1 Thursday, 19 March 2009
2 [Rule 98 bis]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.03 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, The
10 Prosecutor versus Ante Gotovina, et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 The Chamber would like to inform the parties that it has reached
13 a decision on the request to stay the proceedings. I already give you
14 the gist of the decision, because the decision on the stay of proceedings
15 request plus an amended Scheduling Order, is to be issued shortly. That
16 means, most likely today or tomorrow, in writing, given all the details.
17 Nevertheless, it might be of interest to the parties to know already what
18 the decision will amount to.
19 Five additional weeks are granted for investigative and
20 preparatory purposes. These five weeks can be used after the 98 bis
21 proceedings, which results in the Pre-Defence Conference to be held on
22 the 27th of May, and the Defence case is to start on the 28th of May.
23 As I said before, a decision in writing giving details will be
24 issued shortly.
25 I further would like to inform the parties that tomorrow, Friday,
1 where we were scheduled to sit in the afternoon that we are now
2 rescheduled, and I take it that the parties have been consulted on that,
3 to be rescheduled to sit in the morning hours.
4 Finally, before I give an opportunity to the Defence to make any
5 98 bis submissions, I would like to inquire as to the time the parties
6 will take on the matter. I think, for the first round the Chamber
7 granted three hours each, and what I would like no know whether they will
8 be fully used or not, because from what I understand, but is that there
9 was an expectation at the Prosecution side, at least that's what I was
10 told, that we might finish before the weekend which I have difficulties
11 to understand, if the parties would take all together the full nine
13 MR. KEHOE: Mr. President, on behalf of Gotovina Defence, and
14 frankly I haven't consulted with our learned friends, but we will take
15 all three hours this morning.
16 MR. KAY: Your Honour, we will take our three hours on behalf of
17 Mr. Cermak.
18 MR. KUZMANOVIC: Your Honour, we will not take the full three
19 hours, but it all really depends on the joint issues that we have between
20 us and what I hear before me, so I will not take the full three.
21 JUDGE ORIE: Yes, because the full nine hours would certainly
22 take us beyond the weekend; whereas if six full hours and a part of the
23 three hours would be used by you, then it might be that Defence
24 submissions will be finished before the weekend.
25 Could the parties inform me about the sequence.
1 MR. KEHOE: The Gotovina Defence will begin today.
2 JUDGE ORIE: Yes.
3 Then I think that the Chamber is ready to hear any submissions
4 under Rule 98 bis.
5 MR. KEHOE: Yes, Mr. President, just before we move into that
6 and, of course, I have not had the opportunity to examine Your Honour's
7 decisions on the stay, but just to note the objection on behalf of the
8 Gotovina with proceeding with the 98 bis prior to the actual resting of
9 the case by the Prosecution. I think that that runs contrary to the
10 dictates of 98 bis, and there are several issues outstanding that I think
11 we have all listed before, not the least of which is the certification
12 motion the writ of mandamus issues concerning Mr. Rajcic and numerous bar
13 table submissions.
14 So without going into additional detail, because I haven't seen
15 Your Honours' ruling, I just want to place that objection without moving
16 forward on the record. And we are prepared to move forward at this time.
17 I would like to turn the floor over at this juncture to
18 Mr. Akhavan for the first portion of our argument.
19 JUDGE ORIE: Yes, Mr. Akhavan.
20 MR. AKHAVAN: Thank you, Mr. President, distinguished members of
21 the Tribunal.
22 It is it my privilege to appear before you on behalf of
23 General Ante Gotovina. This motion seeks the entry of a judgement of
24 acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence,
25 in relation to all counts in the amended joint indictment.
1 It is our submission that the Prosecutor has provided no evidence
2 capable of supporting a conviction against General Gotovina on any of the
3 counts in the indictment. With your permission, Mr. President, I shall
4 first set forth the applicable standard under Rule 98 bis. I shall then
5 set forth a summary of the Prosecution theory, the legal elements of the
6 crimes and criminal liability as charged in the indictment, and a summary
7 of our factual argument as to why the evidence does not prove those
8 elements beyond a reasonable doubt.
9 Following my pleadings, my colleagues, Mr. Kehoe and Mr. Misetic
10 will elaborate our submissions on the evidence in greater detail.
11 It is settled law that in Rule 98 bis proceedings the applicable
12 test is whether there is evidence, if accepted, upon which a reasonable
13 Tribunal of fact could be satisfied beyond a reasonable doubt of the
14 guilt of the accused on the particular charge in question. The Rule
15 98 bis jurisprudence identifies four key elements in the evaluation of
16 the evidence. First, where there is into evidence to sustain a charge,
17 the motion is to be allowed; second, where there is some evidence, but it
18 is such that taken at his highest a Trial Chamber could not convict on
19 it, the motion it to be allowed; third, where there is some evidence but
20 it is such that its strength or weakness depends on the view taken of a
21 witness's credibility and reliability and on one possible view of the
22 facts a Trial Chamber could convict on it, the motion will not be
23 allowed; fourth, if the only relevant evidence when viewed as a whole is
24 so incapable of belief that it would not properly support a conviction
25 even when taken at its highest for at Prosecution, a Rule 98 bis for an
1 acquittal will succeed.
2 We recognise the limited scope of a motion for acquittal. As the
3 Trial Chamber in Strugar stated, it involves no evaluation of the guilt
4 of the accused in light of all the evidence in the case to that stage,
5 nor any evaluation of the respective credit of witnesses, or of the
6 strength and weakness or contradictory evidence which is then before the
8 However, in making --
9 THE INTERPRETER: The counsel is kindly requested to read very
10 slowly because he did not provided the written text to the interpretation
12 MR. AKHAVAN: I apologise to the translators.
13 JUDGE ORIE: Is there any way that you could provide them with
14 the text which would certainly assist them, Mr. Akhavan?
15 [Defence counsel confer]
16 MR. AKHAVAN: Mr. President, there may be certain departures from
17 the text which is why I had not provided the translator the text, but I
18 will slow down to ensure that they can translate.
19 JUDGE ORIE: Yes. I can tell you that if you depart, if it is
20 not an entire new text that both transcribers and translators, although
21 assisted by the availability of the text, have great skills in
22 immediately following you on any departure as I have experienced several
24 Please proceed. Perhaps whether you'd take the time now or
25 whether there is any electronic version that could be copied outside this
1 courtroom, I --
2 MR. AKHAVAN: I have the version I could give to the Registrar
3 that's --
4 JUDGE ORIE: Then I suggest that it will be copied first so
5 that -- unless you have four copies.
6 MR. AKHAVAN: No. This is fine. I can provide this to the
8 JUDGE ORIE: I take it that the Defence will take care, that it
9 will be copied. And then -- well, the interpreters and transcriber are
10 put on notice that there might be deviations here and there.
11 THE INTERPRETER: Microphone, please.
12 MR. AKHAVAN: We have an electronic version that could be relayed
13 immediately by Mr. Misetic.
14 JUDGE ORIE: Yes. I do not know whether that is feasible or not.
15 I leave that in your hands. I was just thinking about another copy being
16 printed, but there was already an additional hard copy available.
17 I leave the technicalities in your hands. Please proceed.
18 MR. AKHAVAN: Thank you, Mr. President.
19 In making its determination, the Trial Chamber must make an
20 evaluation of all the evidence on the trial record. In particular, as
21 indicated by the Hadzihasanovic decision, ignoring evidence presented in
22 the Defence in its favour during the Prosecution case would amount to an
23 error at law. Furthermore while Rule 98 bis proceedings will not
24 ordinarily entertain detailed submissions on specific submissions within
25 counts, Trial Chambers have dismissed counts in part, where there is no
1 evidence in support of distinct aspects of a broad charge.
2 In the Strugar decision, for instance, in relation to counts of
3 unlawful shelling of civilian objects, the Chamber dismissed 52 buildings
4 and structures contested by the Defence on the grounds that the evidence
5 did not mention or identify the objects or that the evidence did not
6 establish that the objects were in fact damaged. This is at paragraph 78
7 of the Strugar 98 bis decision.
8 The partial dismissal of charges is consistent with the object
9 and purpose of Rule 98 bis which is, to quote the Strugar decision:
10 "To separate out and bring to an end those proceedings in respect
11 of a charge for which there is no evidence on which a Trial Chamber could
12 convict. It is consistent with a fundamental principle of justice that a
13 defendant is under no obligation to answer a case that has not been
14 properly made by the Prosecution."
15 In the present case this principle has particular relevance to
16 the unlawful attack charges against General Gotovina as a distinct
17 actus reus
18 at the core of the Prosecution's JCE theory, as I shall explain.
19 It has relevance also for the multiple murder charges as part of
20 the Count 1, 6, and 7. In view of the distinct prohibited acts that
21 constitute the physical elements of persecution, it is our submission
22 that the Chamber may dismiss Count 1 in part, though it is our view that
23 it should be dismissed as a whole.
24 The Prosecution has advanced two theories of liability. First,
25 it is alleged in paragraph 12 of the indictment that General Gotovina
1 participated in a category 1 JCE, the common purpose being the permanent
2 removal of the Serb population from the Krajina region. The members of
3 this JCE included the highest authorities of the Croatian state, acting
4 jointly in furtherance of a criminal policy. The JCE was allegedly
5 conceived during a meeting on the island of Brioni
6 implemented through Operation Storm during August 4th and 5th, which
7 consisted allegedly of large-scale indiscriminate artillery attacks
8 intended to terrorise the Serbian civilian population and to force their
9 mass exodus, and which allegedly, in fact, resulted in their massive
10 forcible displacement. In continuation of the same JCE, Operation Storm
11 was allegedly followed by the large-scale destruction and appropriation
12 of Serbian property and other discriminatory measures preventing the
13 displaced population from returning.
14 In addition to these crimes that constitute the purpose of a
15 category 1 JCE, the indictment alleges by way of JCE category 3, that it
16 was foreseeable that the crimes of murder, inhumane acts, and cruel
17 treatment were a possible consequence in the execution of the enterprise.
18 The Prosecution 's alternative theory of liability is that
19 General Gotovina is responsible for crimes committed by his subordinates
20 under the doctrine of command responsibility, under article 7(3). In
21 particular, while it is not contested by the Prosecution that orders were
22 repeatedly issued to respect humanitarian law and that there was a
23 151 per cent increase in disciplinary measures, and an additionally, that
24 conscripts responsible for crimes were it demobilised, it is still
25 alleged that these did not constitute necessary and reasonable measures
1 to prevent or punish crimes.
2 There can be no doubt that allegations of large-scale unlawful
3 shelling are at the core of the Prosecution theory against
4 General Gotovina. In Mr. Tieger's opening statement, at pages 418 and
5 419 of the transcript, he stated as follows:
6 "By the time Operation Storm and its accompanying mop-up
7 operations were over, almost the entire population had been driven out
8 and the Serb community was a scarred wasteland of destroyed villages and
9 homes. By the end of the first day of the operation, the vast majority
10 of Krajina Serbs were in panic stricken flight, not by accident, but by
11 design, through a successfully implemented plan to achieve just that
12 through the shelling of civilian towns and villages. General Gotovina
13 planned an ordered the artillery operation that was intended to drive the
14 Serb civilians out."
15 Further, at page 443, lines 23 to 24 of the transcript,
16 Mr. Tieger once again confirms the Prosecution theory that, and I quote:
17 "The shelling of Knin and other towns was at the core of the plan to
18 drive Serbs out."
19 Accordingly, if the allegation of large-scale unlawful shelling
20 cannot be sustained by the evidence, the Prosecution's entire JCE theory
22 As we shall set forth in our pleadings today, after a 14-year
23 exhaustive investigation, the Prosecutor has failed to provide any
24 evidence capable of supporting a conviction on the counts set forth in
25 the indictment. First, in relation to persecution under Count 1, there
1 is no evidence whatsoever that Operation Storm was in fact an unlawful
2 discriminatory attack directed not at military objectives but rather
3 directed against the Serbian civilian population. The Prosecution has
4 not produced conclusive evidence of a single unlawful attack or of a
5 single civilian death or injury resulting from such an attack,
6 notwithstanding its burden of proving that unlawful attacks were
7 committed on a widespread or systematic scale as required by Article 5.
8 Second, in relation to deportation and forcible transfer under
9 Counts 1 to 3, because there is no evidence of unlawful attacks against
10 civilians, it follows that there is also no evidence that their
11 displacement resulted from grounds not permitted in international law, as
12 required by Articles 5(d) and (i). Additionally there is no evidence
13 that the shelling, whether unlawful or not, was in fact the cause of
14 civilian flight. There is also no evidence that civilians would have
15 stayed had Croatia
16 The evidence of RSK propaganda and evacuation orders only reinforces the
17 conclusion that there is no causal relationship between shelling and
18 civilian flight, as required by Articles 5(d) and (i).
19 Thus it is our respectful submission that there is simply no
20 evidence whether direct or circumstantial to sustain either the
21 Prosecution's core theory of a JCE at Brioni with the intention of
22 terrorising and expelling civilians on discriminatory grounds or to
23 sustain the Prosecution case that the crimes of persecutory unlawful
24 attacks and deportation were in fact committed irrespective of the
25 existence of the JCE. The evidence simply does not prove either the
1 mens rea or the actus reus
2 Third, in relation to plunder, wanton destruction, and other
3 discriminatory measures under Counts 1, 4, and 5, without proof of the
4 Brioni JCE to terrorise and expel civilians and in view of undisputed
5 evidence of orders ...
6 JUDE ORIE: Mr. Akhavan, your speed of speech is still a bit
7 high, and although with the text, the interpreters and perhaps the
8 transcriber can catch up, but that's not the way. You should slow down,
9 so that we have a direct and firsthand transcription and translation.
10 Please proceed.
11 MR. AKHAVAN: My apologies to the Chamber and to the translators.
12 And in view of undisputed evidence of orders to maintain law and
13 order, and notwithstanding evidence that destruction and appropriation of
14 Serbian property was the result of lawlessness in the aftermath of
15 Operation Storm, there is no evidence of an additional JCE with the
16 intention of plundering and destroying property and no evidence that
17 General Gotovina made significant contribution to such crimes.
18 Further more, there is no evidence of a policy to acquiesce in
19 such crimes of mob violence as required by Article 5.
20 Fourth, in relation to murder and inhumane and cruel treatment
21 under counts 6 to 9, without evidence of a category 1 JCE, there is no
22 basis to attribute liability to General Gotovina on the basis of a
23 category 3 JCE.
24 Fifth, in relation to liability, for Counts 1 to 5, based on
25 command responsibility under Article 7(3), there is no evidence to
1 support the Prosecution theory that General Gotovina failed to take
2 necessary and reasonable measures to prevent or punish crimes committed
3 by his subordinates. There is no evidence that beyond repeated orders to
4 respect humanitarian law, disciplinary measures and demobilization of
5 conscripts, none of which is contested by the Prosecution, that
6 General Gotovina had any authority to take additional measures. In
7 particular, there is no evidence that General Gotovina was in command and
8 control of the 72nd Military Police Battalion for the purpose of
9 conducting criminal investigations.
10 Sixth, in relation to liability for Counts 6 to 9, based on
11 command responsibility, there is no evidence that General Gotovina had
12 any notice that beyond plunder and destruction his subordinates were
13 responsible for murder or inhumane and cruel treatment of civilians.
14 I shall now set forth the legal elements required for each of the
15 crimes and the theories of liability as charged by the Prosecution and a
16 corresponding summary as to why the evidence cannot sustain a conviction.
17 In this regard, it is self-evident that under Rule 98 bis, the burden of
18 the Prosecutor is not only to prove all the mental and physical elements
19 of the crimes charged beyond a reasonable doubt, but also to prove the
20 specific theory of liability set forth in its case in chief. The Defence
21 must necessarily rely on the Prosecution theory of the case. It cannot
22 speculate as to hypothetical theories that have not been pleaded in the
23 case in chief.
24 I shall begin by addressing the charge of unlawful attacks on
25 civilians and civilian objects, as a persecutory act under Count 1. As
1 mentioned, this is at the core of the Prosecution theory that
2 General Gotovina participated in the alleged Brioni JCE through
3 Operation Storm and that this combat operation constituted a large-scale
4 persecutory unlawful attack against civilians with the intention to
5 terrorise them into leaving in violation of Article 5(h).
6 The law on JCE provides that General Gotovina must have shared
7 the criminal purpose of an unlawful attack and made a significant
8 contribution to its achievement. In the words of the Brdjanin appeal
9 judgement, and I quote from paragraph 431:
10 "Where all the requirements for JCE liability are met beyond a
11 reasonable doubt, the accused has done far more than merely associate
12 with criminal persons. He has the intent to commit a crime; he has
13 joined with others to achieve this goal; and he has made a significant
14 contribution to the crime's commission."
15 Further more, as the Krajisnik appeals judgement recently
16 confirmed the mens rea for first category JCE is that, and I quote from
17 paragraph 200:
18 "The JCE participants including the accused had a common state of
19 mind; namely, the state of mind that the statutory crimes forming part of
20 the objective should be carried out.
21 In other words, there must be evidence that there was a common
22 criminal purpose to terrorise civilians, specifically through unlawful
23 attacks against civilians and civilian objects and that General Gotovina
24 joined with others to achieve this goal. The Prosecution contends that
25 this evidence is found in the Brioni transcript.
1 As my colleague Mr. Kehoe will explain, the portions of the
2 Brioni transcript that the Prosecution relies on to impute a JCE to
3 attack Serb civilians when read in context is, at best, highly ambiguous,
4 if not contrary to the Prosecution theory. There is simply no direct
5 evidence of a criminal purpose. The existence of a JCE must be and is in
6 fact circumstantially inferred by the Prosecution from the actual conduct
7 of Operation Storm. The question, therefore, is what circumstances would
8 allow for such an inference to be made as a matter of evidence?
9 In determining what are the conduct of hostilities during
10 Operation Storm constituted a widespread or systematic attack against a
11 civilian population as required by Article 5, the Kunarac appeals
12 judgement has head, and I quote:
13 "The laws of war provide a benchmark against which the Chamber
14 may assess the nature of the attack and the legality of the acts
15 committed in its midst."
16 Thus, if there is no evidence that the combat operations violated
17 the laws of war on a large-scale, a conviction under Article 5 cannot be
18 sustained with respect to Operation Storm.
19 In this regard, we note that during the Rule 72 proceedings on
20 jurisdiction, the Prosecution vigorously argued that the laws of war on
21 conduct of hostilities, the so-called Hague law, do not apply to
22 Article 5 charges. The Prosecution subsequently added distinct
23 allegations of unlawful attacks as a persecutory act, first, in its
24 pre-trial brief, and subsequently in the amended indictment under
25 Count 1, and has in substance invoked the terms of additional protocol I
1 of 1977 throughout its case in chief.
2 As you will be well aware from the landmark Galic case,
3 Mr. President, the Prosecution in that case submitted and the Trial
4 Chamber accepted that, and I quote from paragraph 144:
5 "When considering the general requirements of Article 5, the body
6 of laws of war plays an important part in the assessment of the legality
7 of the acts committed in the course of an armed conflict and whether the
8 population may be said to have been targeted as such."
9 The Prosecution has alleged that the provisions of protocol I
10 have been violated on a large-scale within the scope of Article 5. With
11 respect to unlawful attacks against civilians and civilian objects under
12 Count 1, the Galic case provides a useful statement of the applicable
13 laws of war on protection of the civilian population under Article 51 of
14 additional protocol I, that I will now turn to briefly.
15 In that judgement, the Trial Chamber held at paragraph 56 that
16 the crime of attack on civilians requires the following specific
17 elements, and I quote:
18 "First, acts of violence directed against the civilian population
19 or individual civilians not taking direct part in hostilities causing
20 death or serious injury to body or health within civilian population.
21 Second, the offender wilfully made the civilian population or individual
22 civilians not taking direct part in hostilities the object of those acts
23 of violence."
24 The Trial Chamber goes on to state at paragraph 57 that
25 indiscriminate attacks, that is to say, attacks which strike civilians or
1 civilian objects and military objectives without distinction may qualify
2 as direct attacks against civilians. Thus, the mens rea required for the
3 two categories is closely related.
4 With respect to the mens rea of a disproportionate attack, the
5 Trial Chamber held at paragraph 59, that the Prosecution must prove that
6 the attack was launched wilfully and in knowledge of circumstances giving
7 rise to the expectation of excessive civilian casualties.
8 Since the core Prosecution theory is that Operation Storm was
9 intended to terrorise the civilian population through the unlawful use of
10 artillery, it may also be useful to briefly consider the law applicable
11 to the crime of spreading terror against civilians under Article 51(2) of
12 Protocol I. Although it has not been charged or referred to by the
13 Prosecution, it provides guidance as to how to assess allegations that
14 Operation Storm was intended to terrorise civilians.
15 In explaining the context of combat operations within which the
16 laws of war are meant to apply, the ICRC commentary to Protocol I at
17 paragraph 1940 points out, and I quote:
18 "There is no doubt that acts of violence related to a state of
19 war almost always give rise to some degree of terror among the population
20 and sometimes also among the armed forces. It also happens that attacks
21 on armed forces are purposely conducted brutally, in order to intimidate
22 the enemy soldiers and persuade them to surrender. This is not the sort
23 of terror envisaged here. This provision is intended to prohibit acts of
24 violence, the primary purpose of which is to spread terror among the
25 civilian population without offering substantial military advantage."
1 I will not burden the Trial Chamber with a discussion of what
2 constitutes military advantage, as defined in Article 52(2) of Protocol I
3 or the long list of what constitutes military objective as articulated
4 others of the international Red Cross and various national manuals on the
5 laws of war. But against the exacting standard that I have just set
6 forth on proof of what constitutes unlawful attack, what is the evidence
7 on record that can sustain a conviction that General Gotovina shared a
8 criminal common purpose to terrorise and deport an entire civilian
9 population through large-scale unlawful attacks against civilians and
10 civilian objects and that such crimes were in fact committed.
11 With the greatest respect to the Prosecution, we submit that
12 there is nothing in the record, nothing whatsoever, that could either
13 allow for an inference that there was a Brioni JCE to commit unlawful
14 attacks or to prove that such acts ever occurred. The Prosecution case
15 at its highest proves only that Croatian forces engaged in artillery
16 attacks against Knin and other locations. Target lists and witness
17 testimony indicate that these locations all contained multiple military
18 objectives. There is no evidence whatsoever of any attacks directed at
20 The Prosecution has not submitted a single crater analysis on a
21 weapon fired by the Croatian forces. Moreover, the Prosecution has not
22 submitted any evidence whatsoever of disproportionate civilian casualties
23 or damage resulting from artillery fire against Knin or any other town in
24 the so-called Krajina. In fact, it has not even been proven that there
25 was a single civilian death or injury that resulted from an unlawful
2 The evidence that, in addition to artillery, multiple-barrel
3 rocket launchers or MBRLs were used in combat does not prove an unlawful
4 attack either. There is it no evidence whatsoever that MBRLs were in
5 fact not directed or not capable of being directed against specific
6 military objectives. And there is no evidence whatsoever, that in fact
7 they caused unlawful death or injury to civilians or unlawful damage to
8 civilian objects. No evidence whatsoever.
9 It is evidence that in building its case, the Prosecution has
10 applied the wrong standard in alleging unlawful attacks. In particular,
11 we point to Mr. Russo's question to Marko Rajcic at page 16284 [Realtime
12 transcript read in error "12684"] of the transcript, lines 12 to 14,
13 where he asked the following question, and I quote:
14 "Q. Were the 130-millimetre guns and 122-millimetre rocket
15 systems, were they capable of being fired at those targets and only
16 hitting those targets and nothing else around them?"
17 This remarkable question assumes that there must be a
18 100 per cent rate of accuracy in the use of weapon systems. It
19 completely disregards the Protocol I standards that permit incidental
20 casualties and damage, provided that it is not excessive in relation to
21 the military advantage gained.
22 By Mr. Russo's fastidious standards, every combat operation in
23 the world would constitute a war crime, because there is always a margin
24 of error, even for the sophisticated and precise weapon systems of the
25 world's most advanced armies. Indeed there is considerable evidence that
1 Operation Storm was in fact executed with exceptional military precision
2 and effect.
3 As Mr. Kehoe will explain, the only evidence the Trial Chamber
4 has been presented on collateral damage from shelling, including UNMO and
5 UNCIVPOL reports, demonstrates in fact that the damage was minimal for an
6 operation of this large-scale and that the damage was concentrated around
7 military objectives. For example, we refer the Trial Chamber to Exhibits
8 P64, P228, D66, and D276.
9 JUDGE ORIE: Mr. Akhavan, if I may just interrupt you for a
10 second in order to avoid that others have to solve a puzzle at a later
12 Page 17, line 10, I think that the transcription is correct and
13 that you said page 12684, but it should be I think 16284. So it may have
14 been a -- just a slip of the tongue.
15 Mr. AKHAVAN: Correct. It is 16284.
16 JUDGE ORIE: That is now then put on the record.
17 Please proceed.
18 Mr. AKHAVAN: We submit that vague or speculative evidence that
19 artillery was fired in what appears from a distance to be a civilian area
20 is not conclusive proof that an attack was unlawful. You will be well
21 aware, Mr. President, of the exacting evidentiary standards that were
22 applied in this regard in the Galic case, to give but one example. In
23 that case, the majority concluded that a large-scale unlawful attack was
24 proven based on detailed investigation and testimony of numerous
25 incidents of sniping and shelling. The judgement refers, for instance,
1 to evidence that civilians were targeted during funerals, in ambulances,
2 in hospitals, on trams, on buses, when driving or cycling. Against this
3 standard there is no evidence whatsoever of a single unlawful attack, let
4 alone widespread or systematic attacks, wilfully directed against
6 The Prosecution case, taken at its highest, could not even
7 satisfy a probable cause test, let alone proof beyond a reasonable doubt.
8 We submit, therefore, that the charge of unlawful attack against
9 civilians and civilian objects as an element of persecution under Count 1
10 be dismissed in its entirety. Furthermore, since this allegation is at
11 the core of the Prosecution's Brioni JCE theory, the entire JCE theory
13 As I shall now explain because the deportation and forcible
14 transfer charges under Counts 1 to 3 depend on proof that Operation Storm
15 was unlawful, they also fail.
16 Based on the standards set forth in the Stakic appeals judgement
17 at paragraph 278: In order to sustain a conviction on deportation or
18 forcible transfer under Articles 5(d) and (i), the Prosecution must prove
19 beyond a reasonable doubt that the intention underlying Operation Storm
20 was, and I quote: "The forced displacement of persons by expulsion or
21 other forms of coercion without grounds permitted under international
23 Since there is no evidence of an unlawful attack, this charge
24 must also fail. If there is no unlawful attack, there is no forced
25 displacement without grounds permitted under international law. If the
1 flight of civilians from war zones ipso facto constituted deportation,
2 then lawfully combat would be impossible. Count 1 in relevant part and
3 Counts 2 and 3 in whole must be dismissed for this reason alone. There
4 are, however, additional reasons why these counts fail. The Prosecution
5 has not provided any evidence that civilians in fact fled because of
6 shelling, whether lawful or not, although this is at the core of its
7 theory. To the contrary, the evidence indicates that civilians left
8 pursuant to RSK evacuation orders. There is also no evidence that
9 civilians would have remained had Croatian forces captured Krajina
10 through other means. Once again, the evidence demonstrates to the
11 contrary, that the RSK propaganda had instilled the view that Serbs could
12 never live under Croatian state.
13 There is yet a further reason in law why a conviction on these
14 counts cannot be sustained. As the Stakic trial judgement has held at
15 paragraph 674, deportation or forcible transfer is, and I quote: "The
16 removal of someone from the territory over which the person removing
17 exercises sovereign authority."
18 The Krnojelac trial judgement further confirms that the
19 requirement of occupation under Article 49 of the 4th Geneva Convention
20 of 1949 applies equally to deportation charges under Article 5 of the
21 statute. I refer the Chamber to the judgement at paragraph 473, which
22 states that the contents of the underlying offence does not defer whether
23 perpetrated as a war crime or as a crime against humanity.
24 It is it our submission, therefore, that the evidence cannot
25 sustain a conviction under Count 1 in relevant part and Counts 2 and 3 as
1 a whole. There is no basis for a circumstantial inference of an intent
2 to deport, and there is in fact no proof of the actus reus of forced
3 displacement contrary to international law. The Prosecution case is that
4 the fundamental purpose of the alleged Brioni JCE is unlawful shelling to
5 achieve mass expulsion. Without any proof of these two vital elements,
6 it is difficult to see how this JCE theory can be salvaged.
7 The lack of proof that Operation Storm was unlawful also
8 demonstrates that there is no proof of discriminatory intention which is
9 required to sustain a conviction on Count 1 as a whole. Based on the
10 Stakic appeals judgement, the Prosecution must prove beyond a reasonable
11 doubt that General Gotovina acted with the intent to commit the
12 underlying act and the intent to discriminate on political, racial, or
13 religious grounds. The Appeals Chamber has further specified at
14 paragraph 737 that discriminatory intent, the discriminatory intent
15 requirement amounts to a dolus specialis. This is it the highest degree
16 of mens rea in international criminal law. The Kupreskic trial judgment
17 notes at paragraph 636 that the mens rea requirement for persecution is
18 higher than for ordinary crimes against humanity. And at paragraph 751,
19 that persecution is only one step away from genocide. This exacting
20 mental element means that beyond mere knowledge of a discriminatory
21 policy, the Prosecution must prove beyond a reasonable doubt that General
22 Gotovina had the conscious desire to discriminate against Serb civilians,
23 merely because of their ethnicity. The Stakic appeals judgement makes it
24 clear at paragraph 329 that:
25 "This discriminatory intent can be neither presumed nor
1 transferred from the direct perpetrators. Therefore, it is immaterial
2 for the assessment of the intent of the indirect perpetrator, whether or
3 not the actor had such a discriminatory intent."
4 It is not sufficient to argue, as the Prosecution did at some
5 length, that because President Tudjman allegedly had discriminatory
6 intention, that General Gotovina also acted with the same special
7 intention. There is no evidence on record whatsoever that proofs
8 discriminatory intention on the part of General Gotovina and for that
9 reason, a conviction for the charge of persecution cannot be sustained,
10 and Count 1 should be dismissed as a whole.
11 Since there is no evidence to support the Prosecution core theory
12 of a JCE, the Prosecution must prove beyond a reasonable doubt with
13 respect to plunder and wanton destruction that there is was a specific
14 JCE in relation to Counts 4 and 5, and Count 1 in relevant part, to
15 commit those specific acts. There is no evidence that a plan of
16 systematic burning or looting was ever complicated at Brioni. As
17 Mr. Kehoe will describe, the Prosecution does not contest that there was
18 series of high level meetings prior to Operation Storm, at which the most
19 senior Croatian state officials made a plan to maintain law and order in
20 Krajina post-liberation and issued orders to the military and civilian
21 police consistent with this objective. In particular, as Mr. Misetic
22 will explain, it is not in dispute that General Gotovina issued attack
23 orders requiring compliance with the Geneva Conventions, that he issued
24 additional orders requiring maximum respect in the treatment of
25 civilians, and as admitted by Prosecution expert Theunens, there was a
1 151 per cent increase in disciplinary actions within the Split Military
2 District at the relevant time. It is also not contested that
3 General Gotovina demobilised undisciplined conscripts and that he did not
4 receive reports after August 18th that these measures not been effective
5 with respect to his subordinates.
6 The Prosecution case is merely that the Croatian state and
7 General Gotovina did not take adequate measures and thereby infers a
8 discriminatory policy to acquiesce in such crimes against civilian
9 property. While there is no legal requirement of a policy, the Kupreskic
10 trial judgment indicates at paragraph 552 that need for crimes against
11 humanity to have been at least tolerated by a state, government, or
12 entity is stressed in national and international case law. Article 72(A)
13 of the ICC statute in fact requires that the acts be committed pursuant
14 to or in furtherance of a state or organisational policy. At the very
15 least, the mere fact that crimes are numerous does not qualify as crimes
16 against humanity, if there is no proof of a policy of acquiescence. In
17 particular, mob violence in the context of what several witnesses
18 described as lawlessness in the Krajina does not meet either the high
19 threshold or the object and purpose of Article 5.
20 The Tadic trial judgement at paragraph 653 explained that the
21 reason why crimes against humanity so shock the conscience is because
22 they are not isolated random acts of individuals. The cumulative
23 commission of isolated or random crimes by individuals or small groups,
24 thus, is not a crime against humanity. The Prosecution case at its
25 highest proofs that the Croatian state should have tried harder. That it
1 should have allocated more resources to prevent crimes, as tens of
2 thousands of displaced persons returned to their homes in this vast and
3 remote region. There is no evidence, however, as to whether such
4 resources were in fact available. At best, the Prosecution has made the
5 case that Croatia
6 in planning the post-combat requirements of maintaining law and order.
7 It has not proved that there was a deliberate policy of acquiescence as
8 required by Article 5.
9 In this respect, the Prosecution cannot simply allege that there
10 was at Brioni a joint criminal enterprise to commit burning and looting.
11 The Krajisnik appeals judgement has recently held that there cannot be a
12 fluid JCE concept such that beyond the original crimes envisaged
13 allegedly at Brioni that expanded crimes can be attributed to the
14 defendant without additional evidence. The Prosecution cannot merely
15 allegation that there was a broad JCE to commit ethnic cleansing and that
16 the crimes irresistibly evolved from unlawful shelling to burning and
17 looting. The Prosecution must provide specific evidence as required by
18 the Krajisnik appeals judgement, as to whether the JCE members did
19 nothing to prevent the recurrence and persisted in the implementation of
20 this expansion of the common objective and evidence. And furthermore,
21 there must be specific evidence as to when the expanded crimes became
22 incorporated into the common objective. That's at paragraph 171.
23 Since there is no evidence of a JCE to terrorise and expel the
24 Serbian civilian population through unlawful shelling, and since there is
25 also no evidence of a specific or additional JCE to plunder and destroy
1 Serbian property, the JCE theory, as a whole, cannot be sustained,
2 including with respect to relevant parts of Count 1 and Counts 4 and 5 as
3 a whole. Furthermore, since a category 1 JCE has not been proven beyond
4 a reasonable doubt, there can be no category 3 liability with respect to
5 murder and inhumane and cruel treatment under Counts 6 to 9. We submit,
6 therefore, that all of the Counts in the indictment be dismissed to the
7 extent that they are based on JCE liability.
8 Finally, Mr. President, I shall discuss the only remaining basis
9 for liability, which is command responsibility under Article 7(3).
10 As set forth previously and as Mr. Misetic will explain in
11 greater detail, General Gotovina took a number of disciplinary and
12 preventative measures. The Prosecution theory under Article 7(3) rests
13 essentially on the allegation that these measures did not constitute
14 necessary and reasonable measures to prevent or punish crimes, that
15 General Gotovina should have tried harder.
16 The Prosecution pre-trial brief at paragraph 67 specifically
17 alleges that necessary and reasonable measures that could have been taken
18 by Gotovina include investigating the allegation using military police,
19 notifying appropriate military and civilian prosecution authorities, and
20 imposing immediately disciplinary measures or disciplinary sentences on
21 suspected subordinates to prevent further crimes.
22 As my colleague Mr. Misetic will explain, beyond these
23 allegations the Prosecution has not provided any evidence as to what
24 constitutes necessary and reasonable measures for an operational
25 commander with General Gotovina's responsibilities. And as the
1 Prosecution admits in the pre-trial brief, General Gotovina was in charge
2 of 130.000 soldiers during Operation Storm.
3 We also note that the Prosecution chose not to call
4 Andrew Pringle who was listed as the Prosecution expert witness on
5 command responsibility.
6 The Halilovic trial judgement indicates that whether necessary
7 and reasonable measures are in fact taken is determined by -- had this is
8 at paragraph 74 whether specific orders prohibiting or stopping the
9 criminal activities were issued, what measures to secure the
10 implementation of these orders were taken, what other measures were taken
11 to ensure that the unlawful acts were interrupted, and after the
12 commission of the crime what steps were taken to secure an adequate
13 investigation and to bring the perpetrators to justice. The Prosecution
14 does not deny that General Gotovina issued orders and took disciplinary
15 measures. Instead, it focuses on the failure to investigate crimes. In
16 this respect, the Hadzihasanovic trial judgement indicates at
17 paragraph 1061 that: "Referring the matter to the appropriate military
18 judicial authority is a necessary and reasonable measure, where a
19 commander is unable to carry out his own criminal investigation."
20 As Mr. Misetic will explain, there is no evidence that General
21 Gotovina failed to refer crimes to the military police. There is no
22 evidence that criminal investigation was in fact within the competence of
23 General Gotovina. The Blaskic appeals judgement indicates, at
24 paragraph 72 that: "... necessary and reasonable measures are such that
25 can be taken within the competence of a commander, as evidenced by the
1 degree of effective control he wielded over his subordinates."
2 In this respect, the Prosecution evidence, taken at its highest,
3 merely proves that General Gotovina had general rights of intervention
4 with respect to the military police. The Halilovic appeals judgement
5 expressly states that this is it not a sufficient basis for attribution
6 of command responsibility. In that case, the Appeals Chamber citing the
7 famous high command case before the United States Military Tribunal, held
8 as follows - this is at paragraph 212:
9 "As a commander in chief of an army group, the duties imposed
10 upon Field Marshal von Leeb were exclusively operational, and his
11 headquarters and staff were strictly operational in their functions.
12 Therefore, his authority in the field of executive power was more in the
13 nature of a right to intervene than a direct responsibility."
14 The Military Tribunal found that under the circumstances of the
15 case, it was not considered that criminal responsibility attached to him
16 merely on the theory of subordination and overall command.
17 Considering the acquittal in this regard of Field Marshal
18 von Leeb in the high command case, despite the evidence of massive
19 atrocities of Nazi forces in occupied territories, it would be
20 inconceivable to hold General Gotovina liable under Article 7(3) merely
21 because he allegedly had general rights of intervention with respect to
22 the military police. We submit, therefore, that there is no evidence
23 that could sustain a conviction based on Article 7(3) and, therefore,
24 that all Counts should be dismissed by the Trial Chamber.
25 In summary, Mr. President, distinguished members of the
1 Trial Chamber, the Prosecutor has failed to present proof beyond a
2 reasonable doubt of General Gotovina's criminal liability on any of the
3 counts in the joinder indictment. Accordingly, we respectfully request
4 this Trial Chamber to enter a judgement of acquittal on all Counts.
5 That concludes my submissions. I thank you for your attention
6 and ask the Chamber to give the floor to my colleague Mr. Kehoe.
7 JUDGE ORIE: Thank you, Mr. Akhavan.
8 Mr. Kehoe, looking at the clock would you prefer to make a start
9 and then have a break after some 12 to 15 minutes, or would you rather
10 have an early break so that we would then resume at a quarter to 11.00?
11 MR. KEHOE: I'm at Your Honour's disposal.
12 JUDGE ORIE: Yes, but I'm asking -- [Overlapping speakers] ...
13 MR. KEHOE: I can -- we can take a break now and just start then.
14 That might be a bit easier.
15 JUDGE ORIE: Yes. Then we will have a break, and we will resume
16 at a quarter to 11.00.
17 --- Recess taken at 10.19 a.m.
18 --- On resuming at 10.49 a.m.
19 JUDGE ORIE: Mr. Kehoe.
20 MR. KEHOE: Yes, Mr. President. Thank you. And Your Honours,
21 good morning.
22 I would like to continue to expand on the discussion as presented
23 by Mr. Akhavan, directing my comments for the most part to the JCE
25 In substance, again as outlined by Mr. Akhavan, the JCE
1 allegation involving General Gotovina is that there was a plan to drive
2 the Serb civilian population out of the Krajina, that that plan was
3 concretized at the meeting in Brioni, that General Gotovina shared in
4 this criminal purpose, and that his significant contribution came through
5 the use of artillery during Operation Storm.
6 I will attempt to lay out the evidence in this fashion without
7 commenting, of course, on credibility, et cetera, Your Honour as I know
8 is not proper, and trying to look at the evidence from the Prosecution
9 but in all -- all of the evidence. And in doing so, one must reflect on
10 the whole body of evidence that the Prosecution has made this allegation
11 concerning the JCE, and face -- in the face of several salient facts; the
12 first, of course, being that the liberation of the Krajina had been
13 planned by Croatian forces for years. The second was that the plan and
14 use of artillery and rockets on military objectives in Knin and other
15 cities in the -- in the Krajina had been planned well prior to the Brioni
16 meeting. Next, that the Serb population began to leave the Krajina prior
17 to Operation Storm. Also, that in parallel to the planning of
18 Operation Storm, Croatian ministries were preparing for the peaceful
19 reintegration of the Krajina and the restoration of law and order.
20 Lastly, that the shelling was done in support of a military offensive and
21 we will discuss these points. That there was no extensive loss of life
22 and damage to civilian structures in Knin or other locales, as a result
23 of this shelling on 4th and 5th of August.
24 During its opening statement and its pre-trial brief, the
25 Prosecution has stressed the importance of the Brioni meeting and what
1 was discussed. I think -- I submit to the Chamber that it's important
2 before we look at those comments as a -- as pointed out by the
3 Prosecution that we look at the context of Brioni in line with all of the
4 evidence that is before the Chamber. What we know is that prior to
5 Brioni, that there was a plan to re-take the Krajina, and that the plan
6 for use of artillery against Knin and other locales, with specific target
7 it's listed, dated back to at least 1993. We take that from
8 Marko Rajic's statement, D1425, at paragraph 50.
9 What else do we know? We know that as we move further towards
10 the July 31st date, we need to focus on the directive from the HV staff
11 of the 26th of June of 1995, and that is D956. And what do we learn from
12 that directive, more than a month prior to Brioni? What we learn is that
13 the Main Staff directed General Gotovina and the other -- district level
14 commanders that they were to use artillery and rockets against Knin and
15 Benkovac and other locales. And if you are looking at the English of
16 that particular document, it is on page 5.
17 They also note in page 6 of D956, under heading 7, artillery and
18 rocket support, that the support should focus on neutralizing the
19 Republika Srpska army Main Staff, 7 Corps command post in Knin, the
20 brigade command post, concentrations of enemy manpower, et cetera, and
21 the last sentence, preventing an enemy counterattack from the direction
22 of Knin, Kastel Zegarski, and Benkovac.
23 We also know that after the Brioni meeting there was a visit from
24 Ambassador Galbraith to President Tudjman, and we can reference that on
25 trial transcript 4928, line 13, through 4929, line 2. In that
1 conversation, inter alia, Ambassador Galbraith states to
2 President Tudjman that the Serb population will have to be protected,
3 that prisoners of war will be treated well -- well treated, excuse me,
4 that any atrocities would affect US/Croat relations and that the safety
5 of the UN peacekeepers was paramount.
6 On that same date, again from Marko Rajcic, at D425 at
7 paragraph 9, in a meeting with General Gotovina, General Gotovina
8 emphasised that the purpose of this endeavour was to obtain a military
9 victory and the operation was aimed only against the enemy soldiers.
10 Now, one would expect that if there was there significant meeting
11 taking place on the 31st of July at Brioni, that there would be in fact
12 dramatic changes in orders given by Military District commanders, such as
13 General Gotovina, in furtherance of the shelling of the civilian
14 population, to drive the civilian population out of Knin. What we see is
15 something, of course, quite different. And I direct Your Honour's
16 attention to a document that I'm sure Your Honours have seen many times
17 and probably tire of, P1125, which is the Kozjak order of 2 August 1995.
18 There were in fact two additional cities that were due to be attacked and
19 two additional from the first order of the 26th of June that came from
20 the Main
21 significantly, the first city on that list is Drvar. Drvar is to be put
22 under artillery fire as the other towns are. What is the significance of
23 Drvar? Drvar is a town that is in Bosnia-Herzegovina, not in the Krajina
24 or in the Republic of Croatia
25 military purpose? Of course, there was a military purpose because the
1 Bosnian Serb army, the VRS was located in that area and, of course,
2 General Gotovina had to protect his flank as they moved into the Knin
3 area and the rest of the Krajina.
4 One would also expect that if this was an artillery operation
5 directed against the civilian population, that it would be a significant
6 bombardment of the civilian population with as much artillery as the HV
7 could muster. Unfortunately, the facts counter that. While the initial
8 order coming from the Main Staff on the 26th of June allowed for six
9 combat sets, the order presented on the 2nd of August by General Gotovina
10 reduced that allotment to in fact four combat sets. So on the heels of
11 Operation Storm, in fact, General Gotovina ordered that less -- excuse
12 me, on the heels of Brioni and prior to Operation Storm, General Gotovina
13 ordered that less artillery be used.
14 Now, the Prosecution has argued in their pre-trial brief, opening
15 statement, and certainly through the evidence that there is -- there was
16 this agreement in Brioni to expel the Serbs from Krajina, and in the case
17 of General Gotovina, through the use of artillery. Now let us look, if
18 we may, at the references that have been presented to the Chamber by the
19 Office of the Prosecutor to support that position. Because after the
20 entire Prosecutor's case, those references are quite revealing.
21 The first one is presented by Mr. Tieger on page 425 of the
22 transcript. This is lines 9 through 11, Mr. Tieger highlighted these
23 comments by General Gotovina: "If there is an order to strike at Knin,
24 we will destroy it in its entirety in a few hours."
25 Now what was the significance of that reference? It becomes, in
1 juncture, somewhat perplexing because of course we know that Knin wasn't
2 destroyed. And in fact on page 444 of the transcript, the Prosecutor
3 acknowledges as much on lines 13 and 14.
4 The next highlighted portion was on page 426, lines 20 to 24.
5 And there is some disagreement, Mr. President and Your Honours,
6 concerning a translation about this particular comment, and the Defence
7 has offered a different translation, minor, in D960. He notes quoting
8 General Gotovina according to the Prosecutor's transcript:
9 "At this moment we can engage in extremely precise operations at
10 Knin systematically without aiming at the barracks in which UNCRO is
12 And it said, "the moment all of our weapons are guided, directly
13 guided." Our translation that we submitted is a tad different. It notes
14 that, "at this moment we can engage in extremely precise operations in a
15 planned manner without aiming at the barracks in which UNCRO is located."
16 Suffice it to say, that under either translation, we are talking
17 about the careful, precise, and planned use of artillery. We also know,
18 to contextualise this reference is that in that same document, P461, in
19 pages 21 to 22, General Zagorec who was the logistics officer at this
20 meeting expressed concern about their ammunition levels. And he notes:
21 "I am now only interested in this. And I urge all commanders to
22 take into account the amount of ammunition expended in these operations.
23 We have reserves for some five days."
24 So looking at these comments, we have an assessment from the
25 chief of logistics, that there is limited ammunition with the comment by
1 General Gotovina that the artillery fire can be careful, precise, and in
2 a planned manner.
3 The last comment referencing General Gotovina by the Prosecutor
4 came on page 426 -- excuse me, page 426 of the Prosecutor's opening. And
5 it was cited in this fashion - now, mind you, this is it comment on the
6 31st of July, 1995, Pre-storm. In lines 4, "that means if we continue
7 this pressure, probably for some time to come, there won't be so many
8 civilians, just those who have to stay, who have no possibility of
10 Now, the Prosecutor has opined that this refers to artillery.
11 But let us harken back to one very significant point at this juncture and
12 that is prior to the 4th of August, 1995 the HV never shelled Knin and
13 never shelled the -- most of the other cities that have been brought
14 before this Chamber. I do believe there was some testimony that there
15 was some intermittent shelling in Benkovac in 1993 and 1994, but clearly
16 the evidence is that Knin had never bee so shelled. So given the fact
17 that prior to 31st July there had been no shelling, and that we had seen
18 significant HV advances in winter 1994 jump one and jump 2 in June 1995,
19 and the takeover of Glamoc and Bosanski Grahovo in July of 1995, ending
20 in approximately the 28th of July, clearly this is the pressure to which
21 the parties are alluding, not pressure coming from artillery that had yet
22 to take place.
23 Lastly, the comment that the Serbs would be leaving in reference
24 to, there won't be so many civilians, it was well recognised, number one,
25 that the Serb population certainly after the fall of Bosansko Grahovo and
1 Glamoc had been leaving. But, number two, from the Prosecutor's own
2 witness Ambassador Peter Galbraith that should sectors north and south
3 fall that the Krajina Serbs would leave. I refer Your Honours to
4 Ambassador Galbraith's diary that the Prosecutor put into evidence, P459.
5 And I quote by Ambassador Galbraith: "If Croatia took the territory,"
6 and contextually he is referring to Sectors North and South, "the Krajina
7 Serbs would leave. They could be resettled in Sector East, thus
8 threatening Milosevic's claim to territory that he very much wants for
9 Greater Serbia
10 Well, if that doesn't prove anything, if that doesn't prove
11 anything -- by the way I just reminded, that entry by
12 Ambassador Galbraith was on June 15th of 1995.
13 Let us turn to -- if that doesn't establish anything, let's turn
14 to the comments by President Tudjman that have also been cited by the
15 Prosecution. And frankly, when we look at the first one, even the
16 Prosecutor, at page 424, noted that the comments by President Tudjman
17 were somewhat ambiguous.
18 This is in the transcript, at pages 423 and 424, it's a quoting
19 of President Tudjman, starting on line 3:
20 "In which way do we resolve it? That is the subject of our
21 discussion today. We have to inflict such blows that the Serbs will, to
22 all practical purposes, disappear, that is to say, the areas that we do
23 not take at once must be -- must capitulate within a few days. Therefore
24 our main task is not Bihac, but to inflict such blows in several
25 directions that the Serbian forces will no longer be able to recover but
1 will have to capitulate."
2 Now, quite clearly, from the words of President Tudjman he is
3 referring to an attack to defeat the Serbian forces. Plain and simple.
4 The next comment often used by the Prosecutor is again a comment
5 by President Tudjman at page 424 and 425, and I am giving the full
6 context, not reading all of it. But his comments are instructive at the
7 beginning, where he says:
8 "Gentlemen, I accept your views in principle. There is still
9 something missing, and that is the fact that in such a situation when we
10 undertake a general offensive in the ... area, even grater panic will
11 break out in Knin than has to date."
12 Even greater panic. Quite clearly the reference is panic that is
13 existing in Knin on the 31st of July that came as a result of the
14 offensive operations of the HV throughout the summer, or actually going
15 back to the winter of 1994, and the summer of 1995.
16 Now, certainly if you go back to the comments made by my learned
17 friend, Mr. Akhavan, will there be additional panic as a result of
18 another military offensive? Of course. I don't think anybody would
19 dispute that.
20 But the reference is not panic because of the use of artillery.
21 The reference is because of the overall situation. So let us look at
22 these comments and let's look at this Brioni transcript as the basis for
23 this JCE meeting of the minds. Quite clearly, looking at this in
24 isolation -- at this meeting, there was no meeting; there was no
25 agreement; there was no agreement to participate in some time of criminal
1 endeavour. There was no proof, based on this agreement, that the
2 Prosecutor has put so much stock in that there was in fact a JCE.
3 The Prosecutor says, well, let's look at the actual conduct of
4 the operations. Let's look at how Operation Storm unfolded, because
5 certainly from that we can extrapolate an intent to participate in this
6 JCE, wherever it was formed which is now somewhat amorphous and
7 problematic vis-a-vis Krajisnik. But nevertheless, let us take this
8 endeavour and look at this matter in a light most favourable to the
9 Prosecutor because I believe that even under those circumstances, I
10 submit to the Chamber that there is no evidence of a JCE; there's no
11 evidence of an any significant participation in any alleged JCE, because
12 the attack on the Krajina on the 4th and the 5th of August, 1995, was
13 legal from the beginning to the end and lawful. Let's look at some of
14 the issues raised by the Prosecutor because at this juncture, Mr.
15 President, Your Honours, Your Honours has to look at the full body of
16 evidence and at the Prosecutor's case, and we acknowledge that.
17 One document that they have put a tremendous amount of stock in
18 is the Kozjak order. Again I reference that, P1124, page 14, where they
19 have quoted on numerous occasions putting the towns of Drvar, Knin,
20 Benkovac, Obrovac, and Gracac under artillery fire. What does that
21 establish? Well, again, we have to contextualise the entire sentence in
22 many fashions, not only looking at the document itself and that
23 paragraph in toto but also now contextualise it with the rest of the
24 evidence, i.e., the individual who wrote it, being Marko Rajcic, an
25 individual who came before the Court.
1 Quite clearly when we look at this document it has the commander
2 as intent as a preface, and I quote:
3 "Tasks of artillery rocket groups, groups and organised TS and
4 TRS-2 along many attack axes focus on providing artillery support to the
5 main forces in the offensive operation through powerful strikes against
6 the enemy front line command posts, communications, centres, artillery
7 firing positions, and also the other towns that we just referenced.
8 When Mr. Rajcic was brought before the Chamber, he was not asked
9 about that particular portion of the document, so the Gotovina Defence
10 asked. And I turn to put this entire matter in context, and I reference
11 page 16535, line 7, through 16536, line 6. And I will focus first on
12 lines 19 to 23 of 16535. And he was asked, after stating that he in fact
13 wrote this portion of the order:
14 "Q. Was the intend of this line in the order to fire at
15 pre-planned military objectives; or was it to just to fire
16 indiscriminately throughout the town? What was it?
17 "A. I never heard nor ever issued an order to the effect to
18 execute indiscriminate fire."
19 Paragraph 24 -- excuse me. Line 24 on 16535:
20 "The other part of my question was, so was the intent of this
21 order to fire on pre-planned military objectives that you -- that you had
22 discussed and planned prior to ... Storm.
23 "I'm sorry, I apologise. It was always implied, understood as
24 far as I was concerned. In other words, it was mandatory for me that
25 exclusively and only a target, a target with specific coordinates. I
1 always maintain that is so, and that this is understood. And that is why
2 I do not always explain ... at length."
3 Interestingly, this particular language that is set forth in the
4 Kozjak order and then in Mr. Rajcic's actually artillery attachment to
5 1125 doesn't contain this language. And only went out -- to a relatively
6 few group of people. But what do we get from this language that the
7 Prosecutor has put so much stock in? Number one, there is it nothing
8 about targeting civilians; number two, there is nothing about targeting
9 in a way to create panic with the civilian population; and number three,
10 there's nothing about expending scarce military resources on non-military
11 targets. Frankly, it is to the contrary.
12 But the Prosecutor has also presented the argument that the
13 attack on the 4th and 5th of August was in fact directed against the
14 civilian population. That these conductive hostilities constituted a
15 widespread and systematic attack against the civilian population. As
16 Your Honours know, and Your Honour, I appreciate your background in the
17 Galic case, the determination of a violation under Article 5 has to be
18 dictated by the laws of war and whether or not the accused violated the
19 laws of war under Article 3 as a subset to Article 5.
20 There has not been any evidence presented by the Prosecution that
21 there was a single unlawful attack that took place in Operation Storm,
22 let alone a widespread and systematic attack on the civilian population.
23 Not a single unlawful attack. And I'm not here to say, Mr. President,
24 Your Honours, that during the course of this combat that rounds might
25 have gone into a civilian locale. That does not make a widespread and
1 systematic attack on the civilian population.
2 What we do know and that the Prosecution has been unable to
3 overcome is that this attack was in compliance with Article 51 of
4 Protocol I. There is no evidence that the civilian population was made
5 the object of the attack. To the contrary. The evidence that has been
6 presented to this Chamber during the Prosecution's case is that the
7 civilians were not targeted, and that when the HV was planning the
8 artillery operation, that the HV attempted to minimise civilian
9 casualties. Where do we find that? Most easily we find that in the
10 statement of Mr. Rajcic at D1425, paragraph 17.
11 One could make a case, Mr. President, Your Honours, of an attack
12 where the object is the civilian population if one had evidence such as a
13 crater analysis as we saw -- I know Your Honour saw quite routinely in
14 Galic. No such crater analysis took place. We have one crater analysis
15 that the Prosecutor has presented through Mr. Anttila, and that's at
16 transcript page 2686, line 19, and through 2689, line 9. But quite
17 clearly it appears that the expended round that they took was in fact a
18 Serbian round. And Your Honours can review this yet further in the
19 exhibits we presented, D80, D81, D82, D166, and D167.
20 But let's assume for the sake of argument here that the round or
21 the shell casing that was found by Mr. Anttila was in fact fired by the
22 HV, as opposed to the Serbian forces. That single event does not prove
23 or establish in any way that the civilian population was the object of
24 this attack.
25 The next argument that has been presented by the Prosecution, and
1 this came through Colonel Konings and Mr. Rajcic, was the actual
2 challenge to the weapon systems that were employed. And we have heard a
3 lot of evidence about this, and if we just address ourselves to the
4 weapon systems that we used against Knin, we're talking about T130s and
5 122-millimetre multi-barrel rocket launchers. And the argument seems to
6 go that these weapons, especially the multi-barrel rocket launchers, are
7 incapable of distinguishing between military and civilian targets. Well,
8 I submit to Your Honours that that is not what is contemplated by the
9 principle of distinction as set forth in Article 51. What is -- what is
10 contemplated by Article 51's principle of distinction is the use of
11 things such as chemical weapon or incendiary devices. Or for that
12 matter, if we can get something that we may know quite an about, SCUD
13 missiles that were fired by the Iraqis that had a margin of error of
14 approximately 6 to 10 kilometres, not a weapon system such as employed
15 during Operation Storm. My learned colleague Mr. Akhavan addressed the
16 comment made by Mr. Russo concerning whether or not these weapon systems
17 it be the T130 or a multi-barrel rocket launcher can be fired with the
18 guarantee that it would hit this target and nothing else.
19 At the risk of moving towards hyperbole, Mr. President,
20 Your Honours, a handgun doesn't have that type of accuracy. Certainly
21 over any given distance, it simply does not; it breaks down. And there
22 is no prohibition in international law such as with incendiary and
23 chemical weapons, there is no prohibition in international law or
24 customary law from using these types of weapons systems.
25 Now the question presents itself, can these weapons systems be
1 directed at military objectives as required by Article 51? Well, we know
2 from the initial directive coming on the 26th of June, 1995, that the HV
3 Main Staff concluded that they could. And we know from Mr. Rajcic's
4 statement, again paragraph 16, at D1425, that these weapons were chosen
5 because they were capable of being directed and hitting military
7 But more importantly, the Prosecutor's expert Lieutenant Konings
8 at page 14758, lines 11 through 15, testified that these weapons could be
9 directed against military targets. And that being the case, the use of
10 this weaponry does not violate the principle of distinction .
11 Now, the other possible way armies, military forces can violate
12 Article 51 certainly is the proportionality equation when looking at the,
13 if we can just quote it quite quickly, in Article 51, the subdivision
14 5(B) the attack may be expected to cause incidental loss of life, injury
15 to civilians, damage to civilian objects, or a combination thereof, which
16 would be excessive in relation to the concrete and direct military
17 advantage anticipated.
18 Now let us look at this item or this aspect of the law vis-a-vis
19 the evidence.
20 What we know from Mr. Rajcic's testimony is that the attack on
21 the locales in Knin offered a significant military advantage to the HV by
22 knocking out the headquarters, knocking out communications, neutralizing
23 the 7th Krajina Corps or Knin Corps, excuse me, and in doing so, not only
24 bringing an end to the war in Sector South but also bringing an end to
25 Operation Storm and Sector North, an effort that was remarkably
1 successful and brought about a quick capitulation by the ARSK.
2 In looking at the proportionality equation, and I understand,
3 Mr. President, Your Honours, that we are looking after the fact, and that
4 in the instance of following the laws of war, you look at it from the
5 standpoint of the reasonable commander. Nevertheless, the fallout from
6 such a campaign is instructive in determining whether or not this
7 particular commander, in this instance, General Gotovina, failed in his
8 obligations to assess the proportional damage in light of the -- of the
9 military advantage.
10 What we know from the evidence is that there was no
11 disproportionate damage. We know that there was no disproportionate
12 damage from any specific weapon against any specific target. How do we
13 know that? We need only look at the assessments referred to by
14 Mr. Akhavan, by UN, UNCIVPOL, and a multitude of other individuals who
15 were there that are reflected in P64, P228, D66, and D276.
16 Again, when we are looking at proportionality there, it is
17 important to assess exactly what civilians and civilian structures were
18 damaged. And again we have no crater analysis performed on the artillery
19 -- on the artillery that had been fired into Knin on the 4th and the 5th.
20 Equally important is to assess not only damage to structures but more
21 importantly injuries to civilians. How many civilians died as a result
22 of this alleged disproportionate attack? The Prosecutor has been able to
23 establish one. Dr. Clark could only conclude that there was one civilian
24 casualty in Knin consistent with blast injuries, and he couldn't
25 determine if that was a mine, if that was a hand-grenade, if that was an
2 Equally important, another Prosecution witness
3 Professor Puhovski, and this is at transcript 15971 through 15972, was
4 unable to confirm the excessive civilian casualties as a result of
6 So what do we have? We have the proper use of weaponry,
7 concentrated on military targets, minimal damage to civilian structures,
8 and one dead civilian, as a result of blast injuries which can't be
9 directly connected to Operation Storm. Based on an analysis of the
10 evidence, quite clearly, there has been no -- this -- this attack had no
11 disproportionate consequences given the military advantages gained by
12 taking the military headquarters, by taking -- by neutralizing
13 communication facilities, and by bringing about the expeditious
14 capitulation by RSK forces.
15 We submit to Your Honours, clearly that under the persecution
16 count, the unlawful attack in that persecution count have not been
17 established at all and have to be dismissed. I hasten to add that they
18 have likewise failed to show that General Gotovina had any discriminatory
19 intent on that score. So persecution would likewise be dismissed for
20 that reason.
21 But going go back to the JCE element, we have established that
22 the shelling was lawful. And contrary to the argument made by the
23 Prosecutor, General Gotovina shared no criminal purpose with anybody else
24 and certainly had no significant contribution to any JCE.
25 Now, if we look back at paragraph 12 of the indictment, it is an
1 attempt to encompass virtually all of these crimes in one lump sum in
2 somewhat of an artful fashion, and I will attempt to parcit through to
3 get through this. But quite clearly it -- General Gotovina is charged
4 with being part of a JCE with a common purpose, among other things,
5 appeared to be the systematic looting and burning. And given the fact
6 that the only meeting that was referenced by the Prosecutor on this score
7 was Brioni, one has to exclude, unless we hear differently and we haven't
8 heard over the past year any differently, that this plan to burn and loot
9 was, again, hatched at Brioni on the 31st of July, 1995. Your Honours,
10 you will search in vain for any such discussion. It doesn't exist.
11 To the contrary we have a remarkable situation, again putting
12 this meeting in Brioni in context, with a variety of other interesting
13 events presented during the course of the Prosecutor's case. I mentioned
14 previously this meeting on 1st August with Ambassador Galbraith. That's
15 referenced on pages 428 and 429, where Ambassador Galbraith tells
16 President Tudjman to safe-guard the civilian population.
17 I'm sorry, 4928, 4929, thank you.
18 It is followed on a meeting on the 2nd of August of 1995 that is
19 reflected in D409 where Minister Susak, General Cervenko,
20 General Gotovina, General Markac, and others, and there are numerous
21 people there, you can see the attendees. But General Susak cautions
22 these individuals that all offences have to be prevented, Military
23 District commanders were who to pass on to other commanders the
24 prohibition of torching and looting, and they must prevent having the
25 heros of the home land war being brought to a Court.
1 Later on that same day in the afternoon, 1730, a similar meeting
2 takes place where Minister Susak and Minister Jarnjak are with Mr. Lausic
3 and Mr. Moric again planning for the -- what's going to happen law and
4 order-wise once the Krajina is taken over. I will note that
5 General Gotovina is not at that meeting. We have yet another meeting on
6 the 3rd where Moric and Lausic are having yet more plans for this matter.
7 We have General Gotovina on the 2nd of August after his meeting with
8 Susak, et cetera, giving an order that there is to be no looting and
9 burning and torching. And that's at D201 which is part of P1125. I
10 might hasten to add when I showed that particular document to
11 Ambassador Galbraith, he noted that this was the kind of document that he
12 was looking for to be passed down by someone like General Gotovina during
13 Operation Storm. That reference is at page 5035, lines 1 through 4.
14 So when we look at the allegations made by the Prosecution from
15 -- from Brioni, we also have to look at a series of orders being given by
16 the highest levels of the Croatian government to protect the civilian
17 population, to stop looting and burning, to set up law and order, and all
18 of those orders have been given out at the highest levels certainly by
19 Minister Susak and Minister Jarnjak. And if we were to go along with the
20 position, the untenable position presented by the Prosecution, those
21 orders were being given with the idea that no one would follow them,
22 because that is the only equation under which the position of the
23 Prosecution makes sense.
24 What's interesting is that I asked that particular question to
25 Ambassador Galbraith at page 5079, lines 23 and 25, and we do go back and
1 forth a little bit about this, so I don't want to focus you on that
2 particular line because there is some discussion prior to that. But in
3 essence, I asked Ambassador Galbraith, did Minister Jarnjak and Minister
4 Susak would, they issue orders that President Tudjman did not want
6 The answer was no. Again, coming out of this Brioni meeting or
7 any other meeting, there is simply no agreement to participate in the
8 looting, and burning in the Krajina or that General Gotovina or any proof
9 that General Gotovina made any significant contribution or was
10 complicitous in any such endeavour at all.
11 Let us turn to the other aspect of the JCE, i.e., the destruction
12 that took place in the Krajina after Operation Storm. We're not here to
13 say that there wasn't burning that took place and looting that took place
14 after Operation Storm. You -- the UNMO assessment is reflective --
15 certainly the last one, there are many of them, has been reflected in
16 P176. But what was clear from an analysis of that document not only
17 through the witnesses but in documents that -- that have been presented
18 by the Gotovina Defence that in fact both Serb and Croat villages were
19 destroyed on occasion and both Serb and Croat villages were not
20 destroyed. We have attempted to chart out this ironic position given the
21 Prosecutor's case in D1327. The Prosecutor says yet further -- and this
22 is in their opening statement at P457, page -- lines 21 to 23, HV
23 soldiers and police continue to loot the in the houses in Knin with the
24 exception of those marked as Croat houses which were conspicuously
1 That ended up not being true either. If we look at the
2 transcript of UNMO Peter Marti, Un military observer at page 4686, where
3 he talks about the fact that someone is putting Croatian house on this --
4 on the outside. And he was questioned. He begins and he starts talking
5 about a young female writing that on her house, Croatian house. And at
6 line 13:
7 "Q. Was she an older lady, younger lady?
8 "A. She was quite young, about 30.
9 "Q. But a civilian?
10 "A. Civilian, yes.
11 "Q. And you noted for us in the same page at line 16 that
12 writing 'Croatian house' was not always a guarantee that the house would
13 remain untouched. Was that your experience?
14 "A. Yes. It happened that even houses were torched or partly
15 damaged which at the signal before Croatian property or whatever."
16 Pardon my comment there, but I'm reading it literally.
17 "Q. Sometimes it didn't make a difference.
18 "A. Yes."
19 That was in fact buttressed by the comments of Mr. Boucher at
20 page 14047, line 13, that is where he says:
21 "That is, there was -- they would be put 'don't touch, Hrvatska
22 kuca,' meaning 'Croatian house.' But even then could you see there was
23 -- there was houses that the doors had been broken into."
24 What does the evidence actually reflect? Certainly there is
25 nothing coming out of the Brioni meeting or in any other meeting where
1 some agreement was formulated to allow this conduct to take place. What
2 are we left with? We are left with the comments and assessment by again
3 a Prosecution witness Peter Marti, where he talks, beginning on -- I
4 believe this is actually this his statement at page 415, page 3 and 4,
5 where he notes that the best description of the looting that took place
6 in the Knin area would be shopping without paying. He notes that: "My
7 personal opinion is that they really were civilians," referring to the
8 people that were causing this damage. "My personal opinion is that they
9 really were civilians, maybe some of them have been in the army before.
10 The looting was not ordered by somebody. Because you couldn't see any
11 kind of systematic pattern in it except from the fact that it was more or
12 less total."
13 What we have and from the evidence presented by the Prosecutor is
14 no evidence to tacitly approve this conduct, no evidence that
15 General Gotovina made any significant contribution to a meeting that had
16 such -- such criminal acts as part of his goal. What we do have is
17 evidence that there was a significant power vacuum by the Croatian
18 government once page storm was completed. In fact, they were too
19 successful in moving too quickly in retaking it. The argument simply is
20 in its substance that the Croatian government should have tried harder to
21 bring law and order to the area. That may be a negligent act on behalf
22 of the Croatian government, but it certainly does not rise to criminal
23 conduct on anyone's part, the least of which is General Gotovina.
24 Going back to the Brdjanin elements that are set forth in
25 paragraph 431: An accused has to have an intend to commit a crime. He
1 has to have -- this is in referring to JCE liability. He has to have
2 intent to commit a crime; he has joined with others to achieve this goal;
3 and he has made a significant contribution to the crime's commission.
4 Sufficient it to say there has been no evidence to support the
5 allegations that there was any intent on behalf of General Gotovina to
6 commit a crime, that he joined with others to commit any such crime, that
7 he knowingly an intentionally joined with others to commit such a crime,
8 nor that he made any significant contribution to any crime's commission
9 given the fact that the one thing that he is accused of doing improperly
10 is the artillery attack on Knin which we have concluded was lawful in all
12 The last part this argument is the failure to punish argument or
13 the 7(3) liability.
14 JUDGE ORIE: Mr. Kehoe.
15 MR. KEHOE: I'm sorry.
16 The question whether General Gotovina took necessary and
17 reasonable measures to prevent and punish crimes by his subordinates.
18 That is the only matter left for consideration because the
19 Prosecutor's case in toto is off the table as a result to a joint
20 criminal enterprise, because for all reasons stated above, it has not
21 been established in order to get passed Rule 98 bis scrutiny.
22 As we move to the reasonable and necessary measures discussion,
23 I'd like to turn the floor over to my colleague, Mr. Misetic.
24 JUDGE ORIE: Thank you, Mr. Kehoe.
25 Mr. Misetic, according to my time keeping, the Gotovina has used
1 two hours and three minutes until now. No, seven or eight.
2 MR. MISETIC: So to 12.40, Mr. President.
3 JUDGE ORIE: I beg your pardon.
4 MR. MISETIC: I can go to 12.40.
5 JUDGE ORIE: Yes, whether we need another break or not. But if
6 you would go to 12.40, then we might have a bit of a late break. But I'm
7 just wondering, that might be too much for one tape, so we have to make a
8 break anyhow, but for you to know how much time there is left.
9 MR. MISETIC: Mr. President, I will try to find a suitable moment
10 to break.
11 JUDGE ORIE: Please proceed.
12 MR. MISETIC: Good morning Mr. President, good morning,
13 Your Honours.
14 Picking up where Mr. Kehoe and Mr. Akhavan left off, is the issue
15 of Article 7(3) liability, as well as the issue of responsibility for
16 murders which are two issues that I will be addressing today. We are, of
17 course, as Mr. Akhavan pointed out cognisant to the fact that this not
18 closing argument and that we are arguing here as to whether the
19 Prosecution has presented not any evidence, but rather any evidence that
20 taken at its highest could be the basis for proof beyond a reasonable
22 Given that it is it our position that there was no -- certainly
23 no evidence of a JCE to commit large-scale burning and looting, or any
24 evidence that General Gotovina had an intention to participate in
25 relation to such a JCE, the only remaining basis for attribution of
1 liability pursuant to the Statute is under Article 7(3).
2 The Prosecution's theory of General Gotovina's command
3 responsibility rests primarily on an allegation of a failure to take
4 necessary and reasonable measures to prevent or punish crimes. The
5 Halilovic trial judgement gives an indication at paragraph 74 or an
6 explanation, I should say, of what might constitute necessary and
7 reasonable measures. And the Halilovic Trial Chamber found reasonable
8 measures could include specific orders prohibiting or stopping the
9 criminal activities, measures taken to secure the implementation of these
10 orders, other measures taken to ensure that unlawful acts are
11 interrupted, and whether these measures were reasonably sufficient in the
12 specific circumstances, and after the commission of the crime what steps
13 were taken to secure an adequate investigation.
14 The Prosecution's case concedes that General Gotovina did take
15 the following measures. Mr. Theunens' report at page 252, he cites that
16 the Croatian army instituted a plan in the weeks before Operation Storm,
17 i should say a program, that would require international humanitarian law
18 training for officers. The Prosecution concedes that in
19 General Gotovina's attack order for Operation Storm, which is at
20 Exhibit D201, that General Gotovina issued specific preventative orders
21 to prevent the commission of crimes and specifically referenced the need
22 that political affairs officers in the army needed to make sure that
23 subordinates were instructed on their obligations under the
25 at P71, page 83, we have oral -- an oral order on the evening of the 4th
1 that Knin must not experience the same fate as Grahovo. Again at P71,
2 page 84, we have another oral order when information came in to
3 General Gotovina's operational command that the 7th Guards Brigade was
4 about to enter Knin. It is recorded that General Gotovina ordered
5 maximum fairness in the treatment of civilians and behaviour towards the
6 UN. And it is noted that this order has been passed to all operative
7 groups and commanders.
8 After the 5th, on the 6th you have seen the command climate that
9 General Gotovina sent on the now famous Knin video of the meeting on the
10 6th at the fortress in Knin. On that same video General Gotovina issues
11 an oral order requiring that all war booty be properly registered. The
12 next day, Exhibit D981, General Gotovina issues a written order not only
13 requiring the registration of war booty, but he established a committee
14 to inspect the war booty lists and ensure compliance. Based on
15 information coming from the field, General Gotovina issues another order
16 on the 10th of August, which is Exhibit D204, which is issued in the
17 preamble in order to prevent theft of property, undisciplined conduct,
18 and to save human lives, and in the order he prohibits the arbitrary
19 movement of HV members in the liberated areas and orders that commanders
20 take all necessary measures to prevent arson and undisciplined conduct.
21 On the 12th of August, Split Military District Command political
22 affairs branch at Exhibit P918 issues a warning to lower level political
23 affairs officers that they have to be more energetic in preventing
24 criminality, including arson and theft and the killing of livestock.
25 That exhibit is particularly important as it is uncontested by the -- I
1 should say, not only uncontested by the Prosecution, but indeed a
2 Prosecution Exhibit. Because in it the Split Military District political
3 affairs officer references the fact that it is the policy of
4 President Tudjman and Minister Susak that this type of criminal activity
5 must stop. And again in the overall context of whether the Prosecution
6 has submitted sufficient evidence of a JCE to commit burning and looting,
7 we submit that P918 is the only specific evidence offered by the
8 Prosecution as to what the intentions were of two of the named members of
9 the JCE, and certainly is the evidence of what the subordinates of these
10 individuals thought that the policy was of President Tudjman and
11 Minister Susak.
12 After ordering his subordinates to issue disciplinary measures,
13 in order to protect property and lives, it was confirmed by the
14 Prosecution's in-house expert, Mr. Theunens, that the Split Military
15 District issued 151 per cent more disciplinary measures in the third
16 quarter than they had in the first two quarters. The statistics show
17 that the disciplinary measures taken -- and we've had significant debate
18 in the trial which I will not go into again about the distinction between
19 ordering disciplinary measures for disciplinary infractions and requiring
20 criminal prosecution for criminal actions. But in any event, the Split
21 Military District issues numerous disciplinary measures precisely against
22 soldiers who were AWOL, absent without leave, or otherwise absent from
23 their unit which should be directly connected to General Gotovina's order
24 from the 10th of August at D204, which the first measure that
25 General Gotovina issues in order to present the theft of property,
1 undisciplined conduct, and to save human lives, the first measure he
2 issued is to prohibit arbitrary movement of HV members. And so the fact
3 that the statistics show a substantial increase in disciplinary measures
4 taken for absence is significant in that regard.
5 With respect to a specific unit, the evidence is in this case,
6 that there was information of one particular commander who was having
7 difficulty implementing the orders to prevent crime. And this is
8 Exhibit D984, relates to a SIS report of the 18th of August, where the
9 Split Military District Command is advised "the 134th Home Guard Brigade
10 are continuously destroying and burning residential buildings because the
11 commander lacks the necessary authority to implement the orders of
12 Operative Group West." The Split Military District Command immediately,
13 on the basis of that order, takes measures to deal with the problematic
15 D985, an order by General Gotovina of the same date, immediately
16 ordering the formation of a commission to inspect the list of war booty
17 of the 134th, and to compare what was listed with what is actually found
18 on the ground.
19 D884 and D885 are orders of the Split Military District Command
20 to dismiss from the 134th all soldiers who are engaging in illegal
21 conduct or disrupting military discipline.
22 As the Trial Chamber will recall in the cross-examination of
23 Mr. Theunens, the result was following this order that 75 per cent of the
24 134th Home Guards were demobilised which can be seen by comparing D986,
25 which reports 2302 members of the 134th on the 21st of August; with D987,
1 page 19, which reports 581 left, of which less than 200 are active.
2 Importantly, in the assessment of the Prosecution's claim that
3 General Gotovina failed to take necessary and reasonable measures, it is
4 important to note that Mr. Theunens acknowledged at page 12847 that,
5 after the 18th of August, and after this report about the 134th, there
6 are no further reports in the Split Military District diary or any other
7 reports to the Split Military District command which would indicate or
8 would have indicated to the Split Military District Command that any
9 burning or looting by HV units on the territory of the Republic of
10 Croatia was continuing. Accordingly, we submit, the Prosecution has
11 failed to show and failed to submit any evidence that General Gotovina
12 would have known that the measures that he had taken, up to and including
13 the 18th of August, lacked effectiveness. It is also important to note
14 here, that, in addition to General Gotovina's duties, the Prosecution, in
15 its pre-trial brief, at paragraph 107, acknowledges or states that an
16 armed conflict existed and continued between the HV and the ARSK after
17 the conclusion of Operation Storm, through August, through September, and
18 into October, through Operation Southern Sweep. And at paragraph 107 of
19 the pre-trial brief the Prosecution even references the
20 12 August counteroffensive against General Gotovina's forces in Bosnia,
21 which the Prosecution states was done by the ARSK and not the VRS. And
22 the Prosecution's position in the pre-trial brief is that hostilities
23 between the ARSK and the HV continued till approximately the 15th of
25 So in addition to General Gotovina's duties in Bosnia which is
1 part of the Prosecution's case in chief, he was dealing and took
2 necessary and reasonable measures in the area that he had liberated.
3 Thus, Your Honours, the Prosecution's theory of command responsibility in
4 this case is not that General Gotovina failed to take necessary and
5 reasonable measures; but, rather, that he allegedly failed to take enough
6 necessary and reasonable measures. Glaringly absent from the
7 Prosecution's case in chief, however, was any evidence offered by the
8 Prosecution as to what specific measures were available to
9 General Gotovina that he failed to take. In this regard it is important
10 to note the Prosecution tendered -- I should say, the Prosecution filed
11 an expert report by Major-General Andrew Pringle who was supposed to
12 testify on command and control. In the witness summary filed with the
13 Chamber, the OTP stated that General Pringle was going to give expert
14 testimony to the Trial Chamber about command and control issues, and I
15 quote the Prosecution here:
16 "In particular, in relation to the accused Ante Gotovina and
17 Ivan Cermak based on documentation examined by him."
18 At the end of the Prosecution's case, however, OTP chose not to
19 call General Pringle on this critical issue. We submit that this failure
20 is fatal to the Prosecution's case on command responsibility.
21 Furthermore, the Prosecution failed to elicit from any relevant witness
22 who may have been capable of doing so, such as Mr. Theunens or
23 General Lausic, any evidence with respect to what necessary and
24 reasonable measure General Gotovina failed to take.
25 You will recall my debate with Mr. Theunens, Mr. Theunens's
1 assertion about Drvar and General Gotovina imposing military rule in
2 Drvar in Bosnia. We submit, Your Honours, that that clearly cannot be a
3 necessary and reasonable measure. We await to see if that is in fact
4 what the Prosecution contends. However, we believe there is no evidence
5 to support a claim that General Gotovina had the authority to issue or
6 authorise military rule in liberated areas of the Republic of Croatia.
7 The Prosecution in its pre-trial brief at paragraph 67 alleges
8 that General Gotovina could have done three things: Investigated the
9 allegations using military police or others at his disposal; notifying
10 appropriate military and civilian prosecution authorities, such as the
11 military prosecutor's office of the crimes; and imposing immediate
12 disciplinary measures for disciplinary sentences.
13 The Prosecution's evidence taken at its highest as Mr. Akhavan
14 stated is that it was General Lausic through Major Juric who was in
15 control, in command and control of the military police in its crime
16 prevention, crime investigation, and crime processing functions. In the
17 re-direct examination of Mr. Lausic, the Prosecution posed the question,
18 could General Gotovina have issued an order, which we submit,
19 Your Honour, does not get the Prosecution passed the von Leeb case or the
20 Halilovic Appeals Chamber decision as to whether a hypothetical question
21 about a potential right to intervene is sufficient to establish the
22 failure to take necessary and reasonable measures.
23 For the record, the Gotovina Defence disputes the claim that he
24 had such a right to intervene.
25 With respect to the issue of notifying the military and civilian
1 prosecution authorities, there has been no evidence in the record to
2 indicate that General Gotovina had any knowledge of crimes --
3 JUDGE ORIE: Could I invite you generally to slow down because I
4 see that there are problems with the French translation certainly. And
5 you know respiratory system and "respirer," words of the same route, just
6 mean that they need to take a breath now and then as well.
7 Please proceed.
8 MR. MISETIC: My apologies to the booths and to the court
9 reporter and to the Chamber.
10 There is no evidence in the record that General Gotovina had any
11 knowledge of crimes that was not known to the civilian and military
12 authorities. In fact, the evidence has been the opposite, that
13 General Gotovina would have been relying on the civilian and military
14 authorities for his information and not the other way around. And with
15 respect to imposing immediate disciplinary measures, we have already
16 discussed the fact of the increase of 151 per cent in the third quarter.
17 We are thus left to speculate as to what the necessary and reasonable
18 measure is that the Prosecution believes General Gotovina failed to take.
19 Having failed to put that specific issue to Mr. Theunens or Mr. Lausic or
20 any other relevant witness, having decided to abandon the testimony of
21 General Pringle, we are now going to be left with speculation argued by
22 Prosecution counsel as to what a reasonable and necessary measure would
23 have been. We note the potential that the Prosecution is going to rely
24 on a hypothetical answer given by General Forand at 4535 of the
25 transcript about removing a commander in the event that orders were not
1 being implemented. However, we note that there is no evidence in the
2 record of any question having been put to General Forand or any other
3 witness about General Gotovina's specific circumstances and whether in
4 the specific circumstances of this case, that would have been an
5 appropriate measure.
6 Furthermore, we note that in the one instances of a commander
7 being unable to implement the orders, that would be the 134th Home Guard
8 brigade which I have mentioned already, the Split Military District
9 demobilized virtually the entire 134th Home Guard Brigade. And it can be
10 hardly said that the Prosecution has proven that that was not a necessary
11 and reasonable measure with respect to that unit. The Prosecution, given
12 the fact that there is no evidence that after the 18th
13 August General Gotovina would have this any information that the measures
14 he had taken were not effective, the Prosecution is left to show that
15 there were other necessary and reasonable measures which could have been
16 taken and which would have stopped criminal activity before the 18th of
17 August. We submit to you, Your Honours, that there is no evidence in the
18 record to support such speculation by the Prosecution.
19 JUDGE ORIE: Mr. Misetic, since are you apparently are thinking
20 about something, I would like to inform you that as far as the technical
21 side is concerned we could go on until 12.40, but it might be very long
22 for the interpreters and transcriber, so I'm seeking whether there would
23 be any opposition against finishing Mr. Misetic's parts.
24 I hear at least on the English channel no ... and listening to
25 the French channel, I hear my words translated but ... and I get at least
1 from the French both consent.
2 THE INTERPRETER: That is indeed already, Your Honour. Thank
4 MR. MISETIC: Thank you, Mr. President, and I will actually try
5 to wrap up before then, so I thank the interpreters for sacrificing some
7 With respect to the issue of the military police command and
8 control, that has been a topic which has been debated at length and which
9 the -- the Trial Chamber does not need us to go over again. Suffice it
10 to say, that is it clear on the evidence, and there is no evidence
11 capable of prove beyond a reasonable doubt that General Gotovina was in
12 command of the military police in its crime prevention, crime
13 investigation, and crime prosecution functions. You had the opportunity
14 to see Mr. Lausic. You have seen the documents. And it has not been
15 challenged by the Prosecution that in fact Mr. Lausic, through
16 Major Juric, was exercising command and control over the military police
17 in those functions, and more importantly, or just as importantly, that is
18 entirely consistent with the system that had been set up on the 2nd of
19 August, the plans that had been detailed on the 3rd of August, and the
20 orders that were issued by General Lausic regarding reporting from the
21 field and the fact that the military police in its reporting would be
22 reporting directly to him through Major Juric and not reporting to
23 General Gotovina.
24 Therefore, the evidence in the record thus far is that orders
25 were issued by General Lausic through Major Juric, and reports were sent
1 back up that same chain with relation to crime prevention, crime
2 investigation, and crime prosecution. The evidence also is -- I should
3 say, there is no evidence that any orders were issued by General Gotovina
4 to the military police regarding crime prevention, crime investigation,
5 and crime prosecution, nor were reports sent to him on those counts. The
6 Prosecution is left with arguing that General Gotovina received daily
7 reports, the regular daily reports of the 72nd MP Battalion, but we note
8 that the Chamber should pay particular attention to whom those reports
9 were sent. They were sent to a wide distribution list, including
10 military prosecutors, garrison commanders, political affairs officers,
11 et cetera, yet the Prosecution wouldn't allege that the military
12 prosecutor's office had military police under its command and control.
13 We submit that the issue is clear and that there has been no
14 evidence to support a theory. In fact, I should point out that it would
15 actually contradict the Prosecution's own in-house expert should the
16 Prosecution now argue that there was a dual command over the military
17 police. Mr. Theunens was quite clear in his expert report and in his
18 oral testimony that in the HV, including in the military police, the
19 principle of unity of command ruled, which meant there is one commander,
20 or not two commanders issuing orders on the same subjects. Given
21 Mr. Theunens' position, we submit that if there is one commander in fact
22 for military -- for crime prevention, crime investigation, and crime
23 prosecution, that the only conclusion that can be drawn is that that
24 commander was Mate Lausic.
25 With respect to the murder counts, the Defence requests that
1 these Counts which are Counts 6 and 7 be dismissed and it is the
2 Defence's working understanding that such a dismissal would encompass the
3 ten specific killing incidents identified in the joinder indictment along
4 with the entire 337 alleged victims now listed in Appendix C to the
5 Prosecution's further clarification of identity of victims.
6 The first reason the counts fail is because there has been no
7 evidence that General Gotovina knew or had reason to know that his
8 subordinates committed murder and that is the mens rea standard
9 established by the Appeals Chamber in the Oric appeals decision of
10 December 2007. It is not sufficient under that Appeals Chamber judgment
11 that General Gotovina may have been aware of the disposal of dead bodies
12 by sanitation crews, since this does not establish either, A, that the
13 deaths were unlawful killings constituting murder as distinct from
14 combat-related deaths or lawful killings, or, B, that General Gotovina's
15 subordinates were responsible.
16 Now the Defence has been left throughout the pre-trial and
17 trial ... now the Defence has been left throughout the pre-trial and
18 trial phase, and so has the Trial Chamber for that matter, to speculate
19 as to what the Prosecution's theory is of General Gotovina's mens rea
20 with respect to killings. Based on a review of the Prosecutor's opening
21 statement, it is our belief that the Prosecution intends to rely on
22 sanitation reports issued to the Split Military District or from the
23 Split Military District, and these would be Prosecution Exhibits P507,
24 and D1057. However, on this score, it is important to note the
25 cross-examination of Mr. Theunens on this point.
1 Mr. Theunens had a specific section in his report entitled
2 "Notice to General Gotovina of crimes." And based on that, he was
3 cross-examined about the fact that nothing in his report indicated that
4 General Gotovina had any notice of crimes -- I should say of murder
5 having been committed. The Chamber will recall that Mr. Theunens was
6 given the third session of one day and was given the opportunity
7 overnight to review his report and to review the Prosecution's database
8 to see if he could find any document which would indicate that
9 General Gotovina had notice of murder. And Mr. Theunens, when he came
10 back to court the next morning - this is at transcript page 12570, lines
11 6 to 16, 12609, lines 1 to 6, and lines 13 to 25 - Mr. Theunens
12 acknowledged that he had found no written evidence or other evidence of
13 any notice of murder to General Gotovina.
14 That is independent in addition to its importance because it
15 comes from the OTP's in-house expert. It is also important to note that
16 Mr. Theunens cited the sanitation reports in his report, and this would
17 be at pages 167 of the Theunens' report, which is 427 of the PDF, page
18 241 which is page 501 in the PDF, pages 245 to 246 which is pages 505 to
19 506 of the PDF, and page 262 which is page 522 of the PDF, and
20 specifically Exhibits P507 and D1057, upon which we expect the
21 Prosecution to rely for mens rea for murder are in Theunens' report. So
22 we are left with the situation apparently, unless this is an new theory
23 that comes up in response, that the Prosecution's in-house expert himself
24 had the sanitation documents not only at his disposal but cited them in
25 his report, had two days, or I should say an afternoon and an evening to
1 consider whether he could find any notice of murder. And he, himself,
2 didn't think that sanitation reports amount to mens rea notice of murder.
3 We submit to you, Your Honours, that if the OTP's own in-house
4 expert did not believe that the sanitation documents cited in his own
5 report constitute notice of murder, it is unclear how the Office of the
6 Prosecutor expects the Trial Chamber to rely on these same sanitation
7 documents as capable of proving beyond a reasonable doubt
8 General Gotovina's knowledge of murder.
9 There is no -- moving forward, there is no JCE catchall here.
10 There is no basis to hold General Gotovina liable for murders as a
11 foreseeable consequence of a JCE for the reasons previously argued;
12 namely, that there is insufficient proof of the JCE. We also wish to
13 rely on the Strugar Rule 98 bis decision which permits partial dismissal
14 of Counts. And as Mr. Akhavan indicated in that decision, the
15 Trial Chamber permitted the dismissal of certain structures at that point
16 in the case because damage to those structures had not been proven. We
17 submit that in respect to the murders, the Trial Chamber should take the
18 same approach that the Strugar Trial Chamber did in the Rule 98 bis
19 decision and dismiss the following -- first of all, all of the murder
20 allegations as it relates to General Gotovina do to the mens rea failure.
21 But then specifically -- and we can provide a written submission on this
22 if the Chamber desires. But with respect to the following cases, there
23 has been no evidence presented at all by the Prosecution relating to some
24 alleged murder victims identified in its further clarification schedule,
25 no witnesses testified about the alleged circumstances, no witness
1 statements were admitted discussing the alleged circumstances, no autopsy
2 or other report was admitted concerning 87 specific instances. And I can
3 read out the numbers in the further clarification, which is 9 to 11, 21,
4 23, 24, 29, 31 through 34, 36, 38, 39, 41, 77, 79, 80, 82, 83, 85, 108,
5 109, 115, 116, 118, 131, 132, 135, 140, 141, numbers 164 through 179,
6 number 192, 194, 210, 223, 225, 262, 276, 283 through 285, 300, 301, 303,
7 304, 308 through 315, 318 through 320, 322, and 324 through 337.
8 There's also undisputed evidence tendered through Dr. Clark of
9 hospital patients that it was apparent that several of the alleged murder
10 victims identified in the Prosecution's further clarification schedule
11 who were in fact patients from the Knin hospital who had no apparent
12 indication of having been murdered, these five instances are in the
13 clarification schedule and are numbered 12, 234, 239, 243, and 270.
14 With respect to cases where the cause of death was unascertained
15 or undetermined, those are 37 specific incidents. They are 15, 16, 51,
16 55, 58, 59 --
17 JUDGE ORIE: Mr. Misetic.
18 MR. MISETIC: 65, 104, 113, 191, 193, 197, 200, 202, 205 through
19 207, 213 through 220, 224, 226, 228 through to 230, 238, 240, 241, 264,
20 268, 288, 297, and 302.
21 In addition, there are some incidents -- we note again that the
22 Chamber has now given us five weeks to investigate the rest of these
23 alleged killings, so this is a tentative review. But the Prosecution in
24 the following instances has not established any evidence of a
25 superior/subordinate relationship to scheduled killing incident 4,
1 scheduled killing incident 5, scheduled killing 7, scheduled killing 9.
2 Scheduled killing 10 was an incident that did not take place in the area
3 of responsibility of the Split Military District.
4 Scheduled killing 1, 6, and scheduled killing 8.1, we state
5 should be dismissed because the evidence contradicted a finding of
6 murder, for example 8.1 was an indication -- or the evidence was that the
7 person committed suicide. And finally the evidence in the record with
8 respect to the following incidents indicates that an investigation and
9 Prosecution was done with respect to scheduled killing 8.2 which is
10 Uros Saric and 8.3 Uros Ognjenovic, the Varivode incident which is
11 further clarification 95 through 103, and Sava Babic which is further
12 clarification incident 7.
13 In summation, and as our prayer for relief, Your Honours, we ask,
14 that the following be dismissed: All Article 5 crime against humanity
15 charges fail because there was no widespread or systematic attack
16 directed against a civilian population. This would result in a dismissal
17 of persecutions under 5(h), deportation under Article 5(d), inhumane act,
18 forcible transfer under Article 5(i), murder under Article 5(a), and more
19 generally, inhumane acts under Article 5(i).
20 Count 1 fails because Operation Storm was lawful under the laws
21 of war, so it does not constitute a crime against humanity. There was no
22 discriminatory intent with regard to the purpose of Operation Storm.
23 There was no discriminatory intent with regards to the burnings and
25 Counts 2 and 3 also fail because civilians did not flee and
1 there's been no evidence that they fled due to unlawful shelling.
2 Notwithstanding lawful shelling, civilians did not flee because of panic
3 arising from combat operations. Collection centres did not constitute
4 forcible transfer. Counts 4 through 9 fail because there's been no
5 evidence that General Gotovina had the intent to commit crimes against
6 humanity or war crimes through destruction or pillage of property or that
7 he made a significant contribution to the commission of such crimes. In
8 fact the undisputed evidence has been that General Gotovina issued orders
9 and took measures to stop such criminal activity. There is thus no
10 policy of acquiescence. Even if the Trial Chamber were to find that
11 they're generally was, there is no evidence that General Gotovina was
12 part of such an acquiescence.
13 Therefore, there is no JCE after Operation Storm. This is a case
14 of command responsibility, and the evidence has been that
15 General Gotovina took all necessary and reasonable measures against his
16 subordinates. The Prosecution contends apparently that he did not take
17 enough necessary and reasonable measures, but the Prosecution has failed
18 to adduce evidence of what that necessary and reasonable measure or
19 measures with have been.
20 Mr. President, Your Honours, the Prosecutor has failed it present
21 evidence of General Gotovina's criminal liability on all counts of the
22 joinder indictment. Accordingly, we respectfully request that this
23 Trial Chamber enter a judgement of acquittal on all counts. On behalf of
24 Mr. Akhavan and Mr. Kehoe, I thank you for your attention.
25 Thank you.
1 JUDGE ORIE: Thank you, Mr. Misetic.
2 Before we take a break, I with like it put a few short questions,
3 not to enter a debate, but just to seek a clarification.
4 The first one is about you, Mr. Misetic, and you, Mr. Akhavan,
5 relying on the Strugar case as far as acquittal on certain portions is
6 concerned, so structures in Dubrovnik.
7 I haven't heard any -- of any authority after December 2004
8 because the Strugar decision was in June 2004, when Rule 98 bis was still
9 talking about one or more offences, whereas since December 2004, Rule
10 98 bis is about an acquittal on any count. So if there's any authority
11 after December 2004 that you could present the Chamber would appreciate
12 to hear of that.
13 Mr. Kehoe, I have one question for you, just to verify for
14 myself, whether it was a slip of the tongue or whether you meant that a
15 question about issuing orders contrary to the wishes of Mr. Tudjman, and
16 that's the language we find, at least in the -- on the pages that is
17 5079, whether you misspoke when, at page 45 and 46 today you said "we
18 asked that Jarnjak and Susak issue any order that Tudjman wished not to
19 be followed," whether you would say, although there's a difference in
20 language, no, this is the same; or whether you misspoke and you wanted to
21 refer to the actual question that was put to the witness on page 5079,
22 that was Mr. Galbraith, as far as I remember.
23 MR. KEHOE: To the extent that there was some misunderstanding, I
24 was attempting to refer to Ambassador Galbraith' question and answer on
25 the score that Jarnjak and Susak were issuing orders, and did they ever
1 issue orders that President Tudjman didn't want issued. And I do believe
2 his response was, no, they never issued orders that -- that Tudjman --
3 JUDGE ORIE: I think the question was about contrary to
4 Mr. Tudjman wishes issuing orders.
5 MR. KEHOE: [Overlapping speakers] ...
6 JUDGE ORIE: Of course the enforcement of an order or issuing an
7 order against someone's wishes is -- may be considered as to questions
8 which are not exactly the same.
9 MR. KEHOE: Yes.
10 JUDGE ORIE: Thank you for that clarification.
11 Mr. Misetic, you took us to a question you had put to
12 Mr. Theunens after he returned from a break. You told us that
13 Mr. Theunens confirmed that after the 18th of August, and, as you said,
14 did not find any notice on burning and looting in the operational diary
15 or any other report, as you said.
16 Now, the reference you took us to there, the question was limited
17 to the operational diary, and the answer of Mr. Theunens also said, no, I
18 did not find that in the operational diary.
19 Now, it could well be that I have not had an opportunity yet to
20 go through the sequence of questions that finally led to your invitation
21 to review certain documents. If you would be able it give us guidance as
22 where the other reports are, specifically mentioned by Mr. Theunens, that
23 would be appreciated. Because on -- on the place you referred to, it is
24 there it is, but only that specific place, and I'm fully aware at that
25 may be, as they call it, passem [phoen] somewhere. Of course the Chamber
1 would like to -- to receive such additional information which would
2 further support your position, that Mr. Theunens said not in the
3 operational diary nor in any other report.
4 MR. MISETIC: Mr. President, I will go ahead and do that, and you
5 may recall that Mr. Theunens' testimony took a few days [Overlapping
6 speakers] ...
7 JUDGE ORIE: [Overlapping speakers] ... I'm fully aware of that.
8 MR. MISETIC: Thank you.
9 JUDGE ORIE: We'll have a break -- yes, Mr. Akhavan.
10 MR. AKHAVAN: I apologise, Mr. President. Did you wish for me to
11 address the question of Rule 98 bis now or after the break?
12 JUDGE ORIE: Or even in the next round. I just wanted to raise
13 this issue so that you have time to consider it and that we hear before
14 we depart that we hear from you on the matter.
15 MR. AKHAVAN: Certainly. Thank you.
16 JUDGE ORIE: We'll have a break, and we will resume at 1.00.
17 --- Recess taken at 12.41 p.m.
18 --- On resuming at 1.03 p.m.
19 JUDGE ORIE: May I invite the Cermak Defence to make submissions
20 under Rule 98 bis.
21 Mr. Kay.
22 MR. KAY: Thank you, Your Honour. This is the application on
23 behalf of Ivan Cermak to dismiss the charges at the close of the
24 Prosecution case against him.
25 All the evidence has been heard at this stage relevant to this
1 application. The evidence won't get any better. But does it leave the
2 Court with a case that has been proved against the accused Mr. Cermak?
3 That is the issue here.
4 Rule 98 bis is a power granted to the Court to be exercised in an
5 appropriate case. We submit this is just such a case. An indicator as
6 to the kind of test to be applied has been given on behalf of my previous
7 co-defendant's counsel. An indicator can also be how accurate have the
8 assertions been by the Prosecutor in relation to the allegations in the
9 indictment, how well-founded have they been upon the evidence that the
10 Court has received. The crucial thing is for the court to assess what
11 exactly is the evidence in relation to the indictment at this stage, not
12 assertions or allegations, but the evidence in the case.
13 I'm going to turn to the paragraphs of the indictment that are --
14 call for a submission such as this. The first is paragraph 7, which
15 deals with the Article 7(3), command responsibility notion of the case.
16 And there are some universal truths that are well known concerning
17 command responsibility, as well as some specific matters that also need
18 to be considered, in relation to a particular defendant.
19 I'll deal with the universal truths, first of all.
20 There is an need for effective control of subordinates. Without
21 effective control, there is no duty on behalf of a person to act. The
22 superior and subordinate relationship between the accused and the
23 perpetrator of crimes, did the superior know or had reason to know that
24 the subordinate was about to commit or had committed underlying crime?
25 Did the superior fail to prevent or punish? The key to those universal
1 truths are the superior/subordinate relationship.
2 There are further aspects to this that need to be considered in
3 the kind of case that the Court has been it, concerning Ivan Cermak. And
4 I will run through those briefly.
5 Did the superior have material abilities to prevent subordinate
6 offences or punish subordinate offenders? The Delic and Limaj case
7 express that.
8 Mere influence over people is not enough or even great influence,
9 or other expressions of influence turning to the Kordic, Celebici, and
10 Limaj cases. The superior must have capacity to issue binding
11 instruction and enforce compliance with orders. Coordination obviously
12 is not of that kind of authority. We turn to the Celebici case for that
14 An accused if perceived or thought to have command authority,
15 doesn't lead to the conclusion of fact that he had in fact effective
16 control; Celebici Halilovic cases.
17 The ability of a superior to maintain and enforce compliance, not
18 just convince or sway decisions; the Oric case.
19 De jure status does not of itself create a strict liability. We
20 return to the Oric and Halilovic cases again. All of the cases state
21 cite there is a need for de facto effective control. And looking at
22 someone who is a civilian, he is required to a degree of control over
23 subordinates similar to that of a military commander in an analogous
24 position. We see that in Aleksovski and the Kajelijeli case. Issuing
25 orders may not indicate actual authority. That is a very important
1 matter to bear in mind in this case, see the Kordic, Halilovic, and Oric
3 Lack of compliance of orders by others may indicate a lack of
4 authority with the accused. Look at the Strugar case. And the types of
5 orders issued by an accused may be important. What is their purpose
6 rather than the mere fact of issuing an order. Binding combat orders are
7 different from humanitarian-type orders. See the Halilovic case, Kordic,
8 Blaskic cases.
9 In our submission, those additional factors to the universal
10 truths make common sense to be applied in a case where you considering
11 effective control, and we ask the Court to bear that into in mind when
12 considering the evidence at this stage, in relation to Mr. Cermak.
13 Let me just cite a few passages from a couple of cases here,
14 which drive this home.
15 In the Celebici case it was stated:
16 "Great care must be taken lest an injustice be committed in
17 holding individuals responsible for the acts of others in situations
18 where the link of control is absent or too remote."
19 In the Blaskic appeals decision it was stated:
20 "The appellant did not enjoy or exercise effective command and
21 control over all units nominally subordinated to him."
22 And turning finally on this section of my submissions to the
23 Kovacka appeals: "Not every position of authority and influence
24 necessarily leads to superior responsibility under Article 7(3) of the
1 So let us turn now to paragraph 7 specifically and consider a
2 number of matters that arise from the language of the paragraph.
3 In it is cited the need for effective control over members of the
4 HV units or elements attached to the Knin garrison. I'm not going to
5 read all the language out in full, as it would take too much time. But
6 let us consider, first of all, in that aspect of the paragraph the
7 Croatian army units and the allegation that Ivan Cermak had effective
8 control over all those units specified.
9 I will remind the Court of the evidence of the Prosecution expert
10 who is an employee of the Prosecutor and was questioned about this
11 paragraph in cross-examination by me. I put to him at transcript page
13 "You have read the indictment. I will then paraphrase.
14 Paragraph 7 describes Ivan Cermak as possessing effective control over
15 members of the Croatian army units or elements who comprised or were
16 attached to or operated in the Knin garrison."
17 I read out those units within paragraph 7 of the indictment, and
18 I put to him:
19 "But looking at all these Military District documents, we've
20 looked at a few here which go to a particular issue. But there are, as
21 you know, thousands, in relation to all those units. General Cermak is
22 copied in on a handful of matters, isn't he?"
23 The expert answered: "It is correct. And I think it is visible
24 through my report that there are very few orders by General Gotovina to
25 the Knin garrison command or the Knin garrison commander during the
1 time-period General Cermak is the commander of the Knin garrison."
2 I put to him: "My question is about General Cermak having
3 effective control over all those units. They're all operating every day
4 in relation to their activities, where they go, what they do, completely
5 independently and without General Cermak. That's right, isn't it? What
6 I'm putting to is that paragraph 7 of this indictment doesn't fit with
7 your expert's report."
8 "That may well be possible," was the answer.
9 On that passage of the indictment that I read, I then put:
10 "In relation to paragraph 7, which asserts that Ivan Cermak
11 possessed in various structures of power," and I cited the matter from
12 paragraph 7 and when went on to say, " ... in fact, not borne out by your
13 expert's report and indeed all the documents that you have seen, it's
14 right, isn't it? I'm right."
15 And the answer was:
16 "I mean, I haven't addressed effective control. In fact, yeah, I
17 mean I haven't addressed effective control, and I haven't seen any
18 material or, I mean, documents on that aspect concerning the role of
19 General Cermak as the commander of the Knin garrison."
20 This was the expert who described himself as an expert on command
21 and control in one of the very first questions that I asked of him in
23 Your Honour, in our submission, the truth was clear in this
24 expert's mind, as to what he had looked at, as to what he seen, that he
25 could in no way positively express a support for paragraph 7 of this
1 indictment. It was not founded upon the substance of reality, of the
2 documents of the case, nor the military function of the Split Military
3 District. It was a paragraph inserted into the indictment at an
4 alarmingly high and overstated way, that, in our submission, underlines
5 the need for Rule 98 bis to be applied in the Defence of Ivan Cermak.
6 Let us look, then, aside from what Mr. Theunens admitted, to what
7 we have seen in the evidence concerning the Croatian military concerned.
8 In three hours, I do not know whether I have the time to express
9 all the matters that could be raised. I will attempt to do so. However,
10 I ask the Court to bear in mind the very clear cross-examinations that we
11 submit have taken place here, where we have put our case fairly and
12 squarely, and we have produced and analysed the documents in the trial to
13 a level where the Court has a very clear understanding, we submit, of the
14 Defence issues concerning these matters in the trial.
15 First of all, the function in which Mr. Cermak was placed, that
16 of the garrison commander, it is very important for the Court to note
17 that that had no operational function as a part of the military
18 structure. The role of the garrison commander, in D34, Exhibit D34, is
20 "The garrison HQ commands do not have an operational function and
21 the right to issue orders to Croatian military units except precisely
22 prescribed authorities regarding work, order, and discipline at the
23 garrison headquarters, et cetera."
24 Mr. Theunens was cross-examined by me at length concerning those
25 issues, and I refer the Court to the fact of his agreement with me as to
1 the nature of the role of the garrison commander.
2 In relation to the authority within the military of
3 General Cermak, the Court is alerted to the fact that the Prosecution
4 have relied on a few orders ostensibly showing authority or command
5 without putting before the Court the full story of those orders, and we
6 stress that, because orders seeking supplemental troops to the garrison
7 issued by General Cermak were actually shown upon more detailed research
8 of documents within the Prosecution Rule 65 ter collection and exhibited
9 by us to have been failures of the exercise of his authority and command.
10 And I refer the Court to the issue concerning Captain Jonjic of the
11 logistics brigade, who was ordered by General Cermak to work for him.
12 His commander complained, and eventually General Cermak had to seek the
13 intervention of General Gotovina on that matter.
14 Your Honours, a case built upon scraps of orders that have no
15 context of themselves beyond what they say, in our submission, is a very
16 dangerous way to approach a criminal trial. This Court, if handled
17 appropriately and correctly by the Prosecution, should have been given
18 the full story in relation to the limitations of the command and
19 authority and control that General Cermak had.
20 We move from there, the Jonjic orders, to the request for the
21 garrison to receive further troops to help in the clearing up of the
23 Again, one knows from the evidence that was introduced by the
24 Defence that this was something that required a further subordination of
25 those troops to General Cermak. He was unable to do it. And I remind
1 the Court of my cross-examination of the witness Liborius where the full
2 story on this matter was put before the Court to show the limitations of
3 Mr. Cermak's authority.
4 And what are these orders? I have described them as scraps of
5 paper. And I do that with a sense of justice about it, because we are
6 dealing here with the command and control of military units alleged to
7 have committed crimes, and what is being put before the Court are
8 non-operational orders, as a symbol to support the argument of the
9 Prosecutor that General Cermak had effective control. In our submission,
10 they show nothing of the sort, and that is why at the start of my opening
11 I referred the court to the passages from decisions whereby the quality
12 and nature of orders issued has been considered by the courts to be an
13 important feature to demonstrate whether an accused had effective control
14 or not. The difference between combat operation orders and the
15 difference between orders concerning fish farms, orders concerning men to
16 clear the streets, and the order to receive the assistance of a logistics
17 captain are of a very different nature to the kind of orders that are
18 required to found the foundation in relation to the allegations of
19 serious crimes in this indictment.
20 The other matters, and again I refer the Court to them, is the
21 UNCRO orders. These have been cited many times by the Prosecutor as
22 being relied upon to demonstrate effective control - and at this stage
23 I'm just dealing with the Croatian military units, but within that
24 organisation one could consider the military police - and it is quite
25 clear that those are the kind of order that is not arising out of the
1 issues necessary to show effective command responsibility of all those
2 units within paragraph 7, but they fit into that category of order issued
3 to assist the international community and are of not the same type or
4 nature to illustrate the power over the subordinates within Croatian
5 military units that needs to be proven by the Prosecutor to establish
6 effective control. Not only that, one can see from the history of those
7 documents, again, not put into full context by the Prosecutor, but put
8 into full context by the Defence, how General Cermak was unable to fulfil
9 his obligation to help the UN recover those vehicles and required
10 intervention so that his order that he had drafted was reproduced and
11 disseminated to other units within the Split Military District.
12 In summary, if one looks at the documents relied upon by the
13 Prosecutor to establish effective control and command of units, they show
14 that those documents issued by General Cermak were non-operational,
15 logistical documents, and indicative of a non-operational role.
16 Let us consider now the duty to discipline within the Croatian
18 Reliance was put upon a document by Mr. Theunens as an example of
19 a garrison commander disciplining a member of the Croatian military,
20 D1001, exhibit, to demonstrate this kind of authority would have been
21 available to General Cermak. What was missing crucially from the
22 information before the Court and which I cross-examined him upon was the
23 fact that that was an example of the garrison commander in Split
24 disciplining his own subordinate. Transcript pages 12955 to 7.
25 Your Honours, in our submission, the Court has to be concerned
1 about a case structured and put before it where such glaring inaccuracies
2 have been used to support the allegations. In our submission, that
3 should -- could cause the Court at this stage to have serious alarm bells
4 ringing, concerning the nature of this Prosecution against Mr. Cermak.
5 Let us turn now to the Code of Military Discipline. That, at
6 Articles 19 and 27, gives the responsibility of General Cermak as with
7 any other commander within the Croatian army to discipline a subordinate.
8 Under Article 26 there is the power to discipline an individual brought
9 before him not of his organic unit, in which required and necessary
10 measures are desirable or needed to maintain order and discipline. But
11 as far as the matter goes, that is it. He can discipline his
12 subordinates. There is no evidence in this case that his subordinates
13 have committed any of the crimes on the indictment, and the Court is
14 reminded of the evidence in support of his subordinates, which are the
15 manning documents, issued periodically to demonstrate the number of
16 soldiers within each unit of the Split Military District. The document
17 filed for June the 28th, 2005 [sic], before Operation Storm demonstrated
18 there were three people. The document filed at the end of August 30th of
19 1995, after Operation Storm, showed the garrison had nine soldiers within
20 it, and the same number at the end of September 1995.
21 So that is it, on the level, to show the extent of the authority
22 within the garrison of General Cermak. Those nine subordinates, none of
23 whom have been proved to have committed any of the crimes alleged.
24 Court will be reminded of the many documents within the
25 Military District concerning operations, communications, steps to be
1 taken by units, et cetera, none of which were copied in to General Cermak
2 and demonstrate that he was part of the overall structure with the
3 necessary position to have effective control over those units. It was
4 conceded by Mr. Theunens that for any military entity to function, there
5 was the need for reports, there was the need for lines of reporting,
6 there would be orders issued, there would be the means of communication.
7 It was quite clear that within the documents that we have seen that
8 General Cermak was only ever an occasional receiver of such information.
9 Well, how, we ask the question, can any effective control be exerted over
10 those units in paragraph 7 with that kind of structure and establishment?
11 We were looking forward to hearing from General Pringle, and we
12 were prepared to cross-examine him on the materials at our disposal that
13 had been put before Mr. Theunens. That opportunity having been denied,
14 the Court is left with Mr. Theunens' evidence on the matter, and, in our
15 submission, it clearly underlined the accuracy of our submission.
16 All those orders that the Court will have had referred to or
17 seen, referred to in Mr. Theunens' report or seen during the evidence
18 itself, none of the operational orders can be said to have been forwarded
19 or included as information to General Cermak. One just has to look at
20 the weekly and other reports that were submitted.
21 What the Court does know, however, from evidence in this case,
22 and that is an indicator as much as anything else of the nature and role
23 that he had within the events outlined in this indictment was that he was
24 undertaking matters which were more closely related to the civilian
25 dimension of life in Knin than the military life in Knin. And that is a
1 very important distinction, which the authorities of the Tribunal have
2 pointed out, and at this stage, this Court is quite clearly in possession
3 of a sufficient amount of information to determine that they are able to
4 make a finding that his role was entirely, as described by him in his
5 interviews, as described by countless witnesses, his role was the
6 normalisation of live in Knin, coordinating civilian authorities which is
7 one of the doubts of a garrison commander within its regulations, with
8 the role of helping establish civilian life, and the plethora of orders
9 and letters that indicate that that was how he spent his time, in our
10 submission, clearly demonstrate his role and the extent of his authority.
11 The fact that members of the international community wrongly
12 perceived him to be a military governor or in charge of the whole area,
13 and in charge of units does not prove the case against him. This Court
14 has been able to look behind the extent of the knowledge that
15 General Forand, others had at the time, and seen the inner workings of
16 Knin, Knin civil life, as well as the Knin military structure through the
17 Split Military District, as well as the Croatian military structure, so
18 that this Court is not bound by the impressions held at the time, and I
19 don't say that they weren't genuine impressions. I accept them entirely
20 as being sincerely held impressions of those witnesses called by the
21 international community. But those witnesses, virtually to a man,
22 accepted that they did not know enough or sufficiently about the workings
23 of either the Croatian government, the Croatian military, or Croatian
24 civil life to actually be in possession of knowledge that would be safe
25 for this Court to determine the matter upon. Even the fact that they may
1 have been believed that Mr. Cermak held himself out in such a position is
2 not determinative of the matter.
3 This Court has seen the evidence that was in operation at that
4 time that clearly defined what he was doing, what he could do, and what
5 he couldn't do, so when he said to General Forand, We will issue an order
6 to return your vehicles and have this matter investigated, the fact that
7 that was said by him is not necessarily determinative of the issue of
8 actual authority and control. Because Your Honours know that behind that
9 statement lay a different picture. It actually concealed a picture of a
10 man issuing orders for banks, bakeries, trout farms, accommodation,
11 logistical orders, and his very limited orders that he did issue in
12 relation to the matter of the theft of UN vehicles were the only extent
13 of those orders of a similar nature. And that's very, very important,
14 Your Honours, because even though he may have held himself out or people
15 had expectations of him, the fact of the matter is that that does not
16 determine the matter. And if Your Honours were not in possession of
17 other information, other evidence in this case that threw a light upon
18 the, truth you would be able to disregard my submissions.
19 But, clearly, in the evidence in this case, we have been able to
20 present to you documents and evidence that showed the true extent of that
22 JUDGE ORIE: Mr. Kay.
23 MR. KAY: And I remind the Court that several --
24 JUDGE ORIE: Mr. Kay, I'm looking at the clock.
25 MR. KAY: Yeah.
1 That several international witnesses all expressed, and can you
2 see in those reports that they were writing at that time, doubts about
3 whether he could deliver what he said he could deliver. In our
4 submission, this impression evidence, for that is what it is, has been
5 countered by the truth and the facts of the evidence that shows
7 And in those circumstances, Your Honour, I have reached a natural
8 break, and it's quarter to.
9 JUDGE ORIE: Thank you, Mr. Kay.
10 Before we adjourn, just two brief matters. The first is that I
11 inform the parties that the request for certification for an appeal to
12 the clarification issue has been signed this morning and has been filed
13 this morning, granting a certificate. That's one.
14 Second, without, at this moment expressing any opinion about
15 whether Rule 98 bis allows for a partial acquittal within a Count, even
16 if that would not be possible, that, of course, does not prevent the
17 Prosecution from considering whether all elements in a Count or all
18 offences charged within a Count could stand.
19 Mr. Misetic has given you a long list of persons who -- for whom
20 there is evidence, for example, that they died, but that other evidence
21 would suggest that it may have been suicide rather than murder. We have
22 heard of hospital patients, we have heard -- at least evidence has been
23 presented on persons that, as the Defence evidence suggests, may have
24 died outside the territorial scope of the indictment. The Chamber would
25 very much appreciate if the Prosecution would pay serious attention to
1 specifically those cases mentioned and to see to what extent it still has
2 a firm -- I'm not talking about the Counts as a whole, but in these
3 specific cases, whether the Prosecution takes the view that it is very
4 likely that the Chamber would be convinced that, for example, this person
5 did not commit suicide but was murdered, to seriously think about these
6 matters so as to be able to focus, if there will be any Defence case, to
7 focus on those cases where not any strong suggestive Defence evidence
9 We will adjourn until tomorrow, Friday, the 20th of March, 9.00,
10 in Courtroom III
11 -- Whereupon the hearing adjourned at 1.49 p.m.,
12 to be reconvened on Friday, the 20th day of March,
13 2009, at 9.00 a.m.