. Ogrizovic. The only witness who tried to

2 minimise the role of the police in Saborsko, even though even he conceded

3 that the police participated, was Defence witness Medakovic. We would

4 submit, however, that the evidence of this witness was wholly incredible

5 on key points. He claimed that the special police units no longer existed

6 in November of 1991 but could not really explain references to them in

7 documents. He claimed not to know anything about a DB unit in Plaski,

8 despite references to such a unit in documents.

9 He claimed that the police did not enter Saborsko, despite clear

10 evidence to the contrary. And remember his perspective on the events, as

11 reflected both in the letter that he wrote the day after the attack on

12 Saborsko, that's Exhibit 269, and in this courtroom, where he claimed, and

13 it's at page 9247 of the transcript, that the Croatian side deliberately

14 caused the murders of civilians in Saborsko in order to gain the pity of

15 Europe.

16 Skabrnja. The evidence establishes beyond any possible doubt that

17 the Benkovac police under Bosko Drazic participated in the attack on

18 Skabrnja, as did the Territorial Defence, the TO. The evidence also shows

19 that there was no military justification for the attack on Skabrnja and

20 Nadin, and certainly no justification for the type of attack that

21 occurred. The Defence picks out parts of Marko Miljanic's testimony to

22 suggest that in Skabrnja there were well-armed and well-manned Croatian

23 forces that had taken JNA officers prisoner. In fact, while Mr. Miljanic

24 did say that there was a defensive force in Skabrnja, and he told Your

25 Honours about it, he said that they had minimal weapons. He described

Page 11208

1 them, and they only held JNA officers who came to their area, and then

2 only briefly.

3 Moreover, he said that after The Hague truce was signed on

4 November 5th, 1991, there were no provocations, and he said that he was

5 warned by a JNA captain that they were done for and that Ratko Mladic was

6 going to defeat them. He said that they had identified basements as

7 shelters in Skabrnja in case of attack, and Your Honours know the

8 importance of those basements in Skabrnja and what happened there during

9 the attack. He said also that the attack began with artillery fire on the

10 village and that during the attack civilians were taken out of basements

11 and killed.

12 Now, in their final brief, the Defence simply presents Zoran

13 Lakic's version of what happened in Skabrnja and virtually ignores, or

14 rather, ignores virtually all the other evidence. But did Mr. Lakic's

15 evidence hold up in court? Let's take a moment to look at some of the key

16 points of his testimony. First of all, he testified that the TO did not

17 participate in the attack on Skabrnja. On direct examination he said that

18 he entered Skabrnja only after the action ceased.

19 And on cross-examination he re-affirmed that except for the

20 medical unit that went in later, "not a single unit of mine was o there on

21 that date, the 18th of November." But that's clearly not true. The very

22 next Defence witness, Nada Pupovac, testified as follows, this is at

23 10399.

24 "Q. Isn't it true that on the 18th of November, 1991, members of

25 the Territorial Defence participated in the fighting?

Page 11209

1 "A. They did take part, under the command of the JNA."

2 Moreover, numerous exhibits about the attack and about crimes

3 committed in Skabrnja all confirm that the TO participated. The Defence

4 tries to gloss over this issue in paragraph 17 of their brief by saying

5 that: "There is conflicting evidence about whether the TO participated in

6 the action itself." But this is not a minor detail. Whether the TO --

7 Mr. Lakic was the commander of the TO and whether the TO participated in

8 the attack or not is a core issue, and it cannot be something that Mr.

9 Lakic was mistaken about.

10 Second, Mr. Lakic testified that the JNA went to Skabrnja on

11 November 18th to try to reach a peaceful solution and that their intent

12 was not to attack. Along these lines, both he and the next witness, Ms.

13 Pupovac, claimed that Lieutenant Stefanovic was essentially ambushed when

14 he was speaking on the megaphone, but these claims are plainly untrue.

15 MM-80 testified that he learned Skabrnja was going to be attacked

16 the night before, on November 17th. And Exhibit 107, a very important

17 exhibit, the notes of the commander of the operation, Momcilo Bugunovic,

18 confirm that on November 17, the day before, preparations were being made

19 to "mop-up Skabrnja and Nadin." Now, whatever the term "mop-up" means in

20 this context certainly did not mean going to make peace. These notes also

21 show that Lieutenant Stefanovic was not killed because he was ambushed but

22 because he was "stubborn and went first."

23 Now, the Defence also tries to minimise the importance of Exhibit

24 107, an exhibit by the way that the Defence put into evidence. In

25 footnote 31 of their brief, because they say that the notes are

Page 11210

1 handwritten and because they claim that say they "often lack precision and

2 consistency," but they point to no examples to support this

3 characterisation of theirs. But really just the opposite is true, Your

4 Honours. The notes in Exhibit 107 are so significant because they are not

5 packaged in an official report with excuses and rationalizations and

6 editing, but rather they represent raw, unfiltered notes from the time.

7 Finally, with respect to the reason behind the attack on Skabrnja,

8 Mr. Lakic conceded finally in cross-examination, it's at 10227, that he

9 did not know the reason behind the attack.

10 Third, Mr. Lakic testified, as did Ms. Pupovac after him, that the

11 police did not participate in the attack on Skabrnja. Mr. Lakic claimed

12 that the police stayed in Benkovac and did their regular policing duties

13 there, also plainly untrue. Exhibit 107 establishes, without any doubt,

14 that the police participated in the attack. There are numerous references

15 in the document to problems of coordination among the various

16 participants, including the TO, the police. And Bosko Drazic, himself,

17 was present at a meeting two days after the attack, on the 20th of

18 November, 1991, to review what occurred in Skabrnja. He's recorded as

19 having said at that meeting that there was "very good planning," and that

20 "the operation showed positive results and very much so!" Moreover,

21 reports about crimes committed in Skabrnja show that Drazic himself was

22 present during the attack.

23 Fourth, Mr. Lakic initially claimed that the only thing that he

24 knew about civilians killed in the attack was that some had been killed

25 during shelling and that a corpse was uncovered sometimes after the

Page 11211

1 operation. That's at 10181 of the transcript. But as the witness was

2 countered with document after document showing that the crimes in Skabrnja

3 were widespread and immediately known, this answer evolved. At pages

4 10266 to 10267, he said that in fact he knew that there had been many

5 victims two or three days after the action, and that certain officers

6 wanted to "shift the blame" to a third party. When he was shown Exhibit

7 107 and the notes of the meeting that he also attended on November 20th,

8 1991, at which crimes were discussed, he said that "the information to the

9 effect that there was killing and that there were victims reached us quite

10 soon." That's at 10280.

11 Then at 10285 to 10286, he admitted that he knew just two days

12 after the attack on Skabrnja that there had been "crimes, robberies, and

13 barbarities in Skabrnja."

14 Finally, with respect to these two Defence witnesses, Mr. Lakic

15 and Ms. Pupovac, it must be noted that despite their sweeping claims, and

16 what motivated these claims you might ask, about what happened or didn't

17 happen during the Skabrnja operation, both of them according to their own

18 testimony had extremely limited perspectives on what happened there and

19 could not know everything that was happening in Skabrnja.

20 At the end of the day, neither the testimony of Mr. Lakic nor of

21 Ms. Pupovac refutes the overwhelming testimony that the SAO Krajina police

22 participated in the attack, along with the TO and the JNA, and that

23 numerous and widespread crimes were committed during that attack.

24 Bruska. The evidence that this crime was committed by members of

25 the SAO Krajina police is of course overwhelming. The attackers

Page 11212

1 repeatedly identified themselves as being the Krajina police, Martic's

2 men, and they wore uniforms which said Milicija Krajina or Krajina police

3 on them. Moreover, when Ante Marinovic was recovering in the hospital

4 from his injuries, a man wearing a Milicija uniform came into his room and

5 said: "This Ustasha should be slaughtered immediately." In the case of

6 this evidence, the only response offered by the Defence, and perhaps it's

7 possibly the only response, that the men were not really SAO Krajina

8 police, but were simply pretending, were fakes. This theory, however, is

9 not supported by any evidence and is really just pure speculation. It

10 certainly does not amount to reasonable doubt.

11 Moreover, given the late date that we're talking about, this is

12 December 20th, 1991, after all, given the location of Bruska, which is

13 located roughly between Benkovac and Knin, given the evidence that the SAO

14 Krajina police did not tolerate renegades, it is impossible to believe

15 that these attackers at Bruska were not in fact the SAO Krajina police.

16 In addition, Exhibits 286 and 919 show that on November 20th,

17 1991, a month before the murders in Bruska, the SAO Krajina police

18 arrested Croats from Medvidja and detained them until they were exchanged

19 in June of 1992. Now, Medvidja is a predominantly Serb village which is

20 near Bruska. And in fact, Ante Marinovic testified that before the events

21 on the 20th of December, 1991, men who identified themselves as Martic's

22 police came from Medvidja to Bruska and harassed the population of Bruska.

23 If the SAO Krajina police is indisputably making arrests and detaining

24 Croats in this area of Medvidja in November of 1991, it is impossible to

25 imagine that there is some rogue unit calling themselves the SAO Krajina

Page 11213

1 police in nearby Bruska. They're not from Bruska, they come to Bruska one

2 month later, in December of 1991. No, the evidence shows that the men who

3 committed these murders in Bruska, they were SAO Krajina police.

4 Finally, the Defence claims that the police conducted a

5 professional investigation after these murders, but Exhibit 404 says

6 otherwise and suggests that the police knew who had committed the murders

7 and were covering it up.

8 Let's move on to the crimes committed in the prisons. The Defence

9 does not discuss --

10 JUDGE MOLOTO: Just before you go to the prisons, what does

11 Exhibit 404 say?

12 MR. WHITING: Exhibit 404 is a report from a JNA security organ

13 person. I'm not exactly sure which one, but I think I do -- but I think I

14 know and that can be checked. And it says according to information

15 received from a reliable source, the police in Benkovac -- I believe in

16 Benkovac know who committed the murders in Bruska, and a that person who

17 knew specifically had been transferred out to another place. And the

18 implication or the suggestion is that this was done in order to cover it

19 up and hide who had actually committed the murders.

20 JUDGE MOLOTO: Thank you.

21 JUDGE NOSWORTHY: Mr. Whiting.

22 MR. WHITING: Yes.

23 JUDGE NOSWORTHY: Just before you go on. If the acts in issue at

24 the different locations had in fact been committed by a rogue group, would

25 that change the position, and what would your answer be? Suppose there

Page 11214

1 were in fact such a finding by the Trial Chamber, as unlikely as you

2 consider it to be. If you can't answer that question at this stage, maybe

3 you could defer it to a later stage. But I would like you to think about

4 it and respond.

5 MR. WHITING: I can answer it, Your Honour.

6 JUDGE NOSWORTHY: Yes, because I'm interested to hear that.

7 MR. WHITING: Yes, the question would be -- well, in our view it

8 would fall within the scope of the joint criminal enterprise, either

9 within the -- what's called JCE 1; that is, that these crimes were within

10 the purpose of the joint criminal enterprise, or JCE 3, which is that they

11 were a foreseeable consequence of pursuing the common purpose of the joint

12 criminal enterprise. It would have to be found that these crimes were --

13 fell into one of those categories. So in other words, as I said earlier

14 in the -- in my closing, the Trial Chamber does not need to find that men

15 under Mr. Martic participated in all of these locations.

16 It would only need -- it can make that finding or not make that

17 finding. If that finding is not made with respect to a particular

18 location, then the question becomes if there is a finding of a joint

19 criminal enterprise and Mr. Martic's participation, whether that crime

20 fell within the common purpose of the joint criminal enterprise or was a

21 foreseeable consequence of it. So, I suppose the -- it's a long way of

22 saying that a -- a finding by the Trial Chamber that it was committed by a

23 rogue unit would not necessarily mean that there was no criminal liability

24 for Mr. Martic for that -- the crimes committed there.

25 JUDGE NOSWORTHY: Thank you, Mr. Whiting. Please continue.

Page 11215

1 MR. WHITING: Thank you, Your Honour.

2 Now, if we could move to the prisons. The Defence does not

3 discuss the crimes at the prisons at all in their final brief. And we

4 have discussed it in our submission, so I will touch on this only briefly.

5 It is plain that the position of the Defence is that the police had

6 nothing to do with the prison in Knin. The evidence, however, shows

7 otherwise.

8 The prison was run by Stevo Plejo, who was recruited into the

9 police by Milan Martic and was trained at Golubic. He became warden of

10 the prison in Knin in August of 1991, even though he had no experience and

11 there were other guards there who had significantly more experience with

12 prisons than he did and even though he claimed himself he didn't want the

13 job. It seems there can be only one conclusion that why he got that job

14 and that was because of his affiliation with Mr. Martic.

15 Prisoners were brought to the prison by the police, there's no

16 dispute about that, prisoners of war, and they were released from the

17 prison under direction of the police. Mr. Plejo himself admitted - and I

18 think this was from -- this was during questioning from the Trial Chamber,

19 and it's at 8921 - that the police had a role in running the prison all

20 the way until at least mid-November of 1991. In light of these facts, the

21 testimony of the victims that the SAO Krajina -- that members of the SAO

22 Krajina police came to the prison and beat and tortured prisoners there is

23 entirely credible.

24 Moreover, the detentions and the beatings in the prison were in

25 furtherance of the common purpose of the joint criminal enterprise.

Page 11216

1 Exhibits 286 and 919 show that prisoners were detained from Glina, Plaski,

2 Lovinac, Vrlika, Kijevo, Drnis, and Skabrnja, and detained as a result of

3 the attacks on those villages. In other words, as part of those attacks,

4 those prisoners were detained and brought to Knin.

5 The evidence also shows that detentions and beatings of Croats

6 were a way to cause further fear among the Croat population, to further

7 intimidate them, and to cause them to leave.

8 The Defence also does not touch at all on the evidence of

9 continued crimes against Croats during the years 1992 to 1995. The

10 evidence shows conclusively, we say, that during these years Croats

11 continued to be subjected to abuse, expulsion, and murder in the RSK. The

12 police both participated in these crimes and failed to take any action

13 against perpetrators. The evidence from this period is further support of

14 the existence of the joint criminal enterprise and its common purpose to

15 forcibly remove Croats from the Krajina.

16 Moreover, it further supports particular counts in the indictment,

17 including the persecutions count and the deportation and forcible transfer

18 counts.

19 Finally, we come to the Zagreb shelling counts; Counts 15 through

20 19 of the indictment. With respect to the shelling of Zagreb, the

21 evidence shows, beyond any possible doubt, that Milan Martic ordered the

22 shelling of Zagreb in a desperate and unsuccessful, I might say, attempt

23 to stop Operation Flash in Western Slavonia. The evidence further

24 establishes that Mr. Martic targeted Zagreb because it would have a

25 maximum impact by causing maximum terror on the Croat side. He was not

Page 11217

1 targeting military targets in Zagreb. That is obvious by his statements,

2 statements of Mr. Celeketic, as well as by the simple fact that the Orkan

3 rockets would not reasonably possibly be expected to cause significant

4 damages to places like the Ministry of Defence, and certainly could not be

5 expected that hitting such places with an Orkan rocket would have any

6 effect whatsoever on Operation Flash. That is simple fantasy.

7 But hitting Zagreb, the city, with all of its civilian

8 inhabitants, now that could have an impact, or at least he thought. In

9 the alternative, we say, even if it were found by this Trial Chamber that

10 he was aiming at military targets, the weapons he used were necessarily

11 indiscriminate and unlawful [Realtime transcript read in error "lawful"]

12 under the circumstances.

13 Now, with respect to Zagreb, the Defence makes three broad

14 arguments in their brief. First, they make the extraordinary claim that

15 it has not been proven that Mr. Martic ordered the shelling. Second, they

16 make some points about reprisals, the law regarding reprisals, and claim

17 also that the Croat side is to blame for having military targets in

18 Zagreb. And then, third, they suggest that the Orkan rocket was an

19 appropriate weapon to use.

20 With respect to whether Mr. Martic ordered the shelling of Zagreb,

21 the evidence is simply overwhelming that he did. He talked about doing it

22 before it happened; and he repeatedly took credit, both in the media and

23 in meetings, for doing it after it happened. Everybody, including

24 Slobodan Milosevic, knew that Mr. Martic had ordered it. As the Trial

25 Chamber itself pointed out at the beginning of this case, it's at page

Page 11218

1 221, Mr. Martic even admitted to ordering the bombing of Zagreb here in

2 court, at the Tribunal, on the 26th of September, 2003.

3 The Defence did not challenge any of the evidence put in by the

4 Prosecution showing that he ordered the bombing and did not object when we

5 said at the 98 bis stage of the case, and it's at page 5928 when we said

6 it, that it was not really disputed that Mr. Martic ordered the shelling

7 of Zagreb on May 2nd and May 3rd.

8 The claim appears to have arisen for the first time during the

9 testimony of Defence witness Patrice Barriot at the end of the case, and

10 not on direct examination either, on cross-examination, when he was shown

11 an open letter that he had written to Milan Martic in which he said that

12 Mr. Martic had ordered the shelling of Zagreb. It's in evidence, but I

13 don't have that exhibit number on hand.

14 In court, Mr. Barriot claimed what he had written there, that Mr.

15 Martic had ordered the shelling of Zagreb, he later learned or later came

16 to believe was not true. When he was asked: Well, how did you learn

17 that? First, he said: You have to place yourself in the context of the

18 time, he said. That's at 10774. When he was pressed a little, he then

19 said, well, that he had made an analysis of Mr. Martic's personality, that

20 that's how he had come to believe it. That's at 10777. And then he said

21 that -- and then he said that Mr. Martic had told him that he was willing

22 to take responsibility for anything done by his subordinates. That's at

23 10778.

24 The Prosecution submits that Mr. Barriot was simply trying to

25 avoid in his testimony having to put any responsibility for anything on

Page 11219

1 Mr. Martic. In fact, Mr. Barriot subsequently admitted in his

2 testimony - it was actually in questions from the Prosecution after Your

3 Honours' questions - that he had re-published the letter without

4 correcting it, without changing what he had written about Mr. Martic

5 ordering the bombing of Zagreb, in 2003, completely undermining his claim

6 in court that he had come to learn or come to believe that Mr. Martic had,

7 in fact, not ordered the shelling.

8 None of the other evidence cited by the Defence undermines in any

9 way the overwhelming evidence that Mr. Martic ordered the shelling. The

10 Defence points to evidence showing that Mr. Celeketic ordered the

11 shelling, but that is consistent with Mr. Martic ordering it. Obviously,

12 the order would have had to go from Mr. Martic to Mr. Celeketic to the

13 troops on the ground.

14 The Defence also points to the fact that after the fall of Western

15 Slavonia and the shelling of Zagreb, Mr. Celeketic was replaced, but the

16 evidence is that he was replaced by Belgrade, not by Martic. Also, there

17 is no evidence that he was disciplined or prosecuted for the shelling of

18 Zagreb. Nothing cited by the Defence overcomes the evidence of repeated

19 statements and the repeated understanding of witnesses that Mr. Martic

20 ordered, himself, the shelling of Zagreb.

21 JUDGE NOSWORTHY: Before you go on, Mr. Whiting, I'd like to just

22 deal with a matter on the transcript, which I think could be profound for

23 posterity, and otherwise. If we look at page 52 of the transcript of the

24 record at, or 51 -- sorry, 53, 1 and 2 and 25 of the previous page, it

25 says, "even if it were found that this Trial Chamber" -- sorry, "even if

Page 11220

1 it were found by this Trial Chamber that he was aiming at military

2 targets, the weapons he used were necessarily indiscriminate and lawful

3 under the circumstances." I think it should be "indiscriminate and

4 unlawful."

5 MR. WHITING: That is correct, Your Honour, and I am grateful for

6 your help there.

7 JUDGE NOSWORTHY: It's a profound distinction. Sometimes I don't

8 like to interrupt, but I think this one warrants an interruption; and

9 could it therefore be corrected, because it is material.

10 MR. WHITING: I fully agree. Thank you, Your Honour.

11 JUDGE NOSWORTHY: Thank you. Sorry to interrupt and stop your

12 flow at this point.

13 MR. WHITING: That's fine. Actually, the timing was excellent

14 because I think we've come to the time for our second break.

15 JUDGE MOLOTO: Before we break, was that what you intended to say?

16 MR. WHITING: Yeah, I think I said it. It's what I have written

17 here.

18 JUDGE HOEPFEL: I agree.

19 JUDGE MOLOTO: Thank you very much. We wanted to get that on the

20 record.

21 That being the case, court adjourned, reconvene at half past 12.00

22 --- Recess taken at 11.59 a.m.

23 --- On resuming at 12.30 p.m.

24 JUDGE MOLOTO: Yes, Mr. Whiting.

25 MR. WHITING: Thank you, Your Honour. First, before I continue,

Page 11221

1 the exhibit that I was referring to Mr. Barriot's open letter, that's

2 Exhibit Number 1011.

3 Now, with respect to Zagreb, the second issue that the Defence

4 raised in its brief was regarding reprisals and also whether Croatia could

5 be held responsible for having purported military targets in Zagreb. Now,

6 with respect to the issue of reprisals, I understand the Defence to be

7 saying that they agree that reprisals against civilians are strictly

8 prohibited, at least that's how I understand the beginning of paragraph 90

9 of their brief.

10 However, just so this point is absolutely clear, there can be no

11 question that reprisals against civilians or civilian objects are

12 explicitly prohibited by paragraph 6 of Article 51 of Additional Protocol

13 I, paragraph 1 of Article 52 of the same protocol, and Article 53.

14 Moreover, I would refer the Trial Chamber to the Kordic appeals judgement,

15 paragraphs 53 and 59; the Blaskic appeals judgement, paragraph 109; the

16 Galic appeals judgement, paragraph 190 to 191; the Kupreskic trial

17 judgement, paragraph it is 527 to 536; and the Rule 61 decision in this

18 case, the Milan Martic case, which was rendered on the 8th of March, 1996,

19 in particular paragraphs 15 to 17.

20 Moreover, the law is clear and has been cited by this Trial

21 Chamber in this case that it is irrelevant which side initiated the

22 conflict, and I would refer the Trial Chamber to the Blaskic appeals

23 judgement at paragraph 427, and it is irrelevant that the other side may

24 have also committed crimes. Tu quoque, of course, is not a defence. It's

25 clear that whatever was happening in Western Slavonia during Operation

Page 11222

1 Flash, and the Defence devotes a number of pages to this in their final

2 brief, it can no way justify the crimes that Milan Martic committed

3 against Zagreb on May 2nd and May 3rd of 1995.

4 Now, regarding the question of whether Croatia can be held

5 responsible because purported military targets were located in Zagreb, and

6 this is under Article 58 of Additional Protocol I. The Galic appeals

7 judgement affirmed the Trial Chamber's conclusion in that case that a

8 party's failure to abide by this obligation does not relieve the attacking

9 side of its duty to abide by the principles of distinction and

10 proportionality when launching an attack. That appears in paragraph 194

11 of the Galic appeals judgement.

12 In this context --

13 JUDGE MOLOTO: If you want me to say it at this point, I was just

14 going to ask whether in this case was there any military target shelled in

15 Zagreb; and if so, which one?

16 MR. WHITING: Your Honour, the answer to that is no. There was --

17 there was no military target hit. The evidence shows that there was no

18 military target hit in Zagreb.

19 JUDGE NOSWORTHY: I'm sorry. Is the contention from the Defence

20 that that is the particular target that was being aimed at, that a

21 particular target was being aimed at and not necessarily hit?

22 MR. WHITING: Yes. One of the arguments made by the Defence is

23 that purported military targets, the Ministry of Defence, the presidential

24 palace, the Ministry of the Interior, were what were being aimed at. Yes.

25 None of those targets were hit. It is our contention that that was not

Page 11223

1 the intent of the attack, that they were not being aimed at. Moreover, if

2 they were being aimed at, an inappropriate weapon was used.

3 The Defence also claims that the RSK provided warnings that it

4 would shell Zagreb, and this is potentially relevant to the issue under

5 Article 58 or possibly to the issue of reprisals, but here the Defence

6 confuses vague threats with specific warnings. The fact that Milan Martic

7 in November of 1994 threatened to shell Zagreb in a conversation with

8 Ambassador Galbraith or even that the Croatian side thought that this

9 might be something that the RSK would resort to does not amount to a

10 warning, which would have to be specific as to time and place. Numerous

11 witnesses, and this is set forth in our final brief, including Ambassador

12 Galbraith, who was in Zagreb at the time of the shelling, testified that

13 in fact there were no warnings before the attack.

14 Finally, the Defence makes the argument that the Orkan was an

15 appropriate weapon to use. First, they cite to Exhibit 94 which is a

16 United Nations report which merely estimates that the precision of an

17 Orkan rocket fired from a distance of 32 kilometres is 250 metres. It's

18 not exactly clear what that means, 250 metres in every direction or --

19 it's not clear. In any event, it's --

20 JUDGE MOLOTO: -- Whether 250 metres is diameter or radius.

21 MR. WHITING: No, it says nothing, it says 250 metres. And it

22 explicitly says it's an estimate. This estimate cannot displace the

23 expert report and evidence of Mr. Poje, which was based on the official

24 firing tables for the Orkan rocket. And he estimated that when the Orkan

25 was fired from a distance of 49 kilometres and the evidence in this case

Page 11224

1 is that is how far the rockets were fired from on Zagreb, the Orkan fired

2 from that distance could land approximately 1 kilometre in either

3 direction from the intended target. That means 1 kilometre short, 1

4 kilometre too far, or 1 kilometre to the right and left. There is only a

5 50 percent chance that the rocket would land somewhere in a box around the

6 target that is approximately 500 metres by 500 metres. In other words, 50

7 percent chance that it would land in that box, 500 metres by 500 metres,

8 half a kilometre. Even that is an enormous margin of error and there it's

9 just a 50 percent chance.

10 Yes, Your Honour.

11 JUDGE MOLOTO: If fired from 32 kilometres, according to the

12 estimate that you say the Defence relied upon, what would be the margin of

13 error?

14 MR. WHITING: Your Honour, in the report of Mr. Poje, he sets

15 out -- he gives the margin for 20 kilometres, 40 kilometres, and 50

16 kilometres. I don't have the figures in front of me, but you would have

17 to estimate the -- somewhere between the 20 and 40 to get the 32. I

18 can say that it is higher than the 250 metres, though not enormously

19 higher. I mean it -- but it's significant. I should say it is higher. I

20 won't characterise it further than that.

21 JUDGE MOLOTO: Okay. But what does the science say? Does it say

22 the closer you are to the target, the less the margin of error?

23 MR. WHITING: Absolutely, Your Honour. There's absolutely no

24 doubt about that. The further away, the bigger the dispersion, the

25 possible dispersion.

Page 11225

1 [Trial Chamber confers]

2 JUDGE NOSWORTHY: Mr. Whiting, assuming the target as the Ministry

3 of Defence, could you position the victim within the margin of error, the

4 nearest victim? Do you understand my question? How does the margin of

5 error relate to what actually happened, given the target of the Ministry

6 of Defence in relation to the victims, the actual victims, on the ground

7 when the bombs dropped. Were they within or without the margin of error?

8 MR. WHITING: I can certainly say that some of the bombs fell

9 within that margin of error, within the one kilometre in each direction

10 margin of error. For example, the school, I think, is quite clearly

11 within that one kilometre margin of error. I cannot say, standing here,

12 whether the other locations fall within or without. My guess is that

13 there is some that might also fall within, but I believe that there are

14 others that fall outside of that margin of error.

15 JUDGE MOLOTO: Following up on that point, what does the law say

16 one's behaviour should be regulated -- how one's behaviour should be

17 regulated if indeed there are civilian objects or civilians themselves

18 within the margin of error area?

19 MR. WHITING: The law - and here is where I'm again speaking a bit

20 on shorthand abbreviation. We've set it forth in our brief, so if I make

21 any mistakes please rely on the brief - but the law says it's an issue of

22 proportionality, that is, there has to be a calculation about the

23 likelihood and degree of civilian casualties in relation to the value of

24 the military target and the target being hit. And here -- and I guess I'm

25 being told that it's in 468 of our brief we've set it out.

Page 11226

1 Here we submit that when hitting an urban area, a densely

2 populated urban area with civilians, that degree of area, that's enormous

3 in Zagreb. One kilometre is basically anywhere in Zagreb. When you have

4 a military target, the Ministry of Defence, the likelihood of very

5 extensive and serious civilian casualties is almost a certainty actually.

6 And Mr. Poje, in his expert report and in his testimony, said that based

7 on -- he came to the conclusion that based on that analysis, based on the

8 dispersion and the likelihood of civilian injuries, it was -- he came to

9 the conclusion that it was an inappropriate weapon to use under those

10 circumstances. A position which he re-affirmed again and again in his

11 testimony under all the questions and scenarios posed to him.

12 JUDGE NOSWORTHY: So you would say that even though, as I

13 understand the Defence contention, the Ministry of Defence was the cell or

14 the brain of the Croatian attack, that their backs were up against the

15 wall given the onslaught and fierceness of the Croatian attack. That is

16 their contention. I'm not saying that one necessarily agrees or does not

17 agree at this point. And that under those circumstances the only way that

18 they could protect themselves was to strike at the cell that was

19 controlling the -- and directing the Croatian attack.

20 MR. WHITING: Yes, Your Honour, that is our position, but I would

21 like to address a number of the premises of the question. The first is

22 that there is no evidence that the Croatian Ministry of Defence was the

23 cell directing the attack. I'm not aware as I stand here that there is

24 any such evidence.

25 Secondly, it could not be reasonably expected that the Orkan

Page 11227

1 rocket which is primarily an anti-personnel weapon designed to attack

2 widespread armies would cause damage to the Ministry of Defence, a

3 building we saw, a huge substantial building, that would cause the kind of

4 damage to that building that could interrupt, even if it was the cell or

5 the headquarters of the operation, that it would interrupt the operation

6 being carried on. It would, at most, break a few windows of that

7 building.

8 Third, the evidence is that the operation actually was not in any

9 way affected by the shelling of Zagreb. The operation only -- the

10 Operation Flash only ended when the operation was successful, when it was

11 completed. Given all the evidence, the reason that Zagreb was shelled was

12 not to have any affect on those buildings, it was to cause a terrorist hit

13 on Zagreb, to cause terror, and to try to force the Croatian government to

14 respond because of that.

15 JUDGE MOLOTO: I hope this is the last time I'm asking you a

16 question. You characterised the Orkan as an anti-personnel kind of

17 weapon. Do we have evidence to that effect?

18 MR. WHITING: We do, Your Honour, yes.

19 JUDGE MOLOTO: So it is a completely inappropriate organ for

20 purposes of structures like buildings?

21 MR. WHITING: Right. Mr. Poje testified that it's well-known that

22 the Orkan rocket is not designed to be a pin-point, hit a building type of

23 weapon. It can of course cause damage to buildings, of course, but we can

24 see what kind of damage it causes. It causes some broken windows and some

25 damage to the roof. It's not going to bring down a building like the

Page 11228

1 Ministry of Defence. It's not a pin-point weapon like that. It is a

2 weapon that is designed primarily to attack over a wide terrain, an army,

3 one example, an army that is spread out over a wide terrain. That is what

4 the weapon is designed for.

5 JUDGE MOLOTO: But the kind of damage it causes would be the kind

6 of damage we saw at the school, for instance?

7 MR. WHITING: Exactly. That's exactly right, Your Honour.

8 JUDGE MOLOTO: Thank you, Mr. Whiting.

9 MR. WHITING: Now, given the enormous margin of error of this

10 weapon fired from the distance of 49 kilometres and the place that it was

11 being fired on, an urban location, we say that there is just one word that

12 describes that act: Criminal.

13 The Defence further suggests, in footnote 277 of its brief, that

14 Mr. Poje testified that the Orkan rocket was suitable for targets such as

15 the Ministry of Defence and the presidential palace. However, go back,

16 please, to the transcript that is cited and read it in its entirety. What

17 in fact he was saying was that only in his view those were military

18 targets. That is all that he was saying. He stated again and again and

19 again that even assuming that those were military targets, that those were

20 in Zagreb, that the Orkan rocket was an inappropriate weapon under the

21 law, it was an inappropriate weapon to use to target those targets.

22 The Defence further suggested that Milan Martic could not be held

23 responsible for the choice of the Orkan rocket to attack, but this

24 contention is simply false. First, Mr. Raseta, Prosecution witness,

25 testified - and I would note that the Defence states in paragraph 150 of

Page 11229

1 its brief that in their view, Mr. Raseta provided very reliable

2 testimony - Mr. Raseta said that persons familiar with the Orkan knew that

3 it was designed for targeting wider areas and not specific points. And he

4 was certain, he was certain, that Mr. Martic knew about the shelling of

5 Zagreb because Mr. Celeketic would have had to have told him.

6 Let's remember that Mr. Celeketic spoke openly in the media before

7 the attack on Zagreb, it's Exhibit 91, about his willingness to target

8 civilians in cities. He said that in an interview. It's in our final

9 brief, it's Exhibit 91. He spoke openly about that. There is no reason

10 to believe that he would have hidden anything from his superior, Milan

11 Martic. Of course, it's further evidence that Mr. Martic approved of the

12 shelling that after the shelling on the 2nd of May, 1995, he did nothing

13 to prevent the shelling the following day, the 3rd of May, 1995; and that

14 was because he ordered the shelling on both of those days, supported it,

15 and knew what was going to happen.

16 JUDGE MOLOTO: Just --

17 MR. WHITING: He knew what was going to happen and he knew what

18 happened.

19 JUDGE MOLOTO: -- to take you to his final conclusion. Did he or

20 did he not punish Mr. Celeketic?

21 MR. WHITING: The evidence is that he did not, Your Honour. All

22 of the evidence is that he did not. There is no evidence that he punished

23 Mr. Celeketic.

24 Finally, the Defence contends that the use of the Orkan rocket was

25 lawful because it was not as bad as another rocket that the RSK had, which

Page 11230

1 was called the Luna rocket; and that they used the Orkan instead of the

2 Luna rocket and, therefore, the Orkan rocket was lawful. And also they

3 contend that these were the only weapons available to the RSK.

4 The rules against targeting civilians in the law do not contain an

5 exception, saying that you can do it if you -- if you do not -- if you do

6 not possess an appropriate weapon, if it's your only weapon. That is just

7 not the law, nor could it be the law. It also is not the law that you can

8 use an inappropriate weapon if you choose not to use a weapon that would

9 be even more inappropriate. That also is not the law, nor could it be the

10 law.

11 Mr. Poje testified that even if the Orkan rocket were the only

12 weapon available to the RSK that could reach Zagreb, it was nonetheless an

13 inappropriate weapon to use. That does not change his conclusion.

14 In summary, in conclusion on the topic of Zagreb, it is our very

15 strong contention that the evidence shows that civilians were the target

16 in Zagreb. And we would ask for a finding of this Trial Chamber to that

17 effect; that that was Mr. Martic's intent on the 2nd and 3rd of May, 1995,

18 that's what he did, and we know what the result was. As I've said, there

19 is the alternative finding, the alternative possibility that the Trial

20 Chamber could find that if he did intend to hit military targets, that the

21 rockets he used were clearly inappropriate weapons under the

22 circumstances.

23 Finally, we come to my last topic, and that is sentencing. The

24 relevant law on this topic is set forth in our brief. The primary factor

25 to be taken into account is the gravity of the offence. We've also set

Page 11231

1 forth a number of aggravating factors that are supported by the law and

2 which have been proven in this case beyond a reasonable doubt:

3 Discriminatory intent for all crimes except for persecutions where

4 discriminatory intent is an element of the crime, therefore, it cannot be

5 considered an aggravating factor; the length of time the crimes were

6 committed; the scale of the crimes, except for extermination where scale

7 is arguably an element; premeditation; the status of the victims; the

8 willing and enthusiastic participation of the accused; and the presence of

9 civilian detainees.

10 Now, in considering sentencing, should the Trial Chamber reach

11 that point, we say that the Trial Chamber should also compare the

12 culpability of Mr. Martic to that of Mr. Babic, who was sentenced by this

13 Tribunal to a period of 13 years' imprisonment for his criminal conduct,

14 to which he pled guilty. Now, bear in mind, of course, the Trial Chamber

15 is not bound in any way, but this certainly should be considered. Bear in

16 mind that Mr. Babic pled guilty to criminal conduct that occurred between

17 the 1st of August, 1991, and the 15th of February, 1992, a more limited

18 time than is charged against Mr. Martic. And, of course, Mr. Babic pled

19 guilty and he cooperated with the Tribunal and testified in three trials,

20 and therefore received a lower sentence than he otherwise might have.

21 In considering the gravity of the offence and certain of the

22 aggravating factors, considerable thought must be given to the many, many

23 victims of the crimes in this case. We heard from just a fraction of the

24 survivors, and we heard about lives and communities destroyed. Who can

25 forget Jasna Denona from Bruska, who testified eloquently and bravely

Page 11232

1 about when she was 15 years old, and her house and her village were

2 attacked by members of the SAO Krajina police, and of being shot as she

3 fled out the back of her house. Or of Marica Vukovic, who testified about

4 her village of Poljanak being attacked on the 7th of November, 1991, of

5 her husband and of her father being tied up and executed. Is it really

6 possible for us to imagine the terror that she felt? Or Neven Segaric,

7 who witnessed his grandparents being executed in Skabrnja. Or Stanko

8 Erstic or Luka Brkic, who testified about the torture and the abuse, the

9 humiliation and degradation that they suffered in the Knin old hospital

10 and the JNA barracks in Knin.

11 Remember the villages that were destroyed, the churches that were

12 singled out in Croat villages. Witness after witness testified about

13 leaving their villages and seeing everything burning and coming back years

14 later to find everything destroyed. Vukovici was completely wiped out,

15 virtually everyone there was murdered. Think about the execution that

16 occurred in Nadin, in the destruction of that village. Think about Zagreb

17 in May -- on May 2nd and May 3rd of 1995, beautiful spring/summer day.

18 The seven people who were killed in those attacks, the hundreds who were

19 injured, and no doubt the thousands who were terrified when the shells

20 rained down on Zagreb on May 2nd and May 3rd. Remember just one example

21 of Sanja Buntic who testified that she had escaped Sarajevo, the horrors

22 of Sarajevo in October 1994 and came to Zagreb in order to have a normal

23 life, only to be seriously injured when Zagreb was shelled.

24 Remember, too, that there are all of the obvious ways that

25 victims' lives are destroyed, but there are also many ways that we might

Page 11233

1 not think about right away. Remember Sanja Risovic? She was at the

2 children's hospital at Klaiceva Street on the 3rd of May, 1995, with her

3 4-month-old infant when the shells hit. She testified about her injuries

4 and she testified about how those injuries affected her life.

5 I just want to play a little clip from her testimony.

6 [Videotape played]

7 "Q. Have the injuries had any impact on your ability to take

8 care of your young daughter?

9 "A. Of course they have. My child was 4 months old at the time.

10 When I decided to have the child, I wanted to be her mother. I wanted to

11 extend all my love and tenderness to her, to be with her. And at one

12 point, I was no longer able to be with her; and when I was eventually

13 discharged, I couldn't carry my child. I couldn't change her diapers

14 because for a long time I could not move my right hand. I could not feed

15 my baby.

16 "At the end of the day, my motherhood, a lot of it, a good part of

17 my motherhood was spent at various hospitals in rehabilitation. And at

18 one point, my child was asked at the kindergarten where her mother was.

19 He said: 'My mother lives at home in a green building and in a hotel.'

20 The green building was the hospital and a hotel was the spa. I was

21 shocked. I didn't understand how she could say something like that, but

22 it only made sense. Because if the -- her mother didn't live with her,

23 she perceived the places where I was as my home.

24 "I spent very little time with her, unfortunately, and all my life

25 I will regret the fact that I did not spend more time with my baby. Every

Page 11234

1 mother wants to spend as much time with their child as they possibly can,

2 to nurture and to look after their baby. And in my life, there came a

3 time when I could not look after my child in any way."

4 MR. WHITING: Your Honours, all of the crimes in this case,

5 individually and together, were extraordinarily grave and horrific. The

6 criminal conduct lasted for years and years. It affected men, women, the

7 elderly, children. The Prosecution, therefore, recommends that for the

8 crimes in this case, individually and together - and I emphasise

9 individually and together - the accused, Milan Martic, should be sentenced

10 to a term of imprisonment of life in prison.

11 In closing, I will say only this: Milan Martic came to the

12 Tribunal and entered a plea of not guilty to the charges against him, as

13 was his right under the Statute and the Rules. He asked for a trial,

14 which was also his right, at which he has been and continues to be

15 presumed innocent and can only be found guilty if the charges against him

16 are proven beyond a reasonable doubt, a heavy burden for the Prosecution.

17 He has now had that trial, Your Honours. The witnesses have come and

18 testified in front of him, often requiring extraordinary bravery. They've

19 been questioned, they have been cross-examined, and all of the exhibits

20 have been placed before you.

21 We submit, Your Honours, that now the time has come for Mr. Martic

22 to be held responsible for the crimes that he has committed and to be

23 found guilty of those crimes.

24 Thank you.

25 JUDGE MOLOTO: Thank you, Mr. Whiting.

Page 11235

1 [Trial Chamber confers]

2 JUDGE NOSWORTHY: Mr. Whiting, I must pose this question to you,

3 bearing in mind that you ended by asking for life imprisonment. So if you

4 will permit me, as I understand it, this sentence would be at the top end

5 of sentencing -- of the sentencing bar.


7 JUDGE NOSWORTHY: And as I understand it, reserved for certain

8 categories and by their nature certain very -- going to a certain level of

9 heinousness. Now, my recollection is that there has been a rapid

10 development of sentencing in domestic international spheres, that is

11 acknowledged internationally to tend to place more emphasis on the element

12 of reform and restoration of the particular convict to his society to make

13 a meaningful contribution.

14 Now, given that the circumstances, the subject matter of the

15 charges, if a conviction does result, because it might not, given that

16 they result out of conflict, international conflict between ethnic groups,

17 would you discount the issue of reform in war crimes and in this sphere,

18 and would you discount the acknowledged development of the law of

19 sentencing to accommodate a more sensitive approach to the accused, even

20 given the circumstances that serious crimes have been committed? And

21 would you still in those circumstances ask for a life imprisonment?

22 MR. WHITING: I'll answer your last question first, Your Honour.

23 The answer to your last question is going to be: Yes. But let me address

24 your specific questions as thoroughly as I can. The first is that Your

25 Honour -- Your Honour, you indicated that it is of course the sentence at

Page 11236

1 the very top end. It is reserved for the most serious crimes. Of course,

2 just last month, in the Galic case, the Appeals Chamber imposed a sentence

3 of life imprisonment for the crimes -- the conviction in that case.

4 And in our view, the crimes in this case, even certain of the

5 crimes individually, are as or more serious than the crimes in that case.

6 So there's certainly precedent in this Tribunal for such a sentence to be

7 imposed. And there are particular -- there are particular circumstances

8 in this case that really bring it up, which are in my view the long-term

9 nature of the crimes. The fact that these crimes went on from 1991 until

10 1995 all over the Krajina again and again and again. That is just one of

11 the aggravating circumstances but there are others. And taken all

12 together, the circumstances of this case really stand out and warrant the

13 highest possible sentence.

14 The second point with respect to what Your Honour describes as the

15 acknowledged development of the law of sentencing, I'm not sure I would

16 agree with Your Honour about that. I think it depends very much on what

17 jurisdictions you're talking about in -- I think in certain jurisdictions,

18 the -- there are a series of questions about the ability to reform serious

19 criminals, particularly ones that have committed crimes like these. And

20 in my view, no matter what jurisdiction you're talking about, whether

21 it -- whether it is moving in that direction or not, the kinds of crimes

22 that we're talking about here, where, by the way, there has been no

23 remorse whatsoever, no indication that reform is even possible, rather,

24 what I would suggest is we've seen justification.

25 But even in jurisdictions where reform might be on the rise in

Page 11237

1 sentencing, I would say that with this kind of a case the gravity of the

2 offences, the seriousness of them would predominate and this would not be

3 a case where reform would rise up as a predominant consideration.

4 And to take this one step further, Your Honour, I would hazard if

5 this case if there were convictions on these kinds of crimes in any

6 national jurisdiction in the world that a life sentence would be

7 appropriate. I mean, certainly in the country I come from and in many

8 other countries, maybe not -- maybe I can't say every country. But for

9 these kinds of crimes, the most serious crimes on earth, a life

10 sentence -- there is really no other sentence. It is the sentence -- it

11 is the appropriate sentence in national jurisdictions and it's the

12 appropriate sentence here. And I say that, and I emphasise that that is

13 true in our view even if he was not convicted of all the crimes in the

14 indictment, that is why I said individually and separately -- I mean

15 individually and together.

16 Now, I'm not sure if I eve answered all of your questions but I

17 tried.

18 JUDGE NOSWORTHY: I want to thank you, Mr. Whiting.

19 MR. WHITING: Thank you, Your Honours.

20 JUDGE MOLOTO: Just before we ask Mr. Milovancevic to stand up,

21 there's just one little point I'd like to raise. This morning the Chamber

22 indicated that there was an outstanding housekeeping issue to be dealt

23 with, and that housekeeping issue was not dealt with to finality. It was

24 overtaken by other issues that arose.

25 May I at this stage ask then that based on the fact that both the

Page 11238

1 Prosecution and the Defence had no objection to the admission into

2 evidence of the maps that were provided by the Bench, and indeed the

3 Prosecution has used one of them in its argument this afternoon, that

4 those maps be then be now admitted into evidence and be given an exhibit

5 number.

6 THE REGISTRAR: Your Honours, the maps become Exhibit Number 1044.

7 JUDGE MOLOTO: Thank you very much.

8 Mr. Milovancevic.

9 MR. MILOVANCEVIC: [Interpretation] Your Honours, given the time

10 and given the fact that the closing arguments of the Prosecution just

11 concluded and they were quite long and not easy to follow, we ask that we

12 be allowed to begin with our closing arguments tomorrow morning.

13 JUDGE MOLOTO: [Microphone not activated]

14 I beg your pardon. You can't do anything in those 30 minutes, Mr.

15 Milovancevic? And if you can't and you want us to start tomorrow, you

16 must then guarantee us that you will finish tomorrow and not go into --

17 because the next day is for reply by the Prosecution.

18 MR. MILOVANCEVIC: [Interpretation] Your Honours, it is hard for me

19 to guarantee that I will conclude tomorrow, but I will do my best to

20 conclude tomorrow. I can't be positive and tell you that it is 100

21 percent certain that I will. We heard the closing arguments of the

22 Prosecution today, and it has certain weight and certain effect. And we

23 believe that under the circumstances we should begin tomorrow. This is

24 our request, our kind request. All I can say is that in our view I can

25 guarantee you that everything will be concluded on Friday, including the

Page 11239

1 reply. All of that should be concluded by the end of business on Friday,

2 so I don't think that we will go into next week.

3 JUDGE MOLOTO: I hear that and I would have been sympathetic to

4 your request. But without guaranteeing that you'll finish tomorrow, I'm

5 afraid that I will have to ask you to start.

6 Mr. Milovancevic, 30 minutes is a long enough time. We can break

7 off at some point. Start with your own arguments and you can deal with

8 the Prosecution's argument, if that's what you want to study overnight and

9 rebut.

10 MR. MILOVANCEVIC: [Interpretation] Since it is the decision of the

11 Trial Chamber that the Defence is to begin its closing arguments today,

12 the Defence will comply. We have no other choice.

13 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

14 MR. MILOVANCEVIC: [Interpretation] The main position of the

15 Defence is that the Prosecution failed to prove the allegations from the

16 indictment, all of them. The indictment constitutes a fiction. It was

17 not supported by the evidence adduced during trial. It is our position

18 that this was a mere construction which was accomplished in the following

19 way: Namely, a portion of territory and a certain period of time were

20 taken out of context of the territory, time, and real events.

21 They applied a selective approach to the events in the territory

22 of Yugoslavia, thereby modelling this indictment. It is unusual, Your

23 Honours, that in paragraph 3 of their final brief, which is their final

24 submission, the Prosecution says that this case is not about who is to

25 blame for the disintegration of Yugoslavia. They say that this case is

Page 11240

1 not about who started the war. They also say that it is not about whether

2 the war could have been avoided; that it is not about events that occurred

3 in World War II; that this case is not about the role of the international

4 community in the events in Yugoslavia.

5 They also say that this case is not about whether the Republic of

6 Croatia acted legally or illegally under the laws of Yugoslavia; and that

7 it is also not about the motives of the alleged members of the joint

8 criminal enterprise; and that this case is not about whether Croat forces

9 themselves committed crimes before, during, or after the war. It is

10 illogical for the Prosecution to say this because, first of all, this

11 court was established in order to try for the most grave violations of the

12 international law in the territory of the former Yugoslavia; thus, this

13 court is authorised to try cases concerning the events in the former

14 Yugoslavia.

15 Second, the Prosecutor, by way of this paragraph 3, denies the

16 right of the Defence to deal with all of these questions -- dealing with

17 all of these questions themselves. The Prosecution uses these allegations

18 in order to create an indictment and to prove the alleged guilt of Mr.

19 Martic. They say that this case is not about the blame for the

20 disintegration of Yugoslavia, and they go on to quote the reports of the

21 Badinter Commission which dealt precisely with this issue.

22 The Prosecution says that this case is not about who started the

23 war, and they go on to claim that it was Mr. Martic who did that; then

24 they say that this case is not about whether the war could have been

25 avoided. And at the same time, they kept putting to the Trial Chamber the

Page 11241

1 statement given by Mr. Tudjman on the 24th of May, 1992, who said that

2 there would have been no war had Croatia given up on its independence;

3 then they go on to say that this case is not about the role of

4 international community.

5 However, we spent hours and hours and tens of thousands of dollars

6 in order to review the provisions of Vance Plan, plan Z-4, the reports to

7 the Security Council, a whole myriad of Security Council Resolutions, and

8 these were all issues dealt with by the Prosecution, primarily by the

9 Prosecution, in their attempt to prove the guilt of Mr. Martic; then they

10 go on to say that this case is not about the motives of those who

11 allegedly participated in joint criminal enterprise.

12 In my working experience, I never heard of any perpetrator acting

13 without a motive. I think that the Prosecution will have to deal with

14 these issues, and essentially they did. The only motive for these alleged

15 or real crimes that the Prosecution spoke of and accused Mr. Martic of, so

16 the only motive is chauvinism, intolerance, ruthlessness in relation to

17 members of a certain religion or ethnic group: Muslims and Croats in

18 their view. Many of the witnesses of the Prosecution confirmed,

19 including, for example, Witness MM-78, who is somebody who went to school

20 with Mr. Martic. So many of the witnesses claim that they never observed

21 any traces of hatred or any kind of intolerance in him against members of

22 Croatian community. And he was not the only witness to state something of

23 this nature.

24 The Prosecution say that this is not a case dealing with crimes

25 committed by Croats allegedly before, during, or after the war; however,

Page 11242

1 in their indictment, the Prosecution actually conceal Croatian crimes and

2 their own responsibility for failure to prosecute for these crimes. The

3 indictment against Mr. Martic was issued 50 days after the shelling of

4 Zagreb. The attack against the zone under the protection of the United

5 Nations and the massacre of civilians referred to in the report of the

6 United Nations, reports of UNPROFOR and UNCIVPOL, and also something that

7 was mentioned in evidence of Croatian colonel, Colonel Gruic. All of this

8 data show that for over ten years the Prosecution had in their hands

9 evidence about the most brutal crimes committed in Western Slavonia at the

10 time when Mr. Martic allegedly took his revenge against Zagreb.

11 When we tried to establish the connection between these crimes and

12 the action taken against Zagreb, against civilian targets in Zagreb, we

13 were told that this was tu quoque defence. Your Honours, this is not tu

14 quoque defence. This is the Defence defending, or rather, concealing the

15 blame of the Prosecution for their failure not to prosecute for these

16 grave crimes committed in the territory of the former Yugoslavia.

17 You asked us why we did not raise this issue with the Prosecution.

18 It is not up to the Defence to prosecute for these crimes. No, it is up

19 to the Prosecution to prosecute for these crimes. And the Prosecution not

20 only failed to prosecute for this, but they twisted the picture about what

21 happened in Western Slavonia. By doing so, they protected Croatian

22 leadership and Croatian state for their blame of these crimes. They also

23 shifted their own blame were, their own responsibility for this failure.

24 And by doing so, they put Mr. Martic in a situation where they think that

25 it is only life sentence that is an appropriate sentence for his alleged

Page 11243

1 deeds.

2 These are just some introductory remarks relative to paragraph 3

3 of the final brief. What is important for the Trial Chamber here is this:

4 The evidence on file which was presented through various witnesses and

5 written evidence that was offered by the Prosecution show that in the

6 territory of the European state of Yugoslavia there was an armed

7 rebellion; that there was an armed rebellion that was organised,

8 implemented, and carried out by the authorities of the new independent

9 state of Croatia headed by Mr. Tudjman.

10 During their case, the Prosecution called witness Imre Agotic, the

11 former colonel of JNA. Through him the Prosecution tried to prove to the

12 Trial Chamber something that is incontestable and that was proven by

13 Defence witnesses, and that arises from Exhibit 402. And this is that it

14 is a correct statement by Antun Tus, the colonel of the Yugoslav army.

15 The Yugoslav army towards the end of 1991 had 200.000 completely armed

16 men; that they had 230 tanks, the tanks that had been captured from the

17 JNA, and he was referring to the Croatian army; that it had over 400 heavy

18 artillery pieces; that it had anti-aircraft defence and coast artillery.

19 In other words, that it was completely armed, an army of force that at the

20 time, as was testified by Colonel Peric, was ten times stronger than the

21 armed members of the JNA that were deployed in the territory of Croatia at

22 the time.

23 What about the fact that the Prosecutor proved in this case

24 through Colonel Agotic in 1991, in November, there were 24 brigades; and

25 towards the end of 1991 there was 63 brigades of the Croatian army,

Page 11244

1 bearing in mind that in the territory of a sovereign state that had its

2 own armed force, which at the time was the JNA that represented the

3 legitimate armed force of the existing state of Yugoslavia.

4 JUDGE NOSWORTHY: Sorry, Mr. Milovancevic. I believe your pace is

5 a little bit too quick. I hear the interpreter struggling, and I myself

6 would like to have you slow down just a little. Thank you.

7 MR. MILOVANCEVIC: [Interpretation] I thank you for your warning,

8 and I would like you to keep doing that again because I don't do it

9 deliberately.

10 In a territory of a sovereign state, when illegal armed forces

11 appear with a view to breaking that country apart, to defeat the federal

12 army, and with the ultimate goal of creating an independent state of

13 Croatia that Mr. Tudjman was referring to, then this is an armed rebellion

14 and nothing else. This is not just the position of the Defence, this is

15 also an issue that has been answered explicitly by Mr. Maksic, colonel of

16 the JNA, a person who graduated from highest military schools. He said

17 that there were massive attacks against the JNA that lasted from mid-1991

18 towards the end of 1992.

19 It was not only Mr. Maksic who said that, it was also a

20 Prosecution witness, expert Theunens who said that. He appeared on the

21 Prosecution side as a military expert. When the question was put to him:

22 What was the meaning of the invitation by Mr. Tudjman on 5th of May, 1991,

23 for the barracks of the JNA to be blocked, and also what was the meaning

24 of the attacks against the JNA that ensued, and what was the meaning of

25 the 14 cease-fires that took place during the fighting and that were in

Page 11245

1 favour of the Croatian armed forces, the expert Theunens answered: This

2 was an armed rebellion.

3 In Defence's view, he actually omitted to say it was an armed

4 rebellion. He just said it was a rebellion, but in the Defence's view he

5 omitted the word armed rebellion deliberately. General Borislav Djukic

6 also spoke about an armed rebellion. He is a person who also completed

7 highest military schools and who described his participation in what he

8 later on described as an armed rebellion. Colonel Peric, another Defence

9 witness, also spoke about this armed rebellion and he characterised it as

10 such. And how did it look like, what were its characteristics is

11 something that we will deal with tomorrow because we have not prepared the

12 film that will help us to do that. But we are going to do it tomorrow,

13 Your Honours.

14 When the Prosecution brought their witness, Colonel -- the former

15 colonel of JNA Agotic into this courtroom, and when they introduced his

16 statement according to Rule 92 bis into this case, and when this witness

17 confirmed that the Croatian army had 63 heavily armed brigades which were

18 used for operations in the territory of the Republic of Croatia in the

19 year 1991, and when he said that in July 1991 he left the and that in

20 August 1991 he was appointed by President Tudjman as the Chief of Staff of

21 the ZNG, the Croatian armed forces, which at the time was an illegal armed

22 formation, and that he remained in that position until 21 September 1991,

23 when the staff of the Croatian army was established, then Colonel Agotic

24 confirmed that in the territory of the sovereign European territory of

25 Yugoslavia, illegal rebellious armed forces of the Republic of Croatia

Page 11246

1 were active, and at the time the Republic of Croatia was still an active

2 member of the Yugoslav federation.

3 Bearing in mind the fact that this witness informed us that Mr.

4 Tudjman appointed him as a special envoy in negotiations, i.e., as an

5 authorised negotiator according to this witness's words with the JNA when

6 it came to the withdrawal of the JNA from Croatia, and when this witness

7 said that the negotiations started on the 8th of October, 1991, and lasted

8 until the end of 1991, when the JNA finally withdrew from Croatia, then

9 this is another proof by the Prosecution that has to be trusted. There

10 are some pieces of evidence that shouldn't be trusted, and we will tell

11 you why. But the previous one that I've just described should be trusted

12 completely.

13 The witness Imre Agotic, the Prosecution witness I've just

14 mentioned, has also confirmed the veracity of Exhibit 402, which is the

15 statement by General Anton Tus, another former officer of the JNA. He

16 was a general. He was the commander of the JNA air force. In 1991, in

17 Zagreb, Croatia captured 38.000 rifles and 20 million bullets, according

18 to this general. A lot of those were sent to the so-called crisis areas.

19 The arms and bullets were indeed sent to the crisis areas, which

20 was confirmed by Marko Vukovic and Vlado Vukovic from Saborsko who were

21 Prosecution witnesses. They were policemen from Saborsko, and they spoke

22 about two occasions. The first one on the 24th of September and another

23 occasion in October when a unit with over a hundred men arrived in the

24 area, bringing ammunition and all the other pieces of equipment in 9 to 11

25 trucks. This was also confirmed by a Defence witness, Medakovic, who also

Page 11247

1 hails from that same area.

2 Another Prosecution witness, that is Imre Agotic, a Prosecution

3 witness, confirmed General Tus's statement according to which not only

4 there was a Croatian army with 200.000 heavily armed men, but also that

5 plans had already been put in place to liberate Knin from various

6 directions. But they were interrupted by the adoption of the Vance Plan

7 and by the arrival of UNPROFOR.

8 And, finally, witness Agotic confirmed that as the then-high

9 Croatian official, the Chief of Staff of the ZNG and then authorised

10 Tudjman's envoy negotiations with the JNA, that he was familiar with what

11 was going on in Saborsko in November 1991, because the representatives of

12 the local community had called him very often, asking for assistance that

13 would alleviate tensions in Saborsko and that would help Saborsko to arm

14 themselves and to defend themselves.

15 In other words, the representative of the local community of

16 Saborsko asked for arms to defend themselves. We will talk about that

17 later. However, Colonel Agotic explained in his testimony that in

18 Saborsko there was a unit of the Croatian police and that people organised

19 themselves there. Just like all the other villages up to Setis Poljana,

20 which is south-east towards Saborsko towards Petroski Eozella. We are

21 talking about the Exhibit 389 and page 23.314. In other words, all the

22 villages southeast of Saborsko, Setis Poljana up to Petris Eozella, were

23 armed and they had Croatian armed forces stationed there.

24 And, finally, the Prosecution proved another very important thing

25 through this witness. The colonel did negotiate with the JNA, and he

Page 11248

1 stayed in the JNA up to July 1992. And according to the information that

2 arrived from Belgrade, the federal secretariat, through its political

3 unit, to all the units of the JNA gave a task to preserve Yugoslavia at

4 all costs. All the members of the JNA were informed about that. They

5 were familiar with that order. In other words, a member of the rebel

6 sort, a deserter, and a traitor, a person you who decided to forget the

7 oath he had taken to his army and went to the enemy side, he said the goal

8 of the JNA was to preserve Yugoslavia at any cost.

9 Since we're drawing to an end of today's day, the question imposes

10 itself: What does it mean to preserve a country at any cost? A country

11 is preserved at any cost only when it is attacked at any cost. In other

12 words, in only one small portion of the Yugoslav territory, there were

13 200.000 irregular military troops organised, well-equipped, well-supplied,

14 and led into an armed rebellion, which they implemented through 63

15 independent brigades. This is what the Prosecution proved. In that, they

16 organised this armed rebellion in every single corner where their

17 population by delivering arms to them.

18 This is confirmed by Imre Agotic. The head of the defence of

19 Skabrnja also confirmed that by saying there was a battalion in Skabrnja.

20 Also, it was confirmed that one-third of the territory of the SDA radar

21 municipality was under control of the Croatian army. This was said by

22 Milincic, a Prosecution witness. And Brkic, another Prosecution witness,

23 told us at the time in Saborsko they had boots, uniforms of the east

24 German army. They had belt, automatic rifles, and other weapons in

25 Saborsko.

Page 11249

1 We'll go into greater detail of all the evidence to prove that

2 such units existed in Kijevo; that in Vrpolje and in Potkonje there were

3 people who had received illegal weapons by the HDZ and it was only the

4 Croatian population that received such weapons; and that in a number of

5 other places, Kosta, Bacin, and Dubica there are members of the HDZ who

6 had been illegally armed and led by the HDZ, the ZNG, and the new Croatian

7 MUP.

8 The Prosecution has proved through their witnesses that this was

9 an organised, armed rebellion. The international law has its provisions

10 about an armed rebellion and about the authorities of a country in which

11 an armed rebellion is being staged and carried out. And this is something

12 we will go into tomorrow. Thank you very much.

13 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic.

14 We've come to the end of the session for today. The matter stands

15 adjourned to tomorrow at 9.00 in the morning in the same courtroom.

16 Court adjourned.

17 --- Whereupon the hearing adjourned at 1.45 p.m.,

18 to be reconvened on Thursday, the 11th day of

19 January, 2007, at 9.00 a.m.