1 Friday, 20 March 2009
2 [Rule 98 bis]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.02 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 Mr. Kay, are you ready to continue your submissions under Rule
13 98 bis? By the way, the Chamber received in writing citations you've
14 referred to at certain transcript pages. We do not consider to be a
15 filing but just an aide-memoire to have this at hand easily for us.
16 MR. KAY: Yes, I'm grateful Your Honours received it. Thank you
17 very much.
18 Your Honour, I will now return to the submission under
19 Rule 98 bis on behalf of Ivan Cermak.
20 Yesterday I had reached the stage where I was dealing with the
21 Article 7(3) allegation within the indictment, principally arising from
22 paragraph 7 of the indictment, and I had dealt with the issue of the
23 subordination of Croatian units as cited in the indictment with -- under
24 Mr. Cermak. I'm now turning to the military police, and I will then,
25 after that, deal with the civilian police, in relation to this same
2 The military police. Your Honour, it is clear from the hierarchy
3 of the structure of the military police that General Cermak, as the
4 garrison commander, was not included within the de jure organigram. If
5 you look at D785 to 7, you will see there those exhibits where the
6 structure of the military police is set out. It is quite clear that the
7 military police orders that the military police structure, as it operated
8 in Knin at that time, did not include General Cermak within its
9 functioning. This Court has seen a large number of exhibits emanating
10 from the military police administration, issued by General Lausic,
11 emanating from the 72nd Battalion, under the control of either
12 Major Juric or Colonel Budimir. None of those documents are referred to
13 nor include General Cermak.
14 You have also seen documents relating to the Knin company that
15 was formed on the 5th of August established for the newly liberated
16 territory. Again, not a single document within the workings and
17 structure of that unit which is particularly cited in paragraph 7. No
18 documents relating to General Cermak.
19 We had called as a witness a man called Dzolic who was the
20 commander of the Knin company of the military police at some time from
21 the 5th of August to the 12th of August. Prosecution had called this
22 witness specifically on the issue of whether the Knin company was at any
23 time subordinated to General Cermak. What is interesting in the
24 structure of their case against this accused, that if the Court looks at
25 his statement, P875, the Court will see that in his original interviews
1 none of the orders from General Cermak, as they have been described, to
2 the military police were actually put to that witness, so that he, as a
3 member of the Knin company, was never asked to lay a foundation for the
4 central proposition. In the Prosecution pre-trial opening brief, as well
5 as their opening address, the contents of their expert's report as to
6 whether he was subordinated to General Cermak. None of those orders, and
7 they are the famous UNCRO orders that the Court will have well in mind,
8 P513, D788, P512, D303, D503, P509, none of them were put to that witness
9 before he gave evidence here to establish, first of all, whether he had
10 received them, and what his position on those documents were.
11 Now, I don't know how these statements arise and how they're
12 taken by the investigators, but it is clear that the Prosecution were in
13 possession of the knowledge of those documents right from their first
14 interview with General Forand. Why was there no explanation in the
15 statement about that matter? Why was it that at paragraph 37, a rather
16 woolly expression, the kind of expression that alerts a Defence counsel
17 that there is something up. Why was there this expression?
18 "The way I understood it was that I was still under the command
19 of Colonel Budimir but that I was also under the command of General
20 Cermak, and I was to obey any order that General Cermak gave me."
21 Well, that sentence puts an Defence counsel immediately on a
22 situation of alert, because the expression is odd, what it means is odd,
23 and no one is grasping the nettle here in this statement and saying, What
24 about this order? This order? This order? Those orders that perform
25 the very basis of the Prosecution case against General Cermak.
1 So if we look further into his statement when he gives an example
2 of two trucks of the international Red Cross having been stolen,
3 paragraph 44 of P875, what does he say? "Cermak and me at the meeting,
4 and he told me that he had been informed by the international Red Cross,"
5 and so Mr. Dzolic went on to inform the military crime police.
6 Paragraph 45: "I was called to Cermak's office like this on two
7 or three occasions."
8 He refers to the 9th August. "And he told me to go and visit.
9 He told me to record any incidents of burning that I witnessed."
10 Interesting about this is the way the word "order" is not used;
11 it's telling. When the witness came and give evidence viva voce before
12 this Court and was cross-examined by the Defence, he informed the Court
13 that he was not subordinated, a key word in relation to this trial, to
14 General Cermak, and in relation to those UNCRO orders that form the
15 foundation of the case against him, and by that I mean against
16 General Cermak, he said: "I, first of all, haven't seen any of the
17 orders," that were put before him, transcript number 9020 up to 9025, and
18 he said at 9028 he "was not obliged to follow orders of this kind as
19 orders; however, as information that something had occurred." And that
20 is the very point of this case, because, on the one hand, the Prosecution
21 are saying in their indictment that General Cermak took no action in
22 relation to reports of crimes to him. Here in paragraphs 44, 45, 46 of
23 that witness's statement, he clearly demonstrates that at the meetings
24 General Cermak had in the early stages in Knin when General Forand
25 informed him about burning, about houses being set on fire, and that the
1 military were involved, here you have it. General Cermak passing that
2 information on, not because he was in command, but because he was passing
3 it on as something that, as a responsible military officer, he should do.
4 How does this set as a snapshot of evidence with the case against
5 General Cermak? The witness himself never asked whether he was
6 subordinated to him. The witness, never being shown these documents.
7 And then when he is shown these documents, he gives a perfectly
8 reasonable explanation that fits with the recording by him in his
9 statement of being told to go and see what was happening. How does this
10 also set with the allegation that General Cermak was in Knin denying
11 crimes, taking no steps in relation to crime, minimizing crimes, and
12 member of a joint criminal enterprise? Well, if he is doing these steps,
13 how is he within the joint criminal enterprise?
14 I refer to that here as the second part of my submission will be
15 concerned with the Article the 7(1) allegations in the trial. But
16 because we're here at the moment, I refer the Court to it, to forecast
17 what is to come.
18 The other foundation that the Prosecution have relied upon for
19 command of the military police has been documents adduced prior to
20 Operation Storm by their expert witness Mr. Theunens, all of which did
21 not tell the full story as to the powers and responsibilities of a
22 garrison commander. It was of interest to note that no documents after
23 Operation Storm were produced to show the workings of the Split
24 which was the particular garrison he was using as a comparison.
25 Next, as I referred you to yesterday, he gave an example of a
1 garrison commander disciplining a member of the Croatian military, and it
2 was quite clear from the documents that we produced that the full story
3 was that that was a subordinate of the garrison commander at Split
4 Colonel Zoricic.
5 The other foundation that the Prosecution rely upon are the
6 garrison regulations, as well as order and work and discipline in the
7 garrison, which was an order passed in 1993 and put to General Lausic who
8 was supposed to give evidence in support of the Prosecution theory.
9 It turned out that General Lausic was unaware of the 1993 order
10 concerning work, discipline, and organisation in the garrisons. Until he
11 had been produced documents for him to review by the Prosecution
12 investigator, Mr. Foster, the day before he gave evidence, he was unaware
13 of that particular order. It was noticeable when he gave his evidence
14 in-chief that Mr. Tieger took him very rapidly through the document and
15 just asked him whether it was consistent or inconsistent with the rules
16 of the military police of 1994, Article 8, and Article 9; Exhibit P880.
17 He said consistent. What that means, I'm not entirely sure I understand.
18 But when I cross-examined him and pointed out the non-operational nature
19 of the garrison commander, it was clear he accepted that the garrison
20 commander had only a very limited responsibility with the military
21 police, and that was because the garrison was concerned with the internal
22 functioning of an area where the military were based and the regulations
23 and rules were designed to enable the army to function in an orderly way,
24 as amongst itself and the local community, and that, in those terms, that
25 gave the garrison commander his right to enforce his regulations. And
1 the Court will recall my cross-examination of Mr. Theunens and the
2 speeding over the weak bridge.
3 Looking in more detail now at the relationship, as alleged,
4 between General Cermak and the military police, one considers
5 specifically the Knin company. General Lausic conceded that there had
6 been no document that he had seen which showed that the Knin company had
7 ever been subordinated to General Cermak, as would have been required by
8 his order of the 14th of August, 1995, in which he told the commander of
9 the 72nd to subordinate a company to the highest ranking Croatian
10 military officer in the area. I don't have time here to go into the
11 niceties of what the rules say concerning regular tasks, daily tasks,
12 daily operational command, a phrase that General Lausic used, and the
13 significance and variance of these expressions. But in our submission,
14 they are important and we ask the Court to consider them, because we are
15 discussing here the exercise of valid acts or not of subordination.
16 Also, there is the issue, the issue concerning the position of the
17 highest ranking officer by function in the area of responsibility. That
18 key phrase was omitted from the first translation before this Court.
19 After Dzolic gave evidence, the version of the 1994 military police rules
20 was amended to include that important word that had been omitted. Lausic
21 conceded that General Cermak would not have been the most senior
22 commander by function in the region.
23 Not only that, when you go to the documents that have been
24 produced upon the Knin company, I've already referred to the fact that
25 there is no sending on or copying or including of General Cermak or the
1 Knin garrison into any such orders, but you look at the Knin company in
2 operation after the 12th of August. Orders issued by Colonel Budimir
3 appointing a Lieutenant Orsulic as the commander of the Knin company and
4 also including the rotation of the units that constitute the Knin
5 company, that was not referred to General Cermak.
6 How can you command someone if you don't know who they are?
7 These are basic principles. These were not internal documents. These
8 were documents of appointment. They're also the only thing that the
9 Court has to go on. None of them refer to General Cermak. The point was
10 made on a number of occasions that he had to request others to have the
11 military police provide a service to him. The Court will recollect the
12 request for men in relation to his personal security.
13 If General Cermak was in command of the Knin company, he could
14 have just ordered that. All the evidence of the system in operation, as
15 well as the testimony of the witnesses, have defied and contradicted this
16 case that has been brought against him.
17 I don't have time to go into it in a very precise and detailed
18 way, but I refer the Court to our cross-examination of the witnesses
19 Lausic, Theunens, Dzolic, and in a brief way, Simic, although he was not
20 directly involved with the Knin company.
21 The Court will recollect the daily reports. They were a
22 curiosity because they were referred to the Split garrison commander, and
23 the reason for that, as explained by General Lausic, was because the
24 Split garrison had a duty service. And from there, they were able to
25 inform the commander of the 72nd, Colonel Budimir, as to incidents that
1 had happened. The Split
2 building as the 72nd command.
3 Again, none of those documents referred to General Cermak. And
4 this Court has been asked to accept that this man, in his position, was
5 in command of all those units, including the military police, in this
6 area. In our submission, it does not add up and make sense, and there is
7 no forensic evidence to support the assertions.
8 What we say is this: The Prosecution took a theory of this case
9 from the international witnesses. Those international witnesses had
10 limited knowledge. They produced some evidence and documents; hence, the
11 orders relating to the recovery of the UNCRO vehicles. But, in fact, if
12 this investigation, prior to trial, had concentrated on the reality
13 rather than the hypothetical and looked in a more in-depth way into the
14 workings of the Croatian military and civil system, it would have found
15 the answers that we have provided during this trial as to how the system
17 What can be the reason for an investigator not putting the key
18 military police orders that are -- that were the signature of
19 Mr. Theunens' testimony. Many times when I asked him questions he would
20 refer back to the UNCRO orders. And, Your Honour, Mr. President, said:
21 "Yes, we know about the UNCRO orders. Is there anything else?"
22 Every time that signature tune was played. But what is curious
23 is, for the foundation of this case, that signature tune needed to be
24 played to the people in possession of the actual knowledge, which were
25 the Croatian witnesses. To have a court like this that receives evidence
1 where one party chooses to ignore evidence emanating from a principal,
2 the principal source for the basis of this trial, being the Croatian
3 military system, its witnesses, how the system worked, before it
4 developed a case theory, in our submission, is utterly astonishing.
5 Let me now turn to the civilian police, which is the third arm of
6 the Croatian system over which it is alleged Mr. Cermak had effective
7 control. Well, again, through us, the Court were able to see organigrams
8 of the police structure - Exhibits D231, Prosecution put one in,
9 Exhibit P962, as to how the system worked. Witness 86 gave a clear list
10 of important people in the Knin area over the months of August and
11 September from the headquarters either in Zadar-Knin police
12 administration, Split-Dalmatia police administration, or from the
13 ministry in Zagreb
14 transcript reference T5509; Franjo Djurica, 5531; Mr. Gledec, transcript
15 5512. I will just burn time if I list all those people in the hierarchy.
16 Benko, Nad, Tomurad, Kardum, Batanga, Cetina, Moric, all who came down to
18 Now, if Mr. Cermak was in effective control of the civilian
19 police there would be something arising from those visits by those people
20 connected to him. Not a single thing. And in fact the reason for this
21 is quite obvious. The Croatian structure of government and its organs
22 had a clear division between the Ministry of Defence, the Ministry of
23 Interior, and they were separate hierarchies, and each relevant witness
24 said they were from a separate hierarchy and the military could not
25 control them.
1 But let me just turn to that theme that I mentioned in relation
2 to the military police. If this case has been built and constructed from
3 the theories of the international witnesses who may have had great
4 influence on the Prosecutor in preparing this indictment and its
5 allegations, you are going to make that kind of mistake in your
6 allegations against an accused, because the fact of the matter is not a
7 single one of the international witnesses from General Forand down to the
8 human rights team leaders, such as Mr. Flynn, all of them confessed to
9 not knowing how the Croatian system operated. But if you take a case
10 theory from that background, you are bound to start to make mistakes in
11 the construction of a case and an indictment when you select an accused.
12 Let us again look at the background documents, many emanating
13 from the Kotar-Knin police administration, Zadar-Knin police
14 administration, from Mr. Moric as the assistant minister for the Ministry
15 of Interior in Zagreb
16 them in any way reflecting that he had an effective control over the
17 police. How can you have a system operating if someone who has an
18 effective control such that the institution is subordinated to him, if he
19 doesn't know what is going on, if is he not a part of the operation of
20 that machinery. We introduced into this case hundreds of documents
21 showing the system at work, from the clearance of the terrain, the
22 setting up of check-points, inspections, controls, joint activities
23 between UNCIVPOL and the local police. Nowhere was Mr. Cermak to be
25 So how is it that this allegation would arise? Well, the
1 pre-trial brief has that signature tune of the UNCRO orders issued by
2 General Cermak, in relation to the loss of vehicles, et cetera.
3 So what was said about that by the key witnesses? Because those
4 key witnesses have to support this theory by the Prosecution, if they are
5 to have any chance of establishing criminal liability, and we say that
6 this issue demonstrates why, again, this case fails.
7 Interestingly enough, Witness 86 was asked about this matter, and
8 one refers to his statement. And, again, those UNCRO orders were not put
9 before that witness in his statement. Not there. Why not there? In
10 fact, that witness, in his statement said, "General Cermak never gave me
11 direct orders; however, sometimes conclusions were reached."
12 Paragraph 65 of Exhibit P487. "I did feel, however, that's was
13 answerable to him." Well, how on earth does this go any -- any part or
14 step towards establishing a subordination of effective control? What is
15 going on here in the creation of this case against this accused? Why was
16 it gone so wrong? Why is the case theory absolutely in contradiction to
17 the evidence that is there?
18 Did the evidence get any better in cross-examination? Answer, it
19 got better for the Defence but worse for the Prosecution. Because,
20 unlike the Prosecution, we put every single order to the witness, and he
21 said, "this was information." "This was information," he said. "I
22 didn't have to take orders."
23 Well, it beggers belief that we're standing here spending all
24 this money on this trial, and we have such fundamental problems in the
25 case theory, its presentation, and the evidence. If I am addressing at
1 the close of the Prosecution case the Judges about such fundamental
2 issues as this.
3 They were -- I didn't have to act on them. Well, there we are.
4 He chose to express for the first time here fully how he viewed the
5 situation, and the Court has now received the evidence. That is the
6 purpose, as I understand it, of these proceedings, is to extract from a
7 trial that shouldn't be happening against an accused, an accused wrongly
8 -- wrongly charged and put on an indictment in relation to crimes such as
10 Looking at that statement again, Defence counsel reading it
11 immediately would be alerted under Exhibit P487 and Exhibit P489 about
12 how the content, in relation to the Prosecution case theory, and what
13 this witness had to say was never explicitly dealt with. It's all around
14 the edges. It is giving an impression, the kind of impression the Court
15 heard in opening from my learned friend Mr. Tieger. When you dig and
16 look at it, it does not add up. Not only that, there was corroboration
17 for this evidence. Court will remember two documents that were produced
18 by the Defence from the Knin police station referring to the UNCRO orders
19 that had been issued by General Cermak. How, then, was that described?
20 Commander Mijic, in the first document, which was a very poor
21 reproduction, refers to the order. The second document clearly states a
22 complaint has been filed by the commander of the Knin garrison concerning
23 the UNCRO vehicles. A complaint. Well, you're damned if you do, and
24 you're damned if you don't, in this case, it seems to me. You pass on
25 and report crimes are happening, and then it is said that you have a
1 command authority, effective command. You don't do it, and you're
2 accused of not reporting, covering up, minimizing, denying crimes.
3 The Court, in our submission, has to look very carefully at this.
4 This cannot be an impossible situation, a Kafka nightmare, where if you
5 report it's said that you have a control. If you pass on information,
6 you have control; if you don't, you're apparently covering up. And we
7 refer the Court very carefully to those passages that indicate that there
8 was no effective control and superior/subordinate relationship between
9 General Cermak and the local police in Knin.
10 Your Honours, that's a halfway point for me now, as between
11 Article 7(3) and Article 7(1) in my submissions, and I will now turn to
12 deal with Article 7(1), which is the joint criminal enterprise
14 A few general matters. A plurality of persons, more than one, to
15 include the accused is required to establish a joint criminal enterprise.
16 That has as a basis for its proposition the fact whether there was or not
17 a joint criminal enterprise. This is a case which has a clear background
18 of a revenge motive by the civilian population, individual military
19 personnel and others against those Serbs who had remained in the Serbian
20 Krajina, as they called it, and who had, themselves, expelled large
21 numbers of Croatians from this area in 1991, 1992, and afterwards, and
22 caused them to live in a reduced version of their country, had kept them
23 in a bottleneck, unable to get to their homes, and, indeed, to impose
24 great hardship upon them. This background is very clear in this case.
25 And in our submission, this Court has to be satisfied that those named
1 from President Tudjman, Minister Susak, General Bobetko,
2 General Cervenko, the other members from the clarification schedule,
3 Norac, Ademi, Crnjac, Lausic, Jarnjak, Rebic, Radic, that they, one of
4 them, had established a joint criminal enterprise, which included an
5 accused. Well, how clear and definite is that evidence? We adopt the
6 submissions of the legal team for General Gotovina which were heard
7 yesterday. But we say with some force, looking back at this trial, what
8 evidence has been produced that establishes so that you are satisfied, so
9 that you are sure of the existence of a joint criminal enterprise.
10 Ambassador Galbraith was referred to. He was a man who had
11 meetings. He was a man not from the Croatian government. He was a man
12 who spoke to a large number of people and gave his impressions. Is that
13 evidence that is capable of establishing beyond reasonable doubt of the
14 existence of a JCE? We submit no. There is just as much in this case a
15 reasonable inference that civilians, off-duty military personnel,
16 combinations of civilians and military personnel. Perhaps military
17 personnel ganged up together, going off to take revenge, loot, do what
18 they do. But where, where is the evidence that establishes that this was
19 a planned joint criminal enterprise beyond reasonable doubt?
20 Our submission is this is yet another case theory that came about
21 from internationals, had to be adopted by the Prosecution, and was
22 adopted. And as part of those other points I have made today, these
23 matters have been driven from the outside, not the inside on this case.
24 And that is why, when you look back over the work of the last year and
25 seek an answer as to where is the JCE? Where can we find it? It's not
1 there. There are thousands of contradictory points to establish that
2 there wasn't an JCE. I have pointed out to General Cermak reporting to
3 Dzolic to go and see about fires that were happening outside Knin on the
4 9th of August, reporting him -- sending him to go and look because these
5 matters had been reported to him by General Forand. Again, it doesn't
6 add up, and if there is an reasonable inference the other way, this Court
7 is not bound -- and this Court should not - because a reasonable doubt is
8 there. Not a speculative doubt - this Court should not just plump for
9 the Prosecution theory as against the other evidential foundation which
10 indicates otherwise.
11 Our submission to the background of this, it's not a speculative
12 doubt that has been raised principally by the Gotovina legal team in
13 challenging these issues; it's not a speculative doubt; it is a
14 reasonable doubt. And, therefore, at this stage defeats the Prosecution
16 Just as a point to add, I refer the Court to the Brdjanin appeal
17 decision at paragraph 413, where it is stated:
18 "In order to hold a member of a JCE responsible for crimes
19 committed by non-members of the enterprise, it has to be shown that the
20 crime can be imputed to one member of the JCE and that this member, when
21 using a principal perpetrator, acted in accordance with the common plan.
22 The existence of this link is a matter to be assessed on a case-by-case
24 And as was said yesterday, we start from the premise of the
25 lawfulness of the operation. That was conceded by Ambassador Galbraith.
1 And then we move from there to saying, Well, where did this joint
2 criminal enterprise, then, come about? And was it ever there? Our
3 submission is, evidence clearly indicates no.
4 And referring the Court to the Haradinaj appeals decision,
5 paragraph 137:
6 "It must be proved that a common purpose, understanding, or
7 agreement exists between the participants that they will commit a crime
8 within the Statute."
9 Now, I don't want to spend too much time here on the legal
10 definitions; that is a matter for the Court. And I know they are
11 experienced Judges fully resourced in relation to the law. And at this
12 stage this is very much a evidential submission that the evidence is
13 simply not there against General Cermak, and I will start with some
14 overall matters, in relation to him.
15 There's been positive evidence concerning General Cermak that he
16 wasn't part of any joint criminal enterprise. That has been seen through
17 the international witnesses, stating his door was always open.
18 General Forand said that; transcript 4236. Always willing to cooperate;
19 that was said by General Leslie. Many others. The Court will be aware
20 of the assistance that he had given the UN, and the Court will remember
21 that that was a specific part of his function as evidenced through the
22 presidential transcript, when there is discussion about Knin, and it was
23 said by the President, Well, General Cermak has gone down there to help
24 the UN. And that was part of his role. And that's what he was carrying
25 out. And one can see that he, at the start, goes to the camp where the
1 displaced persons have grouped around the UN. There is an big problem
2 for the international community, as well as the Croatian government as to
3 what had happened with the collection of people at the UNCRO barracks.
4 He meets the people. They seem, from the evidence, we haven't had a
5 precise quota, I don't think, that they are mainly Serbs who is have gone
6 there and Serbs who were living there under the previous regime.
7 General Cermak asks - Exhibit P388 - "for a complete list of refugees, so
8 I can see problems, see passes are issued to all who want to leave the
9 camp and go on living in the area of Knin."
10 Exhibit D311 General Cermak assists the UN in escorting
11 51 displaced persons from other UN camps in Sector South to the UNCRO
13 Exhibit D38, General Cermak telling the Serbs in the UN camp to
14 stay, not to leave Croatia
15 Exhibits P409, D146, D29, evidence of General Cermak telling
16 members of the international community he wanted people to remain in
17 their villages.
18 There is the document that he gave to the Serbs in the camp
19 giving them rights, emphasizing rights, saying what their citizens'
20 rights under Croatia
21 This was not something that a person who wanted the forcible
22 displacement of these people from the region would be doing, in our
23 submission, if that was the purpose he attached himself to and was
24 carrying out. I'm starting here because there's no evidence at all of
25 General Cermak, when he was Mr. Cermak before the 5th of August, being
1 involved in any shape or form in the acts, meetings, discussions,
2 planning of events before Operation Storm. He comes into this case
3 absolutely distinctly, from the 5th of August, and it is at that moment
4 that he arrives as garrison commander into the picture. So absolutely no
5 evidence of anything before. Very important, in our submission. This is
6 a man put into the situation after the operation has taken place, and if
7 one is to judge by his steps what he does, if he was a member of a joint
8 criminal enterprise, would he be going so publicly and so bold into the
9 UN camp, holding a press conference publicising the fact that these
10 people should stay. If that's the plan, and he is doing this on national
11 television, the Court has seen video evidence of him speaking in the
12 camp, and at a press conference, telling people to stay, that they will
13 be protected. Why would be doing that --
14 JUDGE ORIE: If, Mr. Kay, something is moving and is producing
15 some noise. I don't know what it is. It is perhaps close to your
17 MR. KAY: I'll put the microphone that way.
18 JUDGE ORIE: Then your voice still can be heard by the
19 interpreters and the transcriber, then it's fine. Please proceed.
20 MR. KAY: I won't ask if I need a microphone.
21 Why would he be going on Croatian television and promoting these
22 ideals if he was in a joint criminal enterprise? When you look at his
23 function in the scale and scope of things if he was part of a plan to
24 seek the removal of these people from the area. One could think of many
25 other steps, if he was in a plan, that he would be taking, and it
1 certainly wouldn't be issuing statements, encouraging them to stay. At
2 the least, he would keep his mouth closed about it. But, no, the
3 evidence indicates otherwise.
4 This Court has to be sure that that was some kind of elaborate
5 cover-up if it is to ignore and not accept his acts and conduct at the
6 time that plainly contradict the joint criminal enterprise. And, look,
7 this allegation was made in the case that he was denying crimes and
8 effectively ignoring General Forand. Well, in fact, we have put into the
9 Court, many statements from General Cermak where he acknowledged crimes
10 were taking place.
11 The fact that he doesn't agree it is an organised military plan
12 but says it is civilians, or it is terrorists, or whatever other reason,
13 is not a ground to condemn a man because he doesn't agree with the point
14 of view of others from outside his country. This is not some kind of
15 test as to whether you get it right or wrong. He admitted, throughout
16 those human rights reports, to General Forand, to everyone, that there
17 were crimes taking place, and he condemned them.
18 But what seems to have happened here was that there was a belief
19 that this man was able to do far more than he could actually achieve and
20 deliver and was empowered to deliver. And that's what this case is
21 about; that that impression was wrong. He was a man who had, no doubt,
22 respect from the international community. But there became, as one can
23 see, through the thread of evidence, a frustration that what he said
24 would happen, that it would stop, didn't. That what he said would take
25 place and certain people would be arrested may not have happened. But
1 that doesn't mean to say that he is responsible for those crimes taking
2 place, nor if the basis of his authority has been misunderstood,
3 misjudged, maybe because of his own steps in actively dealing with the
4 United Nations, helping them. It's not that that should condemn him.
5 It's whether or not the acts and steps he was taking were part of a joint
6 criminal enterprise.
7 And we have this issue right at the start over whether he's
8 military governor, or Zborno Mjesto, and the garrison commander. In a
9 way, the titles don't matter. This Court is judging him by what he did.
10 And when the Court is reminded of him being publicly stated in a
11 newspaper interview on the 7th of September condemning the taking of
12 apartment, houses, condemning crimes, how does that fit with him wanting
13 those crimes to take place? He didn't have to do that.
14 It was clear that the UN internationals were frustrated because
15 General Cermak couldn't deliver his promises. And gradually they were
16 able to form the point of view that he didn't have real power. They had
17 doubts about him. And that's the point, Your Honour. He was down there
18 helping them as the point of contact in front of them, and so he,
19 naturally, as the point of contact, messenger or the receiver of
20 messages, was the person who became condemned because results were not
22 In our submission, that is quite unfair to him and should not be
23 how a case is judged.
24 I'll remind the Court here of the terms of the paragraphs of the
25 joint criminal enterprise alleged against him, starting at
1 paragraph 19(a) just to see what we have had to face during this case,
2 whether it makes sense, whether it adds up.
3 Let's look at 19(a):
4 "Issuing orders and directions concerning the administration and
5 operation of the Knin garrison."
6 How does that add up to being steps taken in furtherance of a
7 joint criminal enterprise? How can issuing those orders that are all
8 logistical, non-operational, even if you call telling Captain Dzolic to
9 go and see why fires are taking place on the 9th of August, how on earth
10 can any of that amount to being acts in furtherance of a joint criminal
11 enterprise concerning the administration an operation of the Knin
12 garrison? Well, we have combed and put forward virtually every scrap of
13 paper, as the Court knows, from the 65 ter list and documents that we
14 have found, and we asked this question: How any of that, anything that
15 he did or said furthered the joint criminal enterprise as expressed in
17 Let's turn to paragraph 19(b): "Directing, facilitating,
18 supporting and issuing orders to elements and/or members of the Croatian
19 military, the police, or Croatian government Ministry of Interior,
20 including the military police and civilian police."
21 Well, we have covered large passages of this previously in my
22 submission. The Court here has seen the orders produced during the
23 evidence. They are all consistent with assisting the United Nations,
24 assisting displaced persons, normalizing life in Knin, general garrison
25 issues, how did any of his activities, if you collect them all together
1 as exhibits, as we have, and look at them, and as we have put them into
2 this Court during cross-examination as collections of documents, how do
3 those steps taken by him rise to that level, whereby he has directed,
4 facilitated, supported, issued orders, et cetera, in such a way that the
5 object of the joint criminal enterprise being the permanent removal of
6 the Serbian population has been realized? We submit it simply isn't
8 Paragraph 19(c): "Permitting, denying, and/or minimizing the
9 ongoing criminal activity, including participating in the reporting of
10 false, incomplete, or misleading information regarding crimes committed
11 while knowing that widespread destruction and plunder of property
12 belonging to Serb civilians and the unlawful killing and inhumane
13 treatment of Krajina Serbs were ongoing."
14 This case concerning General Cermak is very different from the
15 Brdjanin case, which was a case concerning inflammatory and extreme
16 speeches by an accused and resulted in a conviction. The Prosecution
17 have to prove that anything said by him furthered the alleged joint
18 criminal enterprise, the common purpose of which was the forcible removal
19 of the Serb population. How did anything said by him which could be even
20 considered to be a minimizing statement be other than a point of view, an
21 expression by him, just because he doesn't accept that this is an
22 organised plan or that the military are responsible for committing
23 crimes, just because he says, Well, this is revenge, there are civilians,
24 and he says that to General Forand or Mr. Flynn or Mr. Al-Alfi, how does
25 that further the joint criminal enterprise? This is a very judgemental
1 indictment, in my submission. We get these complicated structures of
2 allegations where we're having to deal with vast verbage, accusing
3 someone of many activities, and the point of it becomes, often, lost.
4 In our submission, none of what he said to the internationals,
5 which were not denials of crimes. There may have been an occasion or two
6 when he said, Well, I'm not sure that happened. That's not sufficient to
7 form the basis to suggest because he doesn't agree with someone, that he
8 suddenly entered a joint criminal enterprise. It's -- it's extreme to
9 start judging people in that way.
10 And in our submission, the construction of an indictment like
11 this, making this wide variety of allegations without proving even that
12 anything that came within 19(c) caused Serbs to, leave, prevented Serbs
13 from saying -- from staying is fatally flawed. You have to tie this up.
14 You can't just make these allegations and say, You did that; it fits with
15 the pattern and picture of a criminal enterprise, and then not provide
16 the basics and the reasoning, the connectivity to show that that had an
17 effect and caused the common purpose to be achieved. In our submission,
18 that simply does not happen in the way that has been expressed in this
20 And why hasn't this case been structured in that way to establish
21 it, that anything he said caused people to leave? Well, that's because
22 the evidence simply is not there. It's not there. And it's taking a
23 very extreme judgemental position on every single activity by an accused
24 and then magnifying it into a form of criminal conduct that is not
25 appropriate. You have to have a sense of proportionality, and that's the
1 missing word for me in relation to an indictment such as this against
2 Mr. Cermak. You may be able to criticise him for a decision he made or a
3 statement that he made, but what has been proved concerning why he made
5 Let's take the Grubori example. What has been proved concerning
6 what he knew at the time. It is interesting that the first full report
7 of the killings in Grubori came from the office, Captain Dondo, of the
8 garrison. It completely contradicts the theory of General Cermak being
9 involved in a JCE, if the people working with him report a full report of
10 the matter to the police. Not only that, statements made by him on the
11 Monday, on the TV in the video, what has been proved as to his state of
12 mind, the information that he was in possession of? If you are going to
13 start trying people about what they say, you have to go the full way and
14 establish that what they said was a misleading account of the information
15 in their possession. That has not been done in this case.
16 General Cermak was entitled to take the position presented to him
17 by the Ministry of Interior special police. That's how the country
18 worked. This was not a military matter; this was a police matter. A
19 report takes place. They give a report. It is not for him, in his
20 function and role, to start questioning information that he has been
21 given. Otherwise, every spokesperson for the troops in of Afghanistan
23 having committed an offence.
24 You've got to prove that it was done misleading and it was with
25 the intend of causing the purpose of the joint criminal enterprise to be
1 perfected or to come about. And, in our submission, proportionality is
2 what is needed in relation to these allegations to have any sense.
3 In the last three minutes, I will now turn now, before the break,
4 to paragraph 19(d):
5 "Failing to establish and maintain law and order among and
6 discipline of his subordinates and neither preventing nor punishing
7 crimes committed against the Krajina Serbs."
8 I covered this yesterday in my argument in relation to the
9 Article 7(3) subordination issues.
10 May I just point out that within the garrison regulations the
11 word "law" is not present at all, and that has been an insertion in the
12 indictment, if it is to refer to any obligations under the garrison
13 regulations that is not to be found. The word "order" is different. His
14 subordinates, as we know, nine, were the units of the Split Military
15 District subordinated to him. Answer from yesterday, no. What were his
16 duties to prevent, punish crimes committed against the Krajina Serbs? He
17 had a duty to discipline his subordinates under Article 19, 27 of the
18 Code of Military Discipline. Article 26 is as a superior officer, if an
19 offender is brought before him, not of his organic unit, and it is
20 necessary and -- I've forgotten the other words, necessary and reasonable
21 or necessary and appropriate, word to that effect, for him to take minor
22 disciplinary measures. For that, you look at Articles 5 of the Code of
23 Military Discipline, et cetera. No evidence to support the foundation
24 for this allegation as part of the joint criminal enterprise.
25 Your Honour, that's 10.30.
1 JUDGE ORIE: Thank you, Mr. Kay. Just to inform you that you
2 have approximately 45 minutes left after the break.
3 We'll have a break, and we will resume at five minutes to 11.00.
4 --- Recess taken at 10.31 a.m.
5 --- On resuming at 11.04 a.m.
6 JUDGE ORIE: Before we continue, I would like to briefly raise
7 one matter.
8 The Chamber was informed that there is an -- exists disagreement
9 on the accuracy of P461, which is the transcript and translation of the
10 Brioni meeting. We also have D1453 in evidence, but that is the cover
11 page, and I do understand that there's no dispute about that.
12 Now, instead of filing a -- another version of the transcript,
13 the Chamber invites Defence or Defence teams who are not in agreement
14 with the transcript and the translation, to just file a brief written
15 submission in which it says, Having reviewed the -- P461, we put on the
16 record that ... page this and this, line those and those, are not
17 transcribed accurately. The Defence takes it that an accurate
18 transcription would have been ... and then give your version of it.
19 The same for translations.
20 I don't know whether it covers half of the document or just a few
21 lines, but then the Chamber is put on notice that there is dispute about
22 the accuracy of the transcript and the translation, and if the Chamber
23 wants to rely on the relevant portions or on the whole of the document in
24 taking into account certain lines. So if they have real importance for
25 the interpretation of this piece of evidence, then, of course, the
1 Chamber will have to resolve it. I mean, we can't just say, Well, we
2 take the one that is best for either Prosecution or Defence. Then either
3 we have -- we need independent persons to listen to the text and to see
4 to what extent the transcript reflects what is said. We can ask further
5 opinion on translation.
6 But to start with, the Chamber wants to know where's the problem
7 and what is the problem. So the Defence, if they cannot reach agreement,
8 and I do understand that no agreement could be reached with the
9 Prosecution, is invited to put this on the record. And the Chamber will
10 not just, because the status is not yet evidence, will not ignore what is
11 said and say, Well, P461 is in evidence, so therefore that is the
12 evidence and the other is not. That is not a formal approach the Chamber
13 will choose.
14 The Chamber would further like to be informed, both by Defence
15 and by the Prosecution, and I think for the Prosecution we earlier, I
16 think, we denied a request to have the -- to receive evidence on who
17 transcribed it. Of course, the Chamber know what is was offered as
18 evidence. At that time, we said we don't want, at this moment to be
19 presented with this evidence. We gave the reasons for that.
20 Now, unless we hear otherwise, the Chamber takes it that the view
21 of the Prosecution is that the transcript provided at the time was
22 produced by Croatian government officials, without further -- any further
24 Now, if the Defence challenges it, of course, we'd like to know,
25 on the basis of what; and who, if there`s a translation issue, on whose
1 authority the translation is criticised. So we have transcript as one;
2 translation is a second matter.
3 Again, the Chamber will look at that time and see how important
4 it is, not just focussing on the one or two lines -- two lines, but also
5 what role these lines or these 10 or 20 or 50 lines plays in the
6 interpretation of the document as a whole, and, of course, the parties
7 can make submissions about the importance of those lines, but rather than
8 to have now a new document in evidence, the Chamber will be confronted
9 with exactly the same problem; that is, which is the correct one. And if
10 there's any need to establish that, in relation to what is challenged,
11 and the Chamber does not know yet what is challenged, of course, we'll
12 try, in full transparency, try to resolve the matter.
13 Any comments on this invitation?
14 Parties consider it a suitable way of proceeding with this, and
15 then we expect such a submission by -- I think it was the -- it was
16 Gotovina Defence, but I'm not quite sure whether it is just the
17 Gotovina Defence or other Defence teams as well, we'll hear whether the
18 filing will be on behalf of Gotovina, or on behalf of Cermak and Markac
19 as well.
20 Then, Mr. Kay, are you ready to proceed?
21 MR. KAY: Thank you, Your Honour.
22 Your Honour, turning now to paragraph 19(e): "Providing false
23 assurances to the international community, that action to stop the crimes
24 was being and/or would be taken."
25 In our submission, there is no evidence Ivan Cermak provided
1 false assurances, and we will be looking at the evidence in specific
2 detail in a moment. No evidence has been provided to show that what he
3 said he knew to be false. And let us look at the practical measures that
4 were taken to stop crimes by the Ministry of Interior and the Croatian
5 military, and look as well as what happened to crimes that were reported
6 to him by the international community or whomsoever.
7 Let's look first and consider the time-line of orders from the
8 high-level Croatian authorities that were issued to stop crimes. And we
9 say these orders by themselves contradict the JCE allegation. They are
10 orders that plainly get more intense as troubles increase. And that of
11 itself is interesting, as it indicates that what happened after the
12 liberated territories were re-occupied by the sovereign authority, that
13 this may not have been a matter that they had planned for or considered
14 in advance as to what might happen, and that's probably the story of this
16 From the 6th of August, Exhibit D323, General Cervenko issues the
17 order for the purpose of preventing theft of property and undisciplined
18 conduct. So when General Cermak says, Measures are being taken, we know
19 that, on the 6th of August, the Chief of Staff issued this order which is
20 a measure being taken. We know on the 6th of August, Exhibit D582, the
21 police, the Ministry of Interior, dispatched forensic officers to police
22 administrations for temporary assistance with forensic tasks at the
23 Zadar-Knin police administration. So two arms of the Croatian system of
24 government in operation on the 6th of August.
25 Let us look at the 6th of August as well. General Gotovina
1 himself issues an order, Exhibit D643, to control and process properly
2 the spoils of war, and that indicates those three orders of how the
3 system was thinking at the time.
4 7th of August, the Chief of Staff, General Cervenko,
5 Exhibit D324, issues an order, prevent burning, looting, and all other
6 illegal acts.
7 8th of August, Exhibit D583, Mr. Moric, follows up an order of
8 the 4th of August, instructing heightened security measures for transport
9 infrastructure and defence of the country.
10 10th of August, General Gotovina, Exhibit D204, issues an order
11 on compliance with military disciplinary measures. And it says:
12 "Take all necessary measures and fully engage in the
13 implementation of the military disciplinary conduct and the maintenance
14 of order in the area of responsibility and prevent arson and all other
15 illegal acts. Take resolute measures against anybody who conducts
16 himself in an undisciplined manner."
17 Well, we know from evidence the background in this court as to
18 what was happening in this area at the time. But were false assurances
19 given by General Cermak in the background to these orders issued from the
20 authorities precisely on the points of complaint by the international
21 community? Why would these orders be issued if there was a plan that
22 they should allow people to go and commit crimes with the object of
23 expelling or removing the Serb population from the region? It doesn't
24 add up. And can you see from what documents we have; we don't have every
25 document in this case, but Exhibit D325, 10th of August, Commander Vukic,
1 Operative Group Sibenik, issued an order, in order to prevent theft of
2 property, undisciplined conduct, and save human lives. Exhibit D644, an
3 order from Captain Nakic, commander in Drnis replicates exactly the same
4 wording from the previous order of Commander Vukic, compliance with
5 measures of military discipline, in order prevent theft of property,
6 undisciplined conduct, and to protect human leaves. That's Exhibit D644.
7 Well, that shows a system in operation, not a system failing.
8 That shows assurances given by General Cermak that steps were being taken
9 to control the behaviour of the people in the region were not false. Not
10 false at all. This is the evidence.
11 And the concern at the highest level of the Croatian authorities,
12 on the 10th of August, Exhibit D46, Mr. Moric to General Lausic, so the
13 Ministry of the Interior to the military police, asking him, Lausic, as
14 chief of the military police administration, to take measures to
15 eliminate burnings, lootings, killing cattle; also to increase
16 cooperation between civilian and military police at check-points. So
17 why, if the Ministry of Interior assistant minister with responsibility
18 for the fundamental police is seeking cooperation and coordination with
19 the military police and asking measures to be taken, and this proves the
20 point of the separate hierarchical lines that Moric couldn't order
21 Lausic, why would this be happening if there's some giant plan to enable
22 people to commit crimes?
23 12th of August, Exhibit D205, Commander Kotlar, again using words
24 taken from General Gotovina's order of the 10th of August. Exhibit 205
1 "Take all the necessary measures, preventing arson, looting,
2 other illegal acts. Take stringent disciplinary measures against
3 perpetrators of such acts."
4 12th of August, the Split
5 political activity, Exhibit D465, issues the warning to take measures to
6 prevent burning, destruction of property, killing of livestock, theft,
7 improper conduct, et cetera, and saying responsibility shall be with the
8 commanders of units and political officials within units, and it's
9 necessary to take punitive measures.
10 13th of August, Exhibit D646, order of the commander of the
11 Gospic Military District: "Make maximal efforts to prevent looting,
12 arson, et cetera."
13 And they were concerned, because as in the previous exhibit this
14 stated, "in order to prevent sanctions on Croatia that the international
15 community threatens ..."
16 Well, if the high-level Croatian authorities are supplying
17 reasons to those beneath them, why crimes should be prevented and stopped
18 because they are concerned about the international community, why on
19 earth would they be supplying the reason if actually their plan was to
20 affect these crimes through perpetrators under their order with the
21 intent of causing the Serbian population to leave the area? It does not
22 add up. It is not joined up.
23 All these, I notice, are Defence exhibits that have gone into
24 evidence as well.
25 Let's go to another D number. 14th of August, Exhibit D647,
1 Split Military District Command at Drnis. Implementation of the 12th of
2 August warning to all assistant commanders for political activity of the
3 142nd Home Guard.
4 Again, 14th of August, 112th Zadar Brigade. Implementing that
5 12th of August warning. Exhibit D648.
6 15th of August, Nakic at Drnis, Exhibit D649, forbidding burnings
7 of residential and other structures, perpetrators will face disciplinary
8 measures, and the commander of the unit will be relieved from duty.
9 And then we get an intensification of effort from 17th of
10 August as Mr. Moric, from the Ministry of Interior, issued what was
11 Exhibit D48, produced by me to Mr. Flynn. And I produced this document
12 about Moric writing to Lausic requesting a new plan of joint work to
13 eliminate crimes because he described the perpetrators of these acts in
14 most cases are persons "wearing Croatian army uniforms. There are also
15 persons who are not members of the Croatian military but are only abusing
16 the Croatian military uniform."
17 Because this precisely underlines the point that this was not an
18 organised activity but that this was activity arising from the release of
19 pressure upon the liberation of the occupied territories by those who had
20 been kept in circumstances where they were almost refugees in their own
21 country who, for the first time, were allowed in their new state to go
22 back to their areas and that this release of pressure was the reason why
23 these people took revenge.
24 But I introduce this following on from D46, showing Moric and
25 Lausic at work, trying to deal with crimes. This is just a selection.
1 There is more from the military police administration and elsewhere. But
2 if we're facing the allegation that we were giving false assurances that
3 action to stop the crimes was being and/or would be taken, it is
4 important that these matters are brought to the Court's attention,
5 because not only does it contradict the JCE, not only does it show that
6 Mr. Cermak was telling the truth, but it shows that he was being
7 misjudged in those international reports where officers of the
8 international community, be they UNMOs, UNCROs, or whatever, were saying,
9 He makes promises but nothing happens, that judgements have been made in
10 ignorance as to the true state of affairs within Croatia at the time.
11 And rushing to judgement which causes an indictment is a dangerous
12 matter, and that's why, at this stage of the case, we say that there has
13 been a rush to judgement on this, following the lead of the
14 United Nations representatives out there. The Prosecutor rushed to
15 judgement, took their opinion, did not investigate further and in detail
16 and in depth, nor call the appropriate witnesses to determine this issue
17 in a satisfactory way, nor produce the correct documents in trial that
18 establish the truth, and a rush to judgement to say, Ah, this was not
19 being dealt with by the Croatian authorities.
20 In our submission, the background shows that the system was
21 trying to work and issue orders, so far as it could, to the police and
22 military, to stop what was happening.
23 The problem is, however, that if components within the system
24 don't listen, if components want to break the law themselves, what can
25 you do? What can you do? There must be proportionality about this. The
1 fact that crimes still happen doesn't mean that people have to be held
2 into account. Here you're hearing about those steps that were taken to
3 stop crimes.
4 Going further, 20th of August, Cetina, in Exhibit D585, of the
5 commander of the Zadar-Knin police administration asking the problem to
6 be addressed of transporting goods and livestock through police
7 check-points, taking care to prevent crime from being committed, taking
8 livestock and protecting the property of citizens.
9 We're not dealing, as the Court has heard, with a well-resourced
10 NATO-style state borne out of the EU with all the regulations and
11 controls that are in place. This was a new state, new ministries, new
12 military, faced with a problem upon liberation that it was simply not fit
13 for the purpose to deal with. That does not give criminal
14 responsibility. Because the structures were not capable does not give
15 criminal responsibility. It was able to liberate, but it was unable to
16 regulate and enforce satisfactorily. It tried, and there are many
17 examples of prosecutions and cases and reports of crimes in police
18 log-books or military police log-books, and if there was a plan, none of
19 that would be in existence, because that would not be the idea of putting
20 the plan in operation.
21 Well, these orders continue throughout August, and I will select
22 one or two. The Court has had them all in evidence, 22nd of August,
23 Exhibit D50, a document I put to Mr. Flynn. Mr. Moric, instruction to
24 follow up on the 18th of August order concerning crimes being committed,
25 including requests for specific information. All wanting to be handled
1 at the highest level. Further, it goes through, all the days of August,
2 22nd, 24th. The administrations, the police administrations, the
3 Ministry of Interior, all the way. Time doesn't permit me to go through
4 these one by one till October. But it's there. The Court has had it,
5 and we submit the Court should consider it, because it contradicts the
6 evidence, and maybe it would be appropriate because this is analytical
7 evidence if we made a filing on the matter before the Court in the same
8 way that the Prosecution did just before the close of their case with the
9 Kardum documents which Your Honours ruled upon as being admissible as an
11 JUDGE ORIE: Could I perhaps, very practically, Mr. Tieger, would
12 there be any objection against such a filing?
13 MR. TIEGER: Your Honour, let me consult with -- first of all,
14 I'd like to look at the Kardum to refresh my recollection on that.
15 Secondly, just give us a brief opportunity to consider that, then can I
17 JUDGE ORIE: Please -- perhaps later today would that be ...
18 MR. TIEGER: I think so.
19 JUDGE ORIE: And if not, on Monday.
20 Please proceed.
21 MR. KAY: Thank you, Your Honour. We offer it in the spirit of
22 helping the Court.
23 JUDGE ORIE: Of course, I should ask Defence counsel as well
24 whether they would oppose the other Defence teams against such a filing.
25 I hear of no objections.
1 MR. KEHOE: No objection.
2 MR. MIKULICIC: No objection.
3 JUDGE ORIE: Then please proceed, Mr. Kay.
4 MR. KAY: Thank you. Thank you to my learned colleagues.
5 Let's look at specific reports of crimes and actions, then, that
6 came to General Cermak.
7 What is striking in this case is that there were many general
8 reports as evidenced in the international's documents put to him,
9 complaints about burning, arson, looting. As witnesses have said, well,
10 it was obvious there were burning, arsons, and looting because you could
11 see it happening. It was around. It was there. The Court knows that
12 General Cermak, as part of his way of carrying out his normalization of
13 life in Knin, had daily meetings to coordinate and seek cooperation. And
14 these took people from all walks of life in Knin, as well as civil
15 authorities, such as the police, as well as the military police, to
16 enable people to be briefed. And in Mr. Gambiroza's diary or notebook,
17 that's how it's described, as briefings as to what was happening.
18 In our submission this seems a very responsible and correct way
19 of performing if you are attempting to normalise life in this region. If
20 you weren't bothered about crimes, why would you have the police there,
21 or the military police?
22 Let me remind you what -- what was said at the meetings
23 concerning discussions of crimes. Witness 86, transcript page 5555.
24 "There were discussions about crimes and matters within the
25 jurisdiction of the police at the meetings. The problems discussed
1 related Knin and the localities that gravitated towards the town of
3 We know from the passage I pointed out from you from
4 Captain Dzolic as to the fact that he had been referred to -- to
5 investigate some burnings that were happening that could be seen from
6 Knin on the 9th of August. All positive steps, all steps taken, so as to
7 pass on information to enable people to act on that information,
8 cooperation and coordination, not subordination, but information. And
9 that information was to enable control of this area to be taken.
10 When general crimes are just put before someone, what do you do?
11 If General Forand says, Well, there's arsons and lootings happening
12 around Drnis, how can you precisely deal with that, other than to report
13 it and pass this information on at the daily meeting? So let's just have
14 a look at positive steps taken. And you've had Exhibit P875, the
15 statement of Captain Dzolic, about him going to see the commanders to
16 tell them that burning houses was not to be tolerated and to take actions
17 against the perpetrators.
18 9th of August, as we know, General Forand requests assistance
19 from General Cermak to locate his three missing UN vehicles. Specific
20 reference of a crime. You've seen the documents that resulted from that
21 to assist the UN. Again, Exhibit D303, the particular vehicles are
22 outlined. The history of that we have been through.
23 Exhibit D505, 10th of August, 1995, the small shareholders
24 company, notifying theft of assets. And General Cermak sends a report
25 attaching the complaint by the small shareholders company to the Knin
1 police administration, a referral of a specific matter.
2 Exhibit P814 concerning the maltreatment by three Croatian army
3 soldiers of an old Serb man called Drpa, Dusan; Dusan Drpa, who had come
4 out of the UNCRO camp and had gone back to his home and received
5 maltreatment and abuse. Referred to General Cermak by the international
6 community, and he said that case was being worked on, and that would have
7 been a matter raised in the daily meetings.
8 We know of the Grubori matter where Captain Dondo, or
9 Lieutenant Dondo, at Exhibit P1044, reports what he found at Grubori, as
10 a result of this matter being raised with General Cermak and in fact
11 being referred to the office of General Cermak on the 25th of August, and
12 he reported that matter to the Knin police.
13 Specifically, the 5th of September, Exhibit P383, and
14 Exhibit 230. On the 5th of September, there was a protest concerning the
15 murder of Sava Babic, delivered to the military governor of Knin as it
16 was expressed in the report. In fact, at that time, as the notes of the
17 meeting with Mr. Al-Alfi on the 7th of September show, General Cermak was
18 not in Knin. However, Exhibit D230, on the 6th of September, 1995
19 Mr. Romanic, the chief of the Kotar-Knin police, refers the matter to the
20 Zadar-Knin police to supply information.
21 Again, on the 7th of September, 1995, when General Cermak, on
22 that day, had returned to Knin, Exhibit P37, he is publicly stating in
23 newspapers that crimes should not be committed.
24 Described in Exhibit P829 of the 14th of September, 1995 as being
25 a media campaign to stop illegal moving into empty flats, looting, and
2 Exhibit D487, dated the 27th of September, 1995, a report sent by
3 Mr. Romanic, the chief of the Kotar-Knin police administration, at that
4 time, to General Cermak, referring to a case of rape that had occurred on
5 8th of August in Knin discovered on 9th of August and informing him that
6 it had been put before a judge in Zadar and for other incidents in Gosic
7 on 27th of August, Brgud on 10th to 11th September, et cetera.
8 3rd of October, 1995, Exhibit P1169, the issue of the killings in
9 Varivode, where nine people were killed on the 28th of September. This
10 wasn't dealt with by General Cermak, as he was out of town but by the
11 deputy, Gojevic. Let's see if Gojevic, the Deputy Commander of the Knin
12 garrison acts appropriately. He advises that this was found out by him
13 on the 29th of September and that all information should be obtained from
14 Zadar police, who were investigating as of the 28th of September of 1995,
15 and this matter was being dealt with on a daily basis.
16 And the Varivode investigation can be seen at Exhibits P268, P278
17 as being matters that were being dealt with and investigated.
18 And on the 11th October 1995, Exhibit P1223, a letter from
19 General Cermak to Carmen Burger of the International Red Cross referring
20 to a specific case that had been referred to him and what was happening.
21 Well, we know he is not in charge of the civil police. We know
22 he is not in Knin and has no authority and responsibility to go around
23 investigating crimes. But matters that are reported to him as specific
24 matters are all dealt with, and the evidence shows it. Perhaps there are
25 one or two that weren't; but, again, this is a sense of proportionality
1 that we have to have in this case. We know that there were the daily
2 meetings where crimes were discussed as a point on the agenda. Again, in
3 our submission, this shows that these matters were being dealt with and
4 are -- an entire contradiction of the case that has been brought against
5 this accused.
6 Why would these steps taken if he was part of a joint criminal
7 enterprise? It simply doesn't add up, and the Court, at this stage, is
8 entitled to rule that and stop these proceedings. There's no point in
9 just keeping everybody happy by allowing it to continue when the evidence
10 does not fit that which has been alleged.
11 This is an entirely different set of circumstances, revealed in
12 the evidence during this trial in this case, to what has been opened by
13 the Prosecution and presented as their case in their indictment and the
14 pre-trial brief.
15 Just general matters about the joint criminal enterprise,
16 Article 7(1), in our submission, no evidence of planning, instigating,
17 ordering, et cetera, as described in these very wide and general terms
18 within the indictment.
19 Your Honour, my time now has come to an end. But we submit that
20 through the course of the evidence in this case, we have shown that this
21 is an entirely different situation to that which has been expressed by
22 the Prosecution as being criminal conduct by this accused. And, in fact,
23 the acts taken by him, positive steps taken by him, show that he was
24 doing just that which he was described as doing by countless witnesses,
25 and that was the normalisation of life, helping the civil authorities.
1 It was not doubt thought that putting a civilian in uniform and sending
2 him down to this non-operational role would have been of assistance to
3 achieve those ends for all concerned at that time. If he was being given
4 any greater status or responsibility, aside from being a civilian in
5 uniform in a non-operational post, he would have been given some grand
6 title and command post. He has been given a grand title, and that was by
7 the internationals, and that was because of a misunderstanding as to the
8 nature of his actual title and role. He was given the title of military
9 governor and all that implies to those western internationals as to what
10 a military governor can do in a region. But that wasn't the case here.
11 That was not part of the establishment of the Croatian government, such a
12 position and post, and I'm not being critical of people at the time, but
13 I do say that a little bit of research, thought, and consideration of
14 matters in a more detailed manner at the time may have led to a far
15 different outcome and understanding of the nature and role of this man
16 who was a civilian in uniform.
17 Your Honours, those are my submissions on behalf of Ivan Cermak.
18 JUDGE ORIE: Thank you, Mr. Kay.
19 For the Markac Defence, I see, Mr. Kuzmanovic, you're on your
20 feet. May I take that you'll be the one or the first one to address the
22 MR. KUZMANOVIC: Your Honour, I will be the one to address the
24 JUDGE ORIE: Then you have an opportunity to do so.
25 Please proceed.
1 MR. KUZMANOVIC: Thank you, Your Honour.
2 Your Honours, this is the Markac Defence 98 bis submission. I
3 will not -- I will endeavour not to repeat much of what my colleagues
4 have said with respect to the standard of review. My colleague,
5 Mr. Akhavan adequately covered the standard review, and it is well known
6 to the Court. What I will like to highlight for the Court in our 98 bis
7 submission deals with joint criminal enterprise issues, the 7(1)
8 allegations, and the issues of command responsibility of General Markac
9 under 7(3). There will also be some additional issues that I will
10 discuss after that command responsibility issue, but in general, the bulk
11 of my submissions today will deal with JCE and command responsibility.
12 Paragraph 12 of the amended indictment allegations that
13 General Markac, among others, participated in a joint criminal
14 enterprise 1, category 1, "the common purpose of which was to remove
15 permanently the Serbian population from Krajina."
16 This conception allegedly occurred on Brioni on the 31st of July,
17 1995, and it was implemented through Operation Storm. The implement
18 ation of this joint criminal enterprise, as alleged to have occurred on
19 the basis of large-scale indiscriminate artillery attacks.
20 Indiscriminate shelling is the pillar of the Prosecution's joint criminal
21 enterprise theory. The shelling, it is alleged, was followed by
22 large-scale destruction, appropriation, and discriminatory measures which
23 were aimed at allegedly preventing displaced persons from returning.
24 In addition to these crimes which constitute the category 1 JCE,
25 the indictment alleges by way of JCE category 3 that it was foreseeable
1 that the crimes of murder, inhumane acts and cruel treatment were a
2 possible consequence in the execution of the enterprise.
3 Your Honours, the Prosecution in our humble submissions has tried
4 in vain to make the case for indiscriminate shelling. The area of Knin
5 obviously has been covered at great length by my colleagues from the
6 Gotovina Defence, and I will not cover that. What I will, however, cover
7 is the shelling claim made with respect to the special police in its axis
8 of attack. There is absolutely no evidence, none, to support the claim
9 that the special police's use of artillery was indiscriminate in its axis
10 of attack.
11 Specifically, let's focus on the village of Gracac
12 evidence; there is no witness who has testified that there were any
13 civilian casualties in Gracac, as a result of shelling. There is it no
14 evidence and no witness to quantify any civilian collateral damage as a
15 result of the shelling of Gracac, or that civilian buildings or civilians
16 themselves were targets in Gracac. There is no witness who has testified
17 that General Markac had anything to do with planning and preparing the
18 artillery operations in this axis of attack. There is no doubt that the
19 special police did not have territorial responsibility, unlike the
20 Military Districts of Split
21 responsibility. There was no zone of responsibility. The special police
22 had specific tasks enumerated for them which were ordered by the
23 Main Staff of the Croatian military. They were front line troops. They
24 did not occupy territory. As soon as Operation Storm was over, they were
25 recalled for other duties. As a matter of fact, on the issue of
1 artillery, the only testimony concerning artillery for Gracac
2 specifically comes Mr. Turkalj, Prosecution witness, who testified, among
3 other things, that he had instructions to ensure that civilians would not
4 be in harm's way as far as artillery was concerned. He identified
5 military targets within Gracac as was confirmed by Witness Rajcic.
6 Mr. Turkalj testified that only 130-millimetre cannons were used, that
7 multiple rocket launchers were not used, even though they were at his
8 disposal, and that roughly for the town of Gracac itself, 15 rounds of
9 artillery were used. These transcript references are at 13697, 13703 to
11 Moving further on into the axis of attack of the special police
12 in Operation Storm is the village of Donji Lapac. Now, the only
13 testimony about shelling with respect to Donji Lapac is that the special
14 police, according to Mr. Turkalj, the only person who has testified about
15 artillery with respect to the special police, did not use artillery in
16 the fighting to liberate Donji Lapac. And that transcript reference,
17 Your Honours, is 13713 to 16.
18 As a matter of fact, the only shelling that occurred in
19 Donji Lapac was the result of Serb shelling from Bosnia and from friendly
20 fire, both of which occurred on August 7th. P614, which is the special
21 police war diary, discusses both of those events. The war diary shows
22 that Donji Lapac, on the 7th of August, was liberated at 1300 hours. At
23 1410 hours, the special police suffered a heavy artillery attack from its
24 HV artillery firing from positions in the Udbina area which stopped at
25 1440. P614 continues that the special police were already gone from
1 Donji Lapac by 1630 of that day and towards Kulen Vakuf in Bosnia, and
2 that the Serb artillery opened fire on Donji Lapac from Bosnia
3 As far as Gracac and Donji Lapac are concerned, the claim that
4 Gracac was 85 per cent destroyed and Donji Lapac was completely destroyed
5 by members of the special police forces, as claimed in the Prosecution's
6 opening statement, has no evidence to support it, with respect to the
7 special police.
8 But let's not rely on the Prosecution's opening. Let's hear from
9 the Prosecution's artillery expert, Mr. Konings. What was his testimony
10 on the issue of shelling and the special police axis of attack,
11 specifically Gracac? He had no opinions at all, critical. Or even a
12 discussion of the special police and its use of artillery in
13 Operation Storm. The indictment alleges that as part of the joint
14 criminal enterprise, General Markac used artillery at his disposal. How
15 that artillery became part of a joint criminal enterprise has gone
16 undiscussed in the evidence from the Prosecution.
17 The Prosecution, according to Mr. Konings himself, did not even
18 ask him about specific issues relating to the use of artillery in
19 Operation Storm by the special police, including targeting issues.
20 That's zero evidence on a pillar of the Prosecution's JCE claim on
21 shelling, with respect to an entire axis of attack in Operation Storm.
22 With respect to the Brioni meeting, other than being present at
23 the meeting and having no substantive issues discussed by him, although
24 there was some discussion of General Markac, how does the presence of
25 General Markac at that meeting constitute membership in a joint criminal
1 enterprise? Where is the evidence of General Cermak's mens rea? What is
2 the crime? The Prosecution, in its opening statement conceded, as it has
3 throughout this case, that Croatia
4 territory into its internationally recognised borders was not in dispute.
5 Yet the Prosecution has utterly failed to present one shred of evidence
6 of how the special police artillery attack in its area of operation, in
7 its axis of attack, constituted intent to commit a crime, and through
8 that crime made a significant contribution to the commission of a joint
9 criminal enterprise.
10 Let's look at the specific documents relating to the special
11 police vis-a-vis Brioni. Exhibits 535, 53 -- D535, D536, and D543 are
12 documents which discuss the special police, orders from the Main Staff of
13 the Croatian military to the special police regarding operations that
14 they will conduct in the axis of operation which occurred during
15 Operation Storm. D535 is dated June 26th of 1995, more than a month
16 before the Brioni meeting. This document of the Main Staff ordered the
17 Ministry of Interior special police to launch attacks from the operations
18 base in the area of the Velebit mountains, with the aim of taking control
19 over the area of Mali Golic, Sveti Rok, Gracac, it was to cut off the
20 Gospic-Gracac road, take control of the Celavac radio relay facility,
21 place the pass and tunnel in Prezid under surveillance, and link up with
22 the Split Military District forces. The operation as stated in June of
23 1995 was to be carried out in two stages over the period of three days.
24 Almost immediately after this specific order, the Main Staff
25 issued another order, D536, essentially negating the previous order of
1 June 26th. What happens on July 29th? D543, another order from the
2 Main Staff to General Markac, stating exactly the same -- almost exactly
3 the same as the order of June 26th of 1995. The MUP special forces shall
4 carry out an offensive from the operations base in the area of
5 Mount Velebit
6 Sveti Rok, Gracac, Prezid. What were the objectives of that order, which
7 allegedly was the result of a joint criminal enterprise? Cut the
8 Gospic-Gracac road between Sveti Rok and Stikade, seize the Celavac radio
9 facility, put the pass and tunnel at Prezid under observation, link with
10 the forces of the Split Military District. The operation shall be
11 carried out in two phases and shall last three days in all.
12 Before the Brioni meeting, after the Brioni meeting, the order is
13 exactly the same. This, Your Honours, with respect to General Markac,
14 Shows that, A, he was not involved in any planning; B, he was not
15 involved in any joint criminal enterprise.
16 Let's look at what the real significant contribution of the
17 special police was, as described by General Forand in P401.
18 General Forand discussed the success of the special police and said as
20 "We have to recognise that the Croatians had tremendous strategic
21 success and that their small special force units did successfully
22 accomplish special missions."
23 Forand goes on to state that: "The key action in the HV campaign
24 in Sector South was in the Velebit mountains at Mali Alan."
25 And as am aside, Your Honours, the civilian population in this
1 mountain area of Mali Alan was zero.
2 Forand continues:
3 "We know from JORBAT and UNMO reports that HV special police
4 battalions had been training and operating in the Velebits for some
5 months. On 4 August, three of these battalions about 1.000 men,
6 supported by heavy artillery fire, took the crossing through the Velebits
7 along the Mali Alan road that lead toward Lovinac."
8 Forand continued: "The HV exploited this success and advanced
9 almost unopposed to Gracac and then further east, thereby cutting off
10 Knin and the south of the Krajina. This hub of road junctions
11 effectively controlled all north/south communications in the Krajina and
12 could be qualified as a strategic success."
13 That's the real contribution of the special police in
14 Operation Storm, as described by General Forand. General Forand
15 interestingly in the same document, P104, with respect to the civilian
16 population, does not mention anything about shelling causing them to
17 leave. What he does say in this report is:
18 "One must ask himself why the RSK decided to order the civilian
19 population to flee, unless it was already a foregone conclusion."
20 Even more interesting when not manipulated through the prism of
21 the Prosecution's indiscriminate shelling accusation is that Forand
22 states, and I quote:
23 "Their use of artillery was excellent, but the coordination
24 between artillery, tanks, and infantry was not evident."
25 For Operation Storm General Markac was operating in a narrow axis
1 of attack. He was responsible to the Main Staff of the Croatian military
2 in Zagreb
3 Operation Storm ended, his tasks changed at the orders of the Main Staff.
4 These orders specifically are contained in D550, and D551, because
5 initially his objective was only as far as Gracac. But when the speed of
6 the advance became such that stopping might allow the retreating RSK to
7 set up a second line of defence, he was ordered by the Main Staff to
8 continue his pursuit, eventually to the state border of Bosnia
10 minimal casualties, with minimum civilian collateral damage, all with the
11 goal in mind to liberate Croatian territory and to restore Croatian
13 Now, on this particular territory of Sector South
14 10th and August 21st, the special police was not present. Under order of
15 the Main Staff, D557, they were withdrawn to Petrova Gora, in Sector
16 North. They were not present for 11 days. D559 is an order from the
17 Main Staff to the Croatian military to conduct certain mop-up operations
18 due to armed resistance that was going on, not specifically to the
19 special police, but to the military. D561 is an order asking the --
20 ordering the special police to return to Sector South to conduct certain
21 mop-up operations.
22 With respect to the civilian -- to the special police, we have
23 had no evidence that the displacement of civilians and the special police
24 axis of attack or anywhere else that the special police was located
25 resulted from grounds not permitted in international law as required by
1 Articles 5(d) and (i). There is no evidence to sustain either the
2 Prosecution's joint criminal enterprise theory of liability at Brioni
3 with the intention of terrorising and expelling civilians on
4 discriminatory grounds or to sustain the Prosecution case that the crimes
5 of persecutory unlawful attacks and deportation were in fact committed
6 irrespective of the existence of a JCE.
7 We've heard no evidence, none, that proves discriminatory intent
8 on the part of General Markac. There is no document; there is no
9 statement; there is no conduct on his part. There is no witness
10 testimony that provides any evidence of discriminatory intent for
11 General Markac towards Serbian civilians on the ground of their
13 As discussed by my colleague Mr. Akhavan, with respect to the
14 murder and inhumane and cruel treatment allegations under Counts 6
15 through 9, there can be no JCE 3 attributable to General Markac without
16 evidence of JCE 1.
17 If we look at the JCE 3 claim, the key issue here is
18 foreseeability on the part of General Markac that crimes of murder,
19 inhumane acts, and cruel treatment were a possible consequence of the
20 execution of an alleged joint criminal enterprise. There is no evidence
21 provided by the Prosecution of a common state of mind for the alleged
22 co-perpetrator as is set forth in Krstic. Krstic at paragraph 613
24 "If the crime charged fell within the object of the JCE, the
25 Prosecution must establish that the accused shared with the person who
1 personally perpetrated the crime the state of mind required for that
2 crime. With no evidence of foreseeability or common state of mind beyond
3 mere pleadings and arguments, this mode of liability must fail."
4 Now, the Prosecution in its opening statement claimed: "From
5 that the virtual outset of entering towns and villages, the special
6 police began committing crimes."
7 We have no specific evidence from any source that identifies the
8 special police as committing crimes while entering towns and villages,
9 engaging in any wide-scale burning or looting at all. None. This leads
10 me into this next section of my 98 bis presentation, which I call guilt
11 by proximity.
12 In this section we have a variety of witnesses who testified that
13 they thought they saw the special police and identified them by uniform
14 only to be wrong time and time again. In addition, the Prosecution puts
15 the special police via these witnesses in cities and villages in which
16 they never set foot, according to the war diary, P614.
17 JUDGE ORIE: Mr. Kuzmanovic, you indicated that you would move to
18 your next section of the 98 bis presentation.
19 MR. KUZMANOVIC: We can go to break, Your Honour.
20 JUDGE ORIE: If you could finish that in five or ten minutes, and
21 that's fine. Otherwise, I would prefer to have it as -- to listen to it
22 as one.
23 MR. KUZMANOVIC: We can take a break. I will just repeat my
24 introduction when we start again to this section, Your Honour. That's
1 JUDGE ORIE: Yes. Then we will have a break, and we'll resume at
2 20 minutes to 1.00.
3 --- Recess taken at 12.21 p.m.
4 --- On resuming at 12.44 p.m.
5 JUDGE ORIE: Mr. Tieger.
6 MR. TIEGER: Thank you, Your Honour. And apologies for rising
7 before Mr. Kuzmanovic, but I thought it would be better to respond now.
8 Has nothing to do with Mr. Kuzmanovic' submissions. I just wanted to
9 respond to the Court's invitation in connection with Mr. Kay's proposed
11 I had an opportunity to get some feedback on that, not entirely
12 sure that I understand what is being proposed so let me say this very
14 I don't understand it to be a proposed submission related to the
15 actual Kardum submission. I understand it to be an analogous submission.
16 If it was related to the Kardum submission, then we consider that matter
18 JUDGE ORIE: I understood it to be analogous, rather the type of
19 submission like --
20 MR. KAY: Absolutely. The Court made a ruling that that was an
21 appropriate way.
22 MR. TIEGER: And our having looked at in that light, our reaction
23 is that it is not an a appropriately analogous circumstance in terms of
24 the actual underlying documentation. So both in terms of the substance
25 and the timing, it appears that we would object. I appreciate the fact
1 that we may not be in a position to do so until -- or your never
2 precisely in a position to do so until seeing the actual submission;
3 however, I thought would be more appropriate for foreshadow our initial
4 reaction rather than allow Mr. Kay to proceed under the misapprehension
5 that there would be no objection and put that in that amount of work.
6 JUDGE ORIE: Mr. Kay, then you are invited to show to Mr. Tieger
7 what you have in mind to file. And then if there is no agreement, if
8 Mr. Tieger sustains his objections, then the Chamber will finally decide.
9 We do understand it is not new evidence. It is just a Kardum-type.
10 MR. KAY: Yes. As Your Honour ruled recently concerning managing
11 the materials.
12 JUDGE ORIE: Yes. But you're invited to first show to Mr.
13 Tieger, who is of course not yet entirely in a position to know what
14 exactly you're about to file.
15 Mr. Kuzmanovic, you were on your feet, but you sat down again.
16 Please proceed.
17 MR. KUZMANOVIC: Thank you very much, Your Honour.
18 Q. As I was discussing before the break, I was about to get into a
19 section that I call guilt by proximity with regard to the special police,
20 and this dovetails somewhat into what Mr. Kay discussed regarding the
21 construction of the indictment and the Prosecution's pre-trial brief. In
22 many instances there is discussion of special police being close or at or
23 near instances of where crimes were occurring. What is very telling
24 about those accusations, however, is we have heard no evidence that
25 anyone reported the special police to any competent authorities for
1 participating in, allowing, or acquiescing in burning and looting. There
2 is not one single shred of evidence that anyone reported the special
3 police to any competent civil authorities for acts such as those.
4 Moreover, along the lines of guilt by proximity issue, there is
5 not one single meeting that has been -- was requested of General Markac.
6 The internationals that we have heard parade through the courtroom over
7 the course of the trial, there is not one single person who even knew who
8 General Markac was much less requested a meeting with him. So with
9 respect to issues relating to guilt by proximity, it is our submission
10 that the special police were not involved in any kind of guarding or
11 looting or burning. As a matter of fact, the testimony itself by many
12 witnesses, and I will cite some examples here, as I said earlier, were
13 asked to identify their version of what they call to be the special
14 police by uniform, only to be wrong time and time again and to put them
15 in places in which P614, the special police war diary, does in the even
16 have them present.
17 For example, witness Hill was asked at transcript 3773, 3773,
18 lines 18 through 21:
19 "Q. And the individuals you saw in the town of Pecane
20 both individuals wearing these uniforms as well as others?
21 "A. These uniforms, and I believe, the dark blue of the special
22 police around those vehicles."
23 So we have Mr. Hill identifying the special police in dark blue
25 And then we have Mr. Williams who testified. In his statement,
1 if you recall, he discussed seeing the special police in Knin on 5th and
2 6th of August. He was asked.
3 "Q. Sir it's a fact," at 9642, line 13, "that you have no idea
4 whether or not the Croatian special police were in Knin on the 5th and
5 6th of August; correct?
6 "A. I cannot confirm that special police were there or not;
7 that's correct, sir."
8 Later on he was at 9645, line 20.
9 "Q. With regard to the special police, they had single coloured
10 uniforms. What was the colour of their uniforms?
11 "A. To the best of my recollection, it was sort of an off
12 greyish steel colour.
13 "Q. What kind of head gear did they wear?
14 "A. Berets.
15 "Q. What colour?
16 "A. Black, to my knowledge."
17 So we off grey steel with black berets. Witness Mauro in a
18 report P27 relating to Grubori, which I find highly instructive, at page
19 12064, referring to the report:
20 "A HRAT which travelled to Grubori on the afternoon of
21 27 August has received reliable reports of a group of 10 camouflage-clad
22 Croatian special police moving up the road to Grubori mid-morning on
23 25 August."
24 So we have now camouflage coloured special police.
25 Witness Al-Alfi at 13940:
1 "Q. Have you ever seen, yourself, the special police forces?
2 "A. Oh, yes, while they are -- but I did to the talk to them.
3 They have a special dress. It's a special uniform.
4 "Q. What colour?
5 "A. I'm not sure. It can be blue; it can be dark grey,
6 something like that. But I knew that.
7 So we have Al-Alfi describing the special police in blue or in
8 dark grey.
9 Witness Bellerose at transcript 5875:
10 "Q. You described these soldiers as Croatian special police.
11 Can you describe for the Court what they were wearing.
12 "A. They were wearing one or two-piece uniform that was either
13 going from memory dark grey or black. They were also wearing black
14 load-bearing vest."
15 Later on in his transcript at 5951:
16 "The soldiers were usually wearing fatigue uniform with
17 camouflage pattern, and those persons stopping us, I call them the
18 special police, were wearing a one-colour uniform either very dark grey
19 or black."
20 So we have yet another colour describing the special police by
21 Witness Bellerose.
22 At 5955, Witness Bellerose states at -- was asked.
23 "Q. You cannot tell me what factual basis you came to conclude
24 that these people who stopped you were actually Croatian special police;
1 "A. I was assuming by their uniform."
2 Now, the only witness who correctly identified the uniform of the
3 special police was Witness Steenbergen. Witness Steenbergen was in
4 Gracac on the 5th of August 1995. That's when the special police were on
5 their way there during Operation Storm. He was asked at 5425:
6 "Q. Did you observe the clothing that these persons wore that
7 was part of this group when you spoke to the commander?
8 "A. Yeah. They were wearing olive-green military suits. The
9 commander was wearing a Kevlar helmet, and they were wearing OPS vests."
10 Now despite the pictures that we have seen of the special police
11 in Gracac, and we have seen photographs of them, we have continued to
12 have evidence led by the Prosecution either through the pre-trial brief
13 or through witnesses, that people identified as special police were not
14 special police. To fit their theory that special police were present in
15 areas in which burning and looting were occurring. There is no referral
16 of the special police by any of those internationals that we have
17 discussed with respect to burning and looting in any town or village.
18 With respect to issues -- oh, one other thing I need to add
19 regarding uniforms. And I think it is the probably the coup de grace on
20 the issue of uniforms, was the Leslie radio interview. The Leslie radio
21 interview in which the question was put to General Forand about the
22 interview, and in the interview Leslie said:
23 "There were a variety of organisations," at 4433 in the
24 transcript, "that then swept into this former Serbian Krajina. There
25 were special police teams wearing their very distinctive blue uniforms
1 who were engaged in hunting and killing in the mountains of Serbian
3 We have another witness uninformed witness on the issue of the
4 special police and what their uniforms look like.
5 With regard to specific issues related to planning, there is no
6 evidence that General Markac either planned Operation Storm, artillery
7 attacks on any front, much less Knin, no evidence that he was involved in
8 post-Storm planning or operations, other than specifically ordered mop-up
9 operations directed by the General Staff of the Croatian army after
10 August 21st. Not to speak of no evidence of his planning, initiating,
11 ordering or committing crimes. All of his activities were reported to
12 the General Staff. And it's my submission, Your Honours, with respect to
13 the joint criminal enterprise claim against General Markac that the
14 98 bis submission should be granted.
15 I will now turn to the issue of command responsibility under
16 Article 7(3).
17 JUDGE ORIE: Mr. Kuzmanovic, before you do so, I'm -- have you
18 got any idea on whether even if we would have a late finish, whether you
19 would be able to conclude, or is there no way --
20 MR. KUZMANOVIC: I will be able to conclude today, Your Honour.
21 JUDGE ORIE: Yes, even with normal time-limits? That's in 45
23 MR. KUZMANOVIC: Within 45 minutes, I should be done,
24 Your Honour.
25 JUDGE ORIE: Thank you. Please proceed.
1 MR. KUZMANOVIC: Thank you.
2 As I stated, I will turn to the 7(3) command responsibility
4 The key issue with regard to General Markac and command
5 responsibility is this: There is no evidence that General Markac had
6 knowledge of crimes that were not known to civilian authorities who were
7 responsible to undertake measures.
8 First, in relation to liability for Counts 6 to 9, based on
9 command responsibility under 7(3), there is no evidence to support the
10 Prosecution theory that General Markac failed to take necessary and
11 reasonable measures to prevent or punish crimes which were alleged to
12 have been committed by his subordinates. There is no evidence to show
13 that General Markac had any ability to conduct crime prevention, crime
14 investigation, or crime prosecution. It is a distinction with a
15 difference. Because, unlike the military, which had its military police
16 and its military courts, General Markac had no such apparatus at his
18 Quite the contrary, with respect to General Markac. When such
19 crime investigation was brought to his attention by the competent
20 civilian criminal authorities, he acted. And I refer you specifically to
21 Exhibit D530, D531 and D1078. D1078 describes specifically what happens
22 in a situation where General Markac is informed by the competent civilian
23 authorities that a special police member is under a reasonable suspicion
24 to have committed a criminal act.
25 D1078 specifically describes: "Since there is an reasonable
1 suspicion that the above-named had committed a criminal act; since
2 criminal proceedings are being conducted against him at the investigative
3 centre of the Zagreb
5 Looking at D530 and D531, General Markac requests that the
6 Knin-Zadar police administration handle an issue initially referred to
7 him. It was referred to him via an Official Note, and we have a heard a
8 lot of discussion about Official Notes, from the Gracac police station,
9 that there was an allegation of a burning incident involving members of
10 the Zadar special police. Once this was referred to the Zadar special
11 police, the local commander there determined that the facts established
12 that one of the members of the unit had committed the act, and the local
13 commander was the one to impose the discipline.
14 Now, with respect to Grubori, the end is justifying the means.
15 And what I mean by that is we began with the Prosecution proposition in
16 the opening statement of the Prosecution regarding Grubori, and this is
17 the conclusion that's reached. The true story -- and I'm quoting from
18 the opening statement:
19 "The true story is that the special police murdered the victims
20 and destroyed the village. And that, together, Generals Markac and
21 Cermak worked to ensure that this would never be known."
22 "Never be known." The internationals were there at the moment
23 it occurred. Literally, half of Sector South, and that might be a
24 exaggeration but ... "They were there after the event, and it was
25 broadcast to the media the next day. A video camera is in the village on
1 the day of the event showing some of the homes that were on fire.
2 With respect to Grubori, General Markac sent his Chief of Staff,
3 Mr. Sacic, there after the event to see what happened. You've heard that
4 this was a mop-up operation in the area, in which this village was
5 located; this mop-up operation being under the command of the staff in
6 Gracac. To this day, no one has determined precisely what has happened
7 in Grubori. No one. Not the special police, not the criminal police,
8 not the Croatian government, not the internationals. No one. There is
9 only a conclusion. A conclusion that has not been backed up by specific
10 facts. You've heard that the mop-up operation was one of many occurring,
11 that the special police conducted. We've heard multiple versions of this
12 event presented here in court by multiple witnesses. The interesting
13 thing about witnesses the Prosecution has chosen with respect to the
14 special police to testify here are that not one of them was in the
15 village during the course of the action. Not one. Mr. Janic testified
16 he was in the vicinity; he did in the go through the hamlet of Grubori.
17 Mr. Celic testified he was in the vicinity. He did not debate through
18 the village of Grubori
19 Lucko Unit, which was allegedly involved in this operation, testified.
20 He didn't come there until the day or two after. Mr. Turkalj was present
21 there, HRAT, UNCIVPOL, Croatian civil police, all of these people were
22 present there after the event. The Prosecutor talks about an alleged
23 cover-up. When looking at the situation as whole, it begs the question:
24 What was being covered up?
25 Grubori was out in the public eye. There is a picture of an
1 infirm man lying in a pool of blood. There is an claim now known not to
2 be true through the testimony of Dr. Clark that another man in Grubori
3 had his throat slit. That story was promoted everywhere and ended up not
4 being true. The UN was there, as I said, UNCIVPOL, the Croatian civilian
5 police, the press, television, the incident was recorded in the log-book
6 of the Knin police. It was passed to the Zadar-Knin police
7 administration in Zadar. Yet the civilian police under whose authority
8 an investigation was to be conducted did not undertake a crime-scene
9 investigation, if it in fact believed a crime had occurred there, as it
10 was obligated to do.
11 To this day, the testimony as that there are more questions than
12 answers about what happened in Grubori, yet the competent responsible
13 authority for determining what to do there, the civilian police didn't do
14 its job. There is no evidence, none, that demonstrates it was
15 General Markac's responsibility to conduct a crime investigation or crime
16 prosecution with respect to Grubori. In fact, the only evidence given by
17 the Prosecution on Grubori is that it was the responsibility of the crime
18 police to conduct the investigation. We heard that from Witness Zganjer.
19 We heard from that Witness 84, and we heard that from Witness 86. They
20 were to conduct an investigation, bring a investigative judge and
21 competent prosecuting attorney. Nevertheless, when informed that
22 something had occurred in Grubori, General Markac did not bury his head
23 in the sand. He asked his Chief of Staff to look into the event.
24 Let's look at the testimony of witness Zganjer for a moment. Mr.
25 Zganjer was asked on page 11609:
1 "Q. Do you know that special police members are not the element
2 of the police force that carries out crime investigations?
3 "A. Yes. Special police has clearly defined tasks interviewing
4 citizens or suspects conducting crime-scene investigations, taking other
5 operational crime-investigation measures. These are not the tasks of the
6 special police, that's for sure."
7 With respect to an issue of a cover-up, the only testimony here
8 with respect to a cover-up is that there was not one. And that is from
9 Mr. Zganjer. The question was asked of him on page 11610:
10 "Q. As you conducted actions on the Grubori case, did you come
11 across any facts that indicated that there was an attempt to cover up or
12 to in any other way tamper with the investigation from any side. In that
13 case you would have had to institute criminal proceedings against such a
15 "A. Yes, quite naturally. In such a situation, I would have
16 tried to clarify all the circumstances in which this attempt to tamper or
17 cover up of this whole incident by those persons was carried out."
18 And the follow-up question to that:
19 "Q. As you dealt with the Grubori case while you were the state
20 attorney in Sibenik, did you ever obtain any evidence or learn anything
21 to the effect that General Markac did anything to, in effect, prevent any
22 investigation into the Grubori incident and clarification of the
23 circumstances of the incident? Did you come across any traces of this
24 activity on the part of General Markac?
25 "A. From the materials that I had at my disposal, I was unable
1 to establish any facts that would indicate that I should reach such a
2 conclusion, the conclusion that Mr. Markac had in any way prevented or
3 obstructed the actions of the police regarding the Grubori incident."
4 Now, there was some discussion with Mr. Zganjer about the fact
5 that his investigation in 2002 was a long time after Grubori had
6 occurred. His position was that the police could have done something
7 before 2001, and that after his investigation he learned that not only a
8 criminal report hadn't been filed but not even a regular report with
9 regard to Grubori. He found obviously that the report had been entered
10 the in Knin log-book but that no one had done anything with it. That
11 goes in the testimony of Witness 84. Witness 84 was the person who
12 entered this incident first into the log-book. And Judge Kinis asked him
13 a question, several, on 11427 of the transcript:
14 "Mr. Romassev came to your office and provided you information
15 regarding the incident of Grubori. Did you ask him to show where this
16 area is located in the map?
17 Answer: "I did not. There is something you need to keep in
18 mind. Once I received the information, I immediately went to inform the
19 coordinators and my head." Then there was a break. "As I confirmed, it
20 seems we did not act appropriate as the police force. We were supposed
21 to react and do our job. Whether we did or not, that needs to be
22 assessed. As of the moment I received the information from Mr. Romasev
23 we should have acted. We did not, at least not mold, and I don't know
24 why, though."
25 Judge Kinis further asked:
1 "Did you have specific instructions provided to you how to handle
2 with information with dead bodies which are found in the area, or should
3 you follow the rules of criminal procedure law in that respect?"
4 Answer: "In my view, what we -- what needed to be done is to
5 investigate each and every incident, in particular, when bodies were
6 concerned and where one can conclude with a degree of certainty that the
7 military was involved. Then a team was supposed to go out immediately,
8 investigating and submitting a report to the administration."
9 Judge Orie with this witness at 11113:
10 "Witness 84, at that time, having received that information, what
11 went through your mind about what to do or what not to do? Could you
12 tell us.
13 Answer: "Well, if I had had the ability to take charge, my first
14 step would have been to inform the duty operations officer which had been
15 done in fact, later. Then I would have requested that the Ministry of
16 Interior in Zagreb
17 immediately, as well as the police administration in Zadar, and their
18 duty operations service. And then Zadar, as being in charge of criminal
19 investigations should have been asked to set up a team, including an
20 inspector, a homicide inspector, a scene of crime officer, and another
21 person to go and perform an on-site investigation. If that had been
22 done, I believe it would have been possible to identify the perpetrator,
23 and all this discussion today would not have been necessary. Those are
24 the basic police actions that should have been taken then. Why this has
25 -- this hasn't been done, I really don't know, nor can I give you any
1 precise information. There was a problem with this case, but what kind
2 of problem, I don't know. Why it all turned out this way, whatever I
3 said would be a guess and could be a wrong guess."
4 So the police, in this particular instance, did not do its job.
5 Mr. Markac has nothing to do with the civilian police.
6 What was the reasonable and necessary measure that General Markac
7 failed to take with respect to Grubori? He had his Chief of Staff,
8 Mr. Sacic, look into what happened. You asked -- ask yourself what about
9 Celic? He said that nothing happened. Well, it is clearly obvious that
10 in Grubori something happened, and it was obvious when General Markac had
11 Celic come in to see him that all General Markac wanted was to find out
12 what happened. Sacic concluded, based on his review that there was an
13 armed conflict in which there were civilian deaths. What evidence is
14 there that Markac could not rely on information gathered by Mr. Sacic as
15 being accurate? It is reasonable for a commander to rely, and they're
16 entitled to rely on the information provided to them by their
18 You heard Mr. Turkalj testify that to him, it appeared there was
19 an armed conflict in Grubori after having been at the scene. That is
20 what it looked like to him based on his combat experience. The operation
21 itself was conducted under the authority of the staff in Gracac. There
22 is no evidence that General Markac had command of the mop-up operation
23 being conducted in the area in which Grubori was located.
24 The members of this unit which allegedly went through this area
25 in which Grubori was located were responsible to Celic. Celic's
1 immediate commander was Janic. Josip Turkalj was in command of the Lucko
2 unit. Sacic was the Chief of Staff in charge of the mop-up operation in
3 question. Those are commanders four times removed on levels below Markac
4 on the command scale.
5 General Markac is not a clairvoyant like the Prosecutor would
6 like to make him out to be. If in fact there was a wall of silence among
7 those who were in Grubori, what could he do about it? He could not
8 suspend anything without any criminal charge, without any specific
9 evidence that they were involved in a crime, upon the information
10 received from his Chief of Staff that there was an armed conflict that
11 occurred in and around Grubori. He could act on two occasions: Upon an
12 Official Note or criminal charge by the competent civilian authorities
13 which had the authority to conduct investigations provided to him, or
14 report from the commander of an operation that a crime had occurred. Of
15 those two alternatives, none happened.
16 The only person who did anything with respect to this was
17 General Markac. He asked for his Chief of Staff to look into the
18 situation. The fact is that to this day, we have no answer for what
19 happened in Grubori. The investigation is still open. And what the
20 Prosecution has done with respect to Grubori is to cover up its inability
21 to provide the Chamber with evidence beyond reasonable doubt that
22 General Markac, the man furthest removed from the event, was somehow
23 responsible for Grubori with the allegation that he covered it up. There
24 is no evidence that what happened in Grubori was ordered by
25 General Markac. There is no evidence that what happened in Grubori was
1 covered up by General Markac. And there is no evidence that he had the
2 authority to punish anyone under him with what he knew at the relevant
3 time. You're only as good as the information you receive. He is -- was
4 entitled to rely upon the information that he received from his
6 Now, there is some discussion about the internal control
7 mechanism, and that is a mechanism that allows General Markac supposedly
8 to be able to discipline people. Let's look at what the evidence on
9 internal control is with respect to the Prosecution witness Janic who
10 testified extensively on this issue at P6234. He was asked:
11 "Q. Mr. Janic, do you know that the sector for internal control
12 conducted any disciplinary procedures? Or did it instigate or process
13 disciplinary measures against members of the special police?
14 "A. No, that was not within their jurisdiction concerning the
15 internal order within the Ministry of Interior. And I may say that the
16 same situation prevails today. Disciplinary proceedings were instigated
17 by unit commanders or superiors. If have you a police station and a
18 policeman from that station commits a misdemeanor, then the head or chief
19 of the police station will launch disciplinary proceedings."
20 Similarly, according to the same principle, the person authorised
21 to instigate disciplinary proceedings within the special police was the
22 commander of a specific unit. So one of his responsibilities was to
23 institute disciplinary proceedings for disciplinary breaches within his
24 units. If I were to commit one, then the disciplinary proceedings
25 against me would have to be instigated by the head of the sector.
1 However, the internal control sector did not have within its pursue any
2 competence or authority to institute disciplinary proceedings.
3 In addition, Mr. Janic confirmed that the special police did not
4 have its own disciplinary court at 6247, lines 14 and 15.
5 With respect to issue of 7(3) command responsibility, it is our
6 submission, Your Honours, that the Prosecution has presented no evidence
7 that General Markac had any knowledge of crimes that were not known to
8 the civilian authorities upon whose responsibility it was to undertake
9 measures. That's the key issue here. As a result, this mode of
10 liability must fail and a judgement of acquittal must be rendered.
11 There are two small areas, Your Honours, which I'm going to cover
12 very briefly. The first can be handled in a sentence or two, and that's
13 the issue of armed conflict, which no one has really discussed yet. At
14 paragraph 55 of the indictment, the Prosecution alleges that at all
15 relevant times, a state of armed conflict existed in the Krajina region
16 of the Republic of Croatia
17 or any other evidence that there existed an actual state of armed
18 conflict after the close of combat operations in Croatia in
19 Operation Storm. For intents and purposes, Operation Storm ended on
20 August 10th, 1995
21 witness, no evidence to testify that a state of armed conflict existed
22 after that date.
23 We discuss that issue extensively in our pre-trial brief, Your
24 Honours, but I won't discuss it any further at this point.
25 As to the scheduled killing incidents, there is no evidence that
1 General Markac had any involvement in scheduled killing incidents 1, 2,
2 3, 5, 6, 7, 8, and 9. I have discussed scheduled killing incident 4. We
3 will reserve our discussion on the 189 additional alleged victims, but I
4 can state with respect to General Markac that at this point there is no
5 superior/subordinate relationship that he has with respect to any of the
6 alleged killing incidents that I have discussed.
7 In conclusion, Your Honours, Count 1 persecution requires the
8 highest amount of mens rea. A conscious attempt to discriminate against
9 Serbian civilian merely due to their ethnicity. As Kupreskic case tell
10 us, this is it one step removed from genocide because there is no
11 evidence and there no evidence that has been put forth on the issue of
12 discriminatory intent, Count 1 persecution must fail.
13 On Counts 2 and 3 regarding deportation and forcible transfer,
14 the shelling is what is the bottom line issue on Counts 2 and 3. There
15 is no evidence that anyone in the axis of operations or attack of the
16 special police fled due to any unlawful shelling.
17 Counts 4 to 9 of wanton destruction, pillage and plunder, cruel
18 treatment, and murder under Article 3, General Markac did not have the
19 intent to commit these crime against humanity or war crimes through
20 destruction and pillage of property, nor did he make a significant
21 contribution to the commission of such crimes. We have not heard any
22 evidence of what the significant contribution General Markac made under
23 Counts 4 and 9 -- through 9.
24 As is evident through the area of attack that General Markac was
25 commanding, there was no widespread attack against civilians. As a
1 matter of fact, the speed with which they advanced prevented them from
2 sitting and occupying towns and villages. They kept moving forward.
3 They took Gracac; they kept moving forward. They went on to Otric, and
4 they went on to Bruvno, and Mazin, and Donji Lapac. All these areas on
5 foot, 60 kilometres from Mali Alan in the Velebits to the Donji Lapac,
6 mostly on foot. There was no time for them to sit and burn places down,
7 and no time for them to sit and loot places because they were on the
8 move. They were always on the front. They did not maintain law and
9 order. They did not maintain anything by the front line. They kept
10 moving. Because there was no widespread attack against civilians, Your
11 Honours, and certainly not in the special police axis of attack, the
12 Article 5 claims against General Markac must fail.
13 Now, 98 bis provides that at the close of the Prosecution case,
14 the Trial Chamber shall, not must or can, but shall, by oral decision and
15 after hearing the oral submissions, I'd enter a judgement of acquittal on
16 any count if there is no evidence capable of supporting a conviction.
17 Your Honours, we believe our submissions show there is no
18 evidence with respect to General Markac. For these reasons we
19 respectfully ask the Trial Chamber for a judgement of acquittal of all
20 counts in the indictment, because the Prosecution has failed to present
21 evidence beyond a reasonable doubt in its case in-chief of
22 General Markac's criminal liability under the amended indictment.
23 Thank you, Your Honours.
24 JUDGE ORIE: Thank you, Mr. Kuzmanovic.
25 Mr. Tieger, it's half past 1.00. If we granted you four hours, a
1 normal session in the morning is four hours and 45 minutes, and if we're
2 all very precise, then 45 minutes are taken by two breaks, which leaves
3 four hours. Now we all know that we do not start exactly at 9.00, but
4 sometimes even at one minute past 9.00. I leave it up to, whether you
5 want to gain the -- whether you want to use the 15 remaining minutes or
6 whether you would be satisfied that this Chamber will do its utmost best
7 whatever happens during the breaks, before the sessions or what even
8 happens after the sessions, that you will have the full morning session
9 on Monday.
10 MR. TIEGER: Thank you, Your Honour. We will be here at 9.00
11 precisely. And I think it would be a false economy to start now. I
12 appreciate that.
13 JUDGE ORIE: I asked a few questions after I had heard
14 submissions of the other parties.
15 Mr. Kay, I have one question to you. And you referred to a
16 question I apparently had put to Witness Theunens about the UNCRO orders,
17 UNCRO orders or anything else. I do remember that I intervened when I
18 felt that, and not for the first time, the cross-examination derailed in
19 the sense that we moved away from what the original question was. I also
20 remember that in that respect, the UNCRO orders were mentioned. If
21 that's what you in mind, I need no further explanation. If that's not
22 what you had in mind, because I was there rather explaining how matters
23 derailed, rather than I expressed any -- any need to get an answer beyond
24 the UNCRO orders. If that's what you meant, there is no need to further
25 respond. If you had any other question in mind, I apparently would have
1 put to that witness, I'd like you to just briefly send an e-mail to the
2 Chamber's staff, just page this and this, line that and that. That would
3 be enough.
4 MR. KAY: I can resolve the matter. Your Honour has got it
5 precisely, and it was your Your Honours' summary of the UNCRO orders that
6 was the point that was being made.
7 JUDGE ORIE: Yes. Not a question.
8 MR. KAY: Yes. Your Honour knew what I was talking about.
9 JUDGE ORIE: Yes.
10 MR. KAY: Thank you.
11 JUDGE ORIE: Then this being resolved ...
12 [Trial Chamber confers]
13 JUDGE ORIE: Unless the parties would have any urgent matter to
14 be raised, and apparently they do not, we will adjourn until Monday, the
15 23rd of March, 9.00, Courtroom I.
16 --- Whereupon the hearing adjourned at 1.33 p.m.
17 to be reconvened on Monday, the 23rd day of March,
18 2009, at 9.00 a.m.