040908IT

Page 8606

1 not seen before in the courtroom. Start to my immediate right with our

2 new case manager with Sebastian van Hooydonk, who has taken over from Ms.

3 McCreath. Mr. David Re. Mr. Philip Weiner. Ms. Prashanthi

4 Mahindaratne. And Mr. William Fenrick, Senior Legal Advisor to the

5 Prosecution. Thank you very much. And Susan Somers for the Prosecution.

6 JUDGE PARKER: Thank you.

7 We might intrude at that moment to record our condolences to Mr.

8 Weiner on the death of his father -- mother, I beg your pardon. And on a

9 more cheery note, a congratulations to Mr. Petrovic on the birth of his

10 first daughter.

11 MR. PETROVIC: [Interpretation] thank you very much, Your Honour.

12 JUDGE PARKER: Ms. Somers.

13 MS. SOMERS: Thank you, Your Honours.

14 This trial, which has lasted from the middle days of December,

15 broken by the Christmas holidays and picked up in January until very

16 recently, has been a trial that has perhaps been a first in this

17 Tribunal, in that it appears that it is the one case that has a focal

18 point on destruction to cultural property. It is, however, not solely

19 about cultural property. It is about the losses to civilians and civil

20 objects in the course of armed conflict occasioned by the very overt

21 failures of command that were characterised in the second operational

22 group, along with the callous disregard of the troops, officers and

23 soldiers alike, in the 2nd Operational Group of the JNA toward the

24 venerated principle of distinction.

25 The circumstances which provide the background arise out of move

Page 8607

1 by the Republic of Croatia toward independence from the SFRY, the federal

2 army having undertaken actions on the territory of the Republic of

3 Croatia in October of 1991. The focal time for this indictment, of

4 course, is the 6th of December, 1991.

5 In discussing or putting on before the Tribunal, which looks at

6 cases of the most serious violation of international humanitarian law,

7 the importance of the shelling of Dubrovnik on the 6th of December, 1991,

8 was characterised by Prosecution witness Johannes Fietlaars, who said

9 that: "It's not only that within UNESCO the status of Dubrovnik has

10 particularly been pointed out as a city of major importance of human

11 cultural heritage, but also that has played such a central role in

12 European history for almost a thousand years should not be touched like

13 that and should not be destroyed."

14 It goes without saying that the civilian inhabitants of the Old

15 Town of Dubrovnik equally share the protections of international

16 humanitarian law, which were deprived them by the acts and omissions of

17 the accused, Pavle Strugar, commander of the 2nd Operational Group. The

18 root causes, as I have mentioned a few moments ago, are to be found in

19 the failure, the consistent failure of command by the accused as the

20 commander of the 2nd Operational Group and the callous disregard of his

21 subordinates, despite lip service to the contrary for observation --

22 observance of the principle of distinction.

23 A pertinent part of that principle I will simply take a moment to

24 spell out. "In order to ensure respect for and protection of the

25 civilian population and civilian objects, the parties to the conflict

Page 8608

1 shall at all times distinguish between the civilian population and

2 combatants, and between civilian objects and military objectives, and

3 accordingly, shall only direct their operations only against military

4 objectives." That did not happen on the 6th of December. The accused

5 was aware on the 6th of December that it had not happened on several

6 occasions before, with the resultant damage to the protected Old Town of

7 Dubrovnik.

8 The accused knew that on 6th December that the command climate

9 which he himself had established -- as does every commander -- the

10 command climate of the 2nd Operational Group was characterised by

11 tolerance of breaches of discipline and criminal activity by his

12 subordinates.

13 About command climate it is said that: "In setting his command

14 climate, the commander reflects the way he is, the way he acts, what he

15 says, what his views are, how he executes command, how he deals with

16 problems." General Andrew Pringle made that clear to this Chamber.

17 The Prosecution has shown beyond a reasonable doubt that the

18 accused on 6th of December knew that he failed in his command of control

19 by leaving in place heavy weaponry which was not justified by military

20 necessity in the hands of his subordinates, who he knew has abused these

21 weapons and engaged in criminal conduct in the recent past. In the

22 totality of the circumstances, he knew to a virtual certainty that under

23 the same circumstances it would be the same result. He failed as a

24 competent and diligent commander; he simply was not one.

25 The Prosecution submits that there was more than just a

Page 8609

1 substantial likelihood that the Old Town would fall victim during the

2 course of any combat on the heights above Dubrovnik with the area around

3 the Old Town. It is -- it was a virtual certainty under the

4 circumstances that had been presented in evidence to this Trial Chamber.

5 There has been a recurring theme of the command of the 2nd

6 Operational Group did not know what was happening, was not aware of such

7 very basic world news such as the shelling of the Old Town of Dubrovnik

8 in November, or the shelling of the Old Town in October. The Prosecution

9 submits that this is an absurd position. This Court has heard evidence

10 and has seen evidence through expert reports that the entire military

11 doctrine for the JNA was based on the commanding officer being informed

12 as much as possible about the overall position. The commanding officer

13 cannot make the excuse that he was not well enough informed regarding a

14 certain event or condition which occurred in a unit under his command.

15 He is himself responsible for the level of information, for making a

16 report to his superior in a timely fashion.

17 Again, on the 6th of December, given the failures of which the

18 accused was aware on the 6th, to have dealt with prior serious violations

19 of international humanitarian law toward the civilian occupants and the

20 civilian objectives in the Old Town -- and by that I mean the rich

21 cultural heritage, its monuments, its ramparts, all that is contained

22 within its legal description -- When, for whatever reason, a conflict

23 broke out on the 6th, the accused new with virtual certainty that it was

24 going to be the same result for the Old Town. He knew it and he did

25 nothing. He did nothing.

Page 8610

1 Another recurring theme which you will hear of throughout today,

2 which you have heard of throughout the past months, is that it was all

3 the responsibility of former co-accused and Prosecution witness of

4 Admiral Miodrag Jokic, the commander of the subordinate unto to the 2 OG,

5 the commander of the 9th GPS. Now, it's clear that the Chamber has had

6 close to a dozen days to hear Admiral Jokic on the witness stand.

7 Admiral Jokic has entered his plea of guilty, has accepted his

8 responsibility and has never at any time in front of this Chamber walked

9 away from that responsibility. He was sentenced before he took the stand

10 and told the Chamber what happened. Who would know better than Admiral

11 Jokic, with no motive to tell anything but the truth? He is a man of

12 almost the same years of the accused and a man who has had to deal with

13 his past.

14 Most importantly, he has accepted his responsibility, has never

15 shown disrespect toward the accused but had indicated he is culpable as

16 well. The responsibility that the accused tries to send back to the

17 Admiral is a continued failure of command, acceptance, responsibility,

18 and indicates that the easy route is to exploit the actions of Admiral

19 Jokic in owning up to his individual criminal responsibility for which he

20 is being punished.

21 The Chamber has heard evidence that the failure by the accused to

22 deal with that with which he was charged as commander of the 2nd

23 Operational Group with respect to undertaking offensives -- excuse me,

24 with respect to his subordinates undertaking further offenses, this

25 failure emboldened his subordinates, both officers and soldiers, to

Page 8611

1 continue to disregard the protected status of the Old Town of Dubrovnik,

2 to disregard orders that appear in this trial to have been nothing more

3 than lip service orders, straw orders, culminating in the absolute

4 disaster of the 6th of December.

5 Now, it is not a numbers game in terms of how many persons were

6 injured or killed or how many structures of great importance to world

7 history were damaged. It is not a numbers game. It is a very serious

8 exercise in observance of a principle of law that could range from a

9 person to a building to thousands of persons to thousands of structures.

10 It is not numbers that should be the focus whatsoever. It is the point

11 of the law was.

12 Indeed, the problems that had existed in this particular

13 operational group were described by the Admiral, by Admiral Jokic, as

14 obvious to any commander, obvious to any command. They were equally

15 obvious to and had to be dealt with by the accused but were not. A

16 recurring theme has been: We had too many problems in the 2nd

17 Operational Group to deal with all the discipline, with all the matters

18 that command responsibility entails. There has been an attempt to mask

19 this as lack of effective control. That is a myth; it is a fallacy. The

20 accused at all times and particularly on the 6th of December had

21 effective control over his subordinate units. The fact that he failed to

22 exercise his ability to command in a proper manner is not tantamount to

23 lack of effective control. It is bad command and nothing more. And that

24 bad command was contagious and seeped all the way down to, as was

25 referred to by General Zorc, the last soldier.

Page 8612

1 Failure to enforce orders, which has been adverted to by not just

2 the experts by Admiral Jokic as well, has very serious consequences on

3 command. In particular, General Zorc indicated: "If orders are given,

4 disobeyed, and nothing is done about it, the real effect of that is that

5 it will begin to create a view at the grassroots level that some orders

6 seem to matter and others don't. And these orders that are flagrantly

7 transgressed and nobody does anything about must therefore be acceptable.

8 It is the green light."

9 "In cases when officers under their command are not experienced

10 enough, or if there are reserve units insufficiently educated in the

11 task, commanding officers tend to become personally involved in

12 controlling and helping those officers under their command," said General

13 Zorc. The accused did not do that. Did not do that. Had an absolute

14 duty to do so, given the nature of his forces, his subordinate forces.

15 Did not do that. And the, result absolutely foreseeably, was the 6th of

16 December, which he knew would result because of October and November

17 incidents.

18 About the concept of command climate. "From the moment a

19 commander walks into his office on the first appointment, he is beginning

20 to set that climate," says General Pringle, "and it reflects the way he

21 is, who he acts, what his view are, how he executes command, how he deals

22 with problems. All that goes to create a climate. What he does when

23 something goes right. What he does when something goes wrong. What

24 action he takes. Does he take a blind eye to certain events or is he a

25 rigorous disciplinarian? All of that encapsulates what is called command

Page 8613

1 climate. We ask the Chamber in its deliberations to review the record

2 and see how absolutely inadequate the command climate that was set on the

3 2nd Operational Group commander, the accused Pavle Strugar was, and what

4 the consequences of that climate on the 6th of December, which he knew

5 was a continuation of a climate he put into existence, were. This

6 Chamber has heard sufficient evidence that the JNA of the day was an army

7 characterised as a centralised system of command. Orders driven as

8 opposed to strictly initiative-driven armed force. It is, therefore,

9 inconceivable that the things that occurred at lower level emanated

10 strictly from lower level. And in the course of deliberations, we call

11 the Chamber's attention to holding fast to that principle.

12 Discipline was pointed out early on and throughout the case to be

13 a problem, not just with the 3rd Battalion of the 472nd Brigade which is

14 the focal battalion for the events of the 6th of December, but throughout

15 the 2OG. Irrespective of the style of command, whether it be orders

16 driven or initiative driven, the higher commander -- but particularly in

17 an orders driven army -- must consider the limitations of the

18 subordinates by thinking "two up, two down"; has to know that the tasks

19 that are being allocated are within the capabilities and the resources of

20 his units; a level of discipline must be a concern of the higher

21 commander in order to enable the absolutely essential smooth functioning

22 of the system of command and control without which there would be

23 anarchy. There would be chaos and anarchy within the units.

24 If a commanding officer fails to take measures against the

25 violation of a disciplinary rules or other orders, this usually creates a

Page 8614

1 favourable climate for such violations to occur. That is exactly what

2 happened on the 6th of December. In such cases, others within the

3 military structure begin practising violence and committing criminal

4 acts, not only against the enemy army, but also against civilians and

5 property protected by international law.

6 I would refer the Chamber to General Zorc's report which is P204

7 and his testimony at 6485.

8 "Every commanding officer must take responsibility in difficult

9 situations such as the ones which allegedly prevailed in the 2nd

10 Operational Group for the actions of units under his control, which means

11 that he the command must be interested in the actions of the officers and

12 the units under his control, evaluate them, intervene or take personal

13 responsibility for them."

14 This again has been emphatically driven home by General Zorc. As

15 earlier stated, "the commander is responsibility for all those under his

16 command down to the last soldier." The accused, Pavle Strugar, as the

17 highest ranking commanding officer and overall commander of the 2nd

18 Operational Group had a duty to prevent harm to the civilians and the

19 civilian places and items of cultural heritage in the Old Town of

20 Dubrovnik and to punish those of his subordinates who committed acts

21 harming same. He did not carry out his command responsibility.

22 You will hear summation concerning the ordering aspects of the

23 case, the evidence concerning ordering, the aiding and abetting, command

24 responsibility; and the Prosecution submits that the totality of

25 circumstances must at all times be looked to, that this is a dynamic

Page 8615

1 force that is occurring in the 2nd Operational Group and there must be --

2 that look backward to the extent that it impacts on the mens rea on the

3 6th of December.

4 The Prosecution draws the Chamber's attention to the fact that

5 despite assurances to very high level representatives of the

6 international community, no disciplinary measures were taken against

7 those perpetrators of the crimes against the civilians and the civilian

8 objects in the Old Town on the 6th of December. Among those who had an

9 absolute affirmative obligation to take those was the accused, Pavle

10 Strugar.

11 The Prosecution will also discuss in the course of its closing

12 submissions Admiral Jokic's acts, Admiral Jokic generally as a witness

13 during the course of this trial, that his acts around the 6th of December

14 and on the 6th of December. And we'll draw the Chamber's attention to

15 why Admiral Jokic's evidence should be accepted, that he put forth his

16 view of what happened on the 6th of December and why it happened. The

17 Chamber should be mindful of the very late shift in theory, or shall we

18 say strategy, by the Defence after the close of the Prosecution case to

19 shift all responsibility to the Admiral. I'm sure the Chamber will take

20 a very careful look at the credibility issues which will be addressed

21 during the course of the submissions, credibility issues of the Defence

22 witnesses. The Chamber will also, I'm confident, bear in mind the

23 strategic political concerns that dominated on the 6th of December, that

24 this was to be the set of comprehensive negotiations advanced at a very

25 high level both in Belgrade and in Zagreb and in the international

Page 8616

1 community and this is the atmosphere in which the command of the 2nd

2 Operational Group and the commander of the 2nd Operational Group had to

3 conduct himself and carry out his mission.

4 I would like to take one moment before I turn the second part

5 over to my colleague to just address a brief moment of appreciation and

6 that would be to all those who have assisted in the presentation,

7 assisted the Prosecution and Chamber in the presentation of this case.

8 That includes the OTP staff in investigations, the leadership research

9 team, the military analysis team, the mapping and visual section for the

10 superb maps that we have been able to provide the Chamber to assist it.

11 The UN security in helping us with our site visit in the Republic of

12 Croatia was outstanding. The representatives of the government of

13 Croatia also assisted. And of course we have the sine qua non, the CLSS

14 interpreting staff, the CVU interpreting staff, as well as the DVU

15 colleagues. And our audiovisual.

16 I would now ask my colleague Mr. Re to proceed on his particular

17 points.

18 JUDGE PARKER: Thank you, Mr. Re.

19 MR. RE: Thank you, Your Honours. My part of the submissions

20 today concern what is commonly called in this Tribunal the crime base.

21 That is, I'm going to talk about what happened in the Old Town on the 6th

22 of December, 1991; that is, what happened from the point of view of those

23 people who were unfortunate enough to be in the Old Town on the 6th of

24 December, 1991, during the sustained JNA shelling. My learned colleague

25 Mr. Weiner will then address you about the military aspects, what

Page 8617

1 actually happened between the two sides in the heights overlooking

2 Dubrovnik, that is in Djakovica, Srdj and the competing versions. We're

3 starting with damage to property and lives first, and then moving to an

4 analysis of how it happened.

5 As Your Honours are very, very much aware, the Old Town of

6 Dubrovnik was entered on the UNESCO World Heritage list in 1979. If I

7 could just show -- remind Your Honours, Your Honours probably need no

8 reminding having visited Dubrovnik on a site visit of the Old Town. And

9 we're showing on the screen P17 which is an overhead photograph which

10 displays the Old Town of Dubrovnik.

11 Is it broadcasting, could I ask?

12 JUDGE PARKER: Yes.

13 MR. RE: Thank you. Now, that is of course the view that Your

14 Honours would have seen in your site visit from the heights above

15 Dubrovnik at Djakovica. Of course this is magnified because Djakovica is

16 some 2 kilometres or so from the Old Town. But looking at that, that is

17 why it is rightly describe as the pearl of the -- or the jewel of the

18 Adriatic. That is a picture of the Old Town as it stands.

19 Now, on the 6th of December, 1991, the residents of the Old Town

20 were awakened at about between 5.30 and 6.00 a.m. in the morning --

21 Your Honours, just excuse me for one moment.

22 What I will be doing is showing -- demonstrating with several

23 clips from the video exhibits as I go. And my case manager will show

24 them at the right moment. Now, the evidence is that the shelling was

25 first noticed by the residents of the Old Town at a very early moment.

Page 8618

1 People were woken up, firstly by the sound of shelling coming from

2 outside the Old Town. Mr. Weiner will address this in greater detail

3 about the attack or the battle between the Croatian and JNA forces on the

4 out -- on Srdj and -- between Srdj and Djakovica. But the important

5 thing for this is the Old Town, as a UNESCO protected site and of course

6 a civilian object in its entirety, the residents of it were rudely awoken

7 by shells firstly falling outside the Old Town and then inside the

8 outside. Mr. Grbic, for example, described looking out his window and

9 seeing shells falling near Srdj. At 7.00 he described a shell hitting

10 the festival palace which is one of the more significant buildings in the

11 Old Town.

12 Now, if I could remind Your Honours of a clip from P66, which is

13 the compilation from the Croatian television documentary. If Your

14 Honours watch the clip you can see firstly the shelling towards Srdj and

15 then later on the shelling within the Old Town. You can see smoke. You

16 can see roof damage. You can see explosions.

17 The explosion of 31.28 was towards the west of the Old Town.

18 We'll stop there. At 31.34 you can see the view near the Ploce

19 Gate as Your Honours would have seen in your site inspection. The view

20 we're now showing is later, burning boats, again coming from the shelling

21 at a later time, say 9.39.

22 In the overall picture at 31.34 you can now see shows smoke

23 arising from several different places in the Old Town, St. Ivan's

24 fortress.

25 What we're now showing at the end is smoke and shelling outside

Page 8619

1 the Old Town.

2 Now, that's the place in its context of how the residents were

3 awakened on the 6th of December, 1991. Now, why was Dubrovnik on the

4 world heritage list? When it was put on the list in 1979, the

5 Yugoslavian authorities described it quite rightly, as Your Honours would

6 have seen, as: "An urbanistic and architectural gem."

7 World heritage is of course heritage that belongs to the entire

8 world, not just to Croatia. And I want to show Your Honours the extract

9 from the UNESCO report, which is exhibit P63/6 at page 9. It is the

10 introduction to the report that UNESCO -- one of the UNESCO reports after

11 they inspected the damage on the 6th. If I just briefly read to

12 highlight the importance of Dubrovnik in world heritage terms.

13 The first sentence: "Dubrovnik Old Town has primarily been

14 portrayed as an urbanistic and architectural gem," and so on. "This

15 description is undeniably accurate. "And yet Dubrovnik Old Town is so

16 much more than that. Its cultural heritage encompasses archives which

17 Ferdinand Braudel considered the most important source of Mediterranean

18 history. Intact monastic libraries, and a Ragusan school of painting too

19 little known outside specialist circles."

20 And this, this next sentence, is one of the tragedies of what

21 happened on the 6th of December. "However, the observers discovered

22 another form of heritage, a 'movable' form of heritage, which could not

23 claim to be included in any list but which also forms part of the

24 cultural heritage. And they also discovered an intangible heritage of

25 cultural identity, which was paradoxically pointed up by war.

Page 8620

1 The next extract which shows the criteria for nomination is 63/8,

2 the first page. And that is -- if the first paragraph could just be

3 highlighted and broadcast. The criteria for nomination is for the

4 protection of those cultural and natural properties deemed to be of

5 outstanding universal value. It is not intended to provide for the

6 protection of all properties of great interest, importance, or value, but

7 only a select list of the most outstanding of these from an international

8 viewpoint.

9 And on the issue of movable heritage, again, a quote from the

10 UNESCO report, page 63/6 at page 14. That should be 3.1.1. That is

11 something that's often overlooked in what happened in Dubrovnik. It

12 wasn't just the buildings or the people, it was the damage to what is

13 called the movable heritage. UNESCO said: "The wealth of this World

14 Heritage Property is not limited to its immovable heritage but also

15 includes the town archives dating back to 1278." That's 720 years. "The

16 works of art by the Ragusan schools, the monastic libraries, the

17 Franciscan one contained 20,000 books.

18 Then the next paragraph: "There is also a wealth of heritage in

19 private hands which attests the persistence of a collective memories of

20 families, a wealth consisting of furniture, libraries, pictures, maps,

21 scale models of boats and instruments, all of which the observers

22 discovered when visiting houses to survey the damage caused by the

23 various fragments."

24 Now, this was graphically brought home to the Trial Chamber in

25 evidence by Mr. Grbic and Mrs. Ogresta, both of whom lost their houses,

Page 8621

1 Mrs. Ogresta rightly described as a palace in the Dubrovnik style. Mr.

2 Grbic lost his entire collection of artwork, books, and antiquities

3 collected over many, many years. She lost everything in a building of

4 international significance.

5 The shelling continued, as Your Honours have heard, for a large

6 period of the day. One can only imagine the terror that the inhabitants

7 of Dubrovnik must have felt, not knowing whether they were going to live

8 or die, with the sounds of explosions outside, the sounds of shattering

9 glass, roof breaking, detonations, and Mrs. Ogresta graphically

10 described, the smell, the smoke. Witness A also described the smell of

11 the detonations outside and the constant nature of it. And to add to

12 that, the impersonal nature of it. People cowering in their homes and

13 the shelters, wondering: Why are we being attacked? Why are we being

14 shelled? We are a peaceful community of citizens living in a supposedly

15 protected cultural site, yet we are being shelled. Our houses are being

16 destroyed. Our churches are being hit. Our places of religion are being

17 damaged. Our monuments are being hit.

18 There was no doubt that the Old Town -- there was no doubt from

19 the JNA side or the Yugoslavian authorities side, there was not a shadow

20 of doubt that it was entitled to the strongest protections under

21 international humanitarian law and under the 1950 Hague Convention. Your

22 Honours heard evidence from an UNESCO observer there, Dr. Colin Kaiser of

23 his placing emblems, UNESCO-related emblems, and flags around significant

24 buildings and monuments in the Old Town. To demonstrate, to show, and

25 this is in a video taken -- taken when?

Page 8622

1 Excuse me for one moment.

2 This is taken in the -- shown in Exhibit P145, which is the video

3 of the video. The Croatians videoing the JNA on the 8th of December.

4 I'm just going to show you the very beginning of that video to remind the

5 Trial Chamber that these emblems were, in fact, quite evident from

6 outside of the Old Town.

7 Your Honours can see in the first clip there is an emblem on the

8 Sponza Palace. Your Honours can also see the roof damage to the Sponza

9 Palace, demonstrated by the blue tarpaulin covering it.

10 Your Honours can also see on the clip we were just showing is

11 there -- we are just stopping here another indication of a cultural

12 property or cultural emblem on St. Blaise Church, or St. Vlaho's Church,

13 which was directly opposite the Sponza Palace.

14 Now, of course Your Honours have seen in the videos the UN flag

15 or UNESCO flag flying over Minceta. It was quite apparent to all in the

16 surrounding area, and especially those on the heights overlooking as

17 witness B told the Trial Chamber, it was particularly evident that the

18 signs of protection were flying and especially in the wind it was even

19 more evident, the blue and white flag was even more evident.

20 If I could just perhaps put a page on the ELMO. It's Article 9,

21 10, and 11 of The Hague Convention for the Protection of Cultural

22 Property in the event of armed conflict. And if I could also put the

23 other page which is Article 16. Perhaps if you could put Article 16

24 first, Mr. Usher.

25 Article 16 refers to the emblem of the convention and the use of

Page 8623

1 the emblem. Your Honours see the description there of the emblem

2 certainly matches what we've just seen in Exhibit P145. That is the

3 distinctive emblem of the convention, a shield, sapphire blue and white.

4 Thank you. If you could now place the next sheet on the ELMO

5 which is Articles 9, 10, and 11.

6 I take Your Honours, in the context of emblems, to Article 9 of

7 the convention which is under chapter 2 under Special Protection, and

8 that sets out the immunity under special protection. And that is "high

9 contracting parties undertake to ensure the immunity of cultural property

10 under special protection by refraining ... from any act of hostility

11 directed against such property except for the cases provided for in

12 paragraph 5 of Article 8, which refers to renunciation of the rights."

13 And of course there is no evidence and it's certainly not the

14 case that there was any renunciation of the rights afforded to the Old

15 Town of the special protection.

16 If you then move to Article 11, withdrawal of immunity. It sets

17 out how an opposing party is released from immunity in the case of a

18 violation. But it says at the last sentence of Article 1 -- sorry 11.1,

19 "nevertheless, whenever possible, the latter party shall first request

20 the cessation of such violation within reasonable time."

21 Now, of course reasonable time is not defined there.

22 And at Article 2, the last sentence: "Whenever circumstances

23 permit, the opposing party shall be notified, a reasonable time in

24 advance, of the decision to withdraw immunity."

25 Now, I raise this because of the Defence submission at paragraph

Page 8624

1 617 of the Defence submissions on the Article, where the Defence has

2 indicated that somehow the Old Town has been deprived of protection. And

3 they go on to say: "The Defence points to the assertions made in the

4 jurisprudence of the Tribunal in relation to the special status and

5 withdrawal of immunity of cultural property." And then quote the Kordic

6 case.

7 The difficulty with that submission, Your Honours, is that the

8 circumstances have in no way given rise to withdrawal of immunity or

9 notification under Article 11.1 or 11.2. The opposing party, that is the

10 JNA or the Yugoslav forces, considered that this immunity would be

11 withdrawn. It's just not there. And the Prosecution certainly submits

12 that if the Old Town had been used in violation of the protections under

13 the Convention, and it certainly was not, the other side, the JNA, would

14 have been obliged under the convention to notify the Croatian authorities

15 that they considered that the Old Town was being used in violation of the

16 convention and that immunity would be withdrawn or should be revoked.

17 That didn't happen.

18 The next section I wish to deal with are the specific crimes

19 alleged the Prosecution now says are proved beyond a reasonable doubt

20 occurring in the Old Town on the morning or the day of the 6th of

21 December, 1991. The Prosecution has charged the accused with

22 responsibility for the deaths of two young civilian men, Mr. Urban, Mr.

23 Pavo Urban, and Mr. Tonci Stocko. There was not a shred of evidence, and

24 we will address this later, not a shred of evidence that these young men

25 were anything other than civilians, not taking a direct part in

Page 8625

1 hostilities on the morning. The Defence has taken issue with the fact of

2 the death of both. At page 105 at paragraph 504, the Defence submission

3 says: "The Defence challenges the allegation that the persons designated

4 in the indictment have perished in the Old Town at the time, place, and

5 in the manner described in the indictment."

6 The Prosecution submits that the evidence of their deaths in the

7 Old Town of Dubrovnik on the morning of the 6th of December, 1991, is

8 absolutely overwhelming. The Prosecution has produced direct, the most

9 direct evidence possible of the death of Mr. Tonci Stocko and has

10 produced compelling circumstantial evidence of the death of Mr. Pave

11 Urban in the Old Town on that morning. I remind Your Honours of Exhibit

12 P55, which is a paragraph shown to Witness Mato Valjalo. Your Honours

13 can see that Mr. Valjalo who is of course one of the victims of the

14 serious injury, the cruel treatment, has marked on this exhibit with the

15 X in the middle where he was when he was running through the street and

16 the Old Town at about 9.00 or so in the morning when a shell exploded

17 behind injuring him. If Your Honours look at where the photograph is

18 taken, the photograph is taken from right next to the Sponza Palace below

19 the bell tower. Now, the importance is shown in the next exhibit which

20 is the photograph of Mr. Pave Urban's body lying underneath the bell

21 tower. And this was the photograph identified by Witness A who looked

22 out his window to the right. Your Honours would have seen the location

23 from where Witness A saw it, which is probably about 40 to 50 metres from

24 the body, and identifying this body as that of the one that he saw lying

25 under the clock tower on that particular morning. It's also in Exhibit

Page 8626

1 P66 at about time of 32, where the body is shown and there is a car

2 speeding around the corner there.

3 If Your Honours look at the photo there and the post mortem

4 photograph which shows the same -- a person wearing the same clothes. Of

5 course -- before it goes -- it's gone now, you can see the camera lying

6 at Mr. Urban's left shoulder. If you compare the post mortem photograph,

7 you can see a person, Mr. Urban, is wearing the same clothes. And of

8 course you've got Dr. Ciganovic's evidence of the cause of death. So if

9 you put everything together, the circumstantial case, in the

10 Prosecution's submission, is overwhelming. This man was taking

11 photographs in the Old Town. Mr. Mustac saw him walking around at that

12 time with his camera. Witness A saw him dead under the bell tower some

13 hours later. Shells has exploded in the Stradun over that period of

14 time. Your Honours have seen videos of the shell pockmarks throughout

15 the Stradun. And the person on the table in the mortuary and the cause

16 of death are all entirely consistent with the cause of death Prosecution

17 -- with him dying from shell -- dying as a result of shell injuries.

18 Now, the Defence at paragraph 449 took issue with part of Dr.

19 Ciganovic's report. And the Prosecution of course recognises the

20 limitations of a report when someone is doing 19 autopsies in one day in

21 very, very difficult conditions as described by Dr. Ciganovic: No

22 running water, variable electricity and being ordered by the

23 investigating judge to perform external examinations.

24 The Defence at paragraph 499 said "the explosive wounds can only

25 be the mechanism of injuring which had caused death but they cannot be

Page 8627

1 the cause of death itself. The mechanism of death is one thing; the

2 cause of death quite a different one. One cannot give the finding that

3 the cause of death is an explosive wound or injury."

4 What Your Honours of course realise is that completely ignores is

5 the evidence of their own medical expert, Dr. Soc, who came here to

6 criticise severely Dr. Ciganovic's report but without having had the

7 benefit of seeing the transcript of the proceedings or being aware of the

8 entirety of the evidence. And when we put to Dr. Soc in

9 cross-examination the scenario, which is basically unchallenged on the

10 evidence before this Trial Chamber, this is what he said: "A shell

11 exploding 40 to 50 metres away from a person, exploding with fragments

12 flying about, fragments could enter a person and kill them or cause an

13 injury leading to their death."

14 To which he answered: "That's right."

15 The next question was: "You may expect to see an explosive wound

16 from a flying shrapnel. I say may."

17 To which the answer was: "It may be the case, yes."

18 The next question was: "And a shell exploding close to a person

19 could cause blast injuries and kill them instantly, couldn't it?"

20 To which Dr. Soc's candid answer -- which was basically the only

21 one that he, as a medical practitioner experienced in both autopsies and

22 the treatment of war victims, could say -- was: "That may be another

23 circumstance involved. That's beyond doubt. Lives can be lost when a

24 person is hit by shrapnel from as for away as 40 metres from where the

25 person is actually standing."

Page 8628

1 Now, that, Your Honours, is the importance of which Mr. Valjalo

2 marked. Because in combination with what Mr. Mustac says where he saw

3 Mr. Urban, that places Mr. Urban well and truly within range of where

4 shells were exploding in the Stradun. Of course Your Honours are aware

5 of the large shell crater in front of St. Blaise's Church, which is the

6 subject of much cross-examination and examination in chief with Dr.

7 Vilicic. That may well have been the cause of Mr. Urban's death. We

8 will never know. There are certainly shell marks consistent in that area

9 with, as Dr. Soc, concedes, an explosion which could have caused his

10 death.

11 The Prosecution says: The only inference that can be drawn is

12 that Mr. Urban died on that day in that spot as a result of a shell

13 exploding and a shell fired from JNA positions. That's Mr. Urban.

14 Now, the Defence of course will not even concede the fact of

15 death or the manner of death of Mr. Stocko, even though they make the

16 concession in their brief that it was the JNA. They say the 9th VPS and

17 the 3rd of the 472nd Brigade which were firing shells into the Old Town.

18 The evidence of Mr. Stocko's death is basically unchallenged. There was

19 an eyewitness to it. Mr. Jovic who was injured by flying shrapnel was

20 injured himself by a shell that exploded some 40 or so metres away at the

21 best estimate, consistent with Dr. Soc's evidence of what could kill a

22 person and was with Mr. Stocko when he collapsed a minute later, with

23 what Mr. Jovic described when his t-shirt was lifted up as seeing a hole

24 in the man's, in the deceased chest, with blood.

25 I want to show you the autopsy photograph of Mr. -- when it comes

Page 8629

1 on to the screen you will see that the injury which is depicted to the

2 chest of the deceased is not only consistent with what Mr. Jovic said but

3 fits in with all the other evidence of the shelling and the causes of

4 death.

5 While that's coming up on the screen, I'll just point to the

6 extract I read from Dr. Soc's evidence at 7977 and 7978 of the

7 transcript.

8 We seem to be having a technical problem with Sanction. I'll

9 come back to this, if time permits, at a later stage.

10 The next challenge to the Prosecution evidence was in relation to

11 the injuries sustained by Mr. Valjalo and Mr. Vlasica, again civilians

12 going about their business in the Old Town on the morning of the 6th of

13 December, 1991. The technical problems have been overcome and I'll just

14 broadcast for one moment the photograph of Mr. Stocko which is an exhibit

15 at page -- are Your Honours getting a signal?

16 JUDGE PARKER: No.

17 I gather the technicians are working on the matter at the moment,

18 Mr. Re. Perhaps you would move on to the injuries --

19 MR. RE: Yes, I'm doing just that.

20 I won't deal with the issue of the medical reports or the

21 differences in the medical reports. Those were, in my submission, well

22 and truly cured in Dr. Soc's evidence and his concessions, and we've

23 covered that in our final trial brief. What I do want to address is what

24 the Defence has said about Mr. Vlasica's credibility. He was a civilian

25 shop keeper who was standing in the doorway of his shop in Od Puca when a

Page 8630

1 shell exploded nearby just as with Mr. Stocko, and he was injured by

2 shrapnel on the morning. The Defence attacks his credibility at page 497

3 -- sorry, paragraph 498 by saying that: "Although allegedly seriously

4 wounded, when he was transferred to the hospital, while lying down in his

5 vehicle which was transporting him, he registered down to every detail

6 all the damages that were present in the Old Town."

7 The Defence upholds that it is difficult to believe that anyone

8 to seriously wounded to have listed all the serious damages. In the

9 Prosecution's submission, that is a serious misrepresentation of the

10 evidence and Mr. Vlasica's credibility cannot be attacked on that basis.

11 At page 3325 he simply said: "As we were going through Od Puca

12 street, I noticed a fire ablaze to my left," meaning I saw houses

13 burning, houses opposite the orthodox church. "There was an incredible

14 amount of material on the streets so that the driver had to dodge the

15 rubble, the bricks, the debris on the floor -- pavement rather. I know

16 he arrived at the Pile gate. That's all I remember. I don't recall

17 anything else because at that moment I faded and only came to at the

18 hospital."

19 The Defence also submitted that the -- as a most curious

20 submission by attempting to import, one would think, the concept of

21 volenti non fit injuria, or voluntary assumption of risk into

22 international humanitarian law. That's at paragraph 505, where the

23 Defence submits that because the general alarm had sounded every citizen

24 had an obligation "in accordance with the possibilities," whatever that

25 means, to comply and take protective cover. It was basically a way --

Page 8631

1 and then they moved on to say that Mr. Urban and Mr. -- or the persons

2 outside who perished were not respecting the general alarm, that's at

3 508, they were moving outside the protective shelters, constantly placing

4 themselves and their health at risk, having thus contributed to the

5 serious consequences that ensued.

6 "Then there's a particularly callous submission, in the

7 Prosecution's submission. They then go on at 509 to say: "If these men

8 had perished -- if they had really perished on the 6th of December in the

9 Old Town, then they to an enormous degree have contributed to the

10 occurrence of serious consequences."

11 This of course isn't a negligence case, it's a case of serious

12 violations, the most serious violations of international humanitarian

13 law. The Prosecution submits that these fanciful submissions should be

14 disregarded in their entirety. The Prosecution says they should never

15 have been made. They don't form part of the law. There is no Defence

16 based on voluntary assumption of risk.

17 In relation to the submission at 507, that "not a single person

18 in the Old Town had perished in the shelter, also not a single person

19 that was located in any housing building in the Old Town, regardless of

20 its construction characteristics, was either wounded or killed.

21 The Prosecution's response to that, well that is just only a

22 matter of luck. The clear evidence is that the shelter, the Simoni

23 school was actually hit on the day. The school is on the corner only 40

24 metres from where Tonci Stocko and Mr. Jovic were hit by flying shrapnel.

25 It was only a matter of luck, in the Prosecution's submission, because of

Page 8632

1 the solid nature of the building. The people were just lucky the walls

2 were made of stone and not wood. Had the Old Town been of wooden

3 construction, the damage to life and property would have been far, far,

4 far greater.

5 JUDGE PARKER: Is that a convenient point, Mr. Re?

6 MR. RE: It would be, Your Honour, we might be able to fix the

7 technical difficulties.

8 JUDGE PARKER: Yes. What we will do then is resume at 11.15.

9 --- Recess taken at 10.52 a.m.

10 --- On resuming at 11.18 a.m.

11 JUDGE PARKER: Mr. Re.

12 MR. RE: Technical difficulties resolved, I move to the issue of

13 what I can call the property damage, which is the subject of counts 4, 5,

14 and 6 of the third amended indictment. Mr. Fenrick will address in

15 greater detail on the law which we have covered in detail on attacks on

16 civilian objects and devastation by military necessity and damage to

17 cultural property.

18 The Prosecution's submission is: When you look at the evidence

19 in its entirety of the damage to the Old Town, the property damage to the

20 Old Town, on the day the only -- the overwhelming evidence -- the

21 overwhelming inference, everything points to one thing: That it was

22 damaged and it was damaged due to JNA or 2nd Operational Group shelling

23 on that day. The evidence before the Trial Chamber of damage before that

24 day was of minor damage in October and November, again from 2OG shelling.

25 But damage which was easily distinguished, and the witnesses said this,

Page 8633

1 from what occurred on the 6th of December throughout the day. The damage

2 could not have been caused by anything else. The shelling is the only

3 thing that could have caused it. The video evidence, the eyewitness

4 evidence only points to one thing. The evidence of building rubble

5 strewn throughout the streets. The buildings with holes in their roofs.

6 Large holes caused by shells. The shrapnel damage could only have been

7 caused by one thing, and that is shelling. It's also the location of

8 damage throughout the Old Town. The extent of the damage and the type of

9 the damage. When you put it all together, the only conclusion is that it

10 was the 2nd Operational Group's shelling which caused it.

11 The Prosecution's submission is that we have established beyond a

12 reasonable doubt what is really only a representative sample of the

13 damage that occurred in the Old Town on that day, but for the purposes of

14 this Prosecution it suffices. The Prosecution respectfully and happily

15 adopts Your Honours -- the Trial Chamber's annex to its Rule 98 bis

16 decision. And in annex 4 to our final trial brief, as Your Honours have

17 seen, we have marked all the buildings on that which Your Honours have

18 found at 98 bis level. There was sufficient evidence at 98 bis level.

19 The Prosecution says that in the absence of any evidence contradicting

20 that of the extent, type location of property damage in relation to all

21 the buildings in the annex of the 98 bis decision, the Prosecution has

22 established beyond a reasonable doubt that the damage caused to each of

23 those buildings on the 6th of December was caused by JNA shelling.

24 There's one brief addition to that which I note in oral

25 submissions, and that is we have placed a C1 on the institute building,

Page 8634

1 which is the building opposite the Dominican monastery, where the

2 evidence which was found in Dr. Kaiser's evidence, of his being there on

3 the day when it was shelled and damaged. That's the only additional

4 building we take Your Honours to.

5 What I want to look at is the pattern of damage and I turn to

6 religious damage as just one category of damage to buildings throughout

7 the Old Town. I'm showing you an extract from the UNESCO report, 63/9,

8 and it's a map showing the damage to religious structures throughout the

9 Old Town. With the exception of the one which is marked number 7, which

10 is the bottom left-hand corner, which isn't in the indictment, it shows a

11 pattern of destruction to the other 12 religious buildings ranging from

12 10 Catholic institutions there to the Orthodox church and of course the

13 synagogue. All of those buildings are marked on annex 4. All of them

14 are included in the annex to the Rule 98 bis decision. But this shows

15 the distribution of damage just to religious buildings throughout the Old

16 Town on the 6th of December, 1991.

17 Just taking you briefly to several specific sites, if I could

18 just take Your Honours to the Franciscan monastery. I'm going to show

19 you a 10-second clip from P145. Now, this building is of course a very

20 large building, and according to the UNESCO report was built in -- the

21 building was started in 1317 and its most beautiful cloisters were built

22 around 1348. The UNESCO report -- that's P63/9 at page 36 -- refers to

23 it being hit by 37 shells. There's no reason to doubt that if one looks

24 at the videos showing the damage, the holes in the roofs. The three

25 videos all show hole damage to the roof. But what I want to show you at

Page 8635

1 8.10 to 8.20 is to remind you of the evidence what caused the damage.

2 And you can see in this clip, you can see damage to the interior of the

3 Franciscan monastery and you can see a person holding a shell, the tail

4 end of -- keep going -- the tail-end of a shell which had come through

5 the roof. There is the video of the JNA representatives filming it the

6 day following -- two days after the bombing or the shelling. You can see

7 people holding shells. And in this, picture at 8.40, tail fins. You can

8 clearly see tail fins from the 37 impacts described in the report.

9 The holes are also demonstrated by the Dominican monastery, which

10 as I showed you on the map before, is at the other end of the Old Town,

11 which is at the Ploce Gate end. One photo most graphically demonstrates

12 that is at P10 which is the colour slides attached to P63/6 and that is

13 photograph P13.

14 Suffice it to say that each of these religious structures was

15 built between the 11th century, in the case of the Sigurata Church, and

16 the mid-19th century in the case of the Orthodox church. I mention in

17 passing the mosque which isn't on that map, the UNESCO map, but it was

18 inspected by Mr. Vukovic. It was also damaged on the day. It was in

19 Miha Pracata. It was A39 on annex 4. It was 25 metres or so from where

20 Mr. Stocko was killed.

21 That brings me to a most curious submission, if I can put it in

22 those terms, in the Defence submission, and that is at paragraph 518.

23 That is -- I suppose one could loosely term it an arson conspiracy

24 theory, in which the Defence submission or final trial brief says: "Out

25 of six buildings that had allegedly burned down, five were owned by

Page 8636

1 persons from Serbia or Montenegro."

2 It then goes on to list the buildings allegedly owned by persons

3 from Serbia or Montenegro. And it concludes with the grandest conspiracy

4 theory suggestion of all: "The Defence finds that this, in fact, more

5 than just a pure coincidence which must be taken into consideration in

6 evaluating the events that are the subject of this deliberation."

7 The difficulty with this submission, apart from the fact that it

8 is purely speculative, is the fact that there is simply no evidence of

9 it. What is the Defence submission suggesting? That there was arson by

10 the Croats? That there was some conspiracy to set fire to property which

11 may have been Serb owned? Well, it's not quite coming to the point. But

12 the fallacy of this, apart from the fact that there is no evidence to the

13 Trial Chamber apart from the ownership of these particular buildings or

14 these particular shops or whatever, is that it ignores the fact that the

15 Serbian Orthodox church directly opposite the buildings that burnt

16 down -- one of them allegedly owned by the Serb but there's no evidence

17 of that -- was hit on the roof by shells. There's a photo at page 52 of

18 Exhibit P63/9 -- that's the UNESCO report -- which shows the Serbian

19 Orthodox church with holes in the roof, which could only have been caused

20 by shelling from the 2nd Operational Group. And if there had been any

21 suggestion that the Croatians had been setting fire to Serb-owned

22 building, why is that not in P61/39, that is the letter or the report

23 made by the JNA two -- several days afterwards? Would that not have been

24 the most marvelous opportunity to demonstrate that the Croatians had done

25 it themselves? Well, if that were true, one would expect it to be there

Page 8637

1 and it's not.

2 It also ignores that we have no idea of what percentage of the

3 many, many other buildings damaged in the Old Town were Serbian,

4 Montenegrin, or otherwise owned.

5 The Prosecution submits the most important thing, the

6 consideration from this particular submission, is the fact that the

7 Defence cannot even concede the fact of destruction even though they

8 could not challenge it in cross-examination of these buildings on that

9 particular day.

10 To demonstrate the spread of buildings, as found in annex 4 --

11 that the Prosecution says that it can prove that there is direct evidence

12 beyond a reasonable doubt, I take you to annex 4 of the final trial

13 brief. That of course shows buildings throughout the town on both sides.

14 It shows damage to the pavement of the Stradun. It shows damage to the

15 Old Port -- that's at B1 on the right. It shows damage to monuments such

16 as the Onofrije Fountain at A7 to the left. It shows damage to the

17 walls, to the northern walls, to the western walls. It shows damage to

18 15 religious buildings and it shows damage to many, many houses where

19 people were sheltering on the day.

20 The Prosecution's submission -- and I conclude on this note -- is

21 that the only inference available, and it is overwhelming, is that the

22 Prosecution has proved beyond a reasonable doubt damage to each of those

23 buildings and it was caused by JNA shelling, 2nd Operational Group

24 shelling, and there can be no other cause.

25 And the Prosecution submits that it has proved its case insofar

Page 8638

1 as the death, injuries, cultural property damage, attacks on civilians,

2 and attacks on civilian objects in relation to the crime base.

3 That completes my portion of the submissions.

4 JUDGE PARKER: Thank you, Mr. Re.

5 MR. WEINER: Good morning.

6 JUDGE PARKER: Yes, Mr. Weiner.

7 MR. WEINER: Thank you.

8 I will address what happened on December 6th. I'll begin by

9 providing an overview of the attack and then very briefly describe the

10 JNA positions. From there, I will discuss the Croatian military

11 positions. We will confront the allegations of Croatian military weapons

12 within the Old Town. We will discuss the positions surrounding the Old

13 Town, and finally, we'll finish with who shelled the Old Town.

14 The plan of attack, according to the evidence, of the Croatian

15 fortress at Mount Srdj was implemented on the 6th of December, 1991. The

16 attack on the fortress came from two directions: From the left or from

17 the west it came from -- at about 5.00, Zoran Lemal led a unit of

18 infantry from the 2nd Operational Group across from Strincjera from Mount

19 Srdj. One hour later, Croatian military positions on Srdj were shelled

20 by 2nd Operational Group guns.

21 At 6.20 Budimir Pesic led another infantry group, from the right

22 this time, or the east, from Basanka to Srdj. As Pesic moved 2 to 400

23 metres towards Srdj, they came under fire from Croatian mortars. Around

24 7.00 shells were landing in the Old Town. Around 7.20, three shells had

25 struck the Grbic home and it had started to burn.

Page 8639

1 THE INTERPRETER: Please slow down for the interpreters.

2 MR. WEINER: Sorry.

3 By 8.00 a.m. Zoran Lemal's unit were 4 to 600 feet from the

4 repeater on Mount Srdj and they had signaled their units to start any

5 firing so it won't hurt their own men. At that time, Pesic radioed to

6 have the mortar fire on his side stopped, meaning the JNA fire on Srdj.

7 From 7.45 to 8.30 in the morning, when 120-millimetre mortars from the

8 3rd Battalion of the 5th Brigade were shelling various positions in

9 Dubrovnik and the surrounding areas in Lapad and Babin Kuk. At 8.00,

10 Pesic's unit enters the Sdrj area. Between 8.00 and 8.30 one of Lemal's

11 soldiers is killed. Between 8.00 and 8.30 a request is made for

12 130-millimetre guns from Cilipi to fire. At approximately 8.36 a.m.,

13 that request is denied. At 8.30, Budimir Pesic, the leader of the squad

14 that came from Bosanka is injured. At 9.00, there is strong mortar fire

15 on Srdj from the Croatian side. Lemal loses three men. Also around this

16 time Slavoljub Stojanovic arrives and takes command of Pesic's unit.

17 At 9.30 there's another request for 130-millimetre mortars to

18 fire. That request was denied at 9.50. At 11, Lemal is taking more

19 casualties. General Strugar orders the 2nd Operational Groups to cease

20 fire at 11.15. Sometime at either 11.00 or 12.00, Stojanovic withdraws

21 his unit back toward Bosanka. At 11.30, the Croatian mortars at the SDK

22 building are out of ammunition, but their mortars at Babin Kuk continue

23 to fire. At 11.45, the 3rd Battalion of the 5th Brigade stops firing.

24 They do continue firing sometime in the afternoon. In the afternoon,

25 Captain Kovacevic orders Mr. Lemal's unit to withdraw. Stojanovic's unit

Page 8640

1 returns to their base in Bosanka between 1 and 2 p.m. According to

2 Witness B, the firing at Djakovica stopped at 3.00. All shelling ends

3 around 7.15 p.m., according to the ECMM monitors.

4 During that day, the Old Town was struck by 82-millimetre mortar

5 shells. It was struck by 120-millimetre shells, Maljutka missiles and

6 recoilless cannon fire. In the early afternoon, at 12.43 p.m., we see on

7 Exhibit P66 the Old Town of Dubrovnik. You can see the smoke coming out.

8 And that's at 32 minutes, 15 to 19 seconds.

9 Later that afternoon, this so-called jewel of the Adriatic looked

10 like this.

11 [Videotape played]

12 MR. WEINER: This is at 32 minutes, 23 to 28 seconds. That's

13 what it looked at as the sun was starting to go down.

14 The Old Town was within the firing range of the following 2nd

15 Operational Group units: We know Djakovica, the 120-millimetre battery

16 at Uskoplje, also referred to as Ledenica; the 82-millmetre mortar

17 battery at Strincjera; Admiral Jokic says the 82-millimetre battery at

18 Bosanka; and finally, there's discussion of another battery, an

19 82-millimetre battery at Racevica. Mr. Vilicic mentions this in his

20 testimony and in his report at pages 5 to 6. Witness B also seems to

21 describe this, because he says that they were firing Maljutkas and

22 recoilless cannons from Zarkovica, but from behind Zarkovica, there were

23 mortars. And if you look at a map, Racevica is behind Zarkovica.

24 Now, where with the Croatian military positions? First, it's our

25 contention that there were no Croatian military positions in the Old Town

Page 8641

1 of Dubrovnik. Three Defence witnesses have testified to observing

2 weapons in the Old Town on the 6th of December. A number of witnesses

3 have denied seeing any weapons or any outgoing fire from the Old Town on

4 December 6th, and those witnesses included local residents; former JNA

5 soldiers; and independent observers such as Pur, Valkov and Colin Kaiser.

6 Further, the Prosecution submits that the Defence testimony on

7 this issue is not credible. Let's consider each of those three

8 witnesses.

9 First we have Mr. Vladimir Pepic. He's the witness who testified

10 that his eye sight was better than that of a zoom lens. With the naked

11 eye standing 50 metres behind the front of Djakovica, from approximately

12 2300 miles away, he claims that he saw an anti-aircraft gun near the

13 turret towards the front of the entrance and he saw an 82-millimetre

14 mortar between the wall and the water.

15 JUDGE PARKER: Did you mean metres rather than miles, Mr. Weiner?

16 MR. WEINER: Yes, Your Honour.

17 Now, if we look at Exhibit P66 at 1306 seconds we see the

18 recoilless cannon and the camera right above the recoilless cannon. And

19 if you notice at that point you cannot even see boats in the harbour.

20 Now, let's continue to 13 minutes and 15 seconds and stop as they use the

21 zoom lens.

22 [Videotape played]

23 MR. WEINER: Even with the zoom lens it would be difficult to see

24 an object such as a mortar. And you probably couldn't see an

25 anti-aircraft gun. Even the boats look like small squares. His fellow

Page 8642

1 Defence witness, Budimir Pesic, testified that you could not see a mortar

2 from that distance with the naked eye, and that's at 7924. And he said

3 even with binoculars at that distance you could not determine the calibre

4 of the mortar. That's at 7926.

5 In addition to seeing a mortar, Mr. Pepic wants you to believe

6 that they moved into open view in front of the 2nd Operational Groups on

7 Djakovica and then hit another mortar. They rolled it out and then hit

8 it. We suggest this testimony isn't even plausible.

9 Further, neither the mortar nor the anti-aircraft gun are visible

10 in video P66. If we begin at 7.13 a.m. That's 31 minutes and 7 seconds

11 and stop at 31 minutes and 19 seconds.

12 [Videotape played]

13 MR. WEINER: 31 minutes and 19 seconds. Stop there.

14 JUDGE PARKER: While that's being considered, did you mean Mr.

15 Pesic or Mr. Pepic?

16 MR. WEINER: Mr. Pepic. However, Mr. Pesic testified also about

17 what you could see at certain distance, because he was looking at a

18 similar distance from up on Srdj towards Babin Kuk and he said he could

19 not see mortars at 2.000 metres without binoculars. He said at that

20 distance you couldn't see a mortar without binoculars. And even with

21 binoculars, Mr. Pesic said, you could not determine the calibre of the

22 mortar, which is in conflict with Pepic's, Vlado Pepic's testimony,

23 because he says not only could he see with the naked eye, he could see

24 the calibre of the mortar.

25 Now, we're stopped here, sometime after 7.00 at 31 minutes and 19

Page 8643

1 seconds. There is no anti-aircraft gun visible nor is any mortar visible

2 in front. Now, if we continue to 31 minutes please.

3 [Videotape played]

4 MR. WEINER: Again we see a view from the side, and again, there

5 is no anti-aircraft gun as we look from the side up in the turret or any

6 mortar appears to be moving out front.

7 The witness further claims -- the witness is Vladimir Pepic --

8 that he saw some flashes two-thirds of the way down the Stradun. On a

9 side street -- and the flashes were coming out of a buildings on a side

10 street. From these flashes he assumes it was a mortar firing. And again

11 he claims he saw this with the naked eye. We're talking over 3.000

12 metres. As you recall, at those first video pictures we showed just

13 above the recoilless weapon, you couldn't even see the entrance area or

14 the harbour area of the Old Town clearly. And he expects us to be able

15 to see flashes some 5 to 700 metres farther away.

16 Mr. Pepic further states that the flashes were 6 to 7 metres

17 long, and that's at 7559, and they ran from the bottom of the building up

18 to the top. Now, his fellow witnesses disagree with these type of facts.

19 Witness Nesic says that a flame from a mortar is only 1 and a half metres

20 long. That's at 8205. Mr. Drljan says that the flash from a mortar is

21 only 1 metre long and that's at 7113. No one is saying that a flash from

22 a mortar is 6 to 7 metres long and it would radiate from the bottom to

23 the top of a building.

24 The Prosecution submits that there was no mortar seen by Mr.

25 Pepic. There was no great radiation, radiating flash, nor could he have

Page 8644

1 been a mortar or an anti-aircraft gun near the Old Town entrance. His

2 testimony is just not credible.

3 The second witness, Jovan Drljan, also made observations that are

4 not credible. He testified that he saw flashes behind the Orlando

5 column, which he believed to be coming from a mortar. And then halfway

6 down the Stradun he sees a mortar being pulled out to the street; there

7 for one minute, it fires, and it's pulled back. Like Mr. Pepic he also

8 claims to have superhuman eyesight. When he's questioned about these

9 flashes at 7754, he's questioned and answers the following:

10 "And this, in fact, whatever you saw was at a distance of about

11 approximately 3.000 metres from an elevation and behind the pillar?"

12 Answer: "This event took place behind the pillar and you can see

13 the flame clearly. I've been doing that for 17 years. I've sailed for

14 17 years and my eyesight is very sharp because I trained my eyesight with

15 sailing. When I see something at that sort of distance, I just can't go

16 wrong."

17 Now, he changes his testimony at one point at pages 7731 and 32

18 and concedes that it might have been shells falling that caused the

19 flashes. 7731 and 32. Further, we've seen that unless there is a dark

20 background, if the area is in shadows or its dark outside, you can't even

21 see the flashes that emanate from a mortar. At P219 there are two

22 photographs which you'll see, which were taken of mortars firing and you

23 can't see the flashes.

24 In our case, where we did show photographs of a flash of the

25 mortars firing, one is against a dark background of trees and the other

Page 8645

1 was in an area that was under the shadow of trees. And also, the

2 photograph was taken close. When you take a photograph close up to the

3 mortar that's firing, you can also see that 1 to 1 and a half metre

4 flash. Here you can see that you don't see how we see the flame,

5 especially in a bright area.

6 Now, the witness testified that he could see that and it was a

7 bright sunny morning. His second statement is also suspect. He claims

8 that they dragged this mortar; within a minute it fired. Even the

9 Defence witnesses have testified that you cannot fire a mortar off of a

10 hard surface unless you put padding, bracing, sandbags. You have to

11 prepare the surface. Now, the witness indicated, as I said, it was fired

12 within one minute after it was placed on the Stradun and he did not see

13 any sort of padding, bracing. Nothing was placed under it. Firing in

14 this situation is not plausible.

15 Further, there is no other witness that corroborates Mr. Drljan's

16 testimony. No one else saw this sudden mortar coming out of some

17 doorway. No one else saw this flashing by the Orlando Hotel. Finally

18 what's interesting is this witness was responsible for placing entries in

19 the war diary. He claims to have made an interesting observation, seeing

20 one and possibly two mortars in the Old Town, but he never places these

21 in the log. We submit he never placed them because they never occurred.

22 We submit that his testimony isn't credible and it should be rejected.

23 Finally, Nikola Jovic claims to have seen three weapons in the

24 Old Town. First he claims to have seen a mortar at the southern-most

25 turret of the Old Town. And he claims that he neutralised it with one

Page 8646

1 cannon recoilless projectile. That's at 8238. The problem is --

2 I'm sorry. There is a mistake in the transcript, it's my

3 mistake. At 31.1 it says Nikola Jovic. It should be Novica Nesic.

4 29.1, yes.

5 Mr. Nesic claims that he neutralised that. The problem is Nesic

6 doesn't mention this mortar in his ammunition expenditure report, which

7 is D13. Nor does he mention it in the combat report or in the subsequent

8 report filed, D65. But what is more significant is the method in which

9 he neutralised this weapon. He claims to have used a recoilless cannon.

10 The turret which he claims he hit is far beyond the maximum range of this

11 weapon. Professor Vilicic, who is one of the designers of this

12 particular recoilless weapon explained it has a range of up to 1.000

13 metres and is intended for targets of 600 metres. He stated a shell from

14 it can travel up to 2.000 metres. But then he added at page 8430 that

15 shells from a recoilless cannon: "could reach, at a stretch, up to a

16 length of 2.000 metres."

17 The turret in question is on the southern-most side about halfway

18 or mid-way through the Old Town. It's approximately 3.000 metres.

19 Nesic's weapon could not reach that. It could barely reach 2.000 metres,

20 let alone another 1.000 metres into the Old Town. That claim cannot be

21 given any merit.

22 Nesic also claims that he had seen an anti-aircraft gun in the

23 window to the right of the harbour entrance. He says he never saw the

24 barrel, he only saw flashes and from the flashes he believes it to be an

25 anti-aircraft gun. Nesic's testimony on this is conflicting. He claims

Page 8647

1 to have seen the gun at around noontime, which is at transcript 8172.

2 But he claims to have neutralised this same weapon in the morning, at

3 8236. Again, there is no mention of this weapon in his ammunition

4 expenditure report, D113, nor is it mentioned in the combat report or the

5 report filed subsequently thereafter, D65. There is not one witness who

6 corroborates the existence of this weapon.

7 According to the ECMM monitors, there was no outgoing fire from

8 the Old Town on that date, December 6th, nor do the monitors observe any

9 traces from an anti-aircraft gun emanating out of the Old Town. As you

10 recall, they are staying at the Argentina Hotel. They are overlooking --

11 they are on the water and they are overlooking the Old Town. There is no

12 evidence that they observed any traces.

13 Finally, Nesic wants us to believe that an anti-aircraft gun

14 weighing hundreds of kilograms and having one or two long barrels was

15 moved into a building and fired without anyone other than him seeing

16 this, seeing any of this. The Prosecution submits that common sense

17 tells you that this observation is highly suspect.

18 Nesic finally claims that he saw some men moving from the harbour

19 area into the Old Town and that they were carrying crates, these long

20 crates which he claimed to be familiar with, the types used to carry

21 ammunition. He doesn't say that they were running. He doesn't say that

22 they were rushing. Further, he claims that they're doing this out in the

23 open while the shelling is occurring. No other Defence witness sees

24 this; no other Prosecution witness sees this. No ECMM monitor sees this.

25 If we look at P61 page -- at document 30, when it comes up --

Page 8648

1 these are the notes of Per Hvalkof, which he wrote, or he drafted, based

2 on the information he receives from the other monitors. They're watching

3 the shelling. They're counting the explosions. They even see their

4 vessel, Argosy in flames out on the water. But there's no record of

5 people with ammunition crates in the area where the shells are landing.

6 There's no record of any group of men walking in and out of the entrance

7 to the Old Town.

8 The witness even notes the absurdity of this situation by

9 describing similar circumstances. He was asked if soldiers would move an

10 anti-aircraft gun in broad daylight and he says -- this is at page 8627:

11 "Not a single soldier in a theater of war would be crazy enough to be

12 doing something in broad daylight when they can be seen by anybody."

13 He wants us top believe that this occurred when no soldier would

14 commit any similar act. That's what Nesic wants you to believe. The

15 Prosecution submits that Nesic's testimony concerning his observations of

16 military activity is not credible, in fact, it's fraudulent and we'll

17 explain why. In November, ITN reporter Paul Davies notes in videotapes

18 an intentional attack on the Old Town and its harbour. We see boats

19 being blown up with Maljutkas. We see the Maljutkas hitting the walls.

20 What do we see happening again on December 6th? The same thing. At P66,

21 31.39, at 48 -- 31.48 seconds, we see boats on fire. This is the same

22 thing.

23 Now, what does Witness B tell us? He tells us they're firing

24 Maljutkas at boats, the walls, buildings, there were no military targets

25 being fired. How does he know? He's up at Djakovica. He's carrying

Page 8649

1 those Maljutka missiles to the operators so they can fire them. He's at

2 the front looking down watching what's happening.

3 Admiral Jokic tells us another very interesting point. In his

4 brief investigation he learned that among the reasons for the shelling of

5 the Old Town were, one, to inflict damage on the Old Town; and two, to

6 retaliate against Croats for the losses suffered by the 3rd Battalion.

7 But he said: "The former, the infliction of damage on the Old Town, was

8 the main reason for firing on it." And that's at page 4126.

9 Consequently, the Prosecution suggests that Nesic needed an

10 excuse. He came up with phantom targets to cover his actions. This is

11 obvious when reviewing the ammunition expenditure report which is D113.

12 If we can't get this on our video, could we place D113 on the ELMO so we

13 can see it.

14 I apologise for the technical difficulties again. Apparently the

15 computer is just not connecting with the Sanction system.

16 Now, we suggest that if you look at this carefully, starting off

17 with the recoilless cannon fire, it says: "26 pieces were fired.

18 One-third of the shots alleged to be fired in that report are fictitious

19 or false, starting off with the Lovrijenac fortress." We've already --

20 JUDGE PARKER: I think first Mr. Weiner the exhibit needs to be

21 adjusted for us to see the position you request.

22 MR. WEINER: It's in the middle part. If you raise it.

23 JUDGE PARKER: I'm sorry. Where are you looking at?

24 MR. WEINER: I'll count them: One, two, three, four, five, six,

25 seven, eight, number eight, under the M72, 26 pieces. It's the

Page 8650

1 recoilless cannon. The tunnel near the Lovrijenac fortress.

2 JUDGE PARKER: Thank you. I have it now.

3 MR. WEINER: That's five pieces and right under that is the

4 entrance of the right fortress. And that's two pieces. So that's seven

5 shots at the Lovrijenac fortress. The designer of the recoilless cannon

6 says that his -- that shots from those recoilless cannons could just

7 reach the walls, at most reach the walls of the Old Town. And he says on

8 the following day, his last day of testimony he doesn't know if it could

9 reach the walls, that it might only be able to reach some of the vessels

10 in the harbour.

11 Now, Nesic wants us to believe that not only could he reach the

12 Old Town, but he could fire past the Old Town to the Lovrijenac fortress

13 which is, as this Court knows, after the Old Town. You have to go to the

14 Old Town and then it's west of it. So we're talking maybe another

15 thousand metres. So those seven shots, I suggest, could not have been

16 made.

17 If we continue down, you'll see on the last one towards the

18 plateau right of the Libertas Hotel -- and I'm assuming it's the Libertas

19 Hotel, because there was discussion and he testifies about mortars near

20 the Libertas Hotel.

21 Now, the Libertas Hotel is another 3 to 4 kilometres from the Old

22 Town. So if the recoilless weapons can't reach the Old Town they can't

23 reach another 3 to 4 kilometres in distance after that. So that's 9 of

24 the 26 shots listed for the recoilless cannons could not have occurred

25 and I submit are falsified.

Page 8651

1 Now, if we look up to the Maljutka. If you could move that up,

2 please. Could you show each of the Maljutka shots.

3 We see rocket 9K, 11 pieces. What it does is it lists only one

4 shot on the Old Town and I assume it's the fifth. The window on the

5 right tower. One piece. What about the Maljutka that's embedded in the

6 wall that Kaiser observed in the Old Town, which is P69? Let's see if

7 the computer is working now.

8 If you see -- if you can move that up a little bit farther,

9 please. No, the other way.

10 You can see the Maljutka embedded in the wall. Where is that on

11 this list? Professor Vilicic says that he observed a Maljutka in the

12 wall near the Revelin tower. Where is that on the list? If we look at

13 the video at 31 minutes, approximately 51 to 53 seconds, we see another

14 missile going into another tower. Where is that on this list? They're

15 not on the list because we suggest that it's fraudulent.

16 In addition it notes that a Maljutka was fired towards the

17 Libertas Hotel. Now, a Maljutka has a range of approximately 3.000

18 metres. From Djakovica, the Libertas Hotel has to be 6 to 7 kilometres.

19 You could not fire a Maljutka towards the Libertas Hotel and hit

20 anything. It's twice the range of the Maljutka. You can't get near the

21 Libertas Hotel. You would be probably 3 to 4 kilometres away. Why? Is

22 this fraudulent? Why are only 11 missiles listed? Witness B tells us

23 that far more than 11 missiles, Maljutka missiles, were fired; that the

24 firing occurred without any military targets; that it was indiscriminate;

25 and that it was a game.

Page 8652

1 We suggest to you that Witness B should be believed when he

2 speaks of no outgoing fire from the Old Town, when he speaks as to the

3 number of missiles fired from Djakovica. We suggest that he should be

4 believed. We admit that he can be confused at times. He was a young man

5 right off the farm, wasn't wearing a watch, did not maintain a calendar.

6 He was incorrect on some of his dates, incorrect on some of his times.

7 He said it was the morning, 7.00, later. But his facts concerning the

8 actions that occurred, we submit, are not only correct but they're

9 corroborated by other testimony.

10 For example, the positions of the weapons in Djakovica that he

11 discusses, that's corroborated by Vlado Pepic, who also offers a diagram.

12 He indicates that to the left were Maljutkas, buildings in the centre.

13 To the right are the recoilless weapons, the same as Witness B. Witness

14 B tells you about the presence from the morning on all day of Captain

15 Kovacevic on Djakovica. We know that from Witness Vlado Pepic and

16 others. Witness B tells us about the presence of Nesic on Djakovica on

17 December 6th. That's corroborated by Nesic and others. Witness B tells

18 us about the firing on the Old Town from Djakovica. That's corroborated

19 by both Pepic and Nesic. Witness B tells us that Kovacevic used the

20 phone on Djakovica. He saw him do it a couple of item times, use that

21 hand-held phone. That's corroborated by Pepic. Witness B tells us there

22 were flags flying over the Old Town. He didn't understand what the flags

23 were. He asked some of the others and they said: Those are protected

24 buildings. That's corroborated by the videos and Colin Kaiser.

25 Witness B tells us to shelling began on Srdj and shifted to the

Page 8653

1 Old Town. That's corroborated by Negodic and it's also corroborated by

2 the video, Exhibit P66. Witness B tells us that infantry moved towards

3 Srdj. What do we know about it from witness Pesic? We know that's true.

4 We know that he went from Bosanka towards Srdj. Witness B tells us that

5 the troops of the 2nd Operational Group -- or he says the JNA troops in

6 Zarkovica -- fired at windows, vessels, walls. That's also corroborated

7 by the video. Very important piece of testimony. Remember him

8 mentioning that while he was on Djakovica, three Croatian shells landed

9 in the area around Djakovica but didn't fall on the area of the JNA

10 troops. In fact, he was 19 years old at the time and he admitted, what

11 did he do? He ran in one of the buildings for shelter and he didn't come

12 out until it was quiet. He was embarrassed, but he admitted that he hid.

13 And he showed us those positions where those shells fell.

14 And what do we hear from Witness Nesic? He corroborates it at

15 8168 and talks about those few shells that landed on Djakovica. Finally,

16 Witness B tells us that Nesic was in a bad mood and said something to the

17 extent raze the whole town. Witness Negodic talks about an interception

18 between a soldier and a commander, and the commander starts swearing,

19 appears to be in a bad mood because he's swearing and says: Anything in

20 the Old Town is a target. Negodic corroborates Witness B. All of these

21 corroborative facts say that Witness B testified truthfully and should be

22 believed by this Chamber.

23 The Prosecution submits that none of the alleged military targets

24 in the Old Town ever existed and that any such testimony of these three

25 Defence witnesses should be rejected. And this all relates to the --

Page 8654

1 THE INTERPRETER: Microphone, please.

2 MR. WEINER: This all relates to the 6th of December.

3 Where were the Croat positions? In our brief, in our map in the

4 addendum in the co-addendum, we describe the positions. There are

5 several and I don't feel there's a need to go into every single one.

6 However, there's a difference as to four or five locations. Defence

7 Witness Nesic places mortars by the Excelsior hotel, Bogisica Park, north

8 of the Old Town on a vehicle nicknamed Charlie, by the Libertas Hotel,

9 and finally, an artillery piece at the Lovrijenac Park.

10 Witness Negodic disagrees and does not place mortars or artillery

11 at any of those positions. He does place a rocket firing weapon at the

12 Libertas hotel, but no mortars there. And in this conflict we suggest

13 that Negodic should be believed. Why? Negodic was in the best position

14 to explain and tell where his mortars and his artillery were located. No

15 other witness made observations of mortars at the Excelsior Hotel,

16 Bogisica Park, this Charlie vehicle running north of the Old Town, or the

17 artillery piece at Lovrijenac park on December 6. No other Defence

18 witness mentions these.

19 Also, Nesic's inclusion of these in his ammunition expenditure

20 report are fraudulent. As we've already said his claims to have fired at

21 these locations just could not have occurred. Also, looking at these two

22 persons, who has the motive to lie? We suggest Negodic has no motive to

23 lie. He came in here. He described a large number of positions of his

24 Croatian artillery or mortars. He described where they were located,

25 when they switched, the amounts of ammunition that were used. Nesic,

Page 8655

12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond

Page 8656

1 however, has to justify his actions. Based on witness testimony, they

2 were firing on non-military targets. Nesic, as this Trial Chamber knows,

3 is a potential war-crimes suspect. Therefore we submit that Negodic's

4 testimony should be credited on the issue of Croatian military position.

5 And we suggest that the mortars and the artillery positions were not

6 located at those positions, at the Bogisica and Lovrijenac Park, or the

7 mobile mortar known as Charlie was not moving just north of the Old Town

8 on that date, December 6.

9 So now we come down to the last issue. Who shelled the Old Town

10 of Dubrovnik on December 6th? Witnesses Jokic, Negodic and Witness B say

11 it was the JNA. Defence witnesses Tomislav Jovanovic, Drljan, Djurisic,

12 and Pepic also saw or heard that the JNA weapons shelled the Old Town.

13 The Defence's expert witness, Professor Vilicic, claims that the Old

14 Town's damage was consistent with over 130 mortar shells from three JNA

15 mortar batteries landing in the Old Town. These mortar batteries, we

16 submit, were all under the command and control of the 2nd Operational

17 Group. Colonel Poje, by a process of deduction or elimination, found the

18 mortars within the 2nd Operational Group command shelled the Old Town.

19 Now, if we look at paragraph 374 at page 77 of the Defence brief,

20 they also place blame for the shelling of the Old Town on the JNA. If I

21 read the last sentence: "Accordingly, Defence concludes beyond any

22 doubt," -- not beyond a reasonable doubt -- it says "beyond any doubt

23 that all alleged damages that might have been inflicted to the Old Town

24 of Dubrovnik could have been accused exclusively by the use of artillery

25 and mortars, the use of which was authorised by Admiral Jokic beyond any

Page 8657

1 reasonable doubt."

2 We agree that all damages to the Old Town on the 6th of December

3 were caused exclusively by the JNA. We note that those JNA units that

4 caused this damage were under the command and control of the 2nd

5 Operational Group. We disagree, though, as to Admiral Jokic's role or

6 acts as alleged in that paragraph. Therefore, we submit that the

7 evidence has demonstrated beyond a reasonable doubt that the units under

8 the command of the 2nd Operational Group, units under the command and

9 control of the accused, Pavle Strugar, shelled the Old Town of Dubrovnik

10 on the 6th of December.

11 Attorney William Fenrick will now discuss the legal consequences

12 of these facts, or if the Court would like to break now.

13 JUDGE PARKER: I think since it is such a clear and distinct

14 subject it would be better for that to be resumed after the break. So

15 we'll adjourn now until quarter to 2.00.

16 --- Luncheon recess taken at 12.25 p.m.

17 --- On resuming at 1.49 p.m.

18 JUDGE PARKER: Mr. Fenrick.

19 MR. FENRICK: Your Honours, the fundamental purpose of

20 international humanitarian law is to reduce the net loss of innocent

21 lives and injury to innocent people and damage to civilian objects in

22 armed conflict. Essentially, international humanitarian law is a

23 second-level barrier to barbarism; the first-level barrier is prevention

24 of war itself.

25 This case is of particular significance because it is one of the

Page 8658

1 very few which purport to apply the general principles of international

2 humanitarian law to combat activities. Law is most important when it's

3 most fragile. Nowhere is it more important than when it attempts to

4 impose limits on the violence of combat. There are virtually no

5 precedents for the application of law to combat situations. We do have

6 the Galic case here. Certainly if we look at the post-World War II

7 war-crimes cases and other ones, nobody bothered about prosecuting the

8 conduct --

9 THE INTERPRETER: Can the speaker please slow down.

10 MR. FENRICK: Indeed, some people have on occasion indicated that

11 this kind of case is simply non-justiciable. We would submit, however,

12 that it is important to apply this body of law and to apply it correctly.

13 Essentially, it's the submission of the Prosecution that we are not here

14 to interpret the law for the JNA or interpret the law for the shelling of

15 Dubrovnik; we are here to interpret the law and to apply the law for all

16 armies everywhere. There is only one set of standards. These are the

17 standards which must be applied here.

18 The fundamental principle of international humanitarian law as it

19 applies to combat situations is the principle of distinction, the

20 obligation on parties to a conflict to distinguish between civilian

21 populations and combatants and to distinguish between civilian objects

22 and military objectives and to direct their military operations

23 exclusively against military objectives. Military objectives are

24 combatants, normally members of the armed forces, civilians taking a

25 direct part in hostilities, and insofar as objects are concerned, objects

Page 8659

1 which make an effective contribution to military action and whose

2 destruction or neutralisation offers a definite military advantage.

3 The Prosecution submits that none of the victims who are the

4 subjects of counts 1, 2, and 3 of the indictment were either combatants

5 or civilians taking a direct part in hostilities. All of them were

6 civilians. The only one where one might query a bit as to the status of

7 the victim is Mato Valjalo, a civilian driver for the Crisis Staff in

8 Dubrovnik. The Defence has submitted that Mr. Valjalo should not be

9 regarded as a civilian because of his employment of the time, as a driver

10 for the Crisis Staff, and because he is presently in receipt of a pension

11 as a disabled veteran as a result of injuries received during the

12 shelling.

13 The Prosecution submits that there is simply no indication that

14 Mr. Valjalo meets the very rigid criteria of a civilian taking a direct

15 part in hostilities. The real question is: Was he or was he not a

16 member of the armed forces at the time when his injury occurred?

17 Exhibits P60 and D24 indicate he was a civilian driver called up to

18 perform service as such. He did, however, receive a pension as a

19 disabled veteran. It's submitted this is not a persuasive indicator that

20 he was a member of the armed forces at the time, basically, because

21 receipt of such a pension appears to be completely unrelated to

22 membership in the armed forces. We have the witness Negodic, the

23 Croatian chief of artillery, who was in fact injured on the same date.

24 He indicated in his testimony that he was in receipt of a civilian

25 pension for injuries that he received. That's at page 5335.

Page 8660

1 The Prosecution also submits that there were no military

2 objectives in the Old Town of Dubrovnik on the 6th of December. The

3 Prosecution certainly must admit that weapons positions are legitimate

4 military objectives. But as argued by Mr. Weiner, we submit there were

5 no such positions in the Old Town on the 6th of December, 1991. The

6 Defence submits that the Old Town was filled with military objectives

7 during the attack, including the Crisis Staff headquarters, centres in

8 which information was gathered on JNA units, observation posts and

9 members of the Croatian forces.

10 Essentially, the Prosecution submits the Defence is trying to

11 make something out of nothing. The Prosecution has already addressed the

12 Crisis Staff headquarters issue in its brief, paragraphs 232 and 3. The

13 fact -- if it is a fact -- that persons in the Old Town watched JNA

14 vessels with binoculars or kept logs indicating vessel movements does not

15 turn the location of these persons into military objectives. An attack

16 on these positions or on these people would not confer a definite or

17 indeed any military advantage. If, for the sake of argument, which the

18 Prosecution certainly does not concede, it was considered there were

19 military objectives in the Old Town, the Prosecution submits that these

20 objectives would be of relatively little military significance, as an

21 attack on them, particularly using the kinds of weapons which were used

22 by the JNA on the 6th of December, mortars for the most part, would be

23 bound to cause disproportionate loss or damage to civilians or civilian

24 objects in comparison to the military advantage which could be derived

25 from an attack on them. An attacker is simply not entitled to destroy

Page 8661

1 all or a substantial portion of the Old Town in order to destroy an

2 unimportant military objective.

3 Further, as the Defence has suggested that the use by Croatian

4 forces of mobile weapons such as truck-mounted mortars somehow placed an

5 unfair burden on the JNA, it's submitted by the Prosecution that you take

6 your military objectives as you find them. There are lots of mobile

7 military objectives: Tanks, military aircraft. No one suggests that the

8 tank has to stay still while you shoot at it. No one suggests that the

9 aircraft must remain suspended in the air. In fact, the JNA used tanks

10 itself during its attack on Srdj.

11 No one would ever suggest that it's legally acceptable -- or for

12 that matter that it makes military sense -- to launch an attack at a

13 place where the tanks were two days before. There's no legal or military

14 reason for adopting a different approach for truck-mounted mortars. The

15 Prosecution submits that what one should look at when trying to determine

16 the appropriate burden to be imposed on an attacking force are the

17 standards set out in Additional Protocol 1. If one looks at Article 51.7

18 of Additional Protocol 1, there certainly is an obligation imposed on a

19 defending force not to use the presence or movement of civilians to

20 shield military objectives from an attack.

21 Article 51.8, however, the following paragraph goes on to

22 emphasise that a breach of its obligations by one party to a conflict

23 simply does not release another party from its obligations with respect

24 to civilians, in particular its obligations to take the appropriate

25 precautionary measures.

Page 8662

1 Even if -- which the Prosecution most certainly does not

2 concede -- Croatian weapons were deployed in or close to the Old Town,

3 the JNA was still obligated to comply with the principle of

4 proportionality and to take all practicable measures to minimise civilian

5 casualties.

6 The Defence has also argued in paragraphs 576 to 78 of its brief

7 that Croatia has violated its obligations under The Hague Cultural

8 Property Convention by placing military positions in the Old Town or too

9 close to the Old Town or by moving military personnel through the streets

10 of the Old Town. The Prosecution submits, concedes, that allowing

11 soldiers in uniform and armed to wander through the Old Town, if such

12 occurred, was certainly a foolish practice, but it certainly does not

13 amount to using a centre for the movement of military personnel or

14 materiel such that the Old Town should be deemed to be used for military

15 purposes within the meaning of Article 8 of The Hague Cultural Property

16 Convention.

17 Further, the location of Croatian Defensive positions relatively

18 close to the Old Town, if there were such, may be an unwise or imprudent

19 practice, but it does not remove the Old Town or any of the buildings in

20 it from the scope of Article 3(D) of the statute. The buildings remain

21 as they were; they are institutions dedicated to religion or the various

22 other purposes listed in Article 3(D). The Prosecution must observe that

23 it has, in fact, charged the accused under Article 3(D) of the statute

24 not with an unenumerated offence related to a violation of The Hague

25 Cultural Property Convention or a violation of any other provision

Page 8663

1 granting special status to the Old Town.

2 The distance issue is, it is submitted, simply irrelevant to the

3 status of the buildings as such. The Prosecution submits that the

4 appropriate approach in cases where objects within the scope of Article

5 3(D) are located in proximity to military objectives is to apply the

6 principle of proportionality. An object within the scope of Article 3(D)

7 cannot be absolutely insulated from attack if an important military

8 target is located adjacent to it.

9 THE INTERPRETER: Could the speaker please be asked to slow down.

10 JUDGE PARKER: Mr. Fenrick, the interpreters are having trouble

11 keeping up with you.

12 MR. FENRICK: My apologies.

13 JUDGE PARKER: I wonder if you could take things a little more

14 easily.

15 MR. FENRICK: I'll endeavour to do so, sir.

16 JUDGE PARKER: Thank you very much.

17 MR. FENRICK: An object within the scope of Article 3D cannot be

18 insulated from an attack if an important military attack is adjacent to

19 it. If there was a tank factory or a large number of weapons, for

20 example, located in the middle of the Old Town, those aren't military

21 objectives. They may be attacked, subject to the application of the rule

22 of proportionality. If damage caused by the attack does, however, cause

23 disproportionate losses to civilians and civilian objects including

24 objects within the scope of Article 3D, then the Prosecution submits

25 Article 3D has been violated. The Prosecution would also submit that

Page 8664

1 when buildings do have a special status which raises them beyond the

2 category of civilian objects alone, then there should be -- and the

3 Prosecution concedes it's difficult to determine exactly how one goes

4 about calculating it -- but we would submit that it should have an

5 additional value for the purposes of determining proportionality.

6 The cornerstone of the crime base for the case against the

7 accused is the unlawful attack charges, Counts 3 and 5 in the indictment.

8 The mental element for both of these offenses is addressed in a

9 corrigenda filed on the 7th of September by the Prosecution. We submit

10 the mental element is willful, as discussed in paragraphs 214 and 214(A)

11 of the Prosecution brief. That is the mental element includes both

12 intention and recklessness, bearing in mind both the Galic trial decision

13 and the Blaskic appeal decision. The Prosecution submits that if the

14 meaning of recklessness must now be understood as acting with an

15 awareness of the substantial likelihood that the offence will be

16 committed, the Prosecution has established the mental element for the

17 unlawful attack charges beyond a reasonable doubt.

18 The physical element for unlawfully attacks is addressed

19 particularly in 213 of the Prosecution brief which quotes from paragraph

20 56 of the Galic Trial Chamber decision. And for unlawful attacks, it's

21 "acts of violence directed against the civilian population or individual

22 civilians not taking part in hostilities causing serious death -- can't

23 have too many serious deaths -- causing death or serious injury to the

24 body or health of members of the civilian population."

25 The Prosecution submits that the physical element for unlawful

Page 8665

1 attacks on civilian objects is substantially similar. Further, whether

2 or not an attack has been directed against civilians or civilian objects

3 is an evidentiary question, which involves an assessment of among other

4 things the results of the attack; the surrounding circumstances including

5 the presence of nearby military objectives; and the state of mind of the

6 --

7 THE INTERPRETER: Can the speaker please be asked to slow down.

8 MR. FENRICK: --

9 JUDGE PARKER: I'm sorry. You began to speed up with your

10 enthusiasm for your subject.

11 MR. FENRICK: My apologies to the interpreters.

12 JUDGE PARKER: I think you need to take a big breath after every

13 sentence.

14 MR. FENRICK: I'll endeavour to do so, sir.

15 The Prosecution also submits for reasons given in its brief at

16 paragraphs 215 and 218 that indiscriminate attacks and disproportionate

17 attacks may also be regarded as direct attacks on civilians or civil

18 objects. The main thrust of the Prosecution argument is that the attack

19 on the Old Town was intentional; that the civilian losses and the damage

20 caused the buildings was not an indirect or collateral result of shell

21 fire directed at alleged military objectives in the Old Town or close by.

22 Although the principle of proportionality was addressed at some length in

23 the Prosecution brief, it must be addressed further because of arguments

24 raised in the Defence, brief particularly in 567 to 570 and in particular

25 at paragraphs 573 to 580.

Page 8666

1 If we take a look at the origins of the concept of

2 proportionality, I suggest it's inextricably linked to the principle of

3 distinction. You don't really have any treaty which as explicitly

4 addresses -- or, for that matter, implicitly -- addresses the principle

5 of proportionality, until the development of the additional protocols.

6 In additional protocol 1, in particular, in a number of articles, 55.5B,

7 57.2A and 57.2B and in addition, 85.3B, there are references to

8 excessive. The word "proportionality" is not used.

9 That being said, the concept "excessive" clearly is an implicit

10 reference to proportionality. There's a slightly different statement of

11 the proportionality concept in the statute of the International Criminal

12 Court. That statute uses the expression "clearly excessive," rather than

13 merely excessive or rather than excessive, as used in the additional

14 protocols. The words are there. The application of the words is not as

15 clear as we would like it to be.

16 The concept of proportionality or the application of the concept

17 raises a number of issues for us. One of them is: Who is or who should

18 be the decision-making concerning the application of the principle of

19 proportionality? If we look at paragraph 58 of the Galic Trial Chamber

20 decision, it submits that the decision-maker should be a reasonably

21 well-informed person in the circumstances of the actual perpetrator

22 making reasonable use of information available. And that person has to

23 determine whether or not he could - he or she - could expect excessive

24 civilian casualties to result from an attack.

25 The next issue is perhaps a more difficult one: What is that we

Page 8667

1 are comparing? Because we certainly seem to have a number of suggestions

2 made by both various Defence witnesses and also in the Defence brief.

3 The Prosecution submits that what we compare is, in fact, very clearly

4 set out: We are comparing concrete and direct military advantage

5 anticipated with the anticipated incidental loss of civilian life, injury

6 to civilians, damage to civilian objects, or a combination thereof. We

7 aren't comparing whether or not one side has more weapons than the other,

8 whether or not one side has better weapons than the other, whether or not

9 one side suffers more combatant casualties than the other.

10 The Defence has suggested in paragraph 568 of its brief that if

11 five JNA soldiers were killed and several wounded by Croatian fire on the

12 6th of December and only two civilians were killed and two injured in the

13 Old Town, that's not disproportionate. Well, whether that measure is

14 disproportionate or not, it's simply irrelevant to assessing

15 proportionality for our purposes where we're comparing military advantage

16 versus civilian losses.

17 It should be observed that the one practical or the one actual

18 judicial application of the principle of proportionality is, in fact, in

19 the Galic case, the discussion of the Dobrinja football game incident at

20 paragraphs 372 to 387 and in particular paragraph 387. If one looks,

21 however, at the discussion of the Dobrinja football game, which was an

22 incident where Bosnian Serb forces shelled a football or soccer game and

23 caused slightly more military casualties than civilian casualties, the

24 Court in that case finessed the requirement to decide whether or not

25 causing slightly more military casualties than civilian casualties was

Page 8668

1 proportionate or disproportionate, because what it did was focus on the

2 intention of the attacking force. And the approach taken was that if

3 what was shelled was a soccer game, you could expect that there would in

4 fact be a substantial crowd of civilians there. There may be other

5 people, too, but the bottom line was: What was in the mind of the

6 decision-makers launching the attack? And the Court was of the view that

7 as long as the -- one could conclude that the mental element or the

8 expectation of the attacker was that one would be causing a large number

9 or a disproportionate number of civilian casualties and then in the end

10 result, what you had was -- were some civilian casualties, you didn't

11 have to total up the scores. You didn't have to say: Well, there are

12 more military than civilian, therefore it's not disproportionate or it's

13 proportionate.

14 The Prosecution would submit in this case the same sort of

15 approach is perhaps particularly appropriate. Here what we have is the

16 shelling of a populated city with a significant number of civilians.

17 Whether or not you in fact had a relatively small number of civilians

18 killed or injured during the attack is not quite as relevant as what one

19 could presume was the intention of the people directing the attack in the

20 first place. If they are firing shells on a populated city or a

21 populated area, they can expect to cause a significant number of civilian

22 casualties. In fact, if one looks at Dubrovnik, if one is launching

23 shells at the Old Town that is basically all you can expect to cause,

24 civilian casualties. You can't expect that launching shells or firing

25 shells into the Old Town is going to result in substantial military

Page 8669

1 casualties.

2 PARKER: If one, Mr. Fenrick, is attempting to apply a principle

3 of proportionality or is looking at what is excessive in this context,

4 surely counting the dead, military versus civilian, can't be a suitable

5 test, given the relative uncertainty in armed conflict of those who may

6 be killed, those who may be injured, those who by some miracle or another

7 escaped such consequences.

8 Would it not perhaps be more to the point to be seeking to

9 compare the military objective against the loss of civilians and civilian

10 property, rather than head counts on each side?

11 MR. FENRICK: We would agree very much, Your Honour. It's never

12 going to be simply a question of head count, if for no better reason that

13 you're comparing entirely unlike quantities or values. How can one make

14 a head count if, for example, you destroy a tank and wound a child beside

15 the tank? The head count factor is very difficult to apply, but it's got

16 to be, presumably, some kind of an estimate of the military advantage

17 considered -- taking all factors into account, more than simply counting

18 heads. And indeed, some heads would be much more -- or would be

19 regarded, even from a purely military value, of much greater value than

20 others.

21 For example, if one takes a look at what happened in the recent

22 war in Iraq, certainly the American forces made repeated attempts to hit

23 Saddam Hussein and attack a number of locations where he was. In fact,

24 he wasn't at any of those locations or it doesn't appear he was.

25 Presumably in that case if one in fact had reliable intelligence which

Page 8670

1 didn't seem to be applicable in that --

2 JUDGE PARKER: That's rare in war.

3 MR. FENRICK: Very much so, and particularly so in those types of

4 attacks.

5 I think you can make -- if one is attacking in an area like the

6 or around an area like the Old Town, with the intensity of the conflict

7 as it was -- in other words, not a conflict where a great deal of combat

8 is doing going on. We're not talking Stalingrad here, we're talking

9 about essentially a small-unit attack with a degree of covering fire.

10 And one would submit in this particular case, in fact you can make a

11 reasonable guesstimate ahead of time as to whether or not you are likely

12 to be causing disproportionate civilian casualties. It's not an easy

13 exercise, there's no question about it. But one would submit that

14 shelling from Zarkovica, for example, where you can see what you're

15 firing at and firing from a number of the other areas, one could make a

16 reasonably realistic estimate.

17 When you're talking ground warfare, you're not talking about the

18 kind of decision-making process that you normally would have when you're

19 talking about aerial attacks, for example, where it's practical to plan

20 something and make sophisticated computer models and try to make a pretty

21 precise estimate, or an outer-range estimate, of whether or not something

22 is likely to cause a number of civilian casualties.

23 It's more difficult to do it in a ground warfare situation. But

24 in an extreme ground warfare situation, and by extreme, not that the

25 intensity of the conflict was extreme, but what we're talking about is a

Page 8671

1 situation where you have an extreme ability, a much greater degree of

2 opportunity to try and calculate potential losses, I think it's quite

3 manageable to make a reasonably realistic estimate of what the civilian

4 casualties would be in connection with the attack on Dubrovnik on the 6th

5 of December. It's just a different kind of fighting in a way.

6 Now, if I might move on.

7 One of the other questions which the Defence raised in connection

8 with proportionality was the question of scale. And in fact, they quoted

9 Canadian Forces Law of Armed Conflict manual. And in there they paid

10 particular attention to a provision which says: "In deciding whether the

11 principle of proportionality is being respected, the standard of

12 measurement is the anticipated contribution to the military purpose of an

13 attack or operation, considered as a whole."

14 Now, the Canadian manual --

15 JUDGE PARKER: But that's only referring to one side. If it's

16 proportional, you've got to have two sides, have you not?

17 MR. FENRICK: Well, I think -- well, you're -- the quotes

18 "operation as a whole," presumably would mean extended military operation

19 where what you would be trying to do is calculate your military advantage

20 versus the anticipated civilian losses during that period of time. I

21 think it would be something -- I think it would be two-sided, Your

22 Honour, but it would be something where you have a more of a macro type

23 of application rather than micro.

24 JUDGE PARKER: I can [Realtime transcript read in error: "can't"]

25 see the sense of putting on the one scale the military objective and the

Page 8672

1 significance of that and on the other hand or on the other scale the

2 foreseeable - to a person in the position of the decision-maker, the

3 foreseeable to civilians and civilian probably. I can see that as having

4 some sense in this context. But you've got to be comparing the two sides

5 for something to be proportional.

6 MR. FENRICK: You have to be comparing. Whether military

7 advantage is interpreted in terms of you are receiving -- you are having

8 casualties inflicted on your own force or whether you're talking about

9 inflicting casualties on the other force -- -

10 JUDGE PARKER: Or gaining a position --

11 MR. FENRICK: Oh, yes. Unquestionably. But I submit the

12 particular revision which the Defence refers to is something which is in

13 fact addressed in our brief in paragraphs 222 to 224. And what you've

14 got are a number of countries, of which Canada is one, and the Canadian

15 statement is referred to in our brief, which says or which certainly can

16 be read to say that when you're trying to determine whether or not

17 something is -- whether or not what you've got is a disproportionate end

18 result, you would look not simply at an attack directed against one

19 military objective but at an attack directed against a range of military

20 objectives in the course of some kind of an operation. And that is

21 certainly both a defensible interpretation of the additional protocols

22 and their provisions dealing with the principle of proportionality, and

23 certainly in accord with the statements of interpretation of a number of

24 countries that ratified the additional protocols. That being said,

25 however --

Page 8673

1 JUDGE PARKER: Could I just interrupt you before it goes off the

2 screen. I see at 62, probably 37 -- I was saying I could see and it's

3 come out as "I can't see." We'll just note that.

4 MR. FENRICK: The Prosecution in this particular case submits

5 that it's defensible and quite acceptable to adopt a scale for

6 determining proportionality essentially on a military objective by

7 military objective basis, that there is no need in our case to adopt a

8 more global approach. And we have a number of reasons for submitting

9 that. One is we certainly are not in this particular case engaged in

10 prosecuting the grave breach of disproportionate attack which may or may

11 not, because of the surrounding words in the additional protocols,

12 require us to adopt a more global approach.

13 Another reason for adopting the more tactical approach is that we

14 are here -- first it was adopted -- it was adopted in the Galic case.

15 Secondly, it is in fact an approach which is commonly adopted elsewhere.

16 If one looks, for example, and there are references in the brief to the

17 Amnesty International study of the Yugoslav bombing campaign, certainly

18 there the entire dialogue is framed in terms of whether or not an attack

19 on a particular military objective is proportionate or disproportionate.

20 There are similar reports by Human Rights Watch. And in fact if one

21 looks at the other reference which is in the brief to the approach taken

22 by the American government during I think it was the Kosovo bombing

23 campaign, their approach once again is that they attempted to assess the

24 likelihood of collateral casualties on a military objective by a military

25 objective basis.

Page 8674

1 And perhaps as another argument or another two arguments in

2 support of that type of an approach, one is we are not in this case

3 trying to argue that the end result of the attack -- that it's possible

4 to have something which is both disproportionate and yet not at the same

5 time in substance an attack directed against the civilian population. We

6 are not arguing for some kind of a lower standard, that somehow or other

7 that you could conclude an attack was disproportionate but it wasn't in

8 substance directed at civilians.

9 And also in a way we would submit that this is an evidentiary

10 standard that we're talking about. It's something from which one could

11 conclude in substance that what you do have is an attack directed against

12 the civilian population.

13 JUDGE PARKER: When one is looking at a military objective, the

14 approach of looking at one particular target, then distinctly and

15 separately at another target when there have been successive attacks may

16 be appropriate I would think in some factual situations, but if it was

17 part of a significantly bigger campaign, a planned campaign, that had an

18 overall objective of which these individual targets were but a part,

19 would it not be appropriate also to have regard to the bigger picture?

20 MR. FENRICK: We submit it's entirely appropriate to have regard

21 to the bigger picture, Your Honour, but it can still -- the assessment

22 can still be carried out by a military objective, on a military objective

23 basis. If I can use an entirely different example. Let's suppose we've

24 got four bridges across a river and the object is to try and keep the

25 forces from one side from reinforcing by sending troops across the

Page 8675

1 bridge. It may well be that one derives substantially greater benefit

2 from taking out the fourth bridge after you've knocked the other three

3 down than you do from knocking the first three. The context is relevant,

4 but you're still, we would submit, trying to determine proportionality.

5 It's still practical to say, okay, there's only one bridge left. When we

6 determine the military advantage from striking that particular bridge it

7 becomes -- we get a much greater military advantage out of neutralising

8 the fourth bridge than we did out of attacking the other three. But

9 that's still something which can be done on an objective-by-objective

10 basis. But yes, context is relevant.

11 If I might move away from proportionality, Your Honour. Even the

12 Defence appears to have concluded that Croatian forces did not shell the

13 Old Town on the 6th of December. Logically, since no one else is

14 available, the shelling must have been done by the JNA. There are, one

15 would submit, only three options practicable. One is they attacked the

16 Old Town as an act of revenge or mindless military vandalism. The other

17 is they attacked military objectives which they thought were in the Old

18 Town. And the third is that what they were doing was attacking

19 objectives near to the Old Town and what you had was some kind of

20 collateral effect spreading over.

21 The Prosecution submits that we have already addressed adequately

22 the situation in the Old Town under either the mindless vandalism or they

23 were striking at military objectives point of view. What we would like

24 to do is address the issue of attacking objectives which were near to the

25 Old Town and causing collateral damage. We've got two different

Page 8676

1 approaches taken by the expert witnesses. If one looks at the approach

2 taken by Colonel Poje for the Prosecution, one would be inclined to

3 conclude that it was very unlikely that shell fire directed at military

4 objectives would -- outside the Old Town would have in fact landed in the

5 Old Town.

6 If, on the other hand, one accepts the approach of Dr. Vilicic,

7 it would appear that collateral damage to the Old Town while attacking

8 military objectives close to the Old Town would be more likely. The

9 Prosecution submits, however, that if one looks at the Prosecution brief,

10 the Defence appears to believe that simply asserting that civilian losses

11 or damage to civilian objects constitute collateral damage as a defence.

12 That's simply wrong. They've still got to assess the proportionality

13 factor, and that clearly has not been done. It's our submission that if

14 one does -- first of all, the conclusion which would be derived is that

15 the damage was disproportionate. And secondly, in fact, when one bears

16 in mind the kind of weapons and the tactics used by the Defence, in fact

17 they made no efforts to minimise civilian casualties.

18 My apologies. The JNA made no effort to minimise or reduce

19 collateral casualties. They used mortars, which are aerial weapons. The

20 120-millimetre mortar projectile has an effective zone within which it

21 might cause death or injury of 60 metres. And the weapon itself, the

22 projectiles from a mortar, although it might be the weapon of choice in

23 some urban warfare situations, is one which doesn't hit exactly what it

24 is aimed at. In fact, if one looks at the testimony of Colonel Poje at

25 page 6306, he points out -- or rather, in response to a question by the

Page 8677

1 Defence, he indicated that if one was firing 120-millimetre projectiles

2 at a platoon of mortars, hypothetically, if one looked at the weapon

3 expenditure tables, it would take something like 2.160 rounds of

4 120-millimetre projectiles to have a 90 or an 80 per cent chance of

5 neutralising the platoon of mortars.

6 This would, of course, raise the question what happened to the

7 other 2 thousand and some mortar shells which didn't hit the mortar

8 platoon. Presumably they went somewhere, too, and one would be inclined

9 to think that they could very well have caused civilian casualties or

10 damage to civilian objects.

11 Further, in addition to the choice of weapons, there was the

12 technique of weapons. We had Colonel Poje testifying that if one wanted

13 to attack a military objective which was located close to a sensitive

14 area such as the Old Town, there were in fact techniques for doing that.

15 And essentially, instead of the more military approach of firing a round

16 over and firing a round under and trying to bracket and trying to hit the

17 objective, what you could do is aim off to the side to a known objective

18 and use that as your aim point and march towards the place where the

19 objective was.

20 If one takes a look at annex 4 in the Prosecution closing brief,

21 one submits it's quite clear that if you look at the pattern of

22 distribution, at least as indicated on that particular annex, there

23 doesn't appear to have been a significant effort to try and focus. If

24 there was an attempt to hit military objectives outside the Old Town, one

25 would expect that a concentration of shells were landing close to the

Page 8678

1 walls rather than being throughout the city. And that clearly is not

2 what we have here.

3 That concludes the part of my presentation which has to do with

4 unlawful attacks, Your Honour. If I may for just a second consult.

5 If I may close on this particular part dealing with unlawful

6 attacks, Your Honour. My colleague has indicated I may not have been as

7 clear as I should have been on some points. Our submission in connection

8 with Mr. Valjalo is he was not a civilian taking part in direct

9 hostilities. And secondly, although I mentioned in passing, the

10 International Criminal Court definition of proportionality or their

11 proportionality of offence which refers to clearly excessive, we are not

12 supporting in any way or saying that that definition or those two words

13 are applicable here. We are relying entirely on the language of the

14 additional protocols which simply uses the word "excessive."

15 JUDGE PARKER: Before you move on, if you've finished those

16 matters, on the hypothesis that you were putting to us that JNA that day

17 may have been directing mortar fire at military targets close to but

18 outside the Old Town, thus firing wide of the intended target, you were

19 putting submissions critical of the choice of weapon by the JNA. What

20 weapons other than mortars would you suggest they might have used?

21 MR. FENRICK: The weapons which they had, Your Honour, we

22 understand to be Maljutkas, the 82-millimetre recoilless cannons. Both

23 of those were, in fact, much more accurate or at least potentially much

24 more accurate in the hands of capable users than the mortar.

25 JUDGE PARKER: But range is a consideration.

Page 8679

1 MR. FENRICK: Yes, but not so much for the Maljutka.

2 JUDGE PARKER: It depends whether there's a pinpointed target or

3 merely a potential target area.

4 MR. FENRICK: That's correct, Your Honour.

5 JUDGE PARKER: We have had much evidence that they may have been

6 aiming at mortar positions hidden in parks or in tennis courts that were

7 out of view. A Maljutka is a line-of-sight weapon. If you can't see

8 what you're aiming at you must have another weapon.

9 MR. FENRICK: Your Honour, I think the submission of the

10 Prosecution is -- mortars are an appropriate weapon in a range of

11 circumstances. But if the mortars are going to be used and are going to

12 be fired against Croatian positions which are located relatively close to

13 the Old Town, if there is nothing else available, nothing else in range,

14 then our submission would be that there should be two considerations.

15 One is that there is this technique for approaching a military objective

16 or firing at a military objective which is close to something like the

17 Old Town, which it doesn't appear was used. Secondly, whoever is engaged

18 in providing the fire support should, we would submit, be taking

19 proportionality into account.

20 If, to use the example that I did use before, it took several

21 hundreds of rounds from a mortar to neutralised another object, perhaps

22 another mortar, and that other mortar was close to the Old Town, whoever

23 is doing the firing can't simply ignore the requirement to go through the

24 proportionality equation. He can't sit there and say: I have got to

25 take out that military objective. What he's got to say is: If an attack

Page 8680

1 aimed at that objective is, and according to my best estimate, something

2 which is proportionate, then I can fire at it, then I should fire at it.

3 If you can't, if it's going to be something where you lob hundreds of

4 shells in a hope that you may actually hit a military objective,

5 sometimes you just don't shoot.

6 JUDGE PARKER: Well, I don't want to delay you longer on that

7 issue, then, Mr. Fenrick.

8 MR. FENRICK: I'm eating into my colleague's time here.

9 The only other points I wanted to raise, Your Honour, is first of

10 all you will note in our submission we did refer to international armed

11 conflict. The Defence submitted in paragraph 619 that there is no need

12 at all for the Tribunal to or for the Chamber to address the issue of

13 international armed conflict. Our approach is perhaps out of an

14 abundance of caution. We argue that all of the offenses which are

15 charged are in fact ones that can be committed in either an international

16 or internal armed conflict. Having said that, we are neither a Trial

17 Chamber nor an Appeals Chamber. And for that reason, perhaps out of an

18 abundance of caution, it might be appropriate -- it's appropriate for us

19 to suggest that the international armed conflict issue is one for which

20 we have introduced a substantial amount of evidence, and it would be our

21 view that as a simple matter of fact the conflict by the date, by the 6th

22 December, 1991, was an international armed conflict.

23 The last comments that I shall make are extremely brief and

24 understandably so. They have to do with modes of liability. We would

25 submit that we have already addressed the modes of liability adequately

Page 8681

1 in our brief, with the exception perhaps of Article 7.3, Command

2 Responsibility. And of course there has been some jurisprudence fairly

3 recently. We have the -- of course the standard criteria for command

4 responsibility are that we must establish the existence of a

5 superior-subordinate relationship; we must establish the superior knew

6 that the criminal act or was about to be or had been committed; and we

7 have to establish that the superior failed to take the necessary and

8 reasonable measures to prevent the criminal act or punish the perpetrator

9 thereof.

10 We would submit that a key issue which must be established is the

11 existence of a superior-subordinate relationship. The basic criteria for

12 that are set out in the Celebici trial decision, which was blessed

13 subsequently by the Appeals Chamber. And in paragraph 378 of the Trial

14 Chamber decision it says: "In order for the principle of superior

15 responsibility to be applicable, it is necessary that the superior have

16 effective control over the persons committing the underlying violations

17 of international humanitarian law in the sense of having the material

18 ability to prevent and punish the commission of those offenses."

19 In connection with that we would submit that whether or not

20 effective control exists is essentially a question of fact; that in fact

21 the effective control can exist or can be determined on the basis of an

22 assessment of both de jure and de facto responsibility. The one point

23 that has been made or was discussed in the Blaskic decision was whether

24 or not one must establish that a person in effective control gave orders

25 and those orders were obeyed. We would certainly suggest that the

Page 8682

1 ability to give orders is an essential component of effective control,

2 but having said that, it's certainly not the only one. We would

3 certainly say that there is no way on earth in which the accused or

4 anyone can say: I gave a general directive that the law of war is to be

5 complied with. My subordinates did not comply with the law of war,

6 therefore I didn't have effective control. That kind of argument is, we

7 would submit, absurd.

8 Thank you, Your Honour.

9 JUDGE PARKER: Thank you, Mr. Fenrick.

10 I think this is a convenient time for the next break. We will

11 resume at quarter past.

12 --- Recess taken at 2.52 p.m.

13 --- On resuming at 3.19 p.m.

14 JUDGE PARKER: Ms. Somers.

15 MS. SOMERS: Thank you, Your Honours. I may just, as a follow-up

16 point to something Mr. Fenrick spoke of. It is the submission of the

17 Prosecution that on the 6th of December there was no military advantage

18 in taking Srdj. The campaign in Dubrovnik was effectively to be at an

19 end by virtue of the context that has been shown to this Chamber through

20 the evidence of Mr. Rudolf and of Admiral Jokic, that the purpose of the

21 exercise on the 5th and the 6th of December was to be comprehensive

22 negotiations under the wing spread of the international community and

23 Croatia and the SFRY, the JNA, to effect a withdrawal of the JNA from

24 Croatia. It is inconsistent entirely to have any military campaign in

25 this context.

Page 8683

1 Secondly, in view of the fact that there was fighting that had

2 broken out, it is equally the position of the Prosecution that the fire

3 from the JNA that ensued was not protective cover fire but a continuation

4 of aggressive targeting, and if in fact any protective fire were to have

5 been authorised it would have been only that which was required to bring

6 everything to an end. The parties should have negotiated immediately to

7 stop hostilities, and restraint, which was addressed by General Zorc,

8 would under these circumstances have been the option to have been

9 exercised by the 2nd Operational Group command. It was not.

10 Further -- I believe there may have been some reference this

11 morning but I want to make sure that the Chamber is aware of it, that

12 Ivan Negodic the chief of artillery for the Croatian defence, had

13 addressed a comment overhead in an intercept to the effect of:

14 "Commander, what can we hit in the town?" "Anything is a target." An

15 absolute, overt violation of the principle of distinction.

16 I draw the Chamber's attention to one of the most grotesque

17 examples of a failure to adhere to adhere to the principle distinction

18 which was brought out in the testimony of Novica Nesic, the commander of

19 the anti-armour company among the accused's forces.

20 The question was: "We did not monitor civilians moving about.

21 Our job was to notice military targets moving about. After all,

22 civilians were moving about Dubrovnik in the Old Town on a daily basis.

23 Therefore, we did observe them moving about, but they were not of

24 relevance to us." Transcript 8227.

25 "We noticed people there on a daily basis, even more massive

Page 8684

1 gatherings in the Old Town, and not small groups like this one. But then

2 again, this was of no relevance to us." Novica Nesic, transcript 8228.

3 "Civilians were moving about the Old Town and the Stradun on a

4 daily basis and this was observed every day. This was of no military

5 relevance to us, people walking about in the Old Town. We didn't record

6 data on that because that was not important. None of those people put us

7 at risk. Why would I be paying attention to a handful of civilians

8 moving about a street and going about their business?" Novica Nesic,

9 transcript 8229.

10 So much for the implementation of the principle of distinction.

11 JUDGE PARKER: I'm sorry. I don't see the point of those

12 comments, directed as you say to the principle of distinction between

13 military and civilian.

14 MS. SOMERS: Mr. Nesic suggested that the risk to be considered

15 was the risk to the JNA troops by the civilians, that is consideration of

16 what the civilians were doing was not foremost in their minds. This is

17 how we have construed the evidence and that there was no consideration

18 whatsoever about their being there. The general alert if someone were on

19 the street in the face of a general alert, then that was that person's

20 problem. It simply indicates that the purpose behind the concept was

21 simply not drummed home.

22 JUDGE PARKER: Well, I think in that answer you were bringing

23 together more than one piece of evidence about more than one situation.

24 But on the comments from the evidence of Mr. Nesic, I see now factually

25 what you're saying those comments indicate. They may be understood,

Page 8685

1 though, to illustrate something quite differently, that is that a

2 military observation post is observing military actions in Dubrovnik and

3 was not concerned with what the civilians were doing in their ordinary

4 daily life.

5 MS. SOMERS: Our submission, Your Honour, is that monitoring the

6 civilians becomes a critical point in determining what one does with

7 one's military assets. And we have determined that to mean that was not

8 factored into decisions.

9 JUDGE PARKER: Thank you.

10 MS. SOMERS: The existence of a superior-subordinate

11 relationship, as was indicated, is one of the fundamental elements in

12 determining 7.3 liability. And in discussing generally, rather, the

13 accused's role in terms of all the units of the 2nd Operational Group.

14 At all times material to the indictment, the accused was in a

15 superior-subordinate relationship over those responsible for the unlawful

16 attack on the Old Town.

17 The 9th VPS and the 472nd MTBR, the brigade and elements thereof,

18 were among the formations that were at all times relevant to the

19 indictment subordinated to the 2nd Operational Group for operational

20 purposes. In response to some of the assertions in the Defence brief,

21 the general staff was the level at which the strategic -- concept of

22 strategic would be applicable, not the operational level. General Zorc's

23 testimony, I suggest, would be of great help in looking at the

24 distinctions which were drawn in the course of the Prosecution's

25 evidence. But the general staff provided the general objectives at the

Page 8686

1 strategic level for the operation in Dubrovnik, while tactical decisions

2 such as deployment of units, changes to subordination of units, issuing

3 of combat orders, et cetera, were made at the level of the operational

4 command, that is 2nd Operational Group commanded by the accused Pavle

5 Strugar.

6 In fact --

7 THE INTERPRETER: Prosecutor, please slow down.

8 MS. SOMERS: I apologise to the interpreters.

9 In fact the Chamber has been presented and has heard evidence

10 that the commander of the 2nd Operational Group issued combat orders. I

11 need only to refer you to P119 and P121. Also D47 [Realtime transcript

12 read in error: "27"] is an order which covers a span of issues which

13 include maritime concerns.

14 If I can ask for correction to D47.

15 Note that the 472nd Brigade, the Trebinje Brigade, was a unique

16 brigade in that it was viewed as a strike force. It was a formation that

17 could address very specific needs for the purposes of a 2nd Operational

18 Group and was manned accordingly and of course was outfitted with

19 materiel accordingly.

20 We remind the Chamber that the territorial borders drawn in maps

21 D41 and D42 had no impact or relevance to the operations of a 2nd

22 Operational Group in the Dubrovnik theatre.

23 Taking a brief look at the 472nd Motorised Brigade: The General

24 Staff singled out this brigade and subordinated it directly at the

25 beginning of the Dubrovnik operations to the 2nd Operational Group, up on

Page 8687

1 par with corps-level formations. The brigade had four battalions. The

2 battalions were equipped with 82-millimetre-mortar recoilless guns,

3 hand-held launchers, rocket launchers, Maljutkas, et cetera, and I turn

4 the attention of the Chamber to 3840 so that it has an idea of what was

5 in every battalion.

6 There has been evidence presented to this Chamber that the use of

7 weapons by the battalion as a whole was often outside of what was

8 strictly a military necessity and outside of combat operations. I refer

9 the Chamber to the testimony of Admiral Jokic, transcript 3869 and 70.

10 I remind the Chamber that the arrival of Captain Kovacevic as a

11 commander heralded the increase of a state of indiscipline in the

12 battalion. That is T3856.

13 Expert Witness General Zorc testified that the documents -- based

14 on the documents that he examined, they were completely sufficient for

15 him to conclude that the commander of the 2nd Operational Group had

16 exclusive authority for implementing the tasks conferred upon him. He

17 had all the necessary competence to command all units subordinated to his

18 Operational Group, under transcript 6704 and 05. Also Exhibit D44 shows

19 that the 2nd Operational Group was a broad-cast group, not only

20 Dubrovnik.

21 There has been a great deal of discussion throughout the trial

22 about what has been referred to as a dual chain of command. The

23 Prosecution submits there was no dual chain of command with respect to

24 the 9th VPS, that the 9th VPS was at all times relevant to this

25 indictment, subordinated to the 2nd Operational Group for operational

Page 8688

1 purposes; that any links that were retained with the KVPO were

2 administrative, and that it would be inconceivable that any other parent

3 -- any other formation, superior formation, could have competed to give

4 combat, operational orders to the 9th VPS, which was clearly,

5 overwhelmingly from the evidence, subordinated to the 2nd Operational

6 Group commanded at the time relevant by the accused, General Strugar.

7 The issues that touch on activity or concerns of the VPO have

8 dealt with supply, boats; I believe even there are a couple mentions in

9 D96 which I can assist you with, if it would help to direct your

10 attention. Page 64 of D96, an entry at 1441 hours with regard to

11 resubordination of units belonging to the 9th VPS and the fleet

12 commander's comment that he is unaware of the consent of the VPO given to

13 the VPS to use fleet ships. Such was the nature of the relationship;

14 nothing more.

15 There was an intact chain of command structured according to the

16 rules governing structuring of a command staff. The 2nd Operational

17 Group had the fundamental organs that enabled it to control combat

18 operations. Whether or not it employed them was a command decision by

19 the accused, but they were there to be employed. The Prosecution submits

20 that its evidence has established beyond and to the exclusion of every

21 reasonable doubt that the accused, General Strugar, was the de jure

22 commander of the forces of the 2OG and de facto the evidence is such that

23 he exercised those reins of command to have his orders which were issued

24 were carried out when he chose to have them carried out, and when they

25 didn't he turned a blind eye. Again the turning of a blind eye, the

Page 8689

1 selective enforcement of orders, is by no way a lack of effective

2 control. It is irresponsible command, and in this instance it is

3 criminal command. I cite you to Celebici appeal judgement paragraphs 192

4 and 256, Your Honours.

5 There is clear evidence that the concept of singular, unified

6 command in the JNA was the rule and it, in fact, was observed in the

7 context of the facts surrounding our indictment. In the context of the

8 centralised or orders-driven command system of the JNA, there was no room

9 for parallel chains of command within the 2OG or for units to act outside

10 the authority of the command of the 2OG. We cite to both Admiral Jokic's

11 testimony, 3911, General Zorc, 6434 and 6594.

12 Singleness of command meant there was only one commanding officer

13 in an operational group. The Operational Group commander was the only

14 one who issued orders related to the operations of the units of the

15 operational group.

16 The various relationships between and among command officers

17 within the 2nd Operational Group -- and that would include, for example,

18 officers such as Admiral Jokic who as the head of the 9th VPS was

19 subordinated to General Strugar, and other officers reflect a wide

20 spectrum of attitudes toward the campaign -- The Prosecution submits that

21 those attitudes became eminently clear on the 6th of December.

22 There has been a fair amount of evidence that, the Prosecution

23 suggests, indicates that although lip service may have been paid by the

24 accused to carrying out the order from Belgrade for a peaceful resolution

25 to the Dubrovnik situation, in fact, his actions and attitude which were

Page 8690

1 part of his command climate were to be contrary. The retention as his

2 liaison officer and front-line contact with internationals and the

3 cross-examinations of Colonel Sikimic very much indicated that

4 irrespective of their views -- and Sikimic was deemed by the

5 internationals to be someone who could not and should not be holding that

6 position -- the retention of such a person suggests that the accused had

7 no regard for how the other side would accept or not accept the proposals

8 of the 2nd Operational Group.

9 Further, in terms of real intent to bring about peace, the

10 alleged or the so-called 11-point Ultimatum in October 1991 included

11 conditions which were calculated never to be accepted. So the good

12 faith, the bona fides of this type of alleged resolution was nothing more

13 than lip service. It is the submission of the Prosecution that the

14 accused sought a military solution as opposed to a peaceful solution to

15 the crisis that was created in the Dubrovnik theatre.

16 Looking, however, at another commander, Admiral Jokic, the

17 Prosecution submits that his conduct and attitude, as attested to by

18 Prosecution witnesses such as Davorin Rudolf, was one that was calculated

19 to effect the intention from a strategic level to bring about the

20 peaceful solution to the crisis, the military conflict and the attendant

21 need to rebuild the infrastructure in Dubrovnik. He was, unfortunately,

22 blocked in carrying this out by a number of factors within the 2nd

23 Operational Group, the most significant of which, of course, was his

24 superior commander, the accused.

25 I will address the 2nd Operational Group commanding combat

Page 8691

1 operations with a view of blockading Dubrovnik and issuing daily combat

2 orders to its subordinate units including the 9th VPS and with regard to

3 the daily tasks. The Prosecution submits that it would be sufficient to

4 review carefully the terms of P119, P121 to see how clearly the accused

5 had a hands-on, immediate, right up-front approach to running combat

6 operations. And these of course included orders assigning specific tasks

7 to the 3rd Battalion of the 472nd Motorised Brigade, the very unit

8 responsible for the shelling of the Old Town on the 6th of December, and

9 the unit which on the 6th of December the accused knew to have been

10 suspected of being responsible for shellings in November of the Old Town

11 as well, and for which no punishment or investigation was meted out

12 earlier.

13 There has been an issue raised in the Defence brief about the

14 alleged attempt by Admiral Jokic to lift the blockade on or about the

15 11th of November, suggesting that the VPO was in fact reigning over him

16 as opposed to the 2nd Operational Group. This is a fallacy. We draw the

17 Chamber's attention to the explanation which is very sound, presented by

18 Defence Witness Drljan, who confirmed that the particular blockade, the

19 control at issue there, was one that was passed by the United Nations

20 Security Counsel Resolution. It had nothing to do --

21 THE INTERPRETER: Kindly slow down for the interpreters.

22 MS. SOMERS: Sorry. It was not the blockade that was imposed by

23 the edict of D44 and does not offend the unified and singular chain of

24 command on the 2nd Operational Group.

25 The evidence establishes that combat orders were issued by the

Page 8692

1 accused and then were followed with the very notable exception of orders

2 instructing that attacks on the Old Town be prevented.

3 We draw the Chamber's attention to the recent Blaskic appeals

4 judgement as another example of effective control exercised by the

5 commander. The Appeals Chamber went on to hold that the indicators of

6 effective control are more a matter of evidence than of substantive law

7 and those indicators are limited to showing that the accused had the

8 power to prevent, punish, or initiate measures leading to proceedings

9 against the alleged perpetrators where appropriate. I cite you to

10 paragraph 69 of the Blaskic appeals judgement.

11 It is clear from the evidence, Your Honours, that the accused did

12 have at his disposal the organs necessary to mete out discipline when he

13 chose to invoke them. There has been evidence that the murder of

14 civilians in the Kiev Dolje [phoen] area was prosecuted in the military

15 court of Sarajevo in January of 1992, having occurred in November of 1991

16 arising out of the area of the 2nd Operational Group which was the

17 accused's area.

18 THE INTERPRETER: Can counsel please slow down.

19 MS. SOMERS: The Prosecution submits that an effective

20 communication system enabled the accused to communicate with his

21 subordinate units and that on the 6th of December there was communication

22 between the accused and his subordinate commanders and personnel

23 throughout the day, particularly in relation to the attack. We draw the

24 Chamber's attention to Admiral Jokic's testimony on 4891 as well as the

25 D96 diary which reflects messages to and from the 2nd Operational Group

Page 8693

1 command, also concerning, for example, the need to put out fires. And

2 there is certainly communication back and forth that supports the

3 position.

4 The evidence has shown that there was the material ability for

5 the accused to discipline his subordinates. The accused, as is borne out

6 by General Zorc at 6524, who stated that: "Even at the highest level of

7 command is physically enable to visit the front according to doctrine,

8 there would be no qualitative difference between what he knows and the

9 actual ground because information flowed to him up the chain of command.

10 There was indeed a functioning chain of command. If information was

11 disregarded, that was a conscious decision of the command. It was not

12 because it was the material ability to have a functioning chain of

13 command and a flow of information.

14 The accused's control over matters in the Dubrovnik theatre was

15 all-encompassing and that extended to areas even such as civil affairs.

16 I draw the Chamber's attention to the testimony of Defence witness

17 Kurdulija, 7872; Cavtat town commander, who was from the 9th VPS directly

18 subordinated to Colonel Pipovic; the assistant to General Strugar for

19 civilian affairs was there until mid-December, 1991.

20 Further, when the 2nd Operational unit groups entered Mokosica

21 there was no fighting due to negotiations between the 2nd Operational

22 Group command, representatives of the EU, Minister Kuchner and Admiral

23 Jokic. I cite the testimony of Admiral Jokic at 4449 to 52.

24 With respect to demilitarisation there were negotiations between

25 the 2OG and the Crisis Staff several times between October to December.

Page 8694

1 At times, the accused himself led negotiations and at times he set up a

2 team led by Colonel Simicovic who proved to be someone who could not be

3 dealt with by the international community.

4 A point that the Prosecution wishes to drive home is that the

5 accused passed off to his subordinate Admiral Jokic responsibilities to

6 handle high-level contacts and undertakings with the international

7 community. We draw the Chamber's attention to the Tivat meetings with

8 the ambassadors and journalists on the 29th of October, 1991, where

9 Ambassador Fietlaars confirmed that Belgrade told him you have a meeting

10 with General Strugar "and presumably Admiral Jokic, and that in fact

11 General Strugar made himself unavailable."

12 We further draw the Chamber's attention to the most and more

13 pertinent date of the December negotiations where Minister Rudolf

14 confirmed that Zagreb through General Raseta and Belgrade indicated that

15 he would be negotiating with General Strugar, and when he got to

16 location, again, regrets sent but Admiral Jokic was given the job by

17 General Strugar. We submit that the inference to be drawn from that is

18 there was no wish to deal with internationals who were seeking either an

19 explanation as to what was happening as a reaction to allegations of

20 violations of international humanitarian law such as the mission of

21 Ambassador Fietlaars, or to engage in a peaceful resolution of the

22 conflict, as was the mission of Minister Rudolf.

23 There has been suggestion on multiple occasions that because

24 Admiral Brovit or General Kadijevic may have reached a step below the

25 accused down to the Admiral, that that indicated that there was not the

Page 8695

1 chain of command, the intact chain of command, and that the accused would

2 consider himself out of the loop, basically pushed aside. That was put

3 to rest, considered completely incorrect. To conclude that, by the

4 testimony of General Zorc, 6624 and 25: "The federal secretary is in

5 fact a superior in the chain of command and can thus ask from anybody

6 from the top down in the chain of command for activities that he wants to

7 see performed. And there was nothing unusual about General Kadijevic

8 summoning General Strugar and Admiral Jokic on 6 December, albeit the

9 subordinate-superior relationship between the two."

10 As to exercising command on the 6th of December, interestingly,

11 representing a change from the Prosecution's case where cross-examination

12 of Prosecution Witness Colonel Colm Doyle the head of the monitoring

13 mission for Bosnia-Herzegovina, who was in the accused's headquarters

14 about midday on the 6th. The cross-examination during the case in chief

15 led most to believe that there was a challenge to the fact of the

16 meeting. In fact, the Defence case did a very quick reversal and

17 confirmed the fact of the meeting, but then attempted to make Colonel

18 Doyle, a very experienced person in the arena of negotiations in the

19 former Yugoslavia, look like someone who couldn't follow and was not with

20 the programme and completely misunderstood the accused's statement as

21 relayed by Doyle that he had to open fire, he the accused had to open

22 fire on Dubrovnik because his units had been fired at.

23 The Prosecution submits there was no misunderstanding by Colonel

24 Doyle, but in fact that this was related directly to the command the

25 accused was exercising over units that day in Dubrovnik. It may have

Page 8696

1 been a regrettable admission by the accused -- statement by the accused,

2 rather -- accurate, and that the attempt to put Dr. Sikimic on to explain

3 that away was laughable, given the explanation that the doctor tried to

4 explain about his acrostic-style method of note-taking and suggestion

5 that there was some misunderstanding, clearly, as to that issue the

6 Chamber should reject wholly Dr. Sikimic testimony. It is system

7 implausible and uncredible.

8 The accused possessed the power to punish, to prevent, and to

9 initiate measures leading to proceedings against perpetrators of the

10 shelling of the Old Town at the time of the commission of the crime. He

11 simply chose not to exercise those powers that were inherent in his

12 command, in fact were his duty to exercise. Rather than going to the

13 scene on the 6th of December, to going to the location where his units

14 were firing and not obeying the orders to halt fire, he sat and wasted

15 precious time -- Colonel Doyle, time that could have been used to prevent

16 the horrific damage to the Old Town of Dubrovnik.

17 It is very clear that units of the 2nd Operational Group did not

18 honour the cease-fire that was in effect from approximately 13 November,

19 and in fact disregarded the admonition about not undertaking any action

20 with the major comprehensive cease-fire that was due to come into effect

21 on the 6th of December. If the Chamber takes a look, this is in the

22 brief, to the entries for the 5th of December, it is very clear that

23 preparations were being made for the peace talks. The discussions about

24 the Argosy being granted safe passage clearly indicates that the end of

25 hostilities was contemplated and clearly indicates that, from Admiral

Page 8697

1 Jokic's perspective, who has shown that he would not put internationals

2 in harm's way, clearly Admiral Jokic fully intended to see that peace

3 negotiation entered into, signed, and implemented.

4 If the Chamber also takes a look at D96 for the entry for the 4th

5 of December. Just to draw your attention to it, page 59, the entry is

6 7.50 hours. There is an reference also that Minister Rudolf, Ciric, and

7 Kriste have sailed from Split at 7.05 heading for Dubrovnik, due to

8 arrive around 1300, will remain in Dubrovnik. Clearly the 2OG was aware

9 of the presence of these persons and in a rare moment of appropriate

10 documentation, these entries are found in D96. I believe the Chamber

11 even made the same observation that D96 that the war log is not a

12 complete record, is not a total chronology, it does not contain

13 everything that witnesses said that it should contain. It does however,

14 contain those passages.

15 Returning for a brief moment to the organs that were available to

16 carry out investigations that were required in the event of breach of

17 discipline. There was a suggestion that because of the confusion, the

18 times, the breakups, the political situation, the movement from Split,

19 that there was a shortage of military personnel and security organs.

20 That is unacceptable and General Zorc has indicated that there is a duty

21 to find them. That whether or not peace or war dominates, the criminal

22 violations must be addressed. And I just ask the Chamber to review the

23 testimony of General Zorc confirming that.

24 I also draw the Chamber's attention to the fact that Colonel

25 Djurisic, Gojko Djurisic, a Defence witness, testified that the 9th VPS

Page 8698

1 has military police units and if a crime was committed within the units

2 under his responsibility he would have taken measures to investigate and

3 prosecute. Mr. Djurisic went on to state that the failure to take such

4 measures would lead to the units repeating to the units relating such

5 acts in the belief that it could be done with impunity. I cite

6 transcript 6991 and 92. And of course Djurisic's formation, his unit was

7 directly subordinate to the accused in the 2nd Operational Group.

8 We note that evidence has presented, both in the form of

9 documentary and testimonial, about various offenses which were addressed.

10 In late December an order came out concerning prosecution of war booty.

11 Admiral Jokic indicated he had yet to find any evidence of Prosecution

12 for international humanitarian law violations concerning unlawful

13 attacks.

14 There was a frontal attack lodged against Witness Jokic by two

15 Defence witnesses, Petre Handziev and Miroslav Javanovic, and the

16 Prosecution wishes to address each witness. First Handziev. The picture

17 painted by him was one of -- and by observing of a man who had a -- had

18 something to pick against Admiral Jokic. Clearly there was extremely

19 hard feeling there. Exceptional bias. And I draw the Chamber's

20 attention to the comments by him about the Admiral being a renegade and

21 that General Strugar, the accused, was a knight to whom Dubrovnik ought

22 to erect a monument. I cite transcript 7657.

23 The implausibility of the story that was woven by Mr. Handziev

24 about a phone call is best attacked by way of background of the witness.

25 The witness is a witness who came in on a mission. It is clear that he

Page 8699

1 was out to discredit for personal reasons the Admiral. It is clear from

2 the Admiral's rebuttal that this man could not have possibly been in a

3 position to have heard what he purports to have heard and that in fact

4 the entire conversation that Handziev testified to never took place. I

5 draw the Chamber's attention to the lack of resoluteness of which

6 Handziev spoke when confronted by the Prosecution on cross-examination

7 with the assertion that in fact there was no conversation between General

8 Kadijevic and Admiral Jokic where he said: "If that's the kind of

9 information you have -- I'm telling you what I remember. If you have

10 some kind of other information through some intelligence services, that's

11 debatable, too. And that's the end of it."

12 It is absolutely implausible that 13 years after an alleged event

13 that took place, but arguendo, had it taken place, that a man whom the

14 Chamber observed with the same acumen as the Prosecution, that he would

15 recall the detail of grammar points of the Serbo-Croatian language which

16 he claims were etched in his memory. Now, this is a man whose first

17 language was Greek and then Bulgarian, then somewhere down the line

18 B/C/S. It is simply implausible that etched in his memory might be the

19 use of a particular pronoun in a conversation.

20 The witness did, however, occasionally when caught off guard,

21 give points that the Prosecution submits were truthful. He did confirm

22 the arbitrariness of which events and which data were entered into the

23 logs at operation centres. In fact, not everything that should have gone

24 in went in. It was very much what the writer chose to put in. And that

25 would be 7651, transcript.

Page 8700

1 He also confirmed, more importantly, that he, Handziev, who sat

2 at the operation centre at Kumbor was taken by surprise. He did not

3 expect the hostilities of the 6th of December. Neither did Gojko

4 Djurisic. Neither did Defence witness Novakovic. These are persons who

5 if it were an operation of the 9th VPS would be absolutely calculated to

6 know and it is absurd to suggest that persons in these positions would

7 not. It is clear -- the Prosecution evidence is overwhelming -- that

8 whoever, if anyone, in the 9th VPS had overtaken this, it was not Admiral

9 Jokic.

10 The behaviour of the Admiral just before and on that day

11 indicates that he invested his personal and professional credit in

12 advancing the strategic goals that he was ordered to advance, that is in

13 effecting a comprehensive agreement with the highest level of the

14 Croatian government -- we are talking about minister level, not the local

15 level -- and did everything in his power to do so, reserving an issue to

16 the accused on a point that was not insignificant but which the accused

17 begged off again to the Admiral later.

18 The amount of energy that the Admiral invested on the 6th,

19 perhaps not in the right way and he has pled guilty. I emphasise the

20 Admiral is not on trial. He has accepted his responsibility, he has been

21 sentenced, and he will serve. He has told the Chamber what happened with

22 no motive whatsoever to fudge, to expand, to spin. There's essentially

23 no benefit to him. He's effectively, in that sense, got no dog in that

24 fight. He has paid his dues there. And the attacks that were lodged had

25 been attacks that we submit should be disregarded; that the ten-plus,

Page 8701

1 eleven-plus days on the stand were such and under ruling

2 cross-examination, he displayed his responses. He carried them out with

3 dignity and with candor. As a human being he has lapses of memory and is

4 entitled to such. But he was a candid witness who in no way attempted to

5 discredit his one-time co-accused, General Strugar, the accused.

6 I'd like to turn for a moment to Miroslav Jovanovic. The first

7 point came as a bit of a surprise when the request for videolink, which

8 in and of itself is not an extraordinary request, but the basis for it

9 was allegedly frailty of spouse, ill health, unwillingness as long as

10 such frailty persisted to leave his home in the former Yugoslavia. As it

11 turns out it appears to have been a different reason. It appears that it

12 was initially a fear of possible exposure, as was brought out during the

13 course of argument, to his role in the operations of the 6th. And the

14 Prosecution submits simply an act of pure cowardice, unwillingness to

15 accept the face-to-face process that he would have had to accept and

16 requested the buffer to attempt to shield what was a lengthy bit of

17 testimony without any foundational merit.

18 Miroslav Jovanovic was brought into the picture after the fact.

19 It is unclear whether his own desire for vengeance against Admiral Jokic

20 was the motivating factor, but it is clear from his evidence that he had

21 hard feelings. His career was short-circuited as a result of the what he

22 calls his removal. In fact, the Prosecution submits this is not the

23 arena in which to vent that type of vendetta.

24 The testimony that he gave was false testimony, the Prosecution

25 submits. If the Chamber takes a look, for example, at the various bits

Page 8702

1 of -- the various pieces of evidence about meetings. Defence Witness

2 Lemal discussed Captain Kovacevic being at Ivanica on the 5th of December

3 roughly at 1830 staying until 2000 or 2030 hours. There is certain

4 corroboration by Nesic, referring to "early evening." Stojanovic also

5 corroborates the time frame. But Miroslav Jovanovic alone puts Kovacevic

6 at a meeting in Kupari from 1800 taking him to 1930 or 2000 hours the

7 same day. It is impossible to be in two places at once. It is

8 absolutely certain that Miroslav Jovanovic was not telling the truth.

9 Three in Ivanica and one is putting him in Kupari. The Chamber itself

10 can draw its conclusions, that that's not what happened.

11 The notion of removal, the concept that was raised by the Defence

12 in its brief was removing Jovanovic but inability to remove Kovacevic.

13 The Prosecution submits these are different issues. Jovanovic was placed

14 for a very brief period of time to substitute for Strikovic [phoen] who

15 was permitted to go on leave because there was no activity contemplated

16 for that period of time. He was in position approximately one day when

17 he claims to have been brought into discussions at Kupari which the

18 rebuttal evidence of Admiral Jokic indicates was not correct, that he did

19 not attend. The removal of such a person was nothing more than putting

20 him back to where he was before. What was clear from the evidence is

21 that Admiral Jokic was unable to remove or otherwise act upon Captain

22 Kovacevic, and the reason for that was because of the protective layer

23 between his ability to do so and Kovacevic that was provided by the

24 accused, General Strugar.

25 There is no dispute that the documents suggest that at some point

Page 8703

1 Admiral Jokic went along with the Kovacevic version of facts that General

2 Strugar ordered him to go along with. The Admiral, as the realist,

3 understood that there was nothing he could do. He has pled guilty; he

4 has owned up to these things.

5 The admiral talked about the 14th of December visit by General

6 Panic and the Defence came in by some attempt to contradict by saying it

7 was a March visit. They are not inconsistent. There is not an

8 inconsistency there. I draw the Chamber's attention to the rebuttal

9 testimony, the inclusion of the December visit, about which he is adamant

10 and which makes sense indicates that there could also have been a

11 separate visit in March of 1992.

12 Excuse me just a minute, Your Honour, I'll try to collect the

13 last on this issue.

14 Prosecution will address also Gojko Djurisic. The Defence

15 witness Djurisic denied receiving orders from Admiral Jokic. Jokic

16 testified that on the 6th in the morning in the course of a phone

17 conversation, he had requested Djurisic to go to Zarkovica and stop the

18 attack. There's no contradiction between those two versions at all. The

19 difference is as to who called whom and if the Admiral asked Djurisic or

20 ordered him to go to Zarkovica to stop the attack. It is reasonable that

21 there could have been a lapse in the Admiral's recollection of it. What

22 is certain is that Djurisic confirmed the surprise, the anger and even

23 swearing employed by the Admiral over the attack, that he had no

24 understanding of how it could have happened, and Djurisic himself knew

25 nothing about the attack.

Page 8704

1 Mr. Djurisic confirmed conducting a phone conversation with the

2 Admiral in the morning and that he confirms that the admiral sounded

3 angry, asking who was shelling Dubrovnik when he was negotiating a

4 cease-fire. I turn the Chamber's attention -- I'm sorry, I have to look

5 for that particular cite, but it looks like transcript 4069 -- sorry,

6 that's not correct. 4069. I'll correct it if I'm wrong.

7 I also direct the attention of the Chamber that there is an entry

8 in D96 that Chief of Staff Zec relays the order to cease-fire at 0740

9 hours on the 6th, the entry.

10 Looking at why it is absolutely implausible that Admiral Jokic

11 would have had any part whatsoever on ordering an attack on Srdj in the

12 face of these very major strategic negotiations, we emphasise the

13 efforts, the going to Cavtat, the meetings; the negotiation process

14 itself; the relaying to his units and reporting about it. The fact that

15 the negotiations themselves were documented in the defence D96, that it

16 was well known throughout the international community; these are points

17 that without a doubt confirm that Admiral Jokic was clearly on a path to

18 peace on that date and had no participation whatsoever in any planning of

19 an operation on a feature which he has described in his own testimony as

20 one the taking of which would be calculated to implicate Dubrovnik and

21 specifically the Old Town.

22 The suggestion that the testimony about the early-morning hours

23 of the story of an attack initiated by Croatian forces falls into place

24 when one looks at the use, for example, of D96. That story does not

25 appear in D96. Kozaric, the communications officer, undoubtedly was

Page 8705

1 given some information to cover for what was to be a serious violation of

2 a strategic order to implement peace. Admiral Jokic was clearly out of

3 the loop on this and it makes perfect sense that a version like that

4 would have been passed on and that he would have recounted exactly what

5 he was told. That it did not get into the log is not surprising given

6 how much did not get into the log and given the speed with which action

7 has to be taken once the hostilities broke loose.

8 What is absolutely clear from Defence witnesses is that all

9 casualty taken by the 2OG soldiers, Captain Kovacevic's unit, occurred

10 after the attack initiated by Captain Kovacevic's people, not before.

11 There was no Croatian provocation. There's a reference in D96 to some

12 sniper fire. It is de minimus. There is nothing that even approaches

13 the type of horrific taking lethal casualties that was the version of

14 Kovacevic, designed to throw those who did not favour that action

15 offsent.

16 The Prosecution has made its submissions about sentencing which I

17 will not rehash. I will simply draw the Chamber's attention to our

18 position that one must look at two commanders charged with similar but

19 not identical charges arising out of the same events and distinguish very

20 strongly the role, the conduct of Admiral Jokic and the conduct of the

21 accused, General Strugar.

22 After his plea of guilty in August of 2003, Admiral Jokic gave

23 yet another interview and in fact substantially cooperated with the

24 Prosecution. And that substantial cooperation, we submit, was perhaps

25 one of the most helpful discussions of what and how the JNA thought that

Page 8706

1 has yet come to light in this institution through any testimony. It was

2 perhaps, besides being of great relevance to the case, generally of great

3 relevance to the Tribunal.

4 The Admiral has not tried to assign responsibility to others, in

5 sharp contrast to what has been presented in the Defence case. There has

6 been a level of remorse expressed by the Admiral on the date, not once

7 but twice on the date and then immediately thereafter, that greatly

8 merits a distinction. The accused, according to Admiral Jokic, did not

9 favour, did not permit the issuance of an apology or a regret. The

10 Admiral did it anyway, that day. And perhaps to get on the band wagon,

11 gosh knows why, a day later according to Minister Rudolf, a similar type

12 of admission of control over the units causing the shelling of the Old

13 Town was made and was also a form of expression of regret. Those are two

14 very different men with two very different attitudes.

15 The Prosecution has set forth its position and the recommendation

16 for sentencing if convicting on all counts, is irrespective of motive

17 liability, 13 to 15 years. And that takes into consideration the very

18 specific issues to the accused over which there has been much evidence.

19 I'm talking about not just age but health. The Prosecution has tried to

20 factor in everything. It has paid close attention to the testimony of

21 the accused's wife and believes that should a conviction follow, that

22 that would be appropriate.

23 Now, in terms of what conviction may be entered, the Prosecution

24 submits that there is evidence sufficient for a conviction of ordering.

25 There is evidence sufficient for a conviction of aiding and abetting.

Page 8707

1 And there is evidence sufficient, certainly beyond a reasonable doubt,

2 for 7.3. The jurisprudence will require because they arise out of the

3 same count that the Chamber elect, based on the mode that best

4 characterised the type of liability of, should it make that finding.

5 The Prosecution has through both testimonial and documentary

6 evidence and through a process of rather strict cross-examination brought

7 to light as much as is known about what really happened in Dubrovnik at

8 that time. The Prosecution submits that it is one of the more mysterious

9 cover-ups of the conflict, that the lack of action to punish, albeit

10 having been promised from as high up as Brovit [phoen] as related by

11 Ambassador Fietlaars, in fact never materialised. The Chamber has heard

12 from witness after witness in the Defence that no one really was punished

13 for what was an outrageous violation of international humanitarian law.

14 And again, the amount of cover-up that followed the event, whether it was

15 in the form of a deluded report on damage, whether it was the continuous

16 denial of the fact of damage of shelling, the ostrich approach, we didn't

17 hear it officially. Whatever the reasons are, this case has brought to

18 light the seriousness of the cover-up, and only through this case have

19 really facts ever surfaced that tell us anything about what really

20 happened there.

21 The Prosecution submits that it has proven beyond the exclusion

22 of every reasonable doubt every count charged in the indictment, that the

23 Trial Chamber has heard evidence from which it can convicting the accused

24 of either orders or aiding and abetting or 7.3, the failure to prevent or

25 punish. And again, because of time restrictions, the detail as to what