Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11250

1 Thursday, 11 January 2007

2 [Open session]

3 [Defence closing statement]

4 [The accused entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE MOLOTO: Good morning to everybody again.

7 Mr. Milovancevic, just before you continue with your argument, may

8 I ask a question of you that I asked of you right at the beginning of this

9 trial and several times during the trial. And I'm asking you this

10 question because it will help the Chamber, or at least me, to understand

11 where you're going with your argument. Are you able to tell us in one way

12 what the theory of the Defence case is? In other words, what's your

13 defence? Self-defense? Alibi? Military justification? Just in one

14 sentence.

15 MR. MILOVANCEVIC: [Interpretation] Good morning to you, Your

16 Honours. Thank you for putting this question to me. I have a duty to

17 answer it. This is not an alibi defence case. This is not a defence

18 which generally deals with self-defense. This is a defence that deals

19 with the nature of the conflict in the territory of a sovereign country,

20 Yugoslavia, a UN member. It also deals with the existence of armed

21 rebellion in that area, organised by Croatian leadership. It deals with

22 the issue of which forces participated in the conflict and in which way,

23 what happened in the conflict, and what are the actual facts of the events

24 out in the field, starting in 1990 until the arrival of the UN troops and

25 the final Croatian operations Flash and Storm.

Page 11251

1 JUDGE MOLOTO: May I interrupt you. I just asked for a defence in

2 one sentence. Again, what you are saying is what you have been saying in

3 your case from the beginning right through, even in your argument

4 yesterday. Could you just say to us my defence is self-defense. I am not

5 saying it is self-defense. I'm just giving you an example, self-defense

6 or alibi or.

7 MR. MILOVANCEVIC: [Interpretation] I understood this, Your

8 Honours. I apologise. I was too elaborate and not specific enough.

9 Therefore, our defence case is that there was no joint criminal

10 enterprise; that this was a case where regular state organs, all

11 organisations, and individuals subordinated to regular state organs acted

12 under the circumstances of armed rebellion. Nobody ever instigated,

13 ordered, planned, in any way, the commission of crimes.

14 JUDGE MOLOTO: Thank you. I understand. You deny the existence

15 of a joint criminal enterprise. That's your defence? Thank you very

16 much.

17 MR. MILOVANCEVIC: [Interpretation] That's correct. Thank you,

18 Your Honour.

19 JUDGE MOLOTO: Does that defence cover the entire counts, or does

20 it cover just the allegation of the JCE?

21 MR. MILOVANCEVIC: [Interpretation] It pertains to all encounters

22 and to each and every specific paragraph of the indictment.

23 JUDGE MOLOTO: Thank you very much.

24 MR. MILOVANCEVIC: [Interpretation] Also every specific paragraph

25 of pre-trial brief and final brief. Thank you. Your Honours, by your

Page 11252

1 leave I would like to continue or begin.

2 JUDGE MOLOTO: You may proceed with your argument, Mr.

3 Milovancevic.

4 MR. MILOVANCEVIC: [Interpretation] Following this theory of

5 defence that we just elaborated in our brief answer to the Bench, the

6 Defence, yesterday, pointed out to the evidence led by the Prosecution, by

7 way of which the Prosecution demonstrated that there was an armed

8 rebellion in the territory of the sovereign Yugoslavia. This armed

9 rebellion was confirmed by witness Imre Agotic. In a case where there is

10 an armed rebellion in the territory of a country, or rather, this is

11 regulated specifically by Geneva Conventions and Additional Protocol II

12 from 1977. We will revert to this question somewhat later.

13 What Defence wishes to state now is that the Prosecution witness,

14 Imre Agotic, when speaking of Saborsko and the situation as it existed

15 there, directly confirmed that this was not a case of the story as it was

16 depicted by the Prosecution here of a defenceless Croatian village where

17 civilians were persecuted, but rather that this was a system of villages

18 from Saborsko down to Licka Jesenica, where all residents, as Agotic said,

19 were armed.

20 As for the events in Saborsko in November of 1991, Colonel Agotic,

21 as a highly placed official in the then-Tudjman government, said that the

22 map of the attack, the one used by the Prosecution, did not come from the

23 JNA; because had that been the case, it would have been necessary for it

24 to have a signature of the commander and indication of his rank.

25 Witness Agotic, the Prosecution witness, confirmed that looking at

Page 11253

1 the content of the map he came to conclusion that this was the map of the

2 5th Partizan Brigade, which had been stationed in the Saborsko area.

3 Prosecution witness Agotic confirmed that Partizan Brigades were

4 established in the process of mobilisation. They were established by the

5 JNA; that these brigades were under the command of JNA units and that they

6 were manned by local residents, which was duty-bound to serve in such

7 brigades for the purposes of defence. This is Exhibit 398, page 20313.

8 Therefore, up until the 2nd of July, 1991, Agotic was a colonel of

9 JNA, intelligence officer, and he was very well aware of how Partizan

10 Brigades were established. He should be believed on this count. Unlike

11 his evidence, the evidence of this Prosecution witness, or rather,

12 contrary to his evidence, the Prosecution kept claiming yesterday that it

13 was Milan Martic who was creating TO units, both in Saborsko and in all

14 other places of Krajina, which is impossible under the law, under the

15 constitution, and under the regular procedure as it existed, because in

16 1991 there was a regular armed force in Yugoslavia, that was the JNA.

17 There was the Federal Secretariat for National Defence, which had certain

18 authorities and discharged them in that area.

19 Colonel Agotic confirmed that Tactical Group 2 was established in

20 Belgrade; that means that it was established - at least that is my

21 understanding of his statement - that it was established by the Federal

22 Secretariat for National Defence in Belgrade, that there was a TO in

23 Plasko. And based on the map that we spoke of earlier, one could see that

24 on the basis of the operation in Saborsko, there was air support from 8.40

25 to 9.10 hours and there was an artillery preparation and artillery

Page 11254

1 support, both of which were planned in advance. All of these facts

2 indicated that this was not just an operation of TO members, but rather,

3 that Partizan Brigades participated in it and they were legal units of the

4 JNA.

5 Colonel Maksic, also Prosecution witness, confirmed that all units

6 of TO and any other units consisting of volunteers, policemen, which

7 participated in the operations in the field, were subordinated to the

8 commander of the most senior JNA unit. Through witness Agotic, the

9 Prosecution tendered a number of documents: Exhibit 413 dated 12th of

10 October, 1991. It was signed by witness Agotic on behalf of the General

11 Staff of the Croatian army. Exhibit 414, on the 18th of October, 1991, it

12 was also signed by witness Agotic on behalf of the General Staff of the

13 Croatian army. Exhibit 417, 11th of November, 1991, is an order of the

14 General Staff or Main Staff of the Croatian army sent to the operations

15 zones of Croatian army in Osijek and Vinkovci. It was signed by General

16 Tus. And, finally, Exhibit 418, 20th of November, 1991, is a letter of an

17 officer of Croatian army, Imre Agotic, to the command of the 5th Army

18 District in Zagreb.

19 These documents directly confirm the Defence thesis. They are an

20 evident proof of the fact that there was an armed rebellion in which

21 Croatian officers, including General Tus, commander of JNA air force, and

22 Colonel Agotic, intelligence officer of the JNA, deserted the JNA. They

23 crossed over to the rebel side of Croatian formations, and then they wrote

24 a letter. A deserter, Agotic, wrote a letter to the command of his own

25 5th Military District. He was a defector. There is no greater proof of

Page 11255

1 the fact that this was a case of armed rebellion. This is something that

2 the Prosecution proved via their exhibits and witnesses.

3 When discussing the issue of whether in the territory of SAO

4 Krajina, or rather, these areas depicted by the Prosecution as areas where

5 the alleged JCE was in place, when we are discussing the issue of whether

6 the JCE was in place there with a morbid goal, criminal goal, of

7 persecuting all non-Serb population, when discussing this it is useful to

8 point out, Your Honours, that precisely these areas, which the Prosecution

9 painted as the areas where the crimes were committed, were the areas under

10 the UN protection.

11 The evidence adduced during the trial -- rather, Security Council

12 report 23 -- 280, which is Exhibit 104, this document discusses the

13 general concept of the Vance Plan, the concept of Vance and Mark Goulding,

14 who was the under-secretary of UN. They wanted the UN troops to come to

15 those areas in Croatian where Serbs represented a majority population or a

16 significant minority, and where interethnic tensions had caused a conflict

17 to break out. This Exhibit, 107, is mentioned by the Prosecution in

18 paragraph 12; namely, that the role of the UN troops was to ensure that

19 peace prevailed in that area, that these areas remained demilitarised, and

20 that everybody be protected from the fear of an armed attack.

21 I guess this protection pertained to Serbs as well, to Serbs who

22 represented the majority population in that area. What the Prosecution

23 directly alleges is that the UN troops came to that area where previously

24 Yugoslav authorities, with the president of Serbia and with the Serbian

25 leadership of Serbian Krajina, had organised a joint criminal enterprise.

Page 11256

1 It cannot be that the UN was that naive and that they allowed themselves

2 to be tricked in this way. This is something that is a pure construction

3 of the OTP, and this is further confirmed by the evidence of their expert,

4 Ivan Gruic.

5 We objected to him coming here to testify because he was a colonel

6 of the warring side, Croatia. He was in their forces from the beginning

7 to the end. He is a high official of Croatia who is included in the

8 indictment against Markac and Cermak, an indictment for a joint criminal

9 enterprise which ended in the expulsion of Serbs from Croatia. He is a

10 high government official of a government which is indicted by this same

11 Prosecution for a crime. And now they're using him to deal with the issue

12 whether the Serbs were expelled or not.

13 Now let us turn to something else; namely, to the issue of how

14 ridiculous this JCE is a story and just how radically different it is from

15 reality. This expert, Gruic, in his report stated that in the territory

16 of the Republic of Croatia during the period covered by the indictment,

17 11.834 persons were killed. Therefore, 11.834 persons. He confirmed here

18 in the courtroom that several hundred corpses had been exhumed from the

19 areas where the Operation Storm was executed in 1995.

20 He said that 68 corpses were uncovered as a result of the Flash

21 Operation. Maybe the number of victims comes up to 1.000, and we have to

22 ask ourselves where these 11.834 persons were killed during the same

23 period in the conflict of the same warring parties; whereas, in their

24 indictment, the Prosecution states that 354 persons were killed in this

25 joint criminal enterprise. It was difficult for me to add up these

Page 11257

1 numbers. People cannot be referred to as numbers, but I simply had to do

2 this.

3 Therefore, in the territory of Krajina, which constitutes

4 one-third of the territory of Croatia, according to the Prosecution,

5 Martic, who is a criminal, according to them, killed 354 persons; whereas,

6 during that same period of time the Prosecution -- another 10.800 persons

7 were killed. And this is the Prosecution is concealing from you. This is

8 a figure used by their expert witness, Gruic. You travelled to that area.

9 You could see that there was no Chinese wall separating Krajina from the

10 rest of Croatia.

11 There is no wall as the one that separates Palestinians from the

12 rest of that territory, no 6-metre high wall. This is an open area. And

13 we now we have to see who did what in the territory of Croatia in 1991

14 that resulted in the killing of so many people and exactly what kind of an

15 enterprise it was. This is something that the Prosecution showed through

16 their witnesses; namely, that this was an armed rebellion aimed at the

17 destruction of Yugoslavia, defeat of the JNA, in order to create an

18 independent Croatia.

19 The Prosecutor really put in a lot of effort to prove how correct

20 the statement made by Mr. Tudjman in 1992, in the main square in Zagreb in

21 Croatia, how true his sentence was that there would have been no war had

22 Croatia renounced its independence. Croatia needed the war to gain its

23 independence. I don't know if my sentence was correct or not. It is our

24 contention that he said that there would have been no war had Croatia not

25 wanted it, yet Tudjman said there would have been no war had he renounced

Page 11258

1 our independence. The armed rebellion served to achieve this goal, the

2 independence of Croatia; this was an illegal goal, an aim that was in

3 contravention of international law, as confirmed by our expert witness

4 Professor Smilja Avramov and all the other witnesses. This was an act in

5 contravention of the Yugoslav constitution.

6 JUDGE MOLOTO: May I ask a question, Mr. Milovancevic. Do I

7 understand you to be saying that because Croatia wanted war to gain its

8 independence and this was an act of rebellion, therefore, the rest of

9 Yugoslavia, including Serbia and RSK, were justified in containing this

10 rebellion by whatever means and at whatever cost? Is that what -- they

11 had to discipline this recalcitrant member of the Yugoslav republic; is

12 that what I understand you to be saying?

13 MR. MILOVANCEVIC: [Interpretation] Precisely --

14 JUDGE MOLOTO: [Previous translation continues]...

15 MR. MILOVANCEVIC: [Interpretation] In fact, you did not quote me

16 completely accurately, but that would be the essence of our case. Because

17 when it comes to the Geneva Protocol II, modern law draws a distinction

18 between rebellion and civil war. Rebellion continues to be within the

19 jurisdiction of the state, and the international law no longer, or rather,

20 does not apply to it at all. In accordance with Article 1, paragraph 2 of

21 the Geneva Protocol appended to the Geneva Conventions, this is so. All

22 legal systems in the world qualify and have qualified as a serious crime

23 the armed rebellion. And the use of armed force to defend the

24 constitutional order is something that is envisaged in all the legal

25 systems of the world. I have noted that perhaps you did not interpret my

Page 11259

1 words completely accurately, because I have not said anything about the

2 participation of Serbia or any other parties in the efforts to suppress

3 the rebellion.

4 JUDGE MOLOTO: No, no --

5 MR. MILOVANCEVIC: [Interpretation] The federal state, the federal

6 authorities had the right to suppress the rebellion. If I misunderstood

7 you, I withdraw my remark. I have to apologise for making it if I

8 misunderstood you.

9 JUDGE MOLOTO: You didn't misunderstand me. I mentioned the

10 federal government because -- maybe I made a mistake to say Serbia. I

11 should have said the federal government, and the federal government

12 because of the involvement of the JNA. Let me just ask you this one

13 question: What is the distinction between a rebellion and a civil war?

14 And at what stage does the transition come from the one to the next?

15 MR. MILOVANCEVIC: [Interpretation] Your Honour, both rebellion and

16 civil war are states or conditions that can co-occur, and one can follow

17 from another. And in the territory of the whole of Yugoslavia, this is

18 precisely what happened. International law envisages quite clear

19 restrictions when it comes to the obligation to respect human rights when

20 it comes to civil war, and there are specific provisions in the

21 international law for that. These restrictions at any rate refer to or

22 cover all armed activities by all armed forces, and they also cover the

23 suppression of armed rebellion because the suppression of armed rebellion

24 cannot be used as the pretext for the commission of crimes. This is

25 something that is uncontestable.

Page 11260

1 When it comes to civil war, however, I simply wanted to say

2 something that is quite important for the Defence. The Geneva Conventions

3 from 1949 and the Protocols I and II, in fact, Article 4 of Protocol II,

4 these are the provisions for civil wars. And these restrictions as to the

5 obligation to abide by the provisions of humanitarian law do not infringe

6 the sovereignty of the state, because no article in this protocol can be

7 invoked in order to infringe the sovereignty of a state or the right of

8 any government to maintain or re-establish law and order within its state

9 or to protect its territorial integrity and national unity.

10 Paragraph 2 -- let me please finish. This is very important.

11 Article 3, paragraph 2, states that no provision in this article can be

12 invoked to justify a direct or indirect intervention for any reason in an

13 armed conflict or internal or foreign affairs of a high contracting

14 parties -- party where the conflict occurred.

15 So the Defence cannot give you an answer to your question in one

16 sentence, but the entirety of the closing argument will show to you the

17 distinction and provide to you an answer. As regards the text that I just

18 quoted about the prohibition to jeopardise the sovereignty by invoking

19 Article 3 of Protocol II, let me just point out to you a very striking

20 example.

21 The Prosecution itself accepted that the president of the Yugoslav

22 Presidency, Mr. Mesic, the man who hailed from a rebel state, an extremist

23 that was appointed to this post under the pressure of the European

24 Community, so he was the head of the state, and there was pressure to

25 appoint him to that post, regardless of the fact that he was from a

Page 11261

1 seceding state. This was -- this means that the sovereignty of the state

2 was, in fact, infringed. And we saw that this man said on the 5th of

3 December, 1991, "I performed my task; Yugoslavia is no more." And he

4 received a frenetic applause.

5 JUDGE MOLOTO: Mr. Milovancevic, can I give you a word of advice.

6 When the Bench wants to ask a question, it is advisable to give the Bench

7 that opportunity. Because whatever you say without giving that

8 opportunity may be very important but it just passes, because I'm worried

9 about -- for me to understand what you are saying, I would like to ask my

10 question at that point. And if you carry on before I ask my question and

11 I don't understand what you are saying.

12 Let me ask my question. At two stages you talked about a

13 rebellion, and I asked you a question: What is a distinction between a

14 rebellion and a civil war? You haven't answered my question. But

15 initially when you talked about the rebellion, I got the impression that

16 you are saying it is totally an internal issue, no international

17 interference can come in. Later when you spoke about the rebellion, you

18 seemed to suggest that the Geneva protocols are applicable to that kind of

19 situation and international humanitarian law is applicable to that

20 situation and that the international community can come in, but you also

21 said it's applicable also to civil law -- to civil war.

22 Now, I don't -- please, don't go into a long story. Just tell me:

23 Is international law, according to your submissions, applicable to a

24 rebellion, yes or no? I'm trying to get the distinction between a

25 rebellion and a civil war. Just say yes or say no. Don't elaborate.

Page 11262

1 MR. MILOVANCEVIC: [Interpretation] Not to the armed rebellion, and

2 let me just say one more thing, Your Honour.


4 MR. MILOVANCEVIC: [Interpretation] You misquoted me.

5 JUDGE MOLOTO: [Previous translation continues]...

6 MR. MILOVANCEVIC: [Interpretation] The provisions of the Protocol

7 II of the Geneva Conventions relating to Article 3. They do not prohibit

8 the possibility of an intervention, they prohibit the intervention by

9 foreign states in the affairs of a sovereign state, even when there is a

10 civil war. And since you asked me again about the difference between an

11 armed rebellion and civil war, perhaps I could give you a brief answer,

12 one sentence. Civil war is a situation that occurs in the territory of a

13 state when the authorities are unable to function, when the authorities

14 are unable to maintain law and order and to prevent armed conflict, and

15 when everybody is at war with everybody else.

16 When you have religious or political or any other strife in

17 various areas, various stages of intensity, various ways, armed rebellion

18 is an organised activity on the part of the rebel authorities, rebel

19 political structures, or rebel units that strive to gain an area that they

20 want. They conduct armed activities there in order to defeat the legal

21 authorities. That would be an answer in a nutshell to your question.

22 JUDGE MOLOTO: It's not a nutshell. It's a very long answer.

23 It's unlike what I've asked from you. And this is the problem and you

24 keep complaining that I'm misquoting you. And I'm going to continue

25 misquoting you if you can't give me succinct, clear, short, to-the-point,

Page 11263

1 focused answers.

2 MR. MILOVANCEVIC: [Interpretation] I understand.

3 JUDGE MOLOTO: If you keep telling me this, then I don't

4 understand what you're talking about. If you answer my question directly,

5 then I understand. And the reason you're getting misquoted is simply

6 because I don't understand what you're saying. If you read what is

7 written -- maybe you understand what you're saying when you talk in B/C/S,

8 but you must read the English. You will begin to see that I really don't

9 understand what you say most of the time, and I've got a difficulty asking

10 my questions. You may proceed, Mr. Milovancevic.

11 JUDGE NOSWORTHY: Before proceeding, I would like to pose two

12 questions to you, Mr. Milovancevic.

13 First of all, I would like to know the state of armed rebellion.

14 Is the Defence saying that it was on ongoing state of armed rebellion

15 during the entirety of the period set forth in the indictment; or was it

16 more than one armed rebellion? I would like that question to be answered.

17 I don't know if you intend to deal with it later on in your submissions,

18 but that is the first question.

19 And the next question would be: For the purposes of the armed

20 rebellion, you stated that the federal authorities had the right to

21 suppress the rebellion. Now, who constituted the federal authority,

22 having this right during the course of that indictment period? Was it a

23 federal authority of Croatia? And please address the question as to

24 whether it would have been the "government" of the SAO K or of the RSK,

25 but I would like the question addressed within that sphere. Are you

Page 11264

1 understanding me, Mr. Milovancevic? I don't know if you intended to deal

2 with these points later on in your submission. Thank you very much.

3 MR. MILOVANCEVIC: [Interpretation] Your questions are quite

4 specific, Your Honour, and let me reply. I wanted to do so at a later

5 stage, but perhaps it would be easier for me to do it right now.

6 JUDGE NOSWORTHY: No. No, if you intend to deal with it at a

7 later stage, then I would find that quite sufficient, but I just did not

8 know whether you intended to cover it. You need not answer the questions

9 now; but if you're able to, you may.

10 MR. MILOVANCEVIC: [Interpretation] I would like to address this

11 issue now, Your Honour. Under international law, rebellion is under the

12 exclusive jurisdiction of the state. International law does not apply to

13 it. This is an internal affair of the state. And the federal state of

14 Yugoslavia, the Federal Secretariat of National Defence, the federal

15 government, the Yugoslav Presidency, and the JNA, as the regular armed

16 force - which includes the TO - had to suppress it using all means, this

17 rebellion in other words.

18 The -- there was a rebellion in parts of the territory of the

19 sovereign state of Yugoslavia in 1990 and 1991, all the way until 1992

20 when Yugoslavia de facto ceased to exist. This rebellion was organised by

21 the Croatian authorities in the territory of what was then the Yugoslav

22 Republic of Croatia, and by the Slovenian authorities in what was then the

23 Yugoslav Republic of Slovenia. This is where it all began. The rebellion

24 was not suppressed by the Republic of Serbian Krajina. It was suppressed

25 by no one but the federal authorities in Belgrade, the Yugoslav

Page 11265

1 Presidency, the federal defence ministry, the Federal Secretariat of the

2 National Defence, the federal government, and the JNA. So that would be a

3 brief answer to your question, and I will deal with this topic at length

4 in the course of my closing argument.

5 JUDGE NOSWORTHY: You are saying then that the RSK and the SAO K

6 had no part whatsoever? They did not join in any way in the quashing of

7 the rebellion, or they would have no vested interest or right in the

8 quashing of this rebellion? That is why I put it within the sphere of

9 Croatia, even though I acknowledge that they're not federal territories.

10 But the persons who were allegedly committing the acts in this case are

11 persons who are acting on behalf of the RSK and the SAO K. And,

12 initially, certainly it would have been still under the umbrella of

13 Croatia. Are you seeing my point? There was no joinder at any point in

14 time between those entities then.

15 MR. MILOVANCEVIC: [Interpretation] Yes, yes. I understand your

16 point fully. Your Honour, yes, I understand the question that you're

17 asking me.

18 In the opinion of the Defence, the essence lies in the fact that

19 the federal authorities, the federal state of Yugoslavia, the Presidency,

20 the JNA, the Federal Secretariat of National Defence, have the duty and

21 the right in accordance with the constitution and the international law to

22 operate on every square metre of the territory of the Yugoslav state,

23 regardless of what federal unit it was; Slovenia, Macedonia, or any

24 republic in between.

25 When I spoke about the RSK, I said that the federal authorities

Page 11266

1 had the exclusive jurisdiction to suppress the armed rebellion in the

2 territory of Croatia using the federal troops, and the RSK, the SAO

3 Krajina, the TO, the police come into all this simply by force of

4 necessity. These are parts of Yugoslavia within what was then the rebel

5 Republic of Croatia that were loyal to the federal state, to the federal

6 government, and they had the duty to comply with all the orders of the

7 federal government regarding the mobilisation, the operation of local

8 units, the police, as were, indeed, all those -- as indeed they were

9 obliged to comply with all the provisions of the international law.

10 I will deal with this at length later on. I don't know if you

11 have any questions that pertain to this topic or perhaps I could just move

12 on.

13 JUDGE NOSWORTHY: Please move on. Thank you. I understand the

14 submissions which you have made. I don't know if my brothers would wish

15 to ask anything more, but for my purposes you may move on.

16 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

17 So far we have mentioned two pieces of evidence in which the

18 Prosecutor proved the existence of an armed rebellion, but these are not

19 the only two pieces of evidence we have. Prosecution witness Colonel

20 Radislav Masic heard here in this courtroom testified that there was an

21 armed rebellion, that what was happening on the territory of Yugoslavia

22 amounted to armed rebellion.

23 He explained that Croatia and Slovenia in June 1991 issued a

24 decision on secession from Yugoslavia, that Slovenia illegally took over

25 the border-crossings of the federal state towards Italy and Austria, that

Page 11267

1 the federal government intervened in order to re-establish control without

2 any military operations, and that on that occasion the JNA was attacked by

3 Slovenian territorials organised by the rebel authorities of Slovenia, who

4 killed at least 19 JNA soldiers.

5 Prosecution witness Colonel Maksic confirmed that after this

6 Croatia surrounded and blocked JNA barracks. Croatia did not have the

7 right to attack the JNA, so this can be described as armed rebellion, and

8 this is on page 1210 to 1211. Witness Theunens also confirmed this, but

9 he evaded saying that this was armed rebellion. He works for the OTP, and

10 he does not want to mention that international law should apply here

11 because this goes against the Prosecution case.

12 Colonel Maksic testified to the fact that JNA barracks had existed

13 for many years on the territory of all the federal republics, all over the

14 territory of the former Yugoslavia, including Croatia; that they were

15 frequently located in urban areas. And we could see this for ourselves.

16 We saw the Ministry of Defence in the centre of town. We saw Pleso

17 airport which is a military airport in the town itself. We saw this in

18 Knin where there are barracks in the very town. They were formerly JNA

19 barracks and they are now Croatian army barracks. Witness Maksic

20 explained --

21 JUDGE MOLOTO: Do we have - and if so where - evidence to the

22 effect that Pleso airport is a military airport? I know it was said that

23 some military equipment was kept there.

24 MR. MILOVANCEVIC: [Interpretation] Both Prosecution and Defence

25 witnesses mentioned Pleso airport. I don't know whether we have any

Page 11268

1 documents, but this is an airport with a dual purpose; military and

2 civilian. UNPROFOR, as a military component of the UN, was based at Pleso

3 also.

4 Prosecution witness Maksic, referring to armed rebellion,

5 confirmed that in June and July 1991 - and let me remind you that Croatia

6 seceded on the 25th of June, 1991 - many Croatian soldiers and officers

7 deserted from the JNA. That's on page 1213. He said that this referred

8 to a large number of men. General Djukic, Defence witness, said this was

9 7.000 officers who had been members of the JNA, and 62 percent of these

10 were JNA members of Croatian ethnicity. About 7.000 Croats, who were

11 members of the JNA, deserted. We saw that Imre Agotic, a JNA colonel, and

12 General Tus, the commander of the air force, became later on the highest

13 ranking officers of the rebel army, the so-called Croatian army.

14 Witness Maksic, a Prosecution witness, explained that every member

15 of the JNA took an oath to serve honourably and to protect the sovereignty

16 and integrity of the state of Yugoslavia. He pointed out that these

17 deserters, ethnic Croats, were JNA officers. An officer's honour is held

18 sacred in every country and every nation, Your Honours. These officers

19 deserted and trampled on their oath and even went so far as to join the

20 rebel side.

21 Prosecution witness Maksic said that in doing so, they betrayed

22 their country, Yugoslavia. It was not only Tus and Agotic, but also the

23 commander, the so-called commander, of the defence of Skabrnja. Marko

24 Miljanic, a JNA officer, commanded the Independent Skabrnja Battalion

25 fighting against the hostile JNA army.

Page 11269

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 MR. WHITING: Excuse me. I'm very sorry to interrupt. I would

12 never have imagined to have to do this, but I think that Defence counsel

13 has very specifically described the protected witness in such a way that

14 could easily identify him. And so I think it is -- I have to rise to ask

15 that there be a redaction of that portion. It's from page 19, line 21,

16 and I think probably as a matter of prudence it would be best to redact

17 that whole paragraph all the way to page 20, line 5. But certainly the

18 beginning gives very specific details and anyone would know who it is.

19 JUDGE MOLOTO: Mr. Milovancevic, do you have any response to that?

20 MR. MILOVANCEVIC: [Microphone not activated]

21 JUDGE MOLOTO: I don't --

22 MR. MILOVANCEVIC: [Interpretation] I am shocked, Your Honours.

23 What matters to the Prosecutor at this stage. I said "Witness MM-80." If

24 somebody will guess who MM-80 is, that's his problem. I didn't give any

25 other details.

Page 11270

1 JUDGE MOLOTO: You have given lots of details. You have given a

2 lot of details. And now, given that response, the Chamber will order that

3 from page 19, line 21, to page 20, line 5, that whole paragraph be

4 redacted.

5 You may proceed, Mr. Milovancevic.

6 MR. PEROVIC: [Interpretation] Thank you, Your Honours.

7 Mr. Prosecution witness, MM-80, confirmed that at his home and at

8 another officer's home a cross was inscribed, and he understood it as a

9 signal that he was to be liquidated as a JNA officer and a Serb. JNA

10 Colonel Peric testified to something similar. This Prosecution witness

11 said that, as a security officer, he knew that the Croats were arming

12 themselves in his area of responsibility. The HDZ was arming local

13 communes and villages. The aim of the HDZ was the independence of

14 Croatia; transcript page 5291.

15 With respect to the arming of local communes, we have Exhibit

16 1.005, a letter written by 142 members of the Zadar SUP dated from October

17 1990, stating that the Croatian MUP, Tudjman's MUP, was confiscating

18 weapons from the reserve police force and distributing them to the

19 Croatian population in Zadar, Benkovac, and Obrovac, exclusively on an

20 ethnic basis. And this was evidence that an armed rebellion was being

21 prepared. This witness stated that the reason for the JNA intervention in

22 Skabrnja were frequent incidents and activities by Croatian units. Some

23 of their units were located in the Skabrnja area. They organised

24 incursions on the road in the direction of Benkovac and Zemunik airport.

25 MM-80 says they opened fire on JNA vehicles and convoys moving along the

Page 11271

1 road.

2 This Prosecution witness confirmed here in the courtroom and drew

3 a map, which is Exhibit 784, showing that all the roads between Benkovac

4 and Zemunik, the Zadar airport, were impassable, and that the JNA, which

5 is the legal and regular armed force of the country of Yugoslavia, had to

6 cross meadows and pastures in order to reach Zemunik airport.

7 This Prosecution witness confirmed the authenticity of documents,

8 Prosecution documents, and that's Exhibit 785, a letter by General

9 Vukovic, the corps commander dated the 20th of November, 1991, who says

10 that JNA barracks in Sibenik, Split, and Zadar were blocked, that attacks

11 on Zemunik airport had been ongoing for the past four days. And we wish

12 to point to an interesting detail. On the 20th of November, General

13 Vukovic informed his command and the European community that attacks on

14 Zemunik airport had been ongoing for the past four days. The action in

15 Skabrnja took place on the 18th of September -- on the 18th. This witness

16 stated that during the attack on Skabrnja, as well as in any other

17 situation, JNA soldiers were not ordered to expel the civilian population

18 or to commit any crimes against the civilian population. That's page 5303

19 of the transcript.

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 11272

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 Prosecution witness Marko Miljanic testified that in May 1991, he

9 left the JNA; that in September 1991, he became the commander of the

10 Independent Skabrnja Battalion; that he had seven villages and a third of

11 the territory of Zadar municipality under his command, which amounts to a

12 third of the territory of a town on the soil of Yugoslavia, a sovereign

13 state and a member of the UN. It was under the control of a JNA deserter

14 and his illegal forces. He had weapons at his disposal. He had 242 men

15 who were armed with light machine-guns taken from the JNA barracks in

16 Gorski Kotor. This Prosecution witness explained that there were two

17 roadblocks in the village towards the Serb side. There were trenches. He

18 himself laid minefields. He explained he laid a hundred anti-personnel

19 and ten anti-tank mines in Skabrnja. The other minefield was above

20 Zemunik.

21 He testified that the Crisis Staff from Zadar, which was under the

22 authorities of Tudjman, ordered evacuation of civilians from Skabrnja on

23 the 20th of November, 1991; and that on the 18th of November, more than 20

24 members arrived in Skabrnja with anti-tank weapons. Imagine any sovereign

25 country in this world, if someone were to bring a unit of 20 men with

Page 11273

1 anti-tank rockets on its soil, how the authorities of that state respond.

2 He confirmed that in Skabrnja the units held the line until a

3 certain point in time, 11.30, and then the line was pierced. The document

4 of General Vukovic shows that there were 14 JNA barracks in Zadar.

5 According to the documents tendered by the Prosecution, they were

6 surrounded with minefields, all kinds of weapons. They were fired on.

7 And there were agreements reached that the siege should be lifted, and

8 then they were not complied with. On the 20th of November, 1991, Split,

9 Zadar, Sibenik, and Zemunik airport were all blocked.

10 With respect to Zemunik airport, we should say that this was a

11 military airport, but also there was a military academy there, the only

12 military academy for the training of pilots of the JNA, the federal army.

13 It contained very expensive equipment. The use of this equipment was made

14 impossible when all these roads were blocked, and one should bear this in

15 mind.

16 Luka Brkic, another Prosecution witness, also confirmed that there

17 was an armed rebellion. He said in Skabrnja, we had east German

18 camouflage uniforms, belts, boots. We had automatic rifles.

19 Lieutenant-Colonel Bogunic's note, Exhibit 107, speaks of something

20 similar. There were --

21 THE INTERPRETER: Could counsel please slow down when enumerating

22 the number of different kinds of weapons.

23 JUDGE MOLOTO: The interpreters are saying could you please slow

24 down, Mr. Milovancevic.

25 MR. MILOVANCEVIC: [Interpretation] Thank you. I would kindly ask

Page 11274

1 the interpreters to always warn me not to refrain from doing that.

2 Sometimes it's hard for me to maintain acceptable pace.

3 JUDGE MOLOTO: It is you that should remember to keep an

4 acceptable pace.

5 Carry on, Mr. Milovancevic.

6 MR. MILOVANCEVIC: [Interpretation] In addition to mortars,

7 automatic rifles, cases with ammunition, a rocket -- hand-held

8 rocket-launcher was also captured. As Marko Miljanic said from the

9 barracks in Gorski Kotor, 37 hand-grenades were captured. As for the

10 document composed by Ernest Radjan, the JNA officer, about the

11 sanitization of the terrain, Exhibit 109, under item 12 of that the

12 document, he mentions the barracks called Andrija Artukovic in a garage in

13 Skabrnja, down-town Skabrnja. We tried to find it when we were there, but

14 a new garage was built there.

15 Before the sanitization, the JNA officer Radjan, stated, or

16 rather, recorded the location of each victim found, whether there was

17 civilians or soldiers, what position they were found, what was their age.

18 Every single detail was recorded honestly and thoroughly, and his report

19 should not be doubted. And, therefore, this man says that is in the

20 Andrija Artukovic barracks, Skrabnja, there was a lot of equipment, radio

21 equipment, and other equipment. So this was an armed rebellion, Your

22 Honours.

23 However, this is not an end to the Prosecution evidence on the

24 existence of armed rebellion. (redacted)

25 (redacted)

Page 11275

1 (redacted)

2 (redacted) He explained

3 that in the field they stopped wearing any insignia showing that they were

4 members of the Federal Commission, because that could have been caused

5 problems for them, problems from Croatian paramilitary members and

6 residents.

7 Witness MM-79 said that they were afraid they could be harmed,

8 that they received threats. There was some cases of excessive behaviour.

9 This is quite telling, isn't it, that the Croatian residents had the same

10 attitude towards UN troops. This is what General Morillon told us. When

11 we got to Zagreb, we were supposed to take our uniforms off so that we

12 wouldn't be threatened. This is the attitude that the population had with

13 respect to UN troops as a result of the government propaganda.

14 As for Croatian authorities, the leadership, let me remind you of

15 witness Kirudja, who spoke of the racist attitude of Janko Bobetko,

16 commander of the Main Staff, who was a European and who had respect only

17 for UNPROFOR members from Nordic countries; that is to say, white people.

18 What a fine man, what fine authorities. So the Prosecutor says there was

19 no reason to be afraid; whereas, the Prosecutor himself comes from the

20 country which is all too fully aware of racial hatred.

21 This Prosecution witness, MM-79, said that in the beginning of

22 these conflicts around Knin and Drnis, the Croats manned check-points and

23 roadblocks. See, this fact was concealed from you, Your Honours. The

24 witness explained. He said initially there was a police check-point

25 outside of the village of Drnis; and then some 500 metres further, there

Page 11276

1 would be another roadblock manned by Croat volunteers and ZNG members. So

2 this is Croatian armed force.

3 And then the witness goes on to say there would be a Serb

4 roadblock manned by local Serb residents, and there was some sort of

5 reserve policemen there in uniforms. Can you tell the difference between

6 the position of the Serb residents on roadblocks and Croatian forces? It

7 was that the Serb residents were loyal to the federal state. Both TO

8 members and police were members of regular forces of the then-existing

9 sovereign state of Yugoslavia. Therefore, their status, according to the

10 constitution and the law, was a regular one. As for the ZNG members,

11 those were new forces and they were loyal to Croatian authorities which

12 organised the armed rebellion, and their status was illegal and

13 unconstitutional.

14 This witness testified that between Drnis and Polje, there was a

15 main Serb check-point but not a roadblock. He said that the majority of

16 the people wore police uniforms and that they were quite cooperative.

17 This witness of the Prosecution said that they had attempted to ensure

18 that local residents would not -- would not erect roadblocks, and this is

19 something also confirmed by witness (redacted), Defence witness; or rather,

20 we have to redact this. Witness MM-96, I apologise, Your Honours.

21 MR. WHITING: Your Honour, while we're on the subject of

22 redacting, I was going to wait to the break to raise it, but if we could

23 also redact from page 22, line 15 to page 23, line 2. In our view that

24 identifies a protected witness. Also at page 25, line 17 to line 20, also

25 identifies a protected -- or has the potential to identify a protected

Page 11277

1 witness.

2 [Defence counsel confer]

3 MR. MILOVANCEVIC: [Interpretation] I fully agree, Your Honours.

4 JUDGE MOLOTO: Mr. Milovancevic, you just said, or rather, we have

5 to redact this witness 96, I apologise. What part do you want us to

6 redact?

7 MR. MILOVANCEVIC: [Interpretation] Line 12, page 27 indicates the

8 name of the witness. I don't want to mention it again, so the name of the

9 witness.


11 MR. MILOVANCEVIC: [Interpretation] It's a protected witness,

12 MM-96. It was a slip of the tongue, I apologise, Your Honours, and I

13 fully agree with what my learned friend asked for.

14 JUDGE MOLOTO: Okay. Then page 27, line 12 shall be redacted.

15 After that, we shall redact from page 22, line 15 to page 23, line

16 2. We'll also redact page 25, line 17 to line 20. Okay. Those three

17 redactions, please. Thank you very much.

18 You may proceed now, Mr. Milovancevic.

19 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours.

20 JUDGE MOLOTO: You've got a minute.

21 MR. MILOVANCEVIC: [Interpretation] Yes, I will bear that in mind,

22 yes.

23 This witness, MM-79, was out in the field from mid-May until late

24 June of 1991. And he says police forces, Serb police forces, manning the

25 roadblocks were cooperative with respect to him, a representative of the

Page 11278

1 federal government. As for the roadblocks on the Croatian side, he said

2 that they were manned by local residents, members of the ZNG, and in some

3 cases policemen. Members of the ZNG were especially allergic to the army,

4 the federal army. The ZNG was a leading force; however, when the

5 policemen were there at the roadblocks, they had the upper hand on those

6 barricades. Page 2.139 of the transcript.

7 And just one more sentence. ZNG members were positioned near

8 Kijevo, page 3.150. So the operation in Kijevo was on the 26th of August,

9 1991. In the course of June, 1991, this was not just the case of a police

10 station in Kijevo manned by 150 men, Your Honours, but rather that the ZNG

11 was deployed to the positions around Kijevo. That's a very telling fact,

12 Your Honour. I think it's time for our break now, Your Honour.

13 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic.

14 We'll take our break now and come back at quarter to 11.00. Court

15 adjourned.

16 --- Recess taken at 10.16 a.m.

17 --- On resuming at 10.47 a.m.

18 JUDGE MOLOTO: Mr. Milovancevic.

19 MR. MILOVANCEVIC: [Interpretation] Just before the break, Your

20 Honours, we mentioned the evidence of witness MM-79, witness for the

21 Prosecution, who said that from mid-May to the 20th of June, 1991, he saw

22 members of the ZNG at the positions around Kijevo, deployed in that area.

23 This is -- this was fully and directly confirmed by the evidence of

24 General Djukic, Defence witness, who said that on the 26th of June, 1991,

25 he received an order to place a buffer zone in several areas; that the JNA

Page 11279

1 under these circumstances did, in fact, place a buffer zone; that these

2 buffer zones existed; that efforts were made in addition to this Federal

3 Commission which acted on behalf of the Presidency of Yugoslavia to

4 resolve the situation by peaceful means.

5 General Djukic confirmed that the leadership of Yugoslavia, or

6 rather, the leadership of JNA reached on agreement with leadership of

7 Croatia via authorities in Sibenik in order to evacuate these irregular

8 rebel forces from that area in order to reduce tensions; that the Croatian

9 side initially accepted that agreement, and then later on turned its back

10 on it; and that the operation in Kijevo came about only when these members

11 of Croatian armed formations, which as witness MM-79 said, were especially

12 allergic to the JNA. So it was only then that the operation in Kijevo

13 came about.

14 General Djukic said that there were no wounded and no fatalities,

15 that he was proud of that operation. And the Prosecutor is surprised by

16 this or perhaps they regret the fact that there were no casualties.

17 According to the evidence of General Djukic, the JNA at that time

18 acted in the territory of its own country. It acted against rebel forces,

19 not against the population. It had a goal to resolve this problem with as

20 few casualties as possible. This was confirmed by the previously

21 mentioned Prosecution witness and all Defence witnesses. Only the

22 Prosecutor claims quite the opposite. Only the Prosecutor believes that

23 there was this terrible plan to persecute civilians.

24 Finally, Witness MM-79 - I do not wish to mention the post held by

25 this witness - but this witness confirmed that during mass movement, known

Page 11280

1 as Maspok in 1972, which was a movement in Croatian for secession of

2 Croatia for declaring Croatia an independent state, he said that during

3 Maspok, Tudjman, Mesic, Seks, and many other officials who were active in

4 that movement were removed from political life. Witnesses confirmed that

5 Mesic and Seks --

6 JUDGE MOLOTO: Did you say Maspok in 1972?

7 MR. MILOVANCEVIC: [Interpretation] Yes, yes.

8 JUDGE MOLOTO: What was Tudjman at the time?

9 MR. MILOVANCEVIC: [Interpretation] During these events, General

10 Tudjman was a former general of the JNA, perhaps even an active general

11 who was removed at that time. So in 1972 - there's a good reason why I'm

12 mentioning this to you - the entire state, political leadership of

13 Croatia, which carried out secession in 1991 had actually attempted to do

14 this 20 years earlier and was removed from their offices at the time.

15 Mesic was imprisoned as was Seks for their activities in 1972. We heard

16 that from witnesses, including witness MM-79.

17 Why is this fact important? It is important precisely because of

18 paragraph 3 from the final brief of the Prosecution, where the Prosecutor

19 said that they did not deal with 1972 in their indictment. Do you know

20 why the Prosecutor mentioned this? They mentioned this because they

21 wanted to conceal the fact that it was not in 1990 that the idea of

22 Croatian independence arose as a result of a joint criminal enterprise or

23 policies pursued by the JNA, Yugoslavia; but, rather, that this was an old

24 political idea that was 20 years old and was prepared for 20 years and

25 implemented in the most brutal way in 1990 and 1991. This is why I keep

Page 11281

1 referring to this armed rebellion. This is why I believe this to be so

2 important.

3 Martic, as a crime inspector in Knin, and anybody else who came to

4 testify here, Ministers of Foreign Affairs, Minister of the Interior,

5 Ministers of Information, Prime Ministers, Deputy Prime Ministers,

6 Commanders of police stations, Chiefs of police stations, so all of these

7 people who emerged in Krajina in 1990 and 1991 were simply a reaction to

8 evil, evil organised by Croatian authorities aimed at breaking up

9 Yugoslavia violently. This was a reaction caused by fear; and according

10 to the Prosecutor, this fear was unreal, unprovoked, and was generated by

11 the stories spread by Mr. Martic and other Serbian leadership about the

12 fact that there was no co-existence with Croats and that naturally all

13 consequences were foreseeable, as was stated in the indictment. This is

14 an absurd thesis.

15 As to the nature of this armed rebellion, as to the nature of what

16 transpired there in 1990 and 1991, this was something that the first

17 witness for the Prosecution spoke about, witness Dzakula. But in order

18 for us to understand the essence of these events, the tragedy of the

19 situation, the tragedy of the Serb residents in Croatia, and the tragedy

20 of Mr. Martic personally, who is an innocent man, who has been kept here

21 for 1.704, four years and seven months, for their sake we need to say that

22 this armed rebellion was the only joint criminal enterprise that existed

23 in the territory of Yugoslavia, in 1990, 1991, and 1992; and that

24 everything that happened until the end of 1995 was the implementation of

25 that armed rebellion, the aim of which was to break up Yugoslavia, create

Page 11282

1 independent Croatia, eliminate Serb population as population that was of

2 different ethnic origin and different religion. They wanted to create a

3 mono-ethnic state. That was their goal. As for the means used to achieve

4 that goal, we will see that in a video excerpt.

5 [Videotape played]

6 MR. MILOVANCEVIC: [Microphone not activated]

7 This is an excerpt, Exhibit 926, about JNA soldiers killed at

8 Korana bridge in April of 1991. At that time, pursuant to the proposal of

9 the European Commission, all decisions taken by Croatia were suspended and

10 there was an alleged cease-fire. Please look at these people, the JNA

11 soldiers. This will prompt you to come to the realisation that there were

12 all Serbs, JNA soldiers. And you should wonder whether the people who

13 watched this, observed this, had any reason to fear for themselves.

14 One of the perpetrators, whose name is Hraston has not been

15 convicted to this day for procedural reasons. He was acquitted. This

16 will make you realise what the term "Ustasha" stands for, what kind of

17 people they were. Witnesses told you about knives and other things they

18 used. Exhibit 3 also speaks of that.

19 In the Second World War, according to General Forcina [phoen],

20 who was in Croatia, 715.000 people had their throats slashed, not killed,

21 but throats slashed. And Ustashas used knives and sledge-hammers. You

22 can will see what effect a sledge-hammer causes opposite a human head.

23 You will see what Ustashas did when they came across people they wanted to

24 get rid of. This is footage from 1951.

25 You see a neck, please pay attention to the neck. This man had

Page 11283

1 his throat cut. Witnesses confirm that these soldiers were captured,

2 disarmed, forced to lie down, and then they massacred them. Witness Peric

3 spoke of this, and this event was mentioned by many other people. I

4 regret the morbid nature of this footage. I regret having to show this to

5 you, but you need to see what Ustasha knives and sledge-hammers can

6 produce. Witness Macura translated a book of an Italian author of Ustasha

7 crimes, saying that he showed a cross, a gun, and a bomb; and then Ustasha

8 leaders said that these symbols will be the symbols that we will fight

9 with. This is something that was done between 1941 and 1945; and

10 according to President Tudjman, this represents the tendencies, historical

11 tendencies of a Croatian nation. And the Prosecutor believes that there

12 was no reason for reason for Serbs to fear, that there was no hate speech,

13 and that Serbs exaggerated this or amplified this.

14 Look at these people, they are nothing but Serbs.

15 JUDGE MOLOTO: May I ask a question, Mr. Milovancevic. I notice

16 that several of those corpses are sutured in the chest here. Was that as

17 a -- what was that as a result of? Was that as a result of an operation

18 to determine the cause of death, or was that part of the killing? Are you

19 saying that as they were being killed they were killed and then they were

20 sutured? They were cut open and then they were sutured again? Who

21 caused -- who sutured them?

22 MR. MILOVANCEVIC: [Interpretation] Your Honour, I don't want to

23 testify about this. Let me just comment on this movie just to save some

24 time. I can just tell you very briefly because I know the answer --


Page 11284

1 MR. MILOVANCEVIC: [Interpretation] No, I will not be testifying.

2 Let me just tell you one thing.

3 JUDGE MOLOTO: Let me control the proceedings. If you don't have

4 evidence on record explaining to us how those suturings came about, then

5 don't answer the question. I thought you were going to say to see witness

6 so-and-so told us this is how the suturing came about. If you don't have

7 that evidence, don't answer that.

8 MR. MILOVANCEVIC: [Interpretation] Your Honour, I will not address

9 this issue. I will not answer the question, in compliance with your

10 order, but let me just say that this exhibit begins with footage showing

11 the handover of the bodies. At the beginning of this clip, the bodies are

12 offloaded from the trucks. So they are taken over. The Croatian side

13 handed them over --

14 JUDGE MOLOTO: I'm sorry, Mr. Milovancevic. Please don't testify.

15 You showed us the clip. We can see what the happening on the clip. Don't

16 tell us what -- if you don't have a witness who told us where they were

17 being offloaded from, don't testify. We saw that clip. It speaks for

18 itself.

19 You may carry on with your argument.

20 MR. MILOVANCEVIC: [Interpretation] Thank you.

21 The armed rebellion that we spoke about is important for this

22 case, the case against Mr. Martic, because it was designed and organised.

23 It was prepared for years by the same people. It all started in 1972.

24 This is when this idea came about -- in fact, in 1971. You asked me if

25 this was 1971 or 1972, the mass movement, the Maspok, the nationalist

Page 11285

1 movement in Croatia designed to -- for Croatia to secede from Yugoslavia.

2 It actually happened in 1997 -- 1971 --

3 THE INTERPRETER: Interpreter's correction.

4 MR. MILOVANCEVIC: [Interpretation] -- So you were right when you

5 corrected me initially. The armed rebellion itself did not begin when the

6 armed conflict broke out on a specific date. Prosecution witness, or

7 rather, Defence witness General Djukic said that on the 23rd of March,

8 1991, the Croatian leadership declared the JNA to be an enemy force.

9 Prosecution witness Dzakula, the first witness to appear in this

10 case, gave evidence that in 1990 Croatia was a federal unit; and that in

11 accordance with the Croatian constitution valid at the time, Croats and

12 Serbs had the status of a nation. This witness also confirmed that the

13 first elections in 1990 - I'm talking about witness Dzakula - Serbs in the

14 entire territory of Croatia, with the exception of five municipalities,

15 that they voted for the communist league of Croatia, the party of

16 democratic changes, led by Mr. Racan.

17 This Prosecution witness also confirmed that in the pre-election

18 campaign the HDZ started displaying the new flag with the chequer-board

19 symbol, that Ustasha slogans were made, that statements were made to the

20 effect that Croats were suppressed by Serbs, that the Serbs dominated the

21 political sphere. And this is how the armed rebellion was being prepared.

22 This is a comment that I am making now in my closing argument. This is

23 how hatred was engendered among Croats, the hatred against Yugoslavia and

24 Serbs.

25 And as regards the alleged supremacy of Serbs over Croats in

Page 11286

1 Yugoslavia, this witness said that Stjepan Mesic, a Croat, was the

2 president of the Yugoslav Presidency. He was the president of the federal

3 state. The Prime Minister was a Croat, Ante Markovic. The Minister of

4 Foreign Affairs was again a Croat, Budimir Loncar. The Minister of

5 Defence was half Croat, Veljko Kadijevic. This is what Prosecution

6 witness Dzakula said.

7 The Prosecutor referred to Kadijevic as a Serb; whereas, he was in

8 fact a half Croat. That's what the Prosecutor did in his final brief.

9 Antun Tus, the commander of the air force, was a Croat. He was one of the

10 deserters that we spoke about earlier when we spoke of Imre Agotic. The

11 head of the security service in Yugoslavia was Draga Mutic [phoen], again

12 a Croat. Key posts in the Croatian navy were held by Croat admirals. In

13 the JNA navy, General Spegelj had been the commander of the 5th Military

14 District for years. In 1990, the commander of the 5th Military District

15 was Konrad Kolsek, a Slovene. This military district was headed in

16 Belgrade. The commander of the Belgrade army was Spirkovski, a

17 Macedonian.

18 Yet, despite all this -- yet, despite all this, in the

19 pre-election campaign, statements were made that Croats were exploited in

20 Yugoslavia. The armed rebellion led by the Croatian leadership was a

21 crime against peace. This was an effort to break up a sovereign state,

22 Yugoslavia, a state of peace turned into a state of war, causing great

23 damage. The worst damage was suffered by the Serb population in Croatia,

24 and this population was not the victim of one extremist speech, individual

25 extremists in the HDZ or in the Croatian political leadership. The cause

Page 11287

1 for their suffering and their ordeal was a widespread campaign to declare

2 Serbs bandits, the factor that causes the disturbance, people who had to

3 be eliminated.

4 You heard Defence (redacted)

5 (redacted) Zagreb because of threats that he would be killed.

6 You heard witness MM-90, the Minister of Justice and Administration, a

7 judge from Knin and Drnis who had to flee Drnis in 1990 because he was

8 told to flee. We can no longer guarantee that you will live or keep your

9 job. Your family can stay until the end of the school year. This was in

10 May, so the school year ended in June.

11 MR. WHITING: I'm sorry to rise, but Mr. Milovancevic mentioned

12 the name of one of his own protected witnesses. It's at line 16 of page

13 37.

14 JUDGE MOLOTO: Mr. Milovancevic, apparently the person you

15 mentioned at line 16 of page 37 is a protected witness, and he is a

16 Defence witness.

17 MR. MILOVANCEVIC: [Interpretation] Your Honour, I merely gave the

18 pseudonym, but I may have given some details that could lead to his

19 identification. But these are personal details. I'm not opposed to the

20 redaction, so I agree. Let us not waste any time.

21 JUDGE MOLOTO: We shall then take out line 16 of page 37.

22 You may proceed.

23 MR. MILOVANCEVIC: [Interpretation] Defence witness Branko Popovic,

24 who's been a lawyer in a bank. He's worked there for 25 years. You've

25 seen him. He's a lawyer. He's a calm person. He was a founder of the

Page 11288

1 SDS, together with Mr. Raskovic and Mr. Dobrijevic. He testified about

2 the persecution campaign. The Prosecution said, Where does it say in a

3 declaration signed by 20.000 people from Sibenik, where does it say

4 persecution; yet this was a document made in the heart of Europe. This is

5 a declaration that is signed. This is something that is covered by the

6 Croatian press TV. Witness Licina said that this was discussed in the

7 Croatian parliament. We showed exhibits to this effect.

8 This declaration says, You are not wanted. It would be good for

9 you to disappear. As a result, he had to leave his job. Jovan Raskovic

10 had his employment terminated. Dobrojevic suffered the same fate. Yet,

11 the consequence -- the consequences are much worse. I'm talking about the

12 system. I'm talking about the intent. This is how the Croatian

13 population was being indoctrinated, to be hostile towards this minority

14 population in its territory. Serbs are evil they are Chetniks. All evil

15 may be used against them. This is in fact what happened. All means were

16 used and let's see how they were used.

17 Prosecution witness Dzakula says, "The pre-election campaign run

18 by the HDZ," so we're talking about May 1990, "could be qualified as

19 nationalist in relation to Serbs." Serbs were particularly upset. They

20 felt fear, and this engendered a response among the Serbs. But you see,

21 Your Honours, the Prosecutor allegation that the criminal Serb leaders,

22 the Knin leadership, the alleged criminal Mr. Martic, created this

23 exaggerated fear among Serbs to get support for their ideas. Yet, the

24 first witness to appear in this courtroom, the Prosecution witness, says

25 that at the election, almost the entire population of Serb background

Page 11289

1 voted for a party led by Ivica Racan, and this witness goes on to explain

2 why it is so.

3 And he says they expected this party, with the Croatian

4 politician, Racan, at its head, to ensure a joint future, a joint life for

5 Serbs and Croats in Croatia. This was the expectation that the Serbs had

6 when they gave their vote to the SDP party. They expected this, yet they

7 were betrayed. They wanted, they expected to live in their common state,

8 Yugoslavia; that Croatia would not secede from Yugoslavia. This is what

9 they expected Ivica Racan's party to advocate, to do. They expected that

10 they would remain a constituent people in Croatia. They expected that the

11 HDZ would not turn them into a national minority. They expected that they

12 would be protected and that they would not be fired simply because of

13 their ethnicity. And they were, in particular, concerned by the new

14 symbols that were introduced in Croatia. This caused a particular concern

15 and worry among them, and witness Dzakula goes on to explain that horrible

16 crimes were committed in World War II under the same flag.

17 In paragraph 3 of his final brief, the Prosecutor says, We're not

18 talking about the period between 1941 and 1945. Do you know why he says

19 that? Because failure to mention the terrible crimes that were committed

20 against the Serbs in the independent state of Croatia by the Ustasha

21 authorities is the only way in which the Prosecutor can build this

22 fabrication about this unfounded, irrational fear on the part of the

23 Serbs. I don't know what to use to illustrate this to the Prosecution.

24 Imagine a situation in France, the Netherlands, Poland, England,

25 if you had a government in 1990 that would suddenly declare our flag is

Page 11290

1 the flag with the swastika that was used by Hitler. And everything is

2 suddenly turned on its head because this is a flag that is the symbol of

3 the crimes. Today you have a response, even if just a small Nazi flag

4 appears somewhere. And now this is the situation that we had in Croatia.

5 This is not -- the Serbs were not opposed to it because it had been an

6 ancient symbol used by Croats. Witness Dzakula said, My grandparents were

7 killed. They were put in concentration camps under this flag. Exhibit 3

8 confirms how many people were killed under that flag. And the Prosecutor

9 says, Well, what's wrong with this flag? Well, let him try and

10 re-establish Hitler's flag in his own country and then let us see what the

11 response would be, both by the population and by the authorities.

12 Parallel to this pre-election campaign that Prosecution witness

13 Dzakula said was a nationalistic one, he went on to say that the HDZ

14 proposed a new constitution where Serbs will become an ethnic minority.

15 The living conditions deteriorate for Serbs in their everyday lives; in

16 the schools, in the hospitals, in the administration. Serbs are being

17 fired or they are forced to go into premature retirement because they're

18 Serbs. So we're talking about 1990. Serbs were upset. Serbs were

19 afraid, witness Dzakula said. And the Prosecutor acts as if he, himself,

20 had not called this witness at all.

21 Defence witnesses confirm all such statements made by this

22 Prosecution witness. And the Prosecutor pretends that this was not so and

23 he harps on his argument that this fear was unfounded, asking the

24 witnesses such questions. But before asking our witnesses about this

25 fear, let us see what Prosecution witness Dzakula says about this fear and

Page 11291

1 the response on the part of the Serb population.

2 This is what he says. In the pre-election campaign at the very

3 beginning, in 1990, Tudjman spoke about the independent state of Croatia,

4 the Second World War state, as an expression of the historical aspirations

5 of the Croatian people. The most powerful politician in Croatia, its

6 president, publicly states - witness Dzakula says - that he is happy that

7 his wife is neither a Jew or a Serb. And the Prosecutor then cynically

8 asks, Did you ever hear any public threats of genocide? I cannot describe

9 this in any way, apart from an announcement of evil, that evil would come

10 about.

11 The witness confirmed that he knew about General Spegelj and his

12 plans for an armed rebellion, and he confirmed, page 485 and forward, that

13 General Spegelj said - so I'm quoting Prosecution witness Dzakula -

14 there's nothing more for the army here. And let me remind you, the army

15 he is talking about is the JNA, the regular armed force. This is October

16 1990. I'm trying to trace the origins of the armed rebellion. It will be

17 completely destroyed, Spegelj said, according to witness Dzakula. I

18 designated five people per each officer. We will eliminate them

19 physically. Somebody would knock on their door, the door opens. Witness

20 Dzakula illustrates Spegelj words by saying, Bang, bang, bang. A pistol

21 would be fired, then the man would walk down the stairs. The JNA officers

22 were to be killed on their doorsteps. Not a single JNA officer will reach

23 the barracks, Martin Spegelj, the Minister of Defence of Croatia, a former

24 JNA general, stated in that year, and yet the Serbs are alleged to have

25 been terrified without any cause.

Page 11292

1 There was to be a war with no mercy for anyone, either for women

2 or for children. Shells would be fired into homes. The problem of Knin

3 would be resolved with a massacre. In October/November 1991, Croatian

4 minister in the new independent state of Croatia under Tudjman's

5 leadership was saying these things, according to Prosecution witness

6 Dzakula. At that time Croatia was a federal unit of Yugoslavia, and the

7 ZNG could not exist legally under the constitution. He goes on to explain

8 that the ZNG, the National Guards Corps, was the embryo Croatian army, a

9 formation established by Tudjman. So it is quite clear who was organising

10 and leading an armed rebellion. The ZNG in early 1991 was founded at a

11 time when only the JNA and the TO were permitted to exist as armed forces

12 on the territory of Yugoslavia, which included Croatia.

13 This witness also explained that after the elections and the

14 victory of the HDZ and the inauguration of the new government in 1990,

15 preparations were set in place for a new constitution to be adopted. More

16 and more was said against Yugoslavia and against the Serbs. Serbs were

17 dismissed from their jobs. Serb policemen were retired prematurely so

18 that new Croat policemen could be employed, and then the Serbs responded

19 by self-organising. They held a rally Serb. They tried to use political

20 means.

21 The rally demonstrated the declaration of the historical right of

22 the Serbs to self-determination and to continue living in the Republic of

23 Croatia on their national and ethnic territories. Together, with the

24 Office of the Prosecutor, we agreed on the fact that the SAO Krajina was

25 an autonomous area within Croatia in December 1990, when it was

Page 11293

1 promulgated, and that Croatian laws were implemented on its territory;

2 whereas, the Prosecutor says that Martic and others were preparing for the

3 secession of Krajina from Croatia and its accession to Serbia.

4 In this indictment, the Prosecutor claims there was a joint

5 criminal enterprise with the aim of establishing a single state under Serb

6 domination which will be cleansed of all non-Serbs through crimes. This

7 is an argument that the Prosecutor gave up in the Milosevic case. The

8 Prosecutor said, Gentlemen, we have joined three indictments because of

9 your thesis on a Greater Serbia; and his direct response was, I never

10 charged Mr. Milosevic with Greater Serbia. And what is the Prosecutor

11 doing here? He is charging both Milosevic and Martic with the idea of a

12 Greater Serbia; however, we will deal with this a little later.

13 What I have said so far is only a small segment from the

14 Prosecution evidence testifying to the atmosphere of fear that existed on

15 the territory of Croatia. Witness Ljubica Vujanic testified that she

16 attended a meeting with Mr. Babic, and she was shocked to hear the Serbs

17 from Western Slavonia speaking about people going missing. Prosecution --

18 Defence witness --

19 THE INTERPRETER: Interpreter's apology.

20 MR. MILOVANCEVIC: [Interpretation] -- Dobrijevic spoke about Serbs

21 going missing and 611 people being killed in Sisak. Exhibits 1013 and

22 1014, introduced through witness Dobrijevic, showed that Amnesty

23 International in 2003 spoke about a systematic persecution campaign in the

24 area of Sisak in which people went missing, were killed, were abducted, or

25 threatened, only because they were Serbs. According to Amnesty

Page 11294

1 International this was being done by the Croatian army and police, and no

2 one was brought to trial because of this.

3 The document shows that the campaign of terror in Sisak is only

4 one example illustrating the widespread campaign against the Serb

5 population on the entire territory of Croatia. This was stated by Amnesty

6 International in Exhibits 1013 and 1014. This campaign was directed

7 against Serbs who disapproved of the independence of Croatia. The Serbs

8 did not approve the independence of Croatia, and all the witnesses have

9 stated this because they were afraid that the crimes committed in the

10 independent state of Croatia would be repeated. The Prosecutor, however,

11 says they had no reason to fear.

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted) when asked by the Prosecutor who threatened to kill him, spoke

17 about the campaign that was being waged in Croatia. He said a man from

18 the HDZ said, I cannot guarantee you your life or your many job; flee.

19 And he said that he fled from Knin. He said that there was slogans at

20 every step: Kill the Serbs.

21 He said that songs were being sung, songs with lyrics such as: We

22 Croats do not drink wine, rather, we drink the blood of Serbs from Knin.

23 Imagine an atmosphere in which it was possible to sing such songs in

24 public. Not only were the authorities permitting this, because such

25 things are sometimes difficult to prevent, but that they illustrate the

Page 11295

1 mood of the Croat population. Witness Nada Pupovac spoke about a song,

2 the lyrics which were: My little knife in a red case, you are thirsty for

3 the blood of Serb livers.

4 Witness Dragisic spoke about attending a football match or a

5 soccer match from which he fled because the entire audience was yelling:

6 Kill the Serbs. Witness MM-90 said he was not afraid of Croatian

7 independence, but rather of crimes and of evil. He was afraid of a state

8 that would be able to commit crimes. When asked by the Prosecutor whether

9 someone announced that there would be a genocide, the witness said that

10 Tudjman wrote in his book that in peripheral areas genocide is useful. We

11 tendered into evidence the statute and platform of the HDZ, where Tudjman

12 said that the independent state of Croatia was not solely a

13 [indiscernable] state - this is the state that existed from 1941 to 1945 -

14 but it was an expression of the historical aspirations of the Croatian

15 people.

16 And he speaks of the ideas on which the HDZ platform is based,

17 referring to Ante Starcevic, a Croatian politician who was the author of a

18 racist theory, saying that a third of all the Serbs in Croatia should be

19 killed, a third should be expelled, and a third should be re-baptised into

20 the Catholic church. The witness was asked who was saying there would be

21 genocide, but the leader of the Croatian state was saying that the

22 platform of his party was based on the ideas of Ante Starcevic, who he

23 refers to as the father of the Croatian nation.

24 All this shows that the fears were realistic. And in these

25 documents, 1013 and 1014, Amnesty International confirms that a hundred

Page 11296

1 people went missing in this campaign against the Serbs. Witness

2 Dobrijevic claims that he has a list of 611 people, and he was upset that

3 we did not tender this list to the Chamber. Amnesty International

4 confirmed that on the 21st of August, 1991, a Croatian punitive expedition

5 went through the villages of Trnjane, Cakale, Bestrma, and in Banija

6 shooting and killing 21 villagers.

7 We are not saying this, Your Honours, in order to justify any

8 crimes, if such crimes were committed, as the Prosecutor claims, by a

9 second, third, or fourth party. What we are doing now is challenging the

10 Prosecutor's case that there was a JCE and that the fear was caused by

11 manipulation, that it was exaggerated, that it was unfounded, and that

12 these were just individual extremists.

13 Kirudja, a Prosecution witness, testified that in meetings with

14 the Croatian leadership, the Croatian Ministry of Defence, he was

15 constantly being told to tell the Serbs that the long Croatian arm and

16 Janko Bobetko would get them. When you look at all this, the Serbs

17 organised in the Krajina area - and let's not go into detail again - was

18 due to reasons explained in detail by Defence witnesses, by (redacted)

19 witness, also by MM-90, by Dzakula who was a Prosecution witness. They

20 all confirmed that this was a response to the autism of the Croatian

21 authorities, who responded to requests to have cultural autonomy to state

22 terrorism and who sent troops who disarmed regular police stations of the

23 MUP of Croatian which were located in majority Serb areas.

24 According to Exhibit 1.005, these confiscated weapons were

25 distributed to the Croatian population in Obrovac, Benkovac, and Zadar.

Page 11297

1 Exhibit 1.005 is a letter of protest written by 122 policemen from the

2 Zadar SUP of both Croat and Serb ethnicity, because in October 1990 such

3 things were happening. In a multi-ethnic milieu when you arm a single

4 ethnicity, the majority population and organise a rebellion, the minority

5 population can only feel fear and expect evil, as confirmed by witness

6 MM-90. Everything that was done by the Serbs says witness (redacted), a

7 Defence witness, was a logical response. He says we were ex-communicated.

8 The Croatian population in Croatia was basically killed as far as their

9 civil rights went. --

10 THE INTERPRETER: The Serbian population, interpreter's

11 correction.

12 MR. MILOVANCEVIC: [Interpretation] They lost their rights to

13 education and all their other rights, and they had to self-organise in

14 order to survive. These were the Krajina organs, and these were the

15 actions presented by the Prosecutor as the implementation of a joint

16 criminal enterprise.

17 MR. WHITING: I'm sorry. There's been another reference to a

18 protected Defence witness by name. It's at page 47, line 8. It may also

19 be at page 46, line 20. I didn't catch it and it's unclear on the

20 transcript.

21 JUDGE MOLOTO: Mr. Milovancevic, can we ask you to please remember

22 not to mention witnesses by name. Shall we please --

23 MR. MILOVANCEVIC: [Interpretation] I did not mention any protected

24 witness by name, Your Honours. Show me where this is. I'd like to see

25 it. MM-90 is a protected witness. I mentioned him only by pseudonym.

Page 11298

1 I'm not aware. Excuse me, I'm not aware of having mentioned someone.

2 JUDGE MOLOTO: Mr. Milovancevic, we are not fighting. Just ask to

3 be shown and we've got to do a lot of work to do.

4 MR. WHITING: I'm sorry. It's right after the reference to MM-90.

5 "Everything that was done by Serbs says witness," and there is the name.

6 It's of line 7 of page 47 -- it's line 8 of page 47.

7 JUDGE MOLOTO: "Everything that was done by the Serbs," yes, and

8 there is the name.

9 And you said what page again, Mr. Whiting?

10 MR. WHITING: I think it also appears the previous page at line

11 20, page 46, line 20.

12 JUDGE MOLOTO: Yes, okay. Shall we redact that name as it appears

13 at page 46, line 20 and at page 47, line 8. And can we also look at page

14 44, lines 18 to 22. Yes. At page 44, if you listen to what we're

15 talking about, Mr. Milovancevic, then you will be able to contribute

16 positively. At page 44, line -- starting from line 18 you say: "Excuse

17 me," and you mention them by pseudonym, and then you mention his position

18 and another position and --

19 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. Yes, I

20 agree.

21 JUDGE MOLOTO: Right. Okay.

22 Now, can we also redact, therefore, page 44, lines 18 to 22,

23 including the -- yes, up to line 22. The entire line up to 22, okay, in

24 addition to the other lines that were suggested by Mr. Whiting. Thank you

25 very much.

Page 11299

1 You may proceed now, Mr. Milovancevic.

2 [Trial Chamber confers]

3 MR. MILOVANCEVIC: [Interpretation] Everything said by the

4 Prosecutor in their final brief and closing arguments about the events in

5 Pakrac, Plitvice, Borovo Selo happened contrary to what their witness

6 Dzakula said. Dzakula said that in Pakrac, in the existing police

7 station, they sent newly inducted policemen armed with automatic rifles;

8 and that president of the municipality, together with the then-chief of

9 police, decided to disarm them because at the time when there was no

10 conflict they carried constantly automatic rifles on them.

11 When that was done, Croatian policemen came in APCs and opened

12 fire. Prosecutor depicts this event differently, even though their own

13 witness gives contrary evidence. Witness Dzakula also explained that at

14 Plitvice an armed incident broke out on the 31st of March, 1991,

15 completely ignoring the fact by Mr. Dzakula that on the previous day, the

16 leadership of SDS decided to have negotiations with the Croatian side.

17 And the response to such a message of Serbs was an incursion on a

18 religious holiday, when that is not expected, when that is a blasphemy.

19 Witness Dzakula says, I took part in negotiations. At that time the

20 future president of RSK, Hadzic, was arrested and badly beaten.

21 Witness Dzakula says I took part in negotiations to have the Serb

22 roadblocks from Borovo Selo removed. In negotiations with Croatian

23 authorities, this is when it was done, and Serbs agreed to that. And

24 after that, after the incursion, a conflict broke out and the JNA had to

25 intervene, to separate them. And the Prosecutor says that this is

Page 11300

1 evidence of the existence of JCE, that Martic sent his own men to attack

2 Croatian MUP. Unbelievable.

3 Witness confirmed that on the 5th of May, 1991, Tudjman appealed

4 to the population to rebel against the JNA; and that on the following day,

5 following mass demonstrations, a JNA soldier was strangled. Witness said

6 that he heard of mass disappearance of Serbs from Sisak; that in October

7 of 1991 in Pakrac, Korana, and Marino Selo - and this is something the

8 Prosecution has known for a long time - camps were established to

9 liquidate Serbs. Serbs were brought from other towns. Serbs were brought

10 there and brutally killed there. Serbs from Zagreb and other towns in

11 Croatia were brought there.

12 On page 529 of the transcript, Prosecution witness Dzakula says

13 that they were brought there without any arrest warrant, without any legal

14 foundation, and killed simply because they were Serbs. It confirms the

15 exhibit we saw earlier, 926, about the Korana bridge. He says, on page

16 533 of the transcript, that he was an eye-witness of the events in Western

17 Slavonia in October, November, and December of 1991. The Croatian police

18 attacked that area, killing the population. He confirmed allegations and

19 the report that in municipalities Daruvar, Podravska, Slavina, Grubishino

20 Polje, Pakrac, Okucani from October to December 1991, 4.118 Serb houses

21 were destroyed, 27 churches.

22 He confirms that in 1991 in the territory of Croatia, over 80 Serb

23 churches were destroyed. He confirms the document of the crisis in

24 Slavonska Pozega ordering the Serb population to leave their villages, to

25 take money and valuables and leave. He confirms, saying that those who

Page 11301

1 had left and didn't fall into Croatian hands were alive, and the villages

2 were burned down together with anyone remaining there. He says that on

3 pages 537 and 538 of the transcript.

4 Do you hear what the Prosecution witness says, Your Honours?

5 Terrible crimes, terrible crimes against international humanitarian law

6 were committed in the territory of Yugoslavia in 1991, as evidenced by the

7 Prosecution witness. Did the Prosecutor ever prosecute anyone for this?

8 And they are duty-bound to do that on the basis of the charter

9 establishing this Tribunal. Why are they saying that the Defence is using

10 tu quoque thesis incorrectly?

11 This Defence witness said that he signed Daruvar agreement with

12 witness (redacted); that pursuant to this agreement there was to be a

13 rationalization in lives, small steps aimed at re-establishing mutual

14 confidence.

15 Would you please redact this sentence. I mentioned a name.

16 JUDGE MOLOTO: Page 51, line 11 --

17 THE INTERPRETER: Microphone, please.

18 JUDGE MOLOTO: Page 51, line 11, can that line please be redacted.

19 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours.

20 JUDGE MOLOTO: You're welcome, Mr. Milovancevic.

21 MR. MILOVANCEVIC: [Interpretation] I regret this.

22 Witness Dzakula explained that contrary to the agreement, the

23 Croatian side disclosed the agreement, even though they weren't supposed

24 to do that; and that they amended the text of the agreement, giving a

25 false announcement that the Serbs had agreed to re-integrate in Croatia;

Page 11302

1 that they had agreed to a peaceful re-integration, which then produced a

2 reaction among the Serb population, among the Serb politicians, who

3 believed this to be a treason. And it's quite logical to such an act

4 would constitute treason, but what the Croatian side publicised was not

5 the text of the Daruvar agreement.

6 And by doing so, they achieved two things. First, they reneged

7 the agreement, and then they accused the Serbs of not implementing it.

8 And in this particular case, Mr. Martic was accused of arresting Mr.

9 Dzakula and the other person signing the agreement, I don't know his

10 pseudonym right now, and that he did that only because they wanted to

11 negotiate with Croatians, which is a blatant lie.

12 The witness who was arrested together with Dzakula -- I'll try to

13 find his pseudonym now. I'm not being successful and I do not want to

14 waste any more time. So the witness who signed the agreement, who was

15 arrested together with Dzakula - and during the break I'll look up his

16 pseudonym - this witness confirmed that he learned subsequently that he

17 was not arrested by Martic. The Minister of the Interior was not the one

18 to blame for his arrest, that it was a case of some other settling of

19 accounts, and that he wrongly believed that Martic was behind his arrest.

20 And this is the belief that was shared by Mr. Dzakula as well. He

21 believed that -- actually, this is Defence witness 105.

22 He believed this only because he was erroneously convinced -- I

23 think that I made a mistake. This is witness 75. So witness MM-75

24 explained that he erroneously believed that Martic was to blame for his

25 arrest, and he held this erroneous belief because he was convinced that

Page 11303

1 the reason was his opposition to the peaceful agreement. Many witnesses

2 confirmed that the Serbs constituted a minority, that they were poorly

3 armed, and threatened.

4 Witness Barriot said that there was a general deficit of all

5 supplies; medical supplies, pencils for school, electricity. There was

6 nothing, nothing whatsoever. Witness Barriot said a truth that obviously

7 doesn't agree with the Prosecutor; that under those circumstances, with so

8 many supplies lacking - and he was an eye-witness to that as a French

9 officer in Glina - that under those circumstances, the Serbs provided

10 their last blood supplies to Muslim patients who had fled Bosnian

11 territory in order to avoid serving in the Bosnian army of Alija

12 Izetbegovic.

13 Witness A confirmed that he was in Knin, in Glina, in hospitals

14 there were Croats were employed as staff members, that he travelled

15 throughout Knin to the most-distant villages. And he never saw any hatred

16 or intolerance exhibited towards Croatian population, that that was not

17 the population he came across in the field.

18 Why am I saying this in relation to the armed rebellion and what

19 happened in 1991? I'm saying this because I want to show that the OTP

20 claims that the population had irrational fear generated by the propaganda

21 of hate and then responded to that. I want to show that such claims were

22 denied by whole myriad of documents. The Prosecutor mentioned victims

23 yesterday, Ante Marinovic and Jasna Denona who were victims of the tragic

24 event in Bruska. The Prosecutor claims that he knows who the perpetrator

25 is. Jasna Denona was told by the person who came there that this is

Page 11304

1 police, and this is evidence enough for the Prosecutor that this is Martic

2 police.

3 I will ask if this is normal and logical for the person who comes

4 to kill somebody to give his name and affiliation. If indeed a policeman

5 was a murderer, then the police would find such a person, and that is not

6 the case, Your Honours. This bandit, this monster, who had come to kill

7 ten people, just looked for the easiest way to have the door opened to

8 him. It was dark. This was in Bruska. It was a distant, remote village,

9 where people do not easily open their door at night. But if you tell

10 anyone on earth, This is police, open the door, naturally they will open

11 the door.

12 I'm reminding you of this tragic event because this is a good

13 illustration of how the Prosecution construct their indictment. It is

14 indisputable that these people were victims. They didn't testify about

15 the joint criminal enterprise.

16 JUDGE MOLOTO: Can I ask you a question. Do we have evidence to

17 the effect that this person masqueraded as a policeman or is this your

18 interpretation?

19 MR. MILOVANCEVIC: [Interpretation] Your Honours, the Prosecutor

20 must prove that this person was a policeman. It is not up to me to prove

21 that he was not. It is enough for me to cast doubt. I'm just saying that

22 it's a logical presumption --

23 JUDGE MOLOTO: Sorry, Mr. Milovancevic. We understand the

24 obligations of the Prosecution. We also understand the obligations of the

25 Defence not to manufacture evidence during argument. Okay. Now, I'm

Page 11305

1 asking you a very simple question. I'm not asking you about the

2 obligations of the Prosecutor. I'm asking you about your obligations. Do

3 you have evidence to the effect that this person masqueraded as a

4 policeman when in fact he was not?

5 MR. MILOVANCEVIC: [Interpretation] We have indirect evidence, Your

6 Honours, and that's what I was about to speak of. These two surviving

7 victim, Jasna Denona who was greatly injured and Ante Marinovic with five

8 or six gun-shot wounds went to a Serbian village to seek assistance and

9 then called the ambulance and he was transported to the Knin hospital.

10 Both victims claim that they were provided maximum assistance, all of the

11 necessary treatment, that police went to conduct on-site investigation and

12 talk to her. And this is the circumstantial, indirect evidence that

13 speaks of the attitude the Serbs had towards Croats, and that leads us to

14 a conclusion that the story about the policeman as a perpetrator is

15 completely uncorroborated by any serious piece of evidence. There is

16 none, in fact.

17 JUDGE MOLOTO: Mr. Milovancevic, I am stretching my imagination as

18 far as I possibly can. I am trying to find out how the hospitality of

19 Serbian people is an indirect confirmation that the person who attacked

20 was masquerading as a policeman. But anyway, that's your submission.

21 Carry on.

22 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours. What

23 I wanted to say was Jasna Denona and Ante Marinovic, as victims and

24 Prosecution witnesses, directly deny the claim of the Prosecution that

25 Martic and his entourage that stands accused with him generated among

Page 11306

1 Serbs a fear of Croats, and that then he transformed this fear into hatred

2 of Croats and intolerance. These two gravely injured victims are a

3 testimony of the Serb attitude towards Croats, of the fact that policemen

4 went to conduct an on-site investigation. The Serbs kept Jasna Denona in

5 their village for a year in a completely armed village and she was save

6 there.

7 The Prosecutor does an incredible thing there. He mentions an

8 incident in the Knin hospital when somebody comes in an uniform, and we

9 should believe Ante Marinovic, the victim. Why should he invent this? So

10 somebody comes and says, This Ustasha should be killed. And this is

11 enough for the Prosecutor to make inferences on the existence of the joint

12 criminal enterprise.

13 At the same time, they failed to mention to you, Your Honours,

14 what the same witness said, that a Serb doctor who saved this victim's

15 life kicked out this scoundrel from the hospital. This is the attitude of

16 the medical staff in this particular case, for which credit should be

17 given to Mr. Martic as a member of the government cabinet, because this

18 illustrates the attitude of the population towards Croats and those who

19 threatened them.

20 Prosecution witness Dzakula confirmed the events in the Medak

21 pocket and the statement made by General Jean Cot, the scorched earth

22 policy. Prosecution witness Dzakula confirmed that the reason why Medak

23 pocket operation was launched was in fact the political situation. The

24 negotiations that were announced with the Croatian side. Defence witness

25 Jarcevic spoke about that, too. So we have a representative of the

Page 11307

1 UNPROFOR to talk with us and we get the report that Croats had launched an

2 attack.

3 A Defence witness says this and perhaps he should not be trusted,

4 but this is Kort Bolevik [phoen] speaking. And witness Kirudja said that

5 at that time Croatia wanted to deny hospitality to UNPROFOR and to

6 undermine the cease-fire agreement that was prepared and signed on the

7 Invincible, the destroyer; yet the Croatian side kept accusing the Serb

8 side of wanting to undermine the agreements and wanting to actually engage

9 in war. 30.000 armed Serbs wanted to inflict a military defeat on the

10 heavily armed Croatian army that had 200.000 people under arms and six

11 brigades at that time, in 1991.

12 And as witness Kurudja explained, Croatia had a strong armed force

13 and was amassing weapons even at that time. Defence witness Barriot said

14 that the USA organised an armed Croatian army; that an NGO, MPRI, an

15 American NGO, that had its headquarters in the US embassy in Zagreb with

16 Ambassador Galbraith that is the man from the tank, that they were

17 instructing and arming the Croatian army, despite the fact that there was

18 an embargo on the impart of weapons. It was all run by the CIA.

19 JUDGE MOLOTO: [Microphone not activated]

20 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

21 JUDGE MOLOTO: [Microphone not activated]

22 THE INTERPRETER: Microphone, Your Honour, please.

23 JUDGE MOLOTO: On that CIA point, we take a break and come back at

24 half past 12.00.

25 Court adjourned.

Page 11308

1 --- Recess taken at 12.02 p.m.

2 --- On resuming at 12.29 p.m.

3 JUDGE MOLOTO: Are you taking over, Mr. Perovic?

4 MR. PEROVIC: [Interpretation] No, Your Honour. My colleagues, Mr.

5 Milovancevic, has left the courtroom for just a moment. Well, there he

6 is.

7 MR. MILOVANCEVIC: Please, my apologies.

8 JUDGE MOLOTO: Mr. Milovancevic, before you proceed, you made a

9 reference to something that was all run by the CIA before we broke up.

10 I'm not quite sure whether we have any evidence to this effect.

11 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. A Colonel of

12 the French army, a Defence witness, Patrick Barriot, who was a member of

13 the UNPROFOR, testified under oath that he had learned from French

14 military sources, UNPROFOR sources; and on the basis of his own

15 eye-witness testimony, that in fact he was able to ascertain that US NGO,

16 MPLI, was headquartered in the US embassy with Peter Galbraith as the

17 ambassador; that this was all run by the CIA; that in fact the USA used

18 two of the planes that took off from an aircraft carrier; that they

19 actually attacked the Udbina airport.

20 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. Just to

21 remind you, Mr. Milovancevic, you've got to finish today.

22 MR. MILOVANCEVIC: [Interpretation] Your Honour, it will be hard to

23 do, because I think that it would be very difficult for the Defence to be

24 cut off in its closing argument. You asked me for my estimate. I tried

25 to be honest. It would have been easy for me to tell you, Yes, I would be

Page 11309

1 done today. But I didn't want to do that because I wanted to be honest.

2 I will take measures to focus on those elements that are relevant for the

3 Defence, and I will try to be as efficient as possible. Thank you.

4 I would like to correct an error that I made at -- in the course

5 of my closing argument. I referred to a witness who signed the Daruvar

6 agreement together with Mr. Dzakula, and I did not know his pseudonym.

7 This is MM-105. I mentioned MM-115 and 75. I was mistaken on both those

8 when I did that. So the witness who signed the Daruvar agreement together

9 with Mr. Dzakula was witness MM-105.

10 You see, Your Honours, why did the Defence take so much time to

11 point to certain facts that we all heard here, the evidence that was led

12 in this courtroom? Simply to show to what extent the claims made by the

13 Prosecution about the existence of a joint criminal enterprise are, in

14 fact, contrary to the actual state of affairs. This is, in fact, a

15 distorted picture, a distorted approach that is taken out of its context

16 at the time and everything else.

17 The joint criminal enterprise, as presented by the Prosecution and

18 as charged by the Prosecution, is nothing but a construct. Now I want to

19 speak about something else. What are the key pieces of evidence for the

20 existence of JCE? The first one is definitely the testimony provided by

21 witness Babic. In the course of the cross-examination, this witness

22 committed suicide.

23 In this case a decision was made not to suppress his evidence,

24 although this -- such a decision has never been made. This has not been

25 practiced in the civilised world. A witness committed suicide during his

Page 11310

1 cross-examination. Mr. Babic, by the very fact of his suicide,

2 demonstrated that he had been disturbed, mentally disturbed. He could not

3 have been a witness before this Tribunal as such. The Parker Commission

4 noted that Mr. Babic had covered his face during his testimony, that he

5 had exhibited signs of nervousness. The security also noted that he would

6 drink water often and he was nervous, that he exhibited signs of anxiety,

7 that he felt that he was being exploited. And I wanted to point to one

8 fact.

9 Not suppressing the evidence of a witness that testified while he

10 was mentally disturbed leaves open the possibility that such a witness

11 remains a key witness against the accused. This has been highly

12 prejudicial to the Defence, and Article 21 of the Statute has been

13 violated; that's the article that states that both the Defence and the

14 Prosecution are entitled to question all witnesses under the same

15 circumstances. And this prejudice cannot be remedied in any way. Mr.

16 Babic had to be questioned about the circumstances that may have confirmed

17 or denied his way of reasoning, his confession, all the circumstances that

18 surrounded those events.

19 Now, in order to understand the Defence approach to the issue of

20 the status that should be accorded to Mr. Babic's evidence, we should

21 consider the following key facts. Radislav Maksic, a Prosecution witness,

22 said about Mr. Babic the following, that he had the power as the Prime

23 Minister over the Ministry of the Interior and that Martic was responsible

24 to Babic, that Babic and Martic did not communicate at all. That's page

25 1175 of the transcript.

Page 11311

1 Witness Maksic said that he had never seen them together, that the

2 two of them could not see eye to eye on any issue. The impression that

3 Prosecution witness Maksic got was that this was Babic's -- that Babic was

4 to blame for this. This is what witness Maksic said at page 1176 of the

5 transcript. Babic was an narcissistic person and was unable to accept

6 anyone's opinion apart from his own. As for Exhibit 132, Babic's decision

7 to remove from office General Djujic the commander of the Territorial

8 Defence in Krajina in which Babic states that he is removing him on

9 Djujic's own request because of Djujic's age and health problems, witness

10 Maksic said, testifying under oath, that Babic is lying. General Djujic

11 never submitted such a request. The real reason behind this is the

12 disagreement between Babic and Djujic.

13 Exhibit 128. Maksic says here that Babic's decision, as the Prime

14 Minister of Krajina government, on the appointment of this witness Maksic,

15 the commander of the TO, was made when Babic did not actually have the

16 power to do so. According to this witness, Babic did as he pleased, and

17 the witness went on to explain that he informed his command, the Federal

18 Secretariat of National Defence and that he was recalled back to Belgrade.

19 Ljubica Vujic is the next witness, Defence witness, who testified

20 about Babic. She had been a lawyer for a long time and she was the head

21 of the commission -- the electoral commission. She said after the

22 conflict in Plitvice, Babic made a decision through the Executive Council

23 about the annexation of Krajina to Serbia, that Babic himself did that

24 through Executive Council. She went on to say that Babic actually drafted

25 the text on the -- on the referendum paper, and she actually participated

Page 11312

1 in this. She went on to say that Milosevic was very angry. He was

2 opposed to the annexation. The only issue for him was the survival of

3 Yugoslavia.

4 Ljubica Babic [as interpreted] explained that, swayed by

5 Milosevic's anger, Babic amended the referendum question in such a way

6 that his text, Are you in favour of the annexation with Serbia. He added

7 the text, And the -- to

8 remain in Yugoslavia. And this witness confirmed that Babic did as he

9 pleased and that he went against Milosevic's wishes. This is Exhibit 144.

10 This is the decision on the referendum question.

11 Defence witness Ljubica Vujanic testified that as a member of the

12 commission empowered by the Republic of Serbian Krajina Assembly. She --

13 she then made this referendum question, this decision. She took this --

14 she took this decision with her to Belgrade, that Milosevic and the

15 Assembly did not want to even receive them and to accept this decision;

16 and yet the Prosecution claims that this was done, that Milosevic and

17 Babic did this in concert. And they did something -- one thing in public

18 and one thing in private.

19 Witness Lazar Macura, who is a teacher of English and Italian, a

20 translator, says that Babic, as the president of the municipality,

21 declared a state of war, which he could not have done. Only the head of

22 state can declare a state of war. A president of the municipality can

23 only declare a state of emergency. As regards the decision on the

24 referendum in April 1991, witness Macura confirms what Ljubica Vujic said

25 that Milosevic was opposed to Babic's view, that the referendum question

Page 11313

1 should pertain to the annexation to Serbia, and that the only thing that

2 Milosevic was in favour of was the question about remaining in Yugoslavia.

3 Witness Macura explicitly says that Milosevic did not want to hear about

4 any annexation with Serbia, yet Babic held his own.

5 And in the end, witness Macura says that when Babic formed the

6 Republic of Serbian Krajina government on the 29th of May, 1991, Milosevic

7 was again opposed to this. He was in favour of lower-level institution,

8 not the government; yet again Babic held his own. Witness Macura

9 confirmed that Milosevic was in favour of Vance's Plan and Babic was

10 opposed to it, that was the witness, and open conflict resulted. Witness

11 Macura says that Yugoslavia and Milosevic accepted the Vance Plan because

12 it did not want to become a victim of the conflict in Krajina, that

13 Yugoslavia -- it was quite clear to Yugoslavia that Krajina should, once

14 again, be part of Croatia, although this was not spelled out in the Vance

15 Plan.

16 Witness Macura confirmed that when talks were held about whether

17 to accept the Vance Plan or not, at the Yugoslav Presidency in Belgrade,

18 that's late January 1992, General Agic, the Chief of General Staff wanted

19 to strangle a member of the Krajina delegation, telling him, You, Krajina

20 riffraff. You want us to wage war against the whole world. These are

21 very harsh words that show the attitude of the top officers in the JNA

22 towards the Krajina leadership and the goals that the Krajina leadership

23 wanted to achieve, yet all this means nothing for the Prosecutor.

24 According to him, the presence of General Agic in Glina when the Assembly

25 rejected the -- accepted the Vance Plan shows that this was a joint

Page 11314

1 criminal enterprise, because Milosevic and the Krajina leadership do the

2 same thing. They accept the Vance Plan. There is a serious conflict with

3 logic here.

4 Witness Macura testified that the Yugoslav leadership, when it

5 discussed the acceptance of the Vance Plan, that they were in favour of

6 doing so because they had to accept it, because the Minister of Foreign

7 Affairs, Vladislav Jovanovic, the Yugoslav Foreign Minister, said that

8 they threatened that Belgrade would be bombed if we did not accept. And

9 the Yugoslav leadership did everything in its power to accept this plan.

10 The Prosecutor uses Babic to prove that Milosevic and Babic were acting in

11 collusion as part of the joint criminal enterprise, which is completely in

12 contravention to all these facts.

13 MM-78, a protected Prosecution witness, says about Mr. Babic, yet

14 another Prosecution witness, Babic's political ambitions bordered on

15 sick. But when he spoke about Mr. Martic, he said in Martic's behaviour,

16 they went to school together. He did not discern any signs of jingoism

17 or chauvinism or intolerance to Croats; and then in response to

18 Prosecutor's questions, he says that Martic cleansed Vrpolje, Potkonj,

19 Kijevo, that was all part of the plan.

20 We will see why this witness said all those things, but apparently

21 he let slip a sentence that was in fact true when he spoke about attitudes

22 -- Martic's attitudes towards Croats. And we heard what his attitude was

23 of Babic. His political ambitions bordered on sick. Milo Dradovesic, a

24 Defence witness, confirmed that Babic, as the president of the

25 municipality, declared a state of war; and that he called for a

Page 11315

1 mobilisation of the Territorial Defence on the very same day, despite the

2 fact that he was not in power to do so. This is something only the

3 Yugoslav Presidency could do. We're talking of August 1990. This man

4 wanted to be in command --

5 JUDGE HOEPFEL: Could you please slow down.

6 MR. MILOVANCEVIC: [Interpretation] Thank you for your warning.

7 JUDGE NOSWORTHY: There's a question that I wish to ask you. Who

8 constituted the Yugoslav leadership at this point?

9 MR. MILOVANCEVIC: [Interpretation] Your Honour, if you take into

10 account the situation in January 1992 when talks were held about the

11 deployment of UN troops in those areas, the collective Presidency of

12 Yugoslavia existed at the time, but representatives of Croatia left it at

13 that time. Because of the secession, we know that Stjepan Mesic, the

14 Croatian representative said, I have done my job. Croatia is no more.

15 The Slovenian representative also left because they had seceded.

16 The Macedonian representative also seceded because they also decided to

17 secede. And the BH representative was already there -- was still there,

18 even though there were problems in that republic. Even though it was a

19 Rump Presidency, it still had the authority to ensure law and order in the

20 overall territory of the republic for as long as it functioned and

21 existed.

22 JUDGE NOSWORTHY: You have got there by process of elimination, so

23 who is there left now at this stage for the record?

24 THE INTERPRETER: Interpreter's correction: Not Croatia is no

25 more, but Yugoslavia is no more.

Page 11316

1 MR. MILOVANCEVIC: [Interpretation] The Presidency of Yugoslavia

2 was the collective head of state. It was composed of representatives of

3 all the heads of state, and the representatives of two provinces that were

4 part of Serbia. Serbia, as the federal unit, was the only federal unit to

5 have two provinces. And these provinces also sent their representatives

6 to the Presidency. An ethnic Albanian representative of Kosovo was, in

7 fact, the president of the Presidency. So you had representatives of

8 Serbia, Montenegro, Vojvodina, Kosovo, and I'm not sure whether the

9 representative of Bosnia and Herzegovina was also on board. But I think

10 it was so because Bosnia and Herzegovina was in favour of the acceptance

11 of the Vance Plan and the arrival of UN troops. So this was the

12 collective head of state, the leadership of Yugoslavia, at that time.

13 JUDGE NOSWORTHY: Thank you very much, Mr. Milovancevic.

14 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

15 As witness Milan Dragisic said, not only did Babic illegally

16 declare a state of war, but after the first multi-party elections in April

17 and May 1990, Babic as the elected president of Knin municipality. With

18 respect to the existing municipal organ, which has a long name, he renamed

19 it the Council of National Popular Resistance, and he was its president.

20 Babic denied this.

21 Witness Dakic said about Babic that after the 16th of March, 1991,

22 all power was in his hands. He also testified that Martic, as a minister

23 of the MUP, was not more powerful than Babic; that this was impossible;

24 that Martic was only a civil servant in the Krajina government, far, far

25 below Babic in power and authority. And we were able to see this in the

Page 11317

1 Prosecution evidence when the subsequent representative or president of

2 the Krajina replaced a minister. This is elementary in the democratic

3 world.

4 Witness Dakic explained that Babic was the leading figure in the

5 government and that he could do whatever he wanted. A lot of this was to

6 the detriment of the Serb people. He also stated that both of them were

7 popular. Martic was also popular but that was because he was brave,

8 because he was a hero of the Serbian people. Martic's popularity was not

9 that of a politician, it was that of a hero. When he spoke about the

10 kinds of decisions Babic made to the detriment of the Serb people, witness

11 Mile Dakic explained that after the incursion of Croatian policemen in

12 Plitvice on to Serb ethnic territory, Babic personally on the 1st of

13 April, 1991, issued the fatal decision to accede to the SAO -- to annex

14 the SAO Krajina to Serbia.

15 Babic insisted on a referendum on the annexation of the Krajina to

16 Serbia. Unlike him, the Serb National Council was against the referendum

17 on annexation and desired a solution within Croatia. This meant nothing

18 to Babic, this witness explained. Because when he failed to gain the

19 support of the Serb National Council, he used the Executive Council of the

20 Krajina to implement what he wanted. We heard that Milosevic opposed this

21 vehemently. As for Milosevic's attitude towards Babic's decision, witness

22 Dakic says this referendum on the annexation of the Krajina to Serbia

23 caused great damage to the Krajina. Milosevic did not support the

24 referendum. As from that time, there was strained relations between Babic

25 and Milosevic. This was testified to by a man from the inner circles of

Page 11318

1 leadership in the Serb Krajina under oath.

2 This witness also said that three days later Babic, as the

3 president of the Knin Municipal Assembly, dismissed Lazar Macura as

4 commander of the municipal Crisis Staff. Witness Macura, whom we

5 mentioned just a while ago, mentioned that he was the vice-president of

6 the municipality. And when Babic wrongly declared a state of war, the

7 Crisis Staff should have been activated. Witness Macura explained that

8 after declaring a state of war, Babic fled. He fled into the mountains

9 and hid. He was not a hero, as Martic was.

10 Witness Macura, as the vice-president of the municipality, then

11 took over leadership of the municipal Crisis Staff, which was duty-bound

12 under the existing legislation to take over in such situations. And for

13 two days he was in charge of the barricades to ensure normal life in the

14 area. Babic testified to the very opposite of all this.

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 JUDGE MOLOTO: Do you, Mr. Milovancevic, really want to reveal the

24 identity of MM-90? You're telling us what positions he held, what -- I

25 don't want to repeat that. You see it yourself.

Page 11319

1 MR. MILOVANCEVIC: [Interpretation] Yes, I see it, Your Honour.

2 JUDGE MOLOTO: May we please have page 68, line 5 to 12 redacted.

3 And, Mr. Milovancevic, in the interests of economy with time, I

4 would suggest that you consider not just dealing with every little witness

5 as what he said, but deal with the issues at stake, the counts, and get

6 done with the job quicker. That way you'll finish today because the Bench

7 is not inclined to give you tomorrow to speak.

8 MR. MILOVANCEVIC: [Interpretation] Your Honours, I mentioned the

9 posts held by this witness to show that he was very close to Mr. Babic. --

10 JUDGE MOLOTO: That's fine. Just go ahead. The problem is you're

11 now identifying him.

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 JUDGE MOLOTO: Mr. Milovancevic, do you want us to redact that

19 what you've just said. You've told us he's close to Babic. Carry on.

20 We've seen what -- you've explained it. We will redact it. We will see

21 that he was close. What's wrong?

22 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

23 JUDGE MOLOTO: Can we please redact page 69, line 2 to 7.

24 Carry on, Mr. Milovancevic.

25 MR. MILOVANCEVIC: [Interpretation] The witness I referred to was

Page 11320

1 amazed by Babic's guilty plea, because it ran counter to everything that

2 happened on the ground. Either he was under the influence of drugs or he

3 had gone mad or there is a third explanation. The question arises as to

4 why and how Mr. Babic made that statement. In The Parker Commission

5 report, it says that after he pleaded guilty and was sentenced to 13

6 years' imprisonment - it was on the 29th of June, 2004 - Babic was

7 distraught and announced his suicide.

8 He said that to his counsel, and he repeated that subsequently.

9 More than once he told the administration of the Detention Unit that he

10 was being threatened by other prisoners, but a check revealed that this

11 was not correct; then he felt threatened by the neuropsychiatrist in the

12 Detention Unit, Dr. Vera Petrovic. Evidently, there was something wrong

13 with this man's health. His Defence counsel testified that he lost 15

14 kilogrammes in a very small space of time. So this witness's credibility

15 and ability to testify is in question. He felt used by the Prosecution

16 when he was brought to testify in the Martic case. That's what his son

17 said.

18 JUDGE MOLOTO: Do we have any medical evidence to tell us what

19 caused what you claim to have been either his madness or confusion or

20 whatever?

21 MR. MILOVANCEVIC: [Interpretation] Your Honours, the report of The

22 Parker Commission --

23 JUDGE MOLOTO: Thank you very much.

24 MR. MILOVANCEVIC: [Interpretation] -- which recorded statements

25 made by Babic to counsel that he was going to commit suicide. It is a

Page 11321

1 fact that on two occasions he mentioned that he would kill himself.

2 JUDGE MOLOTO: May I interrupt you. The Parker Commission is not

3 medical evidence. If that is the only evidence you are referring to, you

4 may continue.

5 JUDGE HOEPFEL: I do have another question. To what do you refer

6 when saying that Babic said to the -- told the administration of the

7 Detention Unit that he was being threatened by other prisoners, but a

8 check revealed that this was not correct? What check do you mean? What

9 do you mean by "revealed?"

10 MR. MILOVANCEVIC: [Interpretation] Your Honours, on pages 6 and 7

11 of The Parker Commission report, it is stated that on the 30th of August,

12 2004, Babic's Defence counsel raised the issue of his security because

13 Babic had said that he was being threatened and attacked in the Detention

14 Unit, whereas on pages 6 and 7, The Parker Commission states that Mr.

15 McFadden carried out an investigation and there was no confirmation that

16 Babic had been threatened, that the medical staff observed that Babic was

17 very nervous after being found guilty.

18 On page 7 it says that counsel Miller said on the 30th of

19 September, 2004, that Babic had lost a lot of weight very suddenly, that

20 he was concerned about the intentions of the psychiatrist in the UN

21 Detention Unit, Dr. Vera Petrovic, that he was concerned for his safety.

22 He mentioned that again on the 17th of December, 2004 --

23 JUDGE HOEPFEL: What you answered to me was slightly different

24 from what you said before, that a check had revealed that the threats --

25 the alleged -- the allegations of the threats by other prisoners were not

Page 11322

1 correct. Now you said it was not confirmed. I wanted to clarify that.

2 Please go on.

3 MR. MILOVANCEVIC: [Interpretation] Your Honours, I may have spoken

4 imprecisely, I apologise. I just wanted to point to the findings of the

5 commission, which show that Babic was complaining of threats but that

6 investigations show that these threats were nonexistent or unrealistic.

7 JUDGE HOEPFEL: No, you are turning around what is in the report.

8 The investigations didn't confirm it. They didn't show that allegations

9 were incorrect.

10 MR. MILOVANCEVIC: [Interpretation] On pages 7 and 8 of the Parker

11 Commission report, it says that McFadden carried out an investigation and

12 found no confirmation to corroborate Babic's statements that he was being

13 threatened. That's what I was referring to.

14 JUDGE MOLOTO: What Judge Hoepfel is saying to you is that to find

15 no confirmation can be credited to saying that what is alleged is

16 incorrect. You said a check revealed that what he alleged was incorrect;

17 that's not the same thing as finding no confirmation. Okay.

18 MR. MILOVANCEVIC: [Interpretation] I accept that. I apologise.

19 JUDGE MOLOTO: Please continue, Mr. Milovancevic .

20 MR. MILOVANCEVIC: [Interpretation] Parker's Commission found on

21 the 22nd of February, 2006, a day before the relocation of Babic's family,

22 Babic expressed extreme concern about these issues. Babic's concerns

23 became more profound because of the problems experienced by his family in

24 the course of their relocation while he was testifying. Why did I mention

25 all these facts? We asked the Court to deliver to us a copy of the

Page 11323

1 original statement, because every fact concerning Mr. Babic's health is

2 very important to us in view of our standpoint regarding his health.

3 What is important for the Defence is the following: As of August

4 2004, shortly after his sentencing following a guilty plea, the guilty

5 plea was made while he was staying in a private house, a private home

6 until his sentencing on the 1st of December, 2003. From the 1st of

7 December, 2003 to the 29th of July, 2004, he was staying in a private

8 home. A member of his family stated that he was visibly upset on his

9 arrival here because he felt that the Prosecution was using him. The fact

10 that Babic committed suicide indicates that he was distraught. A person

11 does not put a nylon bag over their head and a belt around their neck if

12 they are emotionally stable. It is, therefore, not clear to the Defence

13 how it is possible that the defence of an unstable and distraught person,

14 or rather, the testimony of an unstable and distraught person should be

15 taken into account.

16 If the Defence did not have access to this witness, which it did

17 not, how could the witness have been upset and agitated? Who could have

18 exerted pressure on him? Could it have something to do with the

19 Prosecution? At a time when he was testifying in the Martic case, that

20 was the time when the problems of his family were being dealt with. These

21 are questions that the Defence wishes to raise, and yet the testimony of

22 such a witness has been tendered into evidence and accepted by the

23 Chamber.

24 When it comes to the status of Babic and the joint criminal

25 enterprise issue, there's something that needs to be said now. Joint

Page 11324

1 criminal enterprise as an institution was introduced by the decisions of

2 the Trial Chamber. It does not exist as such in the Statute and the

3 Rules. When it comes to the criminal law and international criminal law,

4 the general rule is that there is no extensive interpretation. Only what

5 is stated in the rules is to be applied. Therefore, in our view joint

6 criminal enterprise could not have been introduced into case law by

7 decisions of Trial Chambers. This was something that only Security

8 Council could have decided to introduce through their resolutions. The

9 Statute envisages only two forms of criminal responsibility: Articles

10 7(1) and 7(3), which is individual and command responsibility.

11 What is interesting is that this type of criminal responsibility

12 was introduced in order to try, for example, Martic, where there were

13 multiple perpetrators. However, it is unbelievable, Your Honours, that

14 Mr. Babic was allowed to negotiate with the Prosecution while staying in a

15 private house, which is completely contrary to the explicit rules of the

16 Tribunal. He was supposed to stay, he had to stay, in a Detention Unit.

17 He was tried separately from Mr. Martic, who simultaneously stayed in

18 detention for four years, waiting for his trial to begin on the same

19 facts.

20 So Mr. Martic was denied the fact -- denied the opportunity to

21 participate in the case against Mr. Babic for the same fact and to affect

22 the course of that case; whereas, the Prosecution believes that that plea

23 and the conclusions of that Trial Chamber need to be taken into account

24 when rendering a judgement in this case.

25 JUDGE NOSWORTHY: Mr. Milovancevic, based on your submissions at

Page 11325

1 page 73, lines 15 to 25, are you saying that the Trial Chamber may not

2 reach a finding in respect of joint criminal enterprise in this case

3 because of the lack of authority, it not being appropriately done by the

4 Security Council? Are you going as far as saying that, that the Trial

5 Chamber is not entitled to make a finding for this reason?

6 [Defence counsel confer]

7 MR. MILOVANCEVIC: [Interpretation] Your Honours, it is the

8 possible of the Defence that this type of criminal responsibility is not

9 envisaged by the Statute and that, as such, as a form of criminal

10 responsibility it can be established only by the founder of this Tribunal,

11 which is the Security Council. Therefore, the case law of this Tribunal

12 indicating that this form of responsibility exists is not something that

13 can be relied upon by this Trial Chamber. This Trial Chamber can decide

14 on this form of criminal responsibility only upon receiving an approval, a

15 consent from the Security Council. This is the position of the Defence.

16 JUDGE MOLOTO: Mr. Milovancevic --

17 MR. MILOVANCEVIC: [Interpretation] Or they can amend the Statute.

18 JUDGE MOLOTO: Mr. Milovancevic, do you know of the doctrine of

19 common purpose in ordinary common law at national jurisdictions?

20 MR. MILOVANCEVIC: [Interpretation] Yes.

21 JUDGE MOLOTO: Thank you very much. Thank you. You may proceed.

22 MR. MILOVANCEVIC: [Interpretation] The Defence believes that this

23 manner of introducing joint criminal enterprise as a form of criminal

24 responsibility is a case of the Statute going beyond its competence, and

25 the same is being done by Trial Chambers and the Prosecution. The

Page 11326

1 Prosecution not only goes beyond the Statute, but they openly abuse this

2 type of criminal responsibility to the detriment of the accused because

3 they introduce a type of criminal responsibility which is to be applied

4 when there are multiple accused, and then they try each of these multiple

5 accused separately.

6 For example, Mr. Krajisnik is, according to paragraph 6 of this

7 indictment, a member of joint criminal enterprise. We had General Galic

8 here. We had Mr. Seselj -- we have Mr. Seselj. We had Babic. Babic

9 stayed in a private home while Martic perished in detention. They were

10 tried separately. What was the purpose behind this, to abuse the

11 procedure. In my eyes this is an open abuse of procedure, because the

12 accused is denied a right by imputing to him a criminal responsibility

13 that is not envisaged by the Statute, and then he is denied an opportunity

14 to either deny his guilt or to lead evidence to disprove it.

15 Now, whether this --

16 JUDGE NOSWORTHY: Mr. Milovancevic, just on that point. In many

17 jurisdictions where there are joint trials based on joint criminal

18 enterprise or joint purpose acting in concert, it is a fact that it's

19 considered less prejudicial to the accused when the accused are tried

20 separately than when they are tried together because there may be various

21 interests to serve and prejudices and conflicting interests when tried

22 together. So do you have anything to say in that regard?

23 MR. MILOVANCEVIC: [Interpretation] Your Honours, perhaps such

24 practice exists; however, if a crime was perpetrated in complicity, when

25 there were multiple perpetrators, then there is no reason to try them

Page 11327

1 separately. It goes against the nature of the crime, and it is against

2 the law. And in this particular case, it's a much more drastic example,

3 the one that I spoke of earlier. One is allowed to enter into plea

4 bargaining while sitting in a private home, and the other one is denied

5 that right and is in detention. And when somebody hangs themselves and

6 then their evidence is admitted, then in our eyes such evidence has no

7 value whatsoever.

8 JUDGE MOLOTO: Do I understand you to say that another person was

9 denied the opportunity of a plea bargain? One is allowed to enter into a

10 plea bargaining while sitting in a private home while the other one is

11 denied that right and is sitting in detention. Was Mr. Martic denied a

12 plea bargaining? And who initiates plea bargaining?

13 MR. MILOVANCEVIC: [Interpretation] Your Honours, I don't fully

14 understand your question, but let me tell you what my position is.

15 JUDGE MOLOTO: I want you to understand my question. Look at page

16 76, line 21. Okay. You say there: "One is allowed to enter into plea

17 bargaining while sitting in a private home, and the other one is denied

18 that right and is in detention." Now, sitting in -- now, I'm asking you.

19 Has Mr. Martic been denied plea bargaining, and who initiates plea

20 bargaining under normal circumstances?

21 MR. MILOVANCEVIC: [Interpretation] I understand your question,

22 Your Honours, and you put it with good reason. I wasn't referring to plea

23 bargaining. I was referring to the right of the accused, Martic, to

24 participate in this same trial as Babic. And when Babic, for example,

25 reaches --

Page 11328

1 JUDGE MOLOTO: Let me just make sure it is clear and crystal. One

2 -- where is that -- 21. You're saying: "One is allowed to enter into

3 plea bargaining while sitting in a private home, and the other one is

4 denied that right and is in detention." Sitting in a private home counts

5 as detention, so what remains as plea bargaining. So the other one that

6 is denied can only refer to plea bargaining.

7 MR. MILOVANCEVIC: [Interpretation] I understand. I understand,

8 yes.

9 JUDGE MOLOTO: Are you saying --

10 MR. MILOVANCEVIC: [Interpretation] I will answer --

11 JUDGE MOLOTO: Are you saying Mr. Martic was denied plea

12 bargaining?

13 MR. MILOVANCEVIC: [Interpretation] No.

14 JUDGE MOLOTO: Thank you.

15 MR. MILOVANCEVIC: [Interpretation] No, Your Honours.

16 JUDGE MOLOTO: So you retract that statement? You retract that

17 statement?

18 MR. MILOVANCEVIC: [Interpretation] I do, I do.

19 JUDGE MOLOTO: Thank you.

20 MR. MILOVANCEVIC: [Interpretation] And I'm giving an explanation.

21 JUDGE MOLOTO: No, I don't need an explanation --

22 MR. MILOVANCEVIC: [Interpretation] It is important for me to

23 explain why I said that and to give you the essence of this --

24 JUDGE MOLOTO: [Previous translation continues]...

25 MR. MILOVANCEVIC: [Interpretation] What I wanted to say is it is

Page 11329

1 necessary for the Defence.

2 JUDGE MOLOTO: [Previous translation continues]...

3 MR. MILOVANCEVIC: [Interpretation] So Mr. Babic is tried for the

4 same acts at the same time while Martic is under the jurisdiction of the

5 Tribunal and is not allowed to affect the course of Babic's trial. If

6 Martic were given an opportunity to participate in the trial, then he

7 would have been able to say, You are not right to admit that into

8 evidence; however, he wasn't allowed to use that in his defence.

9 JUDGE MOLOTO: That is something completely different from plea

10 bargaining, and it's nothing to do with this trial here at this point in

11 time.

12 JUDGE HOEPFEL: And I would like to add that the word "bargaining"

13 sounds as if it would be some sort of deal between the parties, Mr.

14 Milovancevic. I'm not aware of that term in the system of this court.

15 "Plea bargaining." This is a term used in some countries but not here.

16 It is a plea agreement and not a bargain -- a bargaining. That I wanted

17 to add, and I agree to the rest of it.

18 MR. MILOVANCEVIC: [Interpretation] I accept what you're saying,

19 Your Honour, except that the word that I used meant that this plea

20 agreement also incorporated the agreement between the sides, not only

21 about the sentence but also about the fate of Babic's family. So through

22 this agreement, they agreed on what Babic's family was to receive in

23 return for his plea, guilty plea.

24 As for the portion of your question that I failed to answer, Your

25 Honours, who initiates such plea agreements. I guess it's the

Page 11330

1 Prosecution.

2 To use such a witness under these circumstances as a key witness,

3 as the main piece of evidence to prove joint criminal enterprise goes

4 gravely against all elementary basic principles which speak of equality of

5 arms, at least that as a minimum. However, this was not the only thing

6 that the Prosecution did during their case. Witness Babic is mentioned on

7 almost every page of 160-page long brief as a key witness.

8 The second witness MM-03 came to the courtroom having given

9 previously a statement and having written that he wanted to go to a third

10 country; that he gave inaccurate information to the immigration

11 authorities; that he was rejected; that the lawyer handling that case told

12 him, Why don't you go to speak to the Tribunal; and that he then went to

13 speak to the Tribunal, or rather, not the Tribunal, the Prosecution; that

14 he gave false information to the Prosecution in order for them to accept

15 him testimony at all; that he attended 100 meetings with Mr. Martic; and

16 that then the Prosecution accepted him as a witness, arranged for him to

17 have residence in a third country, which would have been unavailable to

18 him otherwise.

19 He said that he had gone to that country with a fake passport. He

20 stated that as a witness. And he explained that he agreed to testify

21 because that was the deal he had with the Prosecution. They were to

22 ensure his status and he would say in the evidence whatever was necessary;

23 and then that man became the second-most important evidence of the

24 Prosecution, confirming the existence of JCE. This witness plus Babic are

25 mentioned on every page of 160-page-long final brief.

Page 11331

1 MM-78, another witness, said that witness MM-03 has a tendency to

2 steal. He stole several cars from a train. He stole from people. So

3 this is a person who has a tendency to criminal activity, and he came here

4 to testify as a key witness for the Prosecution.

5 What is the Prosecution trying to achieve by such a selection of

6 the witnesses? We will show this to you in the course of our final

7 closing arguments.

8 JUDGE MOLOTO: Of which you have only 15 minutes left.

9 MR. MILOVANCEVIC: [Interpretation] Your Honour, I hope what you

10 mean is that I have only 15 minutes left today. This is the witness that

11 spoke about the actions in Ljubovo. I'm sorry. This is the key witness

12 of the crimes. He spoke about Ljubovo and Lovinac and of the attacks in

13 those villages. And under oath, he testified that the aim of the attacks

14 was to expel the Croatian population; and then he says as an aside, I

15 heard on the radio that there were some soldiers there and some units

16 there. Defence witness Ratko Licina testifies that near one of those

17 villages there was a barracks; Cveti Rok, that was the largest weapons

18 depot. This is a location near Lovinac, and this was the location that

19 had to be deblocked because it was attacked and surrendered during the

20 course of this action. And the Prosecutor is trying to suppress this

21 evidence by offering this kind of testimony.

22 In order to prove the existence of a joint criminal enterprise,

23 the Prosecutor claims that the Territorial Defence was disarmed and one of

24 the witnesses testified that the TO weapons were outside of the depots

25 only in the areas where locations were very far away from the garrisons,

Page 11332

1 and that the reason why the Territorial Defence weapons were collected was

2 to misuse those weapons. And this was the intent of the newly appointed

3 commanders that were appointed by the HDZ. The witness explained that the

4 Territorial Defence is entitled to take the weapons out of the depots for

5 the purpose of exercises, but then they had to put them back. And the

6 Yugoslav Presidency had to intervene in order to prevent the bloodshed,

7 but yet the Prosecutor uses this to prove that there was this huge

8 conspiracy in place in targeting the unarmed civilians.

9 All the crime base locations Skabrnja, Nadin, Saborsko where

10 conflicts occurred, those were the places where Croatian paramilitaries

11 were well fortified and deployed, well-armed, and measures were taken such

12 as the last-resort measures. We spoke about Saborsko in great length in

13 our final brief, so I will not go into that. And witnesses testified

14 about this, a number of Prosecution and Defence witnesses: Nada Pupovac,

15 Zoran Lakic.

16 The Prosecutor uses this incredible way of dealing with things.

17 Notes by Colonel Bogunovic, Exhibit 107, and then they say Colonel

18 Dragovic, the police chief from Bankovac, is mentioned as being present at

19 an operation on the 20th of November, 1991. And the Prosecutor explains,

20 Well this is evidence that the police took part in this attack, as if he

21 never heard what the commander of Territorial Defence and Defence witness

22 Lakic said, that the Territorial Defence and its medical corps took part

23 in this action and that the police only regulated traffic in that action.

24 Because if you have artillery, seven; APCs; and three tanks going -- using

25 the public roads, then this causes a problem. And if you have a reason to

Page 11333

1 expect that there would be a conflict there, then you need the police to

2 be in place. So the Prosecution is making those claims without

3 corroborating them without any evidence whatsoever.

4 The Prosecutor says that yet another piece of evidence of the

5 existence of the JCE is the fact that the JNA expelled everyone, apart

6 from Serbs; and yet our Defence witnesses say that 73 officers left, first

7 Slovenes, Croats, Muslims, that the army was decimated, that its ranks

8 were decimated. And Colonel Maksic Prosecution witness says that this was

9 done at the behest of the secessionist leaderships because they instructed

10 those officers to leave those ranks.

11 A book by Zdravko Tomac, My View Behind The Closed Doors, speaks

12 about that. He says this is the way we destroyed the JNA. And those who

13 didn't want to join them, we told them even if you don't want to take part

14 your families are jeopardised. This was a threat with physical

15 elimination. Tomac said the JNA was destroyed from within in an organised

16 rebellion, yet the Prosecutor accuses the Serbian side, the Yugoslav

17 Presidency, of doing that in order to implement some kind of inferno plan

18 by leaving only the Serb officers in place.

19 The Prosecutor accuses the existence of the Vance Plan as evidence

20 of joint criminal enterprise, bringing in witness Kirudja to testify,

21 Charles Kirudja. And on page 747 -- in fact, Exhibit 747 from May 1992,

22 it was confirmed by him, it is a UN report, and this is what this witness

23 has in mind in this UNPROFOR report he says that General Spiro Nikovic

24 ensured him that the JNA would leave behind it a clean administration in

25 military and administration sense. So the JNA accepted the arrival of the

Page 11334

1 troops, it undertook to pull out the JNA troops from the area, it did so

2 within the time-limits that were prescribed, and this is confirmed by

3 Security Council report from 1992, 24600, where it is stated that the JNA

4 withdrew in good order. I have to apologise to the interpreters, I'm

5 really going very fast.

6 And this report states that the JNA, this is what Kirudja says,

7 will leave the situation in Krajina or in UN protected areas, a clean and

8 clear situation both in military and administrative terms, and JNA General

9 Nicevic told the witness that there would be an agreement signed by

10 Krajina and Yugoslavia as regards the status of the UN forces. To this

11 respect, Mr. Kirudja said that the protocol between the UN and Yugoslavia

12 will be binding on Krajina. So the JNA, as the federal army, deals with

13 military and administrative issues, and everything that it does is binding

14 on the Republic of Serbian Krajina. And this UN document states that

15 Yugoslavia guaranteed that the Republic of Serbian Krajina would comply

16 with all its international obligations.

17 So when on the 28th of March, 1992, the Federal Secretariat of

18 National Defence --

19 THE INTERPRETER: Interpreter's correction: 28th of April, 1992,

20 the Federal Secretariat of National Defence --

21 MR. MILOVANCEVIC: [Interpretation]-- set up the police units, the

22 special police units, eight brigades, to act as the border police. We

23 have a UN document to prove that Yugoslavia did this in accordance with

24 its powers in its own territory, and that Krajina was obliged to comply

25 with it. And Defence witness Djukic confirmed that he was appointed the

Page 11335

1 commander of special police units. So the Federal Secretariat of National

2 Defence, now we're talking about Exhibit 798, the decision on the

3 establishment of those special police units, the administration for those

4 units is established, and this is subordinated to the Ministry of the

5 Interior, eight brigades will be established. This is a decision of the

6 federal authorities, and it is pursuant to the decision of those federal

7 authorities that the UN was actually displayed there.

8 Djukic, Defence witness Djukic, said that this was implemented and so

9 was Defence witness (redacted). Witness MM-96 says that this was, in fact,

10 implemented. So all these people who were police chiefs in Benkovac, the

11 Knin Interior Ministry Secretary, the Minister of the Interior in Krajina,

12 Djukic who was the commander of the special units, they all confirmed that

13 there was full cooperation with UNPROFOR. They all confirmed that

14 UNPROFOR accepted those special police units. General Djukic also

15 testified that when any problems occurred, when all of a sudden and

16 despite all those statements that reports were being made to the Security

17 Council to the fact that those special police units were, in fact,

18 violating the Vance Plan then the agreed with the UNPROFOR to disband

19 those units.

20 JUDGE MOLOTO: On his feet, Mr. Milovancevic.

21 Yes, Mr. Whiting.

22 MR. WHITING: I'm sorry, Your Honours, counsel. The name that is

23 mentioned at page 84, line 25, the second word of that name is a protected

24 witness of the Defence.

25 JUDGE MOLOTO: This name has been bandied amongst by yourselves.

Page 11336

1 MR. MILOVANCEVIC: [Microphone not activated]

2 THE INTERPRETER: Microphone, please, for the Defence counsel.

3 MR. MILOVANCEVIC: [Interpretation] My learned colleague is right.

4 Thank you very much for your warning. There are so many names and at

5 times one simply makes a mistake.

6 JUDGE MOLOTO: May the sentence at page 84, line 25 containing

7 that name please be redacted. Our concern is that you were talking

8 amongst yourselves there mentioning the name whispering with your mike

9 open.

10 [Trial Chamber and registrar confer]

11 JUDGE MOLOTO: You may proceed, Mr. Milovancevic. Can you give me

12 one minute to ask a question just before we knock off. Carry on. Just

13 before we knock off.

14 MR. MILOVANCEVIC: [Interpretation] Defence witness Djukic, General

15 Djukic, who was the commander of the special police units says that when

16 it was determined that the job that the special police units were doing

17 instead of UNPROFOR, in other words, acting as the border police instead

18 of UNPROFOR on the demarcation line with Croatia, when this became an

19 issue, the Krajina leadership agreed with the UNPROFOR command and those

20 units were disbanded. Mr. Kirudja testified to that, and we have another

21 document confirming this. That is Exhibit 760, an agreement between Mr.

22 Martic and Mr. Morillon. That's a document dated 26th of September, 1992,

23 and it's an UNPROFOR document.

24 In paragraph 2 of this exhibit, it is stated first -- first of

25 all, Mr. Kirudja speaks about a large number of reports on cease-fire

Page 11337

1 violations on the Croatian side with the infiltration of Muslims. This is

2 also mentioned in the report as 24600; and then in the next paragraph it

3 says that the Krajina leadership, so paragraph 3 of Exhibit 760, it is

4 stated that the Krajina leadership, that the Krajina police responds to

5 those violations and incursions on the Croat and Muslim part by

6 dispatching the special police units and Defence witnesses spoke about

7 that.

8 Witness Jarcevic said that there had been more than 700 attacks

9 from the Croatian side to the Serb side in those protected areas. This is

10 what Mr. Kirudja speaks about in this report. And Exhibit 760 states that

11 Mr. Martic and Mr. Morillon achieved an agreement on the 15th of

12 September, 1991, on the demobilisation of the special police units to be

13 implemented in two stages. And General Djukic in fact did implement this

14 agreement and Prosecution witness Kirudja confirms that.

15 This agreement was implemented also through a decision taken by

16 the Krajina authorities on the disbanding of the special police units.

17 That's Exhibit 567 -- 576, dated the 28th of November, 1991. And here I

18 have to stop in order to give you were you one minute for your question.

19 JUDGE MOLOTO: [Microphone not activated] -- and page 59 line 20

20 to 21 you had been talking about the question of expunging Mr. Babic's

21 evidence from the record and that it was not done in this case, and then

22 you said this has not been practiced in the civilised world. What do you

23 mean by that?

24 MR. MILOVANCEVIC: [Interpretation] Your Honour, I regret if this

25 is what went into the transcript. What I was talking about is something

Page 11338

1 different. I was talking about the case law applicable in the world today

2 regulating the issue of admission of witness testimony of witnesses who

3 died in the course of giving their testimony. And I wanted to point out

4 the difference between those situations and the situation we had here with

5 Mr. Babic committing suicide. Because if a witness dies of natural death,

6 this is an incident that no party could have anything to do with; and then

7 the Chamber weighs the extent to which this witness was questioned or

8 cross-examined. But here I wanted to draw a distinction because we are

9 dealing with a different kind of issue. We have a man who hanged himself.

10 In my opinion, he exhibited all the signs of being emotionally

11 deranged and the decision to admit evidence by such a man does not exist

12 in the civilised world. What I meant by that is the case law in the most

13 advanced countries. This is the sense in which I use this term. I don't

14 know whether I was specific enough or not. I regret if this caused any

15 misunderstandings.

16 JUDGE MOLOTO: That didn't cause any misunderstanding now that you

17 have repeated it by implication this Tribunal is uncivilised by rendering

18 the decision it rendered on the admissibility of that evidence. Is that

19 what you are implying?

20 JUDGE HOEPFEL: Actually, this is --

21 MR. MILOVANCEVIC: [Interpretation] No, no, no way, Your Honours.

22 JUDGE MOLOTO: This can actually be interpreted in the beginning

23 can be drawn from what you say. The civilised world doesn't do what you

24 do; therefore, you are uncivilised.

25 [Defence counsel confer]

Page 11339

1 MR. MILOVANCEVIC: [Interpretation] Your Honour, what I wanted to

2 say is that such a decision by a Trial Chamber could constitute a

3 precedent in the negative sense in relation to the case law --

4 JUDGE MOLOTO: Are you indicating in the uncivilised sense?

5 MR. MILOVANCEVIC: [Interpretation] No.

6 JUDGE MOLOTO: [Previous translation continues]...

7 MR. MILOVANCEVIC: [Interpretation] No, Your Honours.

8 I now regret having used this term.

9 JUDGE MOLOTO: [Previous translation continues]...

10 MR. MILOVANCEVIC: [Interpretation] This is -- I should have

11 perhaps used the term modern.

12 JUDGE MOLOTO: [Previous translation continues]...

13 JUDGE HOEPFEL: Let us state, Mr. Milovancevic, that we issued a

14 very thorough decision and that you, Mr. Milovancevic, appealed against

15 this decision and that the Appeals Chamber confirmed the decision and that

16 we did not find relevant for the admissibility of the statement if this

17 was a suicide or not. Can we leave it like that?

18 JUDGE MOLOTO: I'm sorry, I'm not leaving it. I'm still pursuing

19 it. That has nothing to do with what I'm asking. What I'm asking is what

20 you're saying today. The positive side is to behave in a civilised

21 manner. We didn't behave in a positive side, in a positive way, in a

22 negative way; therefore, we are uncivilised, not only us but also the

23 Appeals Chamber because --

24 MR. MILOVANCEVIC: [Interpretation] This is absolutely

25 unacceptable, Your Honour.

Page 11340

1 JUDGE MOLOTO: [Previous translation continues]...

2 MR. MILOVANCEVIC: [Interpretation] This is absolutely

3 unacceptable.

4 JUDGE MOLOTO: [Previous translation continues]...

5 MR. MILOVANCEVIC: [Interpretation] This is inconceivable given my

6 line of thoughts with the culture that I come from. It is completely

7 unacceptable with decent manners. And with the attitude I have displayed

8 toward this Trial Chamber during the past ten months, I hope that it was

9 obvious enough that I treated this Chamber decently. I used this

10 unfortunate expression, meaning the modern practice, modern law systems,

11 and I ended up using this ugly term which I now retract with all

12 apologies.

13 JUDGE MOLOTO: My problem with you, Mr. Milovancevic, is that in

14 the process of saying it was an unfortunate term, you go ahead and use it

15 again. You have been just using it here now just before you referred to

16 negative sense and positive sense.

17 MR. MILOVANCEVIC: [Interpretation] Your Honours, I have a favour

18 to ask.

19 JUDGE MOLOTO: [Previous translation continues]...

20 MR. MILOVANCEVIC: [Interpretation] Namely, that this term,

21 together with all my apologies be expunged from the transcript, because it

22 absolutely does not correspond with what I wanted to say and with what I

23 was going to say. You know, some terms --

24 JUDGE MOLOTO: [Previous translation continues]...

25 MR. MILOVANCEVIC: [Interpretation] -- have a different meaning in

Page 11341

1 Serb and in English. I'm not blaming the interpreters. I'm not saying

2 that they translated this wrongly, but will you accept my sincerest

3 apologies that this was the last thing on my mind. It is completely

4 unacceptable and I apologise to the Trial Chamber.

5 JUDGE MOLOTO: I accept your apology, Mr. Milovancevic. But if we

6 expunge your apology from the trial record, then you haven't apologised.

7 So we will only expunge the term that you used and not your apology. Is

8 that okay? Because if your apology is expunged, then you haven't

9 apologized. It's as good as being withdrawn.

10 MR. WHITING: Your Honour.


12 MR. WHITING: I don't mean to be ungenerous and I take Mr.

13 Milovancevic at his word and nothing against him at all. I'm a little

14 concerned about the precedent of expunging things that occur on the

15 record. He's apologised. It's clear. We've resolved it. It's fine. I

16 don't think there's any need to tamper with the record in this case.

17 There's really no basis for that.

18 JUDGE MOLOTO: Thank you, Mr. Whiting.

19 Thank you, Mr. Milovancevic.

20 Court adjourned until tomorrow in the morning.

21 I beg your pardon, Judge Nosworthy has something to say.

22 [Trial Chamber confers].

23 JUDGE MOLOTO: Okay. Thank you. We are adjourned until tomorrow

24 morning at 9.00. Court adjourned.

25 --- Whereupon the hearing adjourned at 1.53 p.m.,

Page 11342

1 to be reconvened on Friday, the 12th day of

2 January, 2007, at 9.00 a.m.