1 Monday, 23 March 2009
2 [Rule 98 bis]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.01 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. Tieger, the Chamber assumes that the Prosecution wants to
13 respond to the 98 bis submissions made by the Defence.
14 MR. TIEGER: That is correct, Your Honour. Thank you very much.
15 JUDGE ORIE: You have an opportunity to do so.
16 MR. TIEGER: Good morning, Mr. President, Your Honours. We're
17 pleased to have this opportunity to address the Defence motion pursuant
18 to 98 bis. Over the course of today, you will hear from a number of
19 members of the Prosecution, who will address in turn relevant aspects of
20 the motion. I will begin with some preliminary remarks and focus on some
21 aspects of the joint criminal enterprise, the implementation of which
22 will be addressed in greater detail by those who follow.
23 Mr. Russo, for example, will follow me and address the unlawful
24 shelling of civilians.
25 Mr. Hedaraly will turn to the implementation of the common
1 purpose through persecutory killings, burning, looting, detention, and
2 harassment directed at Serbs.
3 Mr. Waespi and Ms. Gustafson will describe General Gotovina's
4 command and control, contributions to the JCE, notice of crimes by
5 HV troops under his command, and failure to take necessary and reasonable
6 measures to prevent or punish.
7 Mr. Margetts will outline General Cermak's role in the JCE and
8 his 7(3) liability. Ms. Mahindaratne will discuss the role played by the
9 special police under the command of General Markac as well as his role in
10 the JCE and 7(3) liability.
11 Now, a few preliminary remarks before I discuss aspects of the
12 JCE, Your Honours, about the legal standard to be applied and a couple of
13 other issues.
14 First, our discussion today will focus on or be in the context of
15 JCE and 7(3), largely because those are the modes of liability primarily
16 focussed on by the Defence. Other modes of liability in the indictment,
17 however, such as ordering or aiding and abetting remain operative and
18 provide a further basis for denial of the 98 bis motion. Nevertheless,
19 in the context of 98 bis, they need not occupy a distinct portion of our
20 presentation in order for the Court to determine that they, too, are
21 supported by the evidence.
22 Your Honours, since the December 2004 amendment, Rule 98 bis does
23 not permit a judgement of acquittal on parts of counts. Therefore, the
24 Gotovina Defence citation to Strugar relies on an anachronistic view of
25 Rule 98 bis which was, as you will be aware, explicitly modified to
1 eliminate the parsing out of counts. If -- first of all, the
2 Trial Chamber may only enter a judgement of acquittal with respect to an
3 entire count of the indictment. That's seen in the recent Prlic 98 bis
4 decision. If a count is comprised of several parts and there is no
5 evidence on one part but there is evidence capable of supporting a
6 conviction on the other parts, the 98 bis motion will fail and that can
7 be seen in Lukic and Lukic.
8 Now, in addition to our observation that the Gotovina Defence
9 erroneously stated the legal standard with respect to counts, we also
10 note that the Defence was wrong in asserting that a sovereign authority
11 is an element of deportation. And I direct the Trial Chamber to both the
12 Stakic Appeals Chamber judgement and the Krajisnik Appeals Chamber
14 Similarly, contrary to the Defence assertion, the evidence
15 supports the conclusion that a state of armed conflict continued
16 throughout the state of Croatia
17 settlement was achieved in November 1995, and that can be seen at
18 transcripts 4967, line 17, through 4968.
19 Finally, Your Honour, a word on the legal standard for evaluation
20 of 98 bis. A Rule 98 bis decision does not involve the weighing of
21 evidence or an evaluation of the strength or weakness of contradictory or
22 different evidence before the Trial Chamber, and that could be seen in
23 the recent Martic decision.
24 Now, while the Defence has expressly acknowledged aspects of
25 these standards, noting, for example, that the weighing of credibility is
1 not a factor, they have, at the same time, reversed or inverted that
2 standard in some respects, either citing a piece of evidence that
3 purportedly contradicts the Prosecution case as demonstrating that the
4 motion should be granted or urging the Trial Chamber to engage in a
5 weighing of evidence, and find in favour of the Defence. And as I
6 discuss aspects of the JCE I will attempt to identify at least a couple
7 of those examples.
8 Again, the standard is not whether the Defence can cite evidence
9 in support of its theory. The standard, of course, is whether is there
10 any evidence taken at its highest which can support a conviction as to
11 each count.
12 Your Honour, let me therefore turn now to the joint criminal
13 enterprise to forcibly remove Serbs from the area, to remove them through
14 such means as shelling, destruction, looting, intimidation, and violence.
15 Let me begin by noting what we know about intent related to the
16 JCE. In sum, the Croatian leadership wanted Serbs out, planned to get
17 them out through illegal means, insisted that they weren't coming back,
18 took a variety of steps, including illegal means, to keep them out,
19 boasted about the benefit of having a Serb-free Croatia and, finally,
20 those who saw what was happening on the ground as it was happening
21 recognised that it was intended to get Serb civilians to leave. I'd like
22 to discuss those in somewhat more detail.
23 First -- and I'd like to begin chronologically with the shelling,
24 if I might.
25 First of all, Your Honours, those who were present as the shells
1 rained down and then as they were later lobbed in here and there, those
2 persons who experienced that and observed that, realised that the purpose
3 of such shelling was to panic and drive out the civilian population. And
4 I direct the Court to P926, paragraph 3, Mr. Williams; P931, paragraph
5 16, Mr. Hendriks; P695, paragraph 30, Mr. Dangerfield. Now that
6 testimony was buttressed by Colonel Konings who, when asked about the
7 firing of projectiles at irregular intervals, recalled his time in
9 intervals is to harass a civilian population, to get them to flee, to
10 create chaos, or whatever. That's T14426.
11 Now these conclusions based on contemporaneous experience
12 presuppose an underlying desire to get Serbs out and although these
13 witnesses had no way of knowing that, we now know on the basis of the
14 evidence how right they were. President Tudjman, the leader of Croatia
15 didn't wanted Serbs in Croatia
16 himself with who were likewise convinced, like him, that Croatia
17 better off without Serbs. Multi-ethnic states, President Tudjman
18 insisted, were unsustainable, unstable, and Serbs, he believed,
19 represented a threat. I'd cite the Court to Galbraith at P444,
20 paragraph 68 and 70, transcript at 4929, and also to P452 of presidential
21 transcript of 29 October 1993
22 As President Tudjman's Chief of Staff told Ambassador Galbraith,
23 Serbs were a cancer on the stomach of Croatia. That's at P444. And the
24 answer for countries plagued with a multi-ethnic society, according to
25 President Tudjman, was population transfers, about which he spoke openly
1 to Western diplomates such as Galbraith at T4936, or spoke more covertly
2 to other nationalists like Bosnian Serb leadership Koljevic in 1992;
3 that's P459.
4 The intent of the JCE regarding Serbs can also be seen in the
5 barriers erected to prevent their return. As President Tudjman flatly
6 told Ambassador Galbraith, it wouldn't be possible for Serbs to return.
7 "We cannot have these people back."
8 That's at P444, at paragraph 33.
9 And as President Tudjman planned for the return of Croats from
10 South America, he set up laws and barriers to the return of Serbs, "not
11 even 10 percent," P463. Those laws were set up in a way to ensure that
12 Serbs would lose their property when they were unable to get back. See
13 P477. And President Tudjman and Croatian officialdom worked to ensure
14 that the fewest possible number of Serbs would slip through. "If we let
15 204 persons come here tomorrow you would have 1204, and in ten days
16 12.000. Nothing for now." P466.
17 So when the political and military situation in late July 1995
18 caused President Tudjman and others to conclude that the opportunity was
19 ripe for a military solution to the stalemated conflict,
20 President Tudjman met with his key advisors to discuss the operation on
21 the 31st of July.
22 The Defence has suggested to you that the Brioni transcript read
23 in context is "highly ambiguous." Now, apart from the fact that those
24 ambiguities must be resolved against a 98 bis motion, it is also
25 important to note, Your Honours, that the context offered by the Defence
1 referred to the passages purportedly relied upon by the Prosecution but
2 omitted several significant passages. You will hear more about the
3 meeting in Brioni from Mr. Russo shortly, but I'll simply refer to a few
4 key elements that were not mentioned.
5 One, President Tudjman reminded his subordinates of the Croat
6 towns that had been destroyed and that there was now an opportunity to
7 hit Knin with artillery.
8 Two, President Tudjman pointed out that this was not simply an
9 opportunity to have things under control but to give Serbs a taste of
10 what they had given Croats and to pay them back.
11 And, three, it was important that the civilians flee.
12 The army will follow and each will have a psychological effect on
13 the other.
14 Your Honours, the intention to get civilians out was also
15 reflected in the use of leaflets and other forms of psychological
16 operations as you have heard. These further means of getting them out as
17 President Tudjman said, "while pretending to guarantee civil rights, et
18 cetera ... use radio and television but leaflets as well."
19 That's at P461.
20 Minister Susak later bragged to Ambassador Galbraith about using
21 psy-ops to get civilians out. General Gotovina confirmed in his book.
22 General Gotovina confirmed the use of leaflets in his book to get the
23 local population to leave. That's at P113, part 2, page 197. You've
24 seen the purported RSK leaflet with the clear mistake on the stamp that
25 purportedly orders a civilian population to withdraw, that's P480, as
1 well as the MUP report revealing that it was thrown from an aircraft,
2 P484. And you've seen that this process was so successful that it was
3 replicated later, for example, in Operation Southern Move, where a false
4 leaflet purporting to be from the army of Republika Srpska ordered
5 civilians to leave. That's P113, part 2, page 206.
6 Now, with respect to the violence, the killings, the looting, the
7 destruction, burning as with the shelling, Your Honours, there was a
8 contemporaneous recognition by observers on the ground that these events
9 reflected a policy or at least acquiescence, official acquiescence, in
10 those acts. And I would point the Court to P446, US code cable
11 mentioning that the goal was to ethnically cleanse the region of Serbs or
12 P447, referring to systematic looting and burning of Serb property.
13 The Defence has asserted that because there is no explicit
14 reference notice Brioni transcript to use of burning and looting as a
15 means of forcibly removing Serbs or keeping them out that it could not be
16 part of the JCE. There is no basis either in common sense or in the
17 actual backdrop to these events for such a view, Your Honour. Virtually
18 the day before, General Gotovina's forces were burning down Grahovo "in
19 an organised fashion," as Serbs fled to Knin. I would point the Court to
20 P461; P71, the operational diaries between 28 July and 31 July; P1113,
21 part 2, pages 61 through 66; and at transcript at page 16484, lines 8
22 through 12.
23 As General Gotovina told President Tudjman, he was then going to
24 bring the same troops to Knin, troops who were aching to get there,
25 troops who were hard to keep on a leash. There was no need to specify
1 every means ... every means did not need to be specified for implementing
2 the removal of Serbs and certainly not those particular means.
3 The Defence has also focussed on orders concerning burnings,
4 violence and looting as supporting their 98 bis motion. The Gotovina
5 Defence, for example, has asserted that the Prosecution's position is
6 untenable, because it would be mean that these orders were not meant to
7 be followed and they asserted that they asked Ambassador Galbraith "that
8 particular question."
9 And in essence, I asked -- that is the quote from the Defence:
10 "I asked Ambassador Galbraith did Minister Jarnjak and Minister
11 Susak issue orders that President Tudjman did not want followed?" And
12 the answer was no.
13 Now apart from the fact that this asked the Court to weigh
14 purportedly competing evidence in a manner that has no place in a 98 bis
15 determination, it is in fact a piece of evidence that ignores the
16 witness's position to the contrary, and I'd ask you to what
17 Ambassador Galbraith said about that. He was asked at -- this exchange
18 begins at 5077, 5076 and continues. He was asked: "... were you aware
19 of orders by the minister of the interior or the Ministry of Defence ..."
20 He went on to say he was told of such orders. "I'm sure I was told the
21 Ministry of Interior had given orders."
22 And then the exchange continued: "Mr. Ambassador, if orders were
23 being given to stop criminal activities in the Krajina, then permitting
24 those criminal activities was not state policy, was it?" And that was
25 the thrust of the question, and here are some of the things that
1 Ambassador Galbraith said:
2 "I do not agree with -- with what you've just stated. I have
3 enough experience over the years that I served in Croatia with Croatian
4 officials and Serb officials, giving orders and saying they'd given
5 orders that they had -- and making promises they had no intention of
6 keeping, and I do not believe that the Croatian government made a serious
7 attempt to bring this destruction under control until such time as it was
8 basically -- there was nothing left for the Serbs to return to."
9 And he continues in that vein for nearly a page and he concludes:
10 "My point is, and I believe this, and I -- it comes from very extensive
11 observation of -- on my own part at the reporting of the embassy and lots
12 of other sources that the destruction that took place was something that
14 purposes of the top Croatian leadership."
15 And that is Ambassador Galbraith's answer to whether the orders
16 rendered the Prosecution's position untenable and it is buttressed by
17 such witnesses as Elisabeth Rehn, who testified -- who at P595 stated
18 that she had no doubt that the crimes committed by the Croatian forces
19 were pursuant to orders or silent approval.
20 Just a couple of other examples, Your Honour, of the inversion of
21 the standard that I mentioned earlier.
22 The Defence cited Peter Marti's evidence in support of the
23 position that the destruction was not discriminatory because he said that
24 "sometimes writing down the words 'Croatian house' on a dwelling did not
25 prevent the building from being spared." Now apart from the fact that
1 the use of the word "sometimes" indicates the exception that proves the
2 rule, it overlooks the evidence that dwellings marked as Croatian
3 households were left untouched. Find that at T7915, or another witness
4 T14922 through 23, or the general evidence that it was Serb houses looted
5 while Croatian houses were not. That's P61, paragraph 21.
6 Similarly, the Defence referred to Peter Marti's testimony that
7 his personal opinion was that the looting was not ordered "because you
8 couldn't see any kind of systematic pattern in it, expect from the fact
9 that it was more or less totalled." P415, page 4.
10 Now, apart from the fact that the Chamber would be entitled to
11 infer that more or less total destruction was sufficiently systematic to
12 suggest ordering or at least acquiescing -- acquiescence by the
13 authorities, this evidence also ignores such evidence as P740, report
14 that most buildings were destroyed and systematic looting was taking
15 place; P477, again referring to systematic looting and burning; P807,
16 with the comment: "Beyond any doubt this is a war crime act: The
17 systematic burning of property, houses, stables, haystacks and the like."
18 Or P2151, referring to systematic devastation.
19 There was a reference to the fact that collection centres did not
20 constitute forcible transfer. I would point the Court to the testimony
21 of Ambassador Galbraith at P444, who indicated that he viewed the
22 detention centres as "transition camps" out of Croatia
23 convinced it was in their best interest to leave and that while they were
24 detained, their houses were burned, their livestock killed, in a manner
25 similar to that which he saw after Operation Flash. Paragraph 66.
1 Your Honours, I mentioned it -- I mentioned, Your Honour, earlier
2 that the -- that members of the Croatian political and military
3 leadership led by President Tudjman and including the accused, wanted
4 Serbs out, devised and implemented ways of getting and keeping them out
5 and expressed their satisfaction in a job well done. I didn't address
6 that latter point and would like to conclude by citing the Court to some
7 of that evidence.
8 These are two speeches, one in the relatively immediate aftermath
9 of Storm on August 26th by President Tudjman. I invite the Court to read
10 this in its entirety and get a good feeling from this for the attitude
11 towards Serbs and the intent of the leadership.
12 Let me just read a few lines from this:
13 "This is not just a simple freeing up until now occupied areas.
14 This is creation of foundations for independent and sovereign Croatian
15 state for future centuries. As long as they have been in Knin while Knin
16 was under occupation, future of Croatia
17 Storm it is. Never again will anybody be able to endanger it."
18 President Tudjman goes on to describe when Knin was captured by
19 Turkish conquerers and "together with them, the ones who stayed till
20 yesterday in our Croatian Knin." But today --
21 JUDGE ORIE: Mr. Tieger, I'm in a continuous attempt to keep your
22 speed at -- at a pace which is still bearable for the interpreters.
23 MR. TIEGER: My apologies to the interpreters.
24 JUDGE ORIE: If you would take over part of this task that would
25 be appreciated.
1 Please proceed.
2 MR. TIEGER: "Today it is Croatian Knin and never again it will
3 go back to what was before, when they spread cancer which has been
4 destroying Croatian national being in the middle of Croatia and didn't
5 allow Croatian people to be truly alone on its own, that Croatia becomes
6 capable of becoming independent and sovereign state."
7 President Tudjman goes on to discuss the demographics and how
8 there's a high percentage of Serbs in the middle of Croatian land, and he
10 "But to manage that, dear Croatian brothers and sisters, we had
11 to unite."
12 And then an interruption in the recording. And it continues:
13 "All decisions of our leadership the -- have been gone in two,
14 three days, as I have already said. They were gone in a few days as if
15 they had never been here, as I said ... they did not each have time to
16 collect their rotten money and dirty underwear."
17 And then on the one year anniversary of the liberation of Knin,
18 President Tudjman made that point crystal clear. "The results that we
19 have achieved are of historical importance. We have returned Zvonimir`s
20 Croatian town," that's Knin, "to the fold of its motherland, Croatia
21 pure as it was in Zvonimir's time."
22 Thank you, Your Honours. I'd like to turn the floor over to
23 Mr. Russo, who, as I mentioned earlier, will address issues related to
24 unlawful shelling.
25 JUDGE ORIE: Thank you, Mr. Tieger.
1 Mr. Russo, please proceed.
2 MR. RUSSO: Thank you, Mr. President, and Your Honours.
3 I will, as you may have guessed address the allegations of
4 unlawful attack.
5 However, I must first address two legal errors in the Gotovina
6 Defence's submission arising from argument that determination of a
7 violation under Article 5 has to be dictated by the laws and customs of
8 war under Article 3.
9 First, they incorrectly argue that the Prosecution is required to
10 prove that the unlawful attack was "widespread and systematic." This is
11 not accurate. First of all, the chapeau elements for persecution are
12 widespread or systematic. In any event, however, for purposes of
13 Count 1, the Prosecution has alleged an unlawful artillery attack as one
14 of many acts of persecution and not as a separate crime under Article 3.
15 As such, the Prosecution need not establish that this sole act was itself
16 either widespread or systematic, and the Court can look to the Kunarac
17 Appeals judgement as well as the Vasiljevic Appeals judgement.
18 Nevertheless, the evidence has indeed shown that the unlawful attack was
19 both widespread and systematic.
20 Second, they incorrectly argue that the Prosecution is required
21 to prove civilian deaths or injury resulting from the unlawful attack.
22 This again misstates the law. The Kordic Appeals judgement, at
23 paragraph 105, specifically states that an unlawful attack against
24 civilians may constitute the crime of persecution without the requirement
25 of a particular result caused by the attack.
1 Nevertheless, again, as I will address further on, the unlawful
2 attack did in fact cause death and injury to civilians.
3 The Gotovina Defence has also incorrectly argued that the
4 unlawful attack is at the core of the Prosecution's case theory against
5 General Gotovina, and that if the unlawful attack allegation fails, then
6 the entire JCE theory fails. As mentioned by Mr. Tieger, the Prosecution
7 has alleged all modes of liability, including aiding and abetting through
8 7(1), as well as command responsibility under 7(3) for all crimes charged
9 in the indictment.
10 Thus, contrary to the Defence assertions, all crimes charged
11 against General Gotovina are neither dependant on the JCE allegation nor
12 on the allegation of unlawful attack.
13 I will now move to the evidence in the case of unlawful attack.
14 The Gotovina Defence argues that there is no evidence of a single
15 unlawful attack. One can only come to such a conclusion by completely
16 ignoring the testimony of the witnesses who personally observed or were
17 subject to the shelling ordered by General Gotovina, as well as the
18 orders and actions of General Gotovina himself.
19 The evidence shows that General Gotovina ordered an attack on the
20 major population centres of the Krajina and that this attack was directed
21 at the Serb civilian population. Pursuant to General Gotovina's order,
22 purely civilian areas were shelled in the towns of Knin, Benkovac,
23 Obrovac, and Gracac.
24 I'd like to show a demonstrative via Sanction. From this
25 demonstrative, Mr. President, Your Honours, we can see the areas that
1 were shelled according to witnesses Mira Grubor, Andries Dreyer,
2 Joseph Bellerose, Roland Dangerfield, and Eric Widen, all of whom
3 provided evidence that shells landed all over Knin, including in areas
4 nowhere near any alleged military targets. In particular, the north-east
5 side of the town, which is the area around the hospital, as well as the
6 eastern side of the town, are areas where there were no targets for
7 artillery fire in Operation Storm. We know this from the testimony of
8 Marko Rajic, the man who planned and oversaw the artillery attack on
9 Knin, as well as from the evidence of Phil Berikoff and Kosta Novakovic.
10 Let's take a look now at how this pattern of shelling compares
11 with the alleged targets identified by Mr. Rajcic himself.
12 Now what I have done here, Your Honours, is simply reproduce the
13 same areas where the shells landed, and I have highlighted the areas
14 which Mr. Rajcic identified as those which were actually fired upon by
15 Croatian forces, both as pre-planned targets, as well as targets of
17 The Court can find this evidence at transcript pages 16369 to
18 380, 16391 to 398, and Exhibits P2330 up to and including P2335, and
20 Now, the Prosecution certainly does not agree with Mr. Rajcic
21 that all of the areas he identified were in fact military targets which
22 could be lawfully engaged with artillery. Nevertheless, for purposes of
23 98 bis, this evidence suffices to demonstrate that contrary to the
24 assertions of Mr. Rajcic, and to those of the Gotovina Defence, the
25 artillery attack on Knin was far from a precise operation aimed only
1 against military targets. Indeed ... indeed, this evidence shows that
2 shells impacted all over the town or, as one could easily find, that the
3 town itself was shelled.
4 The entire town was shelled even despite the fact that there was
5 no military defence of Knin itself, meaning no combat troops, no defence
6 trenches, no anti-tank ditches, no heavy weapon deployments, and no
7 outgoing fire from within the town. Nothing, Your Honours, to indicate
8 that the ARSK had planned to defend Knin from within. This evidence
9 comes from Robert Williams, Roland Dangerfield, and Phil Berikoff.
10 Taken together, this evidence shows that the artillery attack on
11 Knin was not done for the purported purpose of "knocking out" the command
12 and control structure of the ARSK but was in fact directed at the
13 civilian population.
14 There is similar evidence of shells being fired at purely
15 civilian areas of the towns of Benkovac, Obrovac, and Gracac. In
16 Benkovac, witnesses Dusan Sinobad and Witness 56 testified to the
17 shelling of purely civilian areas. We can see those here.
18 Dusan Sinobad testified there were no military targets in
19 Benkovac proper, with the possible exception of the Macura barracks which
20 was located over a kilometre from the centre of town, though he also
21 testified that there were no ARSK soldiers in that barracks on 4 August.
22 This evidence was corroborated by Witness 56 and by
23 Kosta Novakovic, a member of the ARSK Main Staff, who both testified that
24 there were no combat troops in Benkovac because during Operation Storm
25 they had all been sent to the front-lines.
1 A HV report also demonstrates that the town of Benkovac was
2 indiscriminately shelled. P1200, a report by the 134th Home Guards
3 Regiment states at page 2 that the general area of Benkovac was shelled
4 by the artillery forces of OG Zadar "without monitoring" and that they
5 had received a message from that unit asking, "Is anything falling on
7 Moving now to Obrovac.
8 In Obrovac, we have -- we have the witness testimony of
9 Jovan Dopudj who testified that areas all over the town were shelled, and
10 based on personal knowledge as a former ARSK commander after that area,
11 that there were no military targets inside the town of Obrovac, which
12 meant no command or communications centres, no combat troops, and no
13 military equipment in the town. That can be found at P548, paragraph 2.
14 Nevertheless, the spread of impacts -- the spread of impacts in
15 the town indicates that shells did, in fact, fall all over the town.
16 Moving now to Gracac. In Gracac, witnesses Mile Sovilj,
17 Vida Gacesa and UNMO Herman Steenbergen, all testified to shells landing
18 in purely residential areas of the town. Also significant to the
19 shelling of Gracac was the testimony from Marko Rajic himself that with
20 the exception of the cross-roads on the edge of town, there were no
21 military targets of sufficient value in Gracac to consider for gaining a
22 military advantage by artillery fire. The Court can find this at
23 transcript page 16 -- transcript page 16 ...
24 JUDGE ORIE: Mr. Russo, first of all, also the same invitation as
25 to Mr. Tieger to slow down. Second, when you talked about Obrovac we saw
1 Gracac on our screen, then it disappeared when you start talking about
2 Gracac. If you want us to follow it in this way, then it is best to have
3 on the screen what you're talking about, which opens another matter, that
4 is, how would you want to deal with the material you present to us on the
5 screen? We have seen the aerial view on Knin with now the green areas
6 and the identified places where, as you said, witnesses had testified
7 shells were falling. How do you want to -- of course, the Chamber could
8 look at the tapes of today's session and then get it back on our screens,
9 but that might not be a very efficient way of dealing with these matters.
10 MR. RUSSO: I'm happy to provide these to the Trial Chamber and
11 to the Defence so the Court can compare these to the targets, alleged
12 targets identified in these towns by the Defence. However, I simply
13 wanted these to be a demonstrative of the areas where shells fell.
14 JUDGE ORIE: Yes, I see that. But, of course, the memory of a
15 human being is limited in keeping rather complex pictures stored.
16 I'm also addressing the Defence. We know -- we all know that
17 this is just the visualized interpretation of the evidence by the
18 Prosecution. Would there be any problem in providing it to the Chamber,
19 where we have looked at it anyhow, in hard copy.
20 MR. KEHOE: We have no problem with that, Your Honour.
21 JUDGE ORIE: Mr. Russo, then perhaps it would be good to have
22 hard copies prepared. I think the originals are on the record, at least
23 on the video record of these hearings. It is not evidence. It is just
24 interpretation of evidence. So, therefore, unless one of the parties
25 would consider it be necessary to have these visualisations being marked
1 for identification, we would rather refrain from it and just use it as it
2 seems fit. Similarly as we have used often similar Defence pictures.
3 MR. KEHOE: Yes. My only request is I do want a copy of what
4 counsel has, which he offered to give, so I just want to follow that up.
5 JUDGE ORIE: Thank you. May I take it that Mr. Kehoe has spoken
6 on behalf of all Defence teams. I see this confirmed.
7 Please proceed, Mr. Russo, in -- at a speed which is appropriate.
8 MR. RUSSO: Thank you, Mr. President, and I'm grateful for the
10 Now, the testimony of Marko Rajic that there were no targets for
11 artillery fire in Gracac with the exception of the cross-roads can be
12 found at transcript page 16365.
13 In addition, Zdravko Janic, the special police commander in
14 charge of the axis of attack which included Gracac, likewise testified
15 that there were no military targets inside the town of Gracac proper.
16 This can be found at transcript 6355 to 356, and 6392.
17 Since the area of Gracac was the responsibility of the special
18 police during Operation Storm, I will return to a bit later in a
19 discussion of Mr. Markac 's contribution to the JCE through unlawful
21 In any case, the shelling of purely civilian areas inside the
22 major population centres of the Krajina is evidence upon which this
23 Trial Chamber could find that the artillery attack was, in fact, directed
24 against the Serbian civilian population.
25 Even beyond this, however, there is yet more evidence to show
1 that the civilian population was the primary object of the artillery
2 attack, because the civilians in the major towns were not the only
3 victims of shelling. Those who lived in the small villages and hamlets
4 around the Krajina where no military presence could be found were also
5 subjected to artillery strikes. You can find this in the evidence of
6 Witness 54. That's at P186, page 5, transcript 2856 to 2857, as well as
7 the evidence of Mr. Jovan Dopudj, that's at 5999 to 6000, as well as
8 P548, paragraph 4, and P551. In addition, the evidence of Sava Mirkovic.
9 That would be at D720, transcript 7418.
10 Evidence that the artillery attack was directed against the
11 civilians does not only come from witnesses and places that were shelled
12 but also from the method and means of attack chosen by General Gotovina.
13 Knin was shelled for 19 hours on the 4th of August, followed by an
14 additional six hours of shelling on the following day with rates of fire
15 varying from intense bombardment at the outset to rounds -- four to five
16 rounds per hour landing during the day and night. This we get from the
17 testimony of Alain Gilbert, Geoff Hill, Robert Williams and
18 Phil Berikoff.
19 The Trial Chamber has seen a video of the artillery attack on 4
20 August this is P1278, in which the varying rates of fire can be heard.
21 In particular, the single impacts which are unevenly spaced out in time.
22 We know that such sporadic fire was intentional from the orders of
23 General Gotovina at P1125, P2350, and the reports of the TS-4 artillery
24 commander Bruno Milin at P1268.
25 As alluded to a bit earlier by Mr. Tieger, Lieutenant-Colonel
1 Konings testified --
2 THE INTERPRETER: Slow down please. Thank you.
3 MR. RUSSO: My apologies.
4 Lieutenant-Colonel Konings testified that this type of prolonged
5 shelling with random single rounds would have almost no effect on the
6 military itself, would not deliver any true military advantage, but that
7 it would have a psychologically harassing effect on the civilian
8 population as it would keep them guessing about where the next round
9 would fall. It is in fact this effect on the civilian population,
10 Your Honours, that was truly intended by General Gotovina and the other
11 members of the JCE which is reflected at the meeting which I will come to
12 in a bit.
13 Now, the kind of weaponry used is, of course, another fact which
14 sheds even further light on the true intent of the artillery attack.
15 Mr. Akhavan rightly pointed out that an indiscriminate attack can
16 be found to have been directed against the civilian population.
17 Article 51 of Additional Protocol I defines an indiscriminate attack as
18 "one which employs a method or means of combat the effects of which
19 cannot be limited as required by the protocol and consequently in each
20 such case are of a nature to strike military objectives and civilians or
21 civilian objects without distinction."
22 Now despite the arguments by the Gotovina Defence, the
23 application of Article 51 depends entirely on the circumstances of each
24 particular case, and in the civilian-populated areas in this case,
25 General Gotovina chose to use unguided multi-barrel rocket launcher
1 systems, an unquestionably indiscriminate weapon under the circumstances.
2 This we can find at D1425, paragraph 16, transcript reference is 16278 to
3 279, 16282 to 285.
4 Marko Rajic himself admitted that using multiple-barrel rocket
5 launchers against targets in a residential area would violate the rules
6 of distinction and proportionality. He made this admission at transcript
7 page 16592. Every other witness who testified about MBRLs, including the
8 special police chief of artillery Josip Turkalj, testified to their
9 extreme inaccuracy and huge area of coverage. We can find this also in
10 the testimony of Andrew Leslie, Harry Konings, and UNMOs, Kari Anttila
11 and Tor Munkelien.
12 Either worse than MBRLS, Your Honours, is the evidence that
13 cluster munitions were used. The evidence that cluster munitions were
14 used against Knin, I refer the Chamber to the evidence of
15 Mr. Murray Dawes, P980, P981, P984, D863, and transcript reference 10500.
16 Finally, the almost complete lack of damage to the alleged
17 military targets in Knin highlights that the civilians were the primary
18 object of the attack. For purposes of economy, Your Honours, I will
19 focus only on some of the "high-value military targets" identified by
20 Marko Rajic.
21 The ARSK HQ. After 25 hours of shelling, the alleged target par
22 excellence, according to Mr. Rajcic, took exactly one shell hit and that
23 shell hit, Your Honours, landed in the parking lot behind the building.
24 This we know from the evidence of Kosta Novakovic, Geoff Hill, and
25 Alain Forand.
1 Indeed, the evidence shows that General Cermak himself moved
2 right into the building after the artillery attack and began using it.
3 The northern barracks, another allegedly high-value target,
4 showed almost no signs of damage and, again, was immediately used by
5 Croatian forces upon their entry into Knin. This we know from the
6 evidence of Murray Dawes, Geoff Hill, Andrew Leslie, and
7 Stig Marker Hansen.
8 The residence of Milan Martic, even though the building in which
9 Mr. Martic lived was targeted and fired upon, Marko Rajcic conceded that
10 the building itself was not a military target but, rather, only
11 Mr. Martic himself. Mr. Rajcic also made clear that he absolutely no
12 information about the building that was targeted and fired upon. He
13 didn't know how many flats were in the building, how many floors it had,
14 how many people may have been living there or who were there on the
15 4th of August, and he also admitted that the chance of actually injuring
16 or killing Mr. Martic by firing artillery that building was "very
18 The Court can find this at transcript 16446 to 447.
19 Although Mr. Rajcic denied that MBRLs were used when firing at
20 the residence of Milan Martic, UNMO Kari Anttila testified that he
21 conducted a crater analysis of six MBRL impacts in that same residential
22 area and that buildings and cars were damaged. The Court can find this
23 evidence at P60, D166, D167 and D1261.
24 Mr. Rajcic also testified to firing on the "old hospital"
25 building in downtown Knin for the sole reason that he heard Mr. Martic
1 was in there. That's at transcript 16396. Now chasing Mr. Martic around
2 the town with a cannon or a rocket launcher located 25 kilometres away
3 and shooting at any building he might be in, I submit, Your Honours, is a
4 classic example of an indiscriminate and a disproportionate attack.
5 The Gotovina Defence also argues that there was no death and no
6 injury to civilians as a result of the artillery attack ordered by
7 General Gotovina. Even though, as I mentioned, there is no requirement
8 to prove such a result, the evidence does indeed show that between 50 and
9 75 civilians were killed, and between 30 and 40 were injured during the
10 artillery attack on Knin.
11 This evidence can be found from the testimony of Phil Berikoff,
12 P740, paragraph 2; D284, pages 7 to 9; P747; and P744, as well from the
13 evidence of witness Mila Grubor who was a nurse on duty at hospital on
14 4 August. That's at P54 and P55, as well as the evidence of
15 Mr. Hussein Al-Alfi, Robert Williams and Exhibit P220.
16 There is also evidence of extensive damage to civilian structures
17 as a result of the artillery attack, despite the arguments to the
18 contrary. In Knin, the UNMO evidence records at least 110 buildings in
19 Knin damaged or destroyed by shelling. That evidence comes from P64 and
21 Mr. Berikoff also testified that he personally observed at least
22 100 houses in Knin destroyed during the artillery attack and that there
23 was substantial damage to more than these 100 houses which did he not
24 specifically record.
25 That can be found at 7601 to 602, 7882 to 83.
1 Witnesses in Benkovac, Obrovac, and Gracac, also testified that
2 the shelling caused damage to residential and civilian structures in
3 those towns. And I would refer the Chamber to the evidence of
4 Witness 56, Dusan Sinobad, Jovan Dopudj, Vida Gacesa, and
5 Herman Steenbergen.
6 Now, the Gotovina Defence also asserts that there is no evidence
7 that the artillery attack caused civilians to flee. Here again, the
8 evidence on the record proves otherwise. Witnesses for each town that
9 was shelled testified that civilians fled because of the shelling. In
10 Knin, and the smaller villages surrounding it, there is the testimony of
11 Witness 54. In Benkovac and its surrounding villages, there is the
12 testimony of Witnesses 56 and Dusan Sinobad.
13 In Obrovac, there is Jovan Dopudj. In Gracac, testimony of
14 Mile Sovilj and Vida Gacesa. As to any arguments that Mr. Martic's
15 decision to evacuate the women and children was the cause of this mass
16 exodus, I will refer the Trial Chamber to the evidence that Mr. Martic's
17 decision was issued because of the unlawful artillery attack and also the
18 evidence that most civilians were already leaving their towns before
19 Mr. Martic even made that decision, much less communicated it to anyone.
20 And in any event, the evidence shows that they would have left even in
21 the absence of that order. The Court can find this evidence at D923,
22 D928, D929, D930, transcript pages 11968, 11973 to 78.
23 Now all of the foregoing evidence is more than capable,
24 Your Honours, of supporting a finding that General Gotovina conducted
25 unlawful attacks against the civilian population in order to drive them
1 out of the Krajina. Indeed, as it was apparent to those who suffered and
2 who witnessed the artillery attacks, the intent to drive out the Serbian
3 population by unlawful shelling appears plainly from the fact that the
4 towns themselves were shelled. The damage to the alleged military
5 targets is almost nil, in comparison to the damage to the homes and
6 buildings of the civilians who fled for their lives, and to the dead they
7 left behind. This evidence, on top of the evidence of the manner and
8 means by which this attack was perpetrated, provides this Trial Chamber
9 with sufficient evidence to infer that the intent of the attack was to
10 drive the civilians out.
11 Nevertheless, the Trial Chamber need not infer what has been
12 plainly expressed. General Gotovina ordered that the major population
13 centres of the Krajina be put under artillery fire and he did so pursuant
14 to the plan reflected at the Brioni meeting.
15 At that meeting, President Tudjman announced that the political
16 climate presented an opportunity to repay the destruction of Croatian
17 towns and villages and he made clear to everyone the importance of
18 getting the Serb civilians to leave so the military would follow. It was
19 General Gotovina who responded to that comment and assured the President
20 that if they kept up the pressure there wouldn't be so many civilians
22 We know from the testimony of Marko Rajic that the use of this
23 term "pressure" is a euphemism for the use of artillery. That can be
24 found at transcript 16601.
25 The pressure that General Gotovina was referring to at the Brioni
1 meeting was the artillery attacks which he was conducting at that time
2 against the civilian-populated areas of Cetina and Strmica and which were
3 driving civilians out of those areas and into Knin, spreading panic among
4 the civilian population there. The Court can find this in the evidence
5 of UNMO witnesses Peter Marti and Alexander Tchernetsky, P427, P417, P204
6 and 205, as well as the evidence of Witness 136, transcript 666 to 67,
7 797 to 798.
8 In any case, President Tudjman, General Gotovina, General Markac
9 and all who were in attendance at the Brioni meeting were well aware of
10 the effect that artillery had on Serb civilians in the areas they
11 shelled, not only from what they were doing in Cetina and Strmica but
12 also from their recent artillery attacks on Grahovo and Glamoc.
13 President Tudjman reminded everyone how the civilians had fled those
14 towns when General Gotovina's forces "put pressure on them." And we know
15 from Marko Rajic that some of the civilians from those towns fled to
16 Knin. Undoubtedly adding to the panic by the refugees from Strmica and
18 President Tudjman assured everyone that even greater panic would
19 break out in Knin once their attack started, and that the excuse of a
20 possible counterattack from Knin would be a good pretext for using
21 artillery against the town. The message, Your Honours, was clear, the
22 plan was explicit. Make them an exit route, shell the towns to trigger
23 the civilian flight and the military will follow them out. That's what
24 exactly what they planned. That's exactly what they did, and that's
25 exactly, Your Honours, what happened. General Gotovina's order to put
1 the civilian-populated towns under artillery fire is a patently illegal
2 order as it explicitly directs his subordinates to disregard the
3 principles of proportionality and distinction and to make entire towns
4 targets for artillery fire.
5 Let me now briefly address General Markac's responsibility for
6 the unlawful artillery attacks against Gracac and Donji Lapac.
7 The special police forces of General Markac were responsible for
8 the axis of attack that included Gracac and Donji Lapac, and
9 General Markac issued the order of attack and engagement of special
10 police rocket and artillery batteries. This can be found at P2385, P614,
12 As I discussed earlier, the shelling of purely civilian areas in
13 Gracac itself is an unlawful attack. There is additional evidence,
14 however, of the indiscriminate nature of the shelling done by the special
15 police forces. The special police chief of artillery, Josip Turkalj, and
16 the commander, Zdravko Janjic, both testified that the special police did
17 not have forward observers. That's at P1150, page 89 to 90; P1151, page
18 23 to 24; and transcript 13597, as well as P553, page 136.
19 Lieutenant-Colonel Konings testified that artillery should never
20 be used in a civilian-populated area without forward observers.
21 The artillery attack against Donji Lapac, Your Honours is the
22 same story. General Markac ordered the special police forces to capture
23 Donji Lapac and they used artillery to do so. This can be seen from the
24 evidence of General Markac's himself in a report, P585, as well as the
25 evidence of Zdravko Janjic, P552, paragraph 34, D556, page 1, and the
1 evidence of Josip Turkalj, P1151, pages 10, 23, and 32 and transcript
2 page 13611 to 612. There were no military targets and no military
3 presence in Donji Lapac either. Josip Turkalj at transcript 13615, P1151
4 at page 27. Zdravko Janjic at P552, paragraphs 36 and 37, P553,
5 pages 138 and 150 to 154.
6 Donji Lapac resident Milan Ilic testified that Donji Lapac was
7 shelled for several hours on 7 August 1995, that he left the town because
8 of the shelling, and he could see that houses had been destroyed by
9 shelling as he left the town, as well as the fact that there was no
10 military presence in Donji Lapac. That's at P725, page 1; P726,
11 paragraph 5.
12 Now, the Markac Defence argues in an interesting way that there
13 is no witness who has testified that General Markac had anything to do
14 with the planning and preparing of artillery operations in his axis of
15 attack. This seems to a rather obvious attempt to argue around his
16 presence at the Brioni meeting which reflects the plan to use artillery
17 to get civilians out of the Krajina. The fact that the artillery attacks
18 on Gracac and Donji Lapac follow the same pattern of indiscriminate fire
19 as was carried out by General Gotovina's forces is evidence that
20 General Markac implemented the same common criminal plan.
21 The foregoing evidence, Your Honours, supports a finding that
22 Generals Gotovina and Markac significantly contributed to the common
23 criminal purpose of the JCE by executing the unlawful attacks against
24 Serbian civilians, establishing liability for Counts 1 through 3 of the
25 indictment. In the alternative, the evidence suffices to establish their
1 liability for those same offences through ordering, as well as aiding and
2 abetting under 7(1) and also command responsibility under 7(3).
3 That concludes the unlawful attack presentation. I turn the
4 floor over to Mr. Hedaraly.
5 JUDGE ORIE: Thank you, Mr. Russo.
6 Mr. Hedaraly.
7 MR. HEDARALY: Thank you, Mr. President, Your Honours.
8 The Prosecution has presented a vast amount of evidence regarding
9 what took place in Sector South after the first few days of
10 Operation Storm, as was just described by Mr. Russo. The burning and
11 looting of Serb property, the killing and harassment of Serb civilians
12 and the general untenable conditions of life for those Serbs who remained
13 behind or wished to come back. This evidence included both general and
14 contemporaneous accounts and conclusions from witnesses on the ground, as
15 well as details of specific incidents. Of course, I will not be able
16 today to review all this evidence but will only provide a brief snapshot.
17 I will begin with the destruction. Reports from various
18 international organisations and the testimonies of numerous witnesses are
19 all consistent with respect to the widespread destruction that took place
20 in former Sector South.
21 ECMM reported in late August 1995, at P2151, that 60 to
22 80 per cent of houses had been partly or completely destroyed. UNMO
23 reported 73 per cent on 13 September, at P97. One member of the UNPROFOR
24 mission, Roland Dangerfield, who travelled 14 hours per day through the
25 area, stated that 80 to 90 of the villages suffered some form of burning.
1 He testified that "the majority of the sector was on fire."
2 This destruction ranged from one end of Sector South to the
3 other, from the municipalities of Drnis to Donji Lapac, Benkovac to Knin,
4 as well as Gracac and Obrovac. In the words of Mr. Vanderostyne
5 regarding the areas he visited, asked to clarify what he meant by burning
6 on a large-scale, he said -- and that has been consistently corroborated
7 by other witnesses, his answer was:
8 "Yes, sure I can. Looting on -- burning on a major scale, those
9 were not isolated incidents. Between Gospic and Gracac the whole
10 countryside was on fire, and I remember, Mr. President, at one time, we
11 were crossing a little -- a small little hill, and you saw the
12 countryside as far as you could look and everywhere, everywhere, every
13 farm, every barn, every annex, every house in the countryside, I mean not
14 in the villages but every single building in the countryside was on fire.
15 So this is what I mean on a major scale."
16 That was at transcript reference 4046, 4047.
17 The destruction started as soon as the HV took control of the
18 territory on 5 August 1995 with Serb houses seen burning in, for example,
19 Zagrovic, Knin municipality; Bukovic, Benkovac municipality; Kakanj in
20 the Kistanje municipality; and Amanovici in the Orlic municipality.
21 The towns of Kistanje, Djeverske, Cetina, Donji Lapac, were more
22 than 95 per cent destroyed. Evidence was presented that this burning
23 occurred after the completion of combat operations. Donji Lapac, which
24 was 99 per cent Serb before the war, was described in the following
25 manner by Minister Susak at a meeting he had with President Tudjman and
1 others: "Donji Lapac, as such, does not exist. There is only its name
2 on the map. Everything is destroyed, everything."
3 That is at P470, pages 53 and 54.
4 In some cases only the church was left intact. Sometimes with
5 soldiers or policemen guarding it. You will hear from that -- on that
6 from Mr. Waespi.
7 The only places spared from such extensive destruction were the
8 larger towns so that they could be repopulated by Croat displaced persons
9 or villages that were populated by Croats in the majority.
10 I refer, for example, to D820, P935, as well as the testimonies
11 of Eric Hendriks at 9747, 48 and 9671, 72; and Stig Marker Hansen, 14933
12 and 34.
13 The evidence presented by the Prosecution also demonstrated that
14 the widespread and systematic destruction was carried out in numerous
15 cases by Croatian forces. I won't recite all the evidence from witnesses
16 who identified soldiers or people in uniform burning specific dwellings,
17 just a few observations and a few examples.
18 The HV itself noted that its members were committing arson. A
19 report from the political administration coordinator Ivan Zelic on
20 13 August 1995, that is at D810, states:
21 "It should be noted that the largest number of fires occurred a
22 day or two following the entry of HV units into newly liberated villages.
23 Cases of arson were most often carried out by members of Home Guard
24 regiments who were displaced persons from the areas recently liberated."
25 Looting and burning were also carried out by the special police and there
1 be evidence cited to you by Ms. Mahindaratne later on today.
2 The internationals observed the same thing, P223, an UNCIVPOL
3 report on 20 August states:
4 "Another callous trend in Sector South is the widespread arson of
5 deserted houses in the vicinities of Benkovac, Kistanje, Gracac, and
6 Knin. Croatian military personnel have been spotted at the crime scenes,
7 strongly suggesting that they are the perpetrators. Indeed there is
8 hardly anyone else in the area to blame. The destruction of houses is
9 reportedly accompanied by the looting of property within the extent of
10 this activity indicates that it is officially condoned policy."
11 Two brief examples of the systematic nature of this destruction.
12 In Kistanje, a town I just mentioned as few minutes ago, on 6th August,
13 Mr. Gojanovic testified that he had gone through the town on
14 6th August and that saw HV soldiers had started to burn it already.
15 Mr. Dawes also observed the town of Kistanje starting to be
16 burned on 6 August. By 9 August it was observed by Mr. Berikoff to be
17 95 per cent destroyed.
18 As written by journalist Robert Fisk, who was visiting the sector
19 with Alun Roberts, in P684:
20 "Every house in Kistanje has been destroyed by the Croat army:
21 Little bungalows, two-storey villas, Austro-Hungarian buildings of cut
22 stone, the burnt ruins still blessed by trees whose leaves have been
23 autumned browned by the fires. No Serb will ever return here."
24 On the 10th of August in the Kosovo valley, a group of uniformed
25 soldiers was seen going house to house with the support of a fuel truck
1 systematically burning the houses there. That is at P830 and the
2 testimonies of the ECMM witnesses. On the same day, UNMO patrol team
3 observed about 30 to 35 houses burning on the road from Knin to Kosovo.
4 Patrol also observed about the same number of houses burnt down in the
6 On the same road at a similar time, witnesses saw anti-aircraft
7 guns used by HV vehicles used to set houses on fire on the road between
8 Knin to Drnis. One of these witness, Switbertus Dijkstra, noted a Puma
9 insignia on the side of one of the military trucks. As noted by a few
10 internationals, it is hard to separate the looting and burning. They
11 usually went hand in hand, with houses looted before being destroyed.
12 The looting was equally systematic and carried out openly.
13 Once again, without going into too much detail, it started as
14 soon as Croatian soldiers entered the area.
15 On 5 August, witnesses Dawes and Williams, among others in the UN
16 compound, saw the Croatian soldiers looting openly, right outside the UN
17 compound. Another witness, Stig Marker Hansen, testified that these
18 looted goods were then collected the next day by a truck and taken away.
19 The looting and burning also continued over time. On 22 August,
20 Mr. Hendriks observed two uniforms military police HV members with a
21 72nd Battalion insignia, along with three civilians and the support of
22 INA light truck, leaving a house in Guglete in the Obrovac municipality
23 that had just been burned down. There was photograph of that house
24 admitted into evidence. That is at P948. There are also some burning
25 incidents through the months of September, for example,
1 4 September notice by HRAT at P36, and 10 September by UNCIVPOL at D179.
2 The looting as well spanning the entire area also continued
3 throughout the period of the indictment. For example, reports of 23 and
4 27 September, noted looting by uniformed personnel in respectively Plavno
5 and Orlic. P2149, P267.
6 The reason internationals were able to observe these acts is that
7 it was done publicly with complete impunity. P933 states units are
8 burning houses while military and civilian police are watching. It is
9 all done in public, and even our presence does not seem to disturb their
10 business. By this fact, the looting must be organised and the burning of
11 houses smells of ethnic cleansing.
12 One report, P1287, noted that in one case, when asked why a
13 professional army was behaving that way, senior HV officer relied: "Why
14 do people drink and drive?" That is at P1287.
15 The effect of all of this, as one international organisation has
16 noted, is that the burning of the Krajina Serb farming resources
17 effectively prevents them to return in larger numbers. Individual small
18 farming constitutes the basic livelihood of Krajina Serbs. That is at
20 And just to conclude briefly this section, as you heard earlier
21 from Mr. Tieger, the extent of this plunder and particularly the
22 destruction and its systematic nature led to the conclusion by witnesses
23 on the ground that the destruction was either ordered from the top or, at
24 the very least, condoned by the highest authorities.
25 Mr. President, is it a suitable time for a break?
1 JUDGE ORIE: It is, Mr. Hedaraly.
2 We will have a break and we'll resume at five minutes to 11.00.
3 --- Recess taken at 10.31 a.m.
4 --- On resuming at 10.58 a.m.
5 JUDGE ORIE: Mr. Hedaraly, I would like to go into private
6 session for a second to deal with a procedural matter.
7 [Private session]
22 [Open session]
23 THE REGISTRAR: Your Honours, we're back in open session.
24 JUDGE ORIE: Thank you, Mr. Registrar.
25 Mr. Hedaraly, please proceed.
1 MR. HEDARALY: Thank you, Mr. President.
2 I will now move to the charges of murder that were alleged by the
3 Prosecution, and just to inform the Court, based on the Chamber's
4 guidance, the Prosecution will withdraw 32 specific victims that it had
5 identified as victims of murder and subject to Counts 6 and 7. I will
6 not list them now to save time but we will provide the list by e-mail to
7 the parties and the Chamber.
8 JUDGE ORIE: Thank you, Mr. Hedaraly.
9 MR. HEDARALY: However, these are the only incidents for which
10 the Prosecution concedes that it has not presented any evidence of
11 murder. As to the other ones, and that is a total of 342, both scheduled
12 and additional killings, evidence was presented that these 342 victims
13 were killed unlawfully. It the Prosecution's submission that the
14 evidence that was presented has to be viewed in its totality. There are
15 various sources of evidence that must be considered in conjunction with
16 each other. There is, of course, evidence from witnesses, both those who
17 have testified live and those whose statements have been admitted under
18 Rules 92 bis and quater, but it is not the only source of evidence.
19 There is not always evidence like that presented by
20 Smiljana Mirkovic or Manda Rodic who eye-witnessed the killing by
21 gun-shot of two different women in cold blood by Croatian soldiers,
22 respectively, Djurdjija Mirkovic in Polaca on 12 August and
23 Jovanka Mizdrak in Mizdrakovac on 8 August.
24 There also is evidence from documents relating to the collection
25 and burial of the bodies, where photographs were often taken by the
1 Croatian authorities in their sanitation operations. There is evidence
2 from international organisations that discovered or otherwise witnessed
3 the bodies on the ground. There are contemporaneous accounts from these
4 organisations about circumstances in which these victims have died.
5 There is evidence from the exhumation and subsequent autopsy and forensic
6 analysis of the bodies. It is therefore an examination of all this
7 evidence in its totality that must be considered, and the Prosecution
8 submits that that evidence in its totality is sufficient for the purposes
9 of Rule 98 bis.
10 We can obviously not today go through all 342 incidents. I will
11 only address a few of the ones specifically raised in the Defence
13 For example, additional killings number 131 and 132, specifically
14 challenged in the 98 bis submissions of the Gotovina Defence, two
15 unidentified bodies in the hamlet of Dmitrovic in the Zagrovic village.
16 There is no autopsy report for these two bodies, it is true. But there
17 is evidence of unlawful killing. There are reports by both UNCIVPOL and
18 HRAT as well as witness testimony from Mr. Hill who took pictures and
19 testified that they had been shot in the head. Mr. Roberts also provided
20 the Chamber with contemporaneous photographs of the corpses of these two
21 victims and several international and insider witnesses have testified
22 about the problems related to the belated collection of these bodies. I
23 refer to P226, UNCIVPOL report; D3, HRAT report; P292, Mr. Hill's
24 testimony, transcript reference 3770, lines 9 and 10; P303, the
1 In addition to this evidence, there is a witness, Ilija Mirkovic,
2 who provided evidence that Croatian soldiers entered this hamlet on
3 5 August, that he heard gun-shots, and that he then discovered the body
4 of another victim on the Prosecution's list, Jovo Dmitrovic, which is
5 victim number 129, and that he had been shot which was confirmed by an
6 autopsy report, which is P1600. So although there is no direct evidence
7 as to how victims 131 and 132 died, there is strong evidence from which
8 to infer that these victims were also shot by Croatian soldiers, the fact
9 that this incident happened in the very same hamlet, around the very same
11 But there is also more. In the same village of Zagrovic, which
12 encompasses several hamlets, at least 12 victims on the Prosecution's
13 list of victims died shortly after the end of military operations. In
14 fact, Your Honours heard evidence from Witness 69 regarding one of the
15 scheduled killings in this area. You heard how, on the 5th of August,
16 Croatian soldiers entered the hamlet and the witness heard one soldier
17 take an 80-year-old man behind a house and he heard gun-shots. This
18 victim died of a gun-shot wound to the chest as confirmed in the autopsy
19 report, P1522.
20 You also heard how, in the evening of the 5th of August, the
21 witness found the body of another victim, who had sought refugee at his
22 home, lying in a pool of blood, hours after the Croatian soldiers entered
23 the village. Three other bodies were also found in that hamlet.
24 As I said earlier, we can't do the same exercise today for each
25 of the additional killings. And, of course, we have not submitted for
1 each of them witness testimony, photographs and reports from
2 international organisations, but the point that I'm trying to make,
3 Your Honours, by going in some detail into this incident is that what
4 must be examined is not simply one killing, one autopsy report, for
5 example, but the evidence must be examined in its totality.
6 The same exercise could be made, for example, for the Plavno
7 valley, where there are a number of instances of killings happening in
8 this fashion on the 5th and the 6th of August. Scheduled killing 2, for
9 example, Sava Djuric being pushed in a burning workshop by soldiers comes
10 to mind, and although witnesses have not testified about each and every
11 willing in Plavno at around the same dates, there is strong evidence by
12 this pattern from which to infer that these other killings were similarly
14 I know that the scheduled incidents have generally been discussed
15 in court in some detail, so I want to focus on one or maybe two examples,
16 if I have time, of killings for which the Prosecution has submitted
17 witness evidence through Rules 92 bis and/or 92 quater.
18 The first example is found in the testimony of Vesela Damjanic
19 who testified regarding the killing of her epileptic husband,
20 killing 258. As a result of two epileptic attacks, his head -- the head
21 of the victim, Lazo Damjanic, would shake uncontrollably. On the
22 6th of August, 1995, three young Croatian soldiers entered the village of
23 Vrbnik in camouflage uniforms and the witness testified that they were
24 not from the area. They took the victim towards the road. As they were
25 walking away, the soldiers told him, Just shake your head, will you not
1 do that for very long anymore.
2 As his wife pleaded with the soldiers they told her to get lost
3 or they would kill her. One of the soldiers fired two shots in the air
4 and indicated that the third bullet would be for her. She was hiding
5 behind a tree and waiting. 15 minutes later she heard shooting from the
6 direction where her husband had been taken.
7 Two days later, her husband not having returned and no one giving
8 her any information, the witness saw the very same soldiers who took her
9 husband away, and the soldiers asked her, What are you waiting for, old
10 woman? When told she was waiting for her husband, they told her, You do
11 not have to wait for him anymore, you are not going to see him alive.
12 She responded, If I am not going to see him alive, will I get to see his
13 dead body? The soldiers, If you manage to find him.
14 With the help of her son, the witness eventually found the body
15 of her dead husband under some bushes 15 metres from the road. She
16 testified that when she saw her husband's body, the skull was broken and
17 the stomach was open and that it seems like he had been shot in the
18 stomach many times. In his expert report, Dr. Clark confirmed that there
19 must have been at least six gun-shots. That's P1251, page 12.
20 The body was removed by the Croatian authorities and buried in
21 the Knin cemetery more than two weeks later. No investigation into this
22 killing took place at the time, despite the clear indication of
23 involvement from Croatian soldiers. The only thing she was asked, as we
24 know from her statement, was by one soldier to take a picture of her with
25 her husband's body. When she refused, she was beaten by a man in
1 uniform. When she made a cynical remark about the number of the metal
2 tag assigned to the body, 498, presumably regarding that -- the high
3 number, she was beaten again.
4 I don't have time to go in other examples. I know the Chamber
5 has considered carefully those statements admitted under Rules 92 bis and
6 quater. The Prosecution also refer to those in its submission.
7 At this stage, however, I briefly want to point out that the
8 count for murder in the Prosecution's indictment --
9 JUDGE ORIE: Mr. Hedaraly, you started so well and now I find
10 that between -- on page 40, between lines 18 and 25, some portions are --
11 I'm not blaming the interpreters in any way, some parts of the
12 translation in French are missing. Could you please resume where you
13 said -- I'll just read it slowly so that it is on the record:
14 "The only thing she was asked, as we know from her statement,
15 was" -- apparently a request by "a soldier to take a picture of her with
16 her husband's body. When she refused she was beaten by a man in a
17 uniform. And when she made a cynical remark about the number of the
18 metal tag assigned to the body," and then a word is missing, "she was
19 beaten again."
20 Could you please try to -- there was approximately some eight to
21 ten lines which the translation was behind. So would you please re-find
22 your original speed of speech.
23 Please proceed.
24 MR. HEDARALY: I will, Mr. President. My apologies and thank you
25 for the guidance.
1 At this stage, I briefly want to point out that the count for
2 murder in the Prosecution's indictment is not limited to civilians but
3 also to Serb soldiers who have laid down their arms or are hors de
4 combat. This was not challenged directly in the 98 bis submissions, but
5 we have seen, both during cross-examination of Prosecution witnesses and
6 in written submissions by the Defence, the suggestion that a member of
7 the RSK could not be the victim of murder. This becomes even more
8 relevant considering that all men between 18 and 60 were considered to be
9 ARSK members by the Croatian forces, as stated by Witness 82, P2359,
10 paragraph 28.
11 For example, there has been extensive briefing on the death of
12 Jovica Plavsa, killing 126, in the context of the admission of the
13 statement of his father, Witness 43. And even assuming that the victim
14 was a member of an armed group, which the Prosecution stipulated to,
15 given the contradictory evidence on this point, the more important point
16 is that the victim was taken in handcuffs by Croatian soldiers on
17 5 August, and after ten minutes or, so the father heard a single shot,
18 and then found his son's body. The autopsy report confirmed that Jovo
19 Plavsa had been buried in handcuffs and that he died of a gun-shot wound
20 to the head and chest, P1597. Even if he was an ARSK soldier, he was in
21 the custody, in fact in handcuffs, of the Croatian soldiers and his
22 killing, the Prosecution submits, was therefore unlawful.
23 Similarly, you heard from witness Marija Vecerina about how her
24 son and four other young Serb men were taken out of a basement by
25 Croatian soldiers, and after hearing some shots, never seen again. This
1 was corroborated by the statement of Zdravko Buncic, admitted under
2 Rule 92 bis. The autopsy reports for these five men were that four died
3 of gun-shot injuries to the head and that the fifth of a gun-shot injury
4 to the neck.
5 Finally, the last aspect of the murder I want to examine is the
6 challenge by the Gotovina Defence in its Rule 98 bis submissions
7 regarding number of incidents that had claimed the autopsy -- where it
8 claimed the autopsy report could not conclude with certainty of a
9 specific cause of death. As an initial matter, the Prosecution notes
10 that for killings number 218, 220, and 288, there is in fact a determined
11 cause of death in the autopsy reports, and they are not unascertained.
12 P1641, P1257, and P1683.
13 In any event, the mere fact that an autopsy may not be able to
14 provide a certain cause of death is not in itself inconsistent with a
15 finding that a victim was unlawfully killed. For example, a number of
16 people we have seen the body before it was collected and clearly stated
17 that he had been shot, like we've seen earlier in the case of additional
18 killings 131 and 132. In some other cases, even where the autopsy could
19 not conclude the cause of death with precision, there can nevertheless be
20 evidence in the report itself that the death was not from a natural
22 So one brief example on this score, additional killing 193, where
23 the autopsy report, P163, says unascertained. That is only because "a
24 fragment of the skull was present, therefore a high velocity gun-shot
25 injury or blunt head injuries cannot be excluded. In other words, there
1 was no head."
2 It is the Prosecution's submission that people don't lose their
3 head from natural causes and that therefore there is strong
4 circumstantial evidence of an unlawful killing.
5 There is more. According to the death report, the death occurred
6 in Golubic near Knin on 11 August. Victim 124, a different victim not
7 specifically channelled by the Defence, was also found in Golubic and
8 killed a few days earlier. His head was found 50 metres away from his
9 body. The autopsy report, P1596, confirms that the head of the victim
10 was not buried with the rest of the remains. The HRAT daily report, P27,
11 indicates that members of the 4th Brigade were involved in the initial
12 operation and remained in the area of Golubic until about 12 August.
13 There also evidence in the Croatian Helsinki Committee report, P2345,
14 page 150, footnote 19, that soldiers were playing football with the head.
15 Just a quick word on Counts 8 and 9, the Prosecution has provided
16 evidence with respect to these counts. I simply refer the Court to the
17 testimony of Draginja Urukalo, who testified via videolink about being
18 forced to strip to her underwear and ordered to play basketball behind
19 her house by Croatian soldiers, even if she was in her 70s at the time.
20 The Prosecution also refers to the evidence of Bogdan Brkic, who provided
21 a statement that he was tied to a tree by Croatian soldiers and a fire
22 was lit under his feet. These are only a few examples, Your Honours.
23 There were countless incidents of threats, beatings and
24 harassment of the Serbs that remained in the Krajina reported by various
25 organisations. Some Serbs were asked why they had not left. For
1 example, P950, a man armed and in uniform told a Serb civilian: "Chetnik
2 go away, this is not your country."
3 You also heard of evidence of Witness 136 who testified being
4 harassed by HV members when she left the UN camp and asked why she did
5 not leave. She also testified about HV firing over the UN camp and
6 scaring the Serbs who had sought refuge there.
7 Mr. Russo discussed the massive departure of the Serb civilians
8 because of the unlawful artillery attack of the 4th and 5th of August. A
9 number of the small Serb population left behind also left following these
10 actions I have discussed today. The looting, the burning, the killing
11 the harassment, the intimidation; in short, the hostile environment
12 created for the remaining Serbs in the Krajina.
13 As late as 27 September, ECMM reported regarding residents in
14 Plavno: "Most people are getting more and more desperate due to the
15 ongoing looting and harassment. They want to leave immediately to
16 Serbia." P2147.
17 The Chamber may also recall the testimony of Witness 13 who was
18 injured by Croatian soldiers and sought refugee at the UN camp. When
19 asked in court why after seven weeks she decided to go to Belgrade rather
20 than go back to her home, she responded: "How could we possibly go back
21 home if our home had been burned down. We had no home to go back to."
22 Witness 1, who was seriously wounded in the same incident, stated
23 that because of the shooting the first few days, he was afraid someone
24 might kill him if he went back to his home. He therefore also left to
1 When asked if he would have gone home absent those concerns, he
2 said, Well, yes I didn't have any other country. I was born in Croatia
3 and that was my country.
4 Finally, Witness 69, who I mentioned earlier in his connection
5 with one of the scheduled killing incidents, when discussing the fact
6 that he had stayed behind while others in his hamlet had left on
7 4th of August and asked him to go with him, when he was asked who asked
8 him to go with them to leave on the 4th he said, Well, neighbours, they
9 tried to convince me that I should go and so did my wife. But I said why
10 should I go? Where should I go? Why would I leave my home? Why would I
11 leave my house? But at one point the time came were I really had to go.
12 I had to leave it.
13 Thank you, Mr. President, Your Honours. I will turn the floor
14 over to Mr. Waespi.
15 JUDGE ORIE: Thank you, Mr. Hedaraly.
16 Mr. Waespi.
17 MR. WAESPI: Thank you, Mr. President. I will cover aspects of
18 General Gotovina's criminal responsibility under Articles 7(1) and 7(3).
19 First of all, I would like to describe his effective control, and
20 then move on to his shared intent and contribution to the JCE as outlined
21 by Mr. Tieger.
22 Your Honours, there is no doubt that General Gotovina had both
23 de facto and de jure command and control over all forces subordinated or
24 attached to the Split Military District during Operation Storm and
25 throughout the indictment period. Rajcic testimony at 16560 to 62.
1 There is evidence that General Gotovina was a forceful and
2 effective commander capable not only of issuing orders but making sure
3 that his orders were implemented on the ground. You will recall the
4 evidence of Mr. Rajcic that it was very dangerous not to comply with an
5 order from General Gotovina, page 16454.
6 There is evidence that General Gotovina's orders were indeed
7 implemented by the troops on the ground. See Liborius, at page 8273, and
8 P845. The images captured of General Gotovina during 6 August meeting in
9 Knin, D792, demonstrate a confident military commander in full possession
10 of the authority to not only voice his displeasure at what he deemed to
11 be an unacceptable state of affairs created by subordinates, but also to
12 issue direct orders to rectify that situation and to have them
13 implemented. Unfortunately, his focus during that meeting was on
14 supplying crosses, cleanliness and state propaganda for an impending
15 visit of President Tudjman.
16 There is ample evidence, Your Honours, in relation to the
17 72nd Military Police Battalion that it was part of the Split Military
18 District. The evidence shows that General Gotovina had the material
19 ability to order the military police to take measures to prevent,
20 investigate and punish crimes. P880, in particular Articles 8, 9, 16,
22 Damir Simic, who was a member of the crime police section of the
23 72nd Military Police Battalion, confirmed that: "Although formally the
24 MP belonged to the head of the MP administration in Zagreb, in their
25 daily activity the MP command would get orders from the Military District
1 Command," and daily activity included maintenance of discipline,
2 investigation of crime, securing check-points, and so on. P967 at
3 paragraph 16.
4 General Lausic confirmed that Article 10 of these Rules fall
5 within the regular military police tasks, and therefore, under Article 9,
6 while performing these regular military police tasks, MPs were
7 subordinated to the commander of the Military District.
8 Contrary to the Defence assertions, there is ample evidence that
9 General Gotovina and his subordinated unit commanders use their
10 subordinated MP units on numerous occasions for non-combat related tasks.
11 Just a few examples. The first one is P1126, plan of security
12 measures, issued by the command of OG North, specifically approved by
13 General Gotovina. Here the military police are ordered "collecting and
14 transporting the population trapped in liberated areas to collection
15 centres. Further, they have to discover and arrest enemy soldiers and
16 prevent incursions of civilians into liberated territory." Page 4.
17 Another example of the non-combat related use of military police
18 is D773, a very detailed order that you might recall, Knin 95, dated 23rd
19 August, in which General Gotovina gives very specific tasks to various
20 units of the district, including military police, in relation to
21 guaranteeing the security of the president.
22 It is telling that General Gotovina was able to issue orders to
23 his subordinates, including the military police, to successfully secure
24 the presence of Croatia in a war-torn area that only a few weeks prior
25 had been enemy territory. Couple of other examples of the non-combat
1 related use of MP, P1113, at page 370, an order by General Gotovina to
2 the MP battalion to prevent torching, or P1123, an order again by
3 General Gotovina to the MPs to set up check-points.
4 Your Honours, there is further evidence - and I won't go into
5 details - that the HV forces operating within the Split Military District
6 were part of a disciplined army and had a functioning chain of command
7 where orders were followed.
8 Marko Rajic, page 16328. Ambassador Galbraith said that the HV
9 was the most disciplined military and best military in the former
10 Yugoslavia. Page 4947 ...
11 As would be --
12 JUDGE ORIE: Mr. Waespi, it is easier for me to follow your
13 argument directly rather than to have -- constantly having to check with
14 the French translation or, of course, I can't check the other
15 translation, that then I'm listening French, reading English, which
16 confuses me. So to the extent the Prosecution could develop a similar
17 system as I sometimes saw the Defence doing, that is that one of your
18 people would check carefully how much you are behind that would -- I
19 would really appreciate that.
20 MR. WAESPI: Thank you, Mr. President. In fact, Mr. Saklaine has
21 that role already. I just didn't obey him.
22 JUDGE ORIE: Yes, I noticed that -- please proceed.
23 MR. WAESPI: Thank you, Mr. President.
24 Another example are the inspections that were carried out if
25 deficiency occurred in units, example P27197, inspection of the
1 72nd Military Police ordered by General Gotovina. P1132, that is
2 acknowledgment by General Gotovina himself that command and control of
3 units was uninterrupted at the required level during Operation Storm.
4 Your Honours, there is evidence that General Gotovina and his
5 units maintained a strong presence in the Split Military District well
6 beyond 9 August 1995. There is also evidence that General Gotovina spent
7 a significant amount of time in and around Knin during the relevant
8 period of time. Examples P543, a report dated 12 August, of which
9 General Gotovina was appraised of what is happening in the ground. Other
10 examples, P895, document of 20 September, documenting General Gotovina's
11 presence in Knin and his familiarity with the situation on the ground.
12 The interview with General Cermak at page 23, interview of 2004, saying
13 that Mr. Gotovina would come and go. He left for Bosnia but he came back
14 and there are further notes in General Cermak's interview.
15 Other examples, P1131, P1143, and P1013, all documenting the
16 presence of HV units and General Gotovina in the Knin area beyond
17 9 August.
18 In terms of General Gotovina's ability to prevent or protect
19 property from being destroyed, there is evidence that General Gotovina
20 selectively used his authority issue such orders and control his troops.
21 Mr. Hedaraly already mentioned a couple of incidents about the
22 devastation of Serbian homes and that the Orthodox churches were spared.
23 See, for instance, P807. In the face of the widespread devastation
24 throughout the area and the relative hands-off approach to churches, many
25 of the international observers concluded that there was a policy not to
1 destroy the churches. P988, Marker Hansen. And that General Gotovina
2 must have issued an order that they be protected. There is evidence that
3 guards were posted at some religious locations on the orders of
4 General Gotovina. Comes from Liborius. The fact that most of the
5 churches remained untouched demonstrates that General Gotovina was able
6 to exercise his authority over his troops and ensure that orders were
7 implemented. However, he chose to be selective.
8 You will hear, Mr. President, that -- from Ms. Gustafson that
9 General Gotovina had notice that crimes were being committed by his
10 subordinates during and after Operation Storm, and that he did issue
11 orders in relation to prevention of looting and burning. Despite both
12 the notice and orders to prevent, HV members continued burning and
13 looting. General Gotovina had further notice of crimes and his response
14 was to issue another order, that HV members should --
15 JUDGE ORIE: It is it not only the French translators which have
16 problems, Mr. Waespi, but the B/C/S translation is also behind. I can't
17 listen to two channels at the same time. But could you please slow down.
18 MR. WAESPI: Thank you, Mr. President.
19 General Gotovina's response was to issue another order that HV
20 members should not burn and loot, and again, despite that order, the
21 looting and burning continued. This was a cycle that repeated itself.
22 The non-compliance with General Gotovina's repeated orders to stopped
23 should not be seen as evidence of his lack of effective control over his
24 troops. Quite the contrary was demonstrated through his ability to
25 protect the churches and the President.
1 Your Honours, there is evidence moving to the JCE part that
2 General Gotovina shared the common criminal purpose outlined by
3 Mr. Tieger. Won't go into details again as it relates to the artillery
4 attack, but mention a couple of additional points. A review of the
5 Brioni meeting transcript make it clear that General Gotovina was
6 actively engaged in the planning of the operation and receptive to the
7 suggestions and objectives of his superiors.
8 General Gotovina followed through on the plan discussed at
9 Brioni, as demonstrated by subsequent comments, actions and omissions.
10 In terms of General Gotovina's attitude towards reports that crimes were
11 committed by his subordinates, there is evidence that when faced with
12 such allegations, General Gotovina impliedly condoned and justified these
13 acts. Just two examples, P895, when General Gotovina expressed the
14 attitude being put on notice of crimes by his subordinates that: "He
15 regards it as a human feeling to hate an enemy who has burned, looted and
16 expelled one's family."
17 Similarly, P2499, showing the condoning attitude of
18 General Gotovina.
19 I will conclude by General Gotovina's contribution to the JCE in
20 addition to what Mr. Russo, Mr. Tieger already mentioned. Already
21 General Gotovina's overall plan of attack of 2nd August included, and
22 that's P1126, that civilians were to be transported into collection
23 camps. This demonstrates General Gotovina's intent to get the population
24 out of their homes, rather than to protect their property. And you
25 recall Ambassador Galbraith's testimony that he saw the detention centres
1 as transition camps out of Croatia. P446; and P444, at paragraph 66.
2 There is also relevant JCE evidence in General Gotovina's
3 participation in the sanitation system. P496 is General Gotovina's order
4 of 11 August 1995
5 which can be viewed as an effort to collect and bury murder victims
6 without investigating their cause of death. Support provided on this
7 point by Witness 86, P487.
8 Finally, Mr. President, Your Honours, a key contribution of
9 General Gotovina to the JCE was his inactivity vis-a-vis the crimes that
10 were committed by his subordinates against the Serbs and their property.
11 By failing to take genuine measures to prevent, investigate or punish
12 these crimes, General Gotovina effectively condoned and encouraged the
13 commission of further crimes against Serbs. He and his subordinate
14 commanders were primarily responsible for the climate of impunity
15 described by internationals, P451. Maintaining military discipline is
16 first and foremost the task of the commander, not the MP. Theunens,
17 13309; and Lausic, P2159 at paragraph 210.
18 General Gotovina was the commander of Operation Storm capable of
19 devising a plan, issuing orders and leading men into battle to swiftly
20 achieve the objectives set out by his superiors. Apart from issuing a
21 few generic and hollow orders, General Gotovina chose to take no steps to
22 enforce those orders, while at the same time being aware that such a
23 failure would result in the commission of further crimes. It is within
24 this climate of impunity that Serbs and their property were
25 systematically targeted and victimised by those under the command of
1 General Gotovina. The result was an unbearable and hostile environment
2 in the Krajina which left those few Serbs that remained after the
3 shelling with little choice but to leave their home.
4 In that context, Your Honours, the inference can be drawn that
5 the soldiers under the command of General Gotovina had been given free
6 reign to loot and burn and even kill with impunity in furtherance of the
7 objective of forcibly removing the Serbian population from the Krajina.
8 And there is a concluding remark, observation by Ambassador Galbraith,
9 P44 at paragraph 46:
10 "These were serious and systematic crimes for which the Croatian
11 leadership is fully responsible. Given the disciplined nature of the
12 army and that the leadership was fully in command and had full power to
13 prevent, these were crimes committed on orders or it was a matter of
14 state policy to tolerate or encourage them."
15 Thank you, Mr. President.
16 JUDGE ORIE: Thank you, Mr. Waespi.
17 MS. GUSTAFSON: Good morning, Your Honours.
18 JUDGE ORIE: Please proceed, Ms. Gustafson. I take it that you
19 will be seconded in a similar way by your colleagues --
20 MS. GUSTAFSON: I hope so, Your Honour.
21 JUDGE ORIE: -- to keep your speed of speech under control.
22 Please proceed.
23 MS. GUSTAFSON: Thank you.
24 Mr. Waespi has addressed General Gotovina's effective control
25 over the forces subordinated or attached to the Split Military District
1 during the indictment period, and Mr. Hedaraly has described some of the
2 evidence showing that General Gotovina's subordinates carried out the
3 crimes charged in the indictment. I will be addressing the evidence that
4 supports the conclusion that General Gotovina had either actual or
5 inquiry notice of the commission of these crimes and that he failed to
6 take the necessary and reasonable measures to prevent or punish them.
7 Mr. Russo has covered these elements in relation to the crimes
8 underlying the artillery campaign, and therefore I won't be addressing
9 this evidence.
10 A commander's duty to prevent or punish crimes is triggered when
11 he either knows or has reason to know that crimes are about to be
12 committed or have been committed by his subordinates. As the Appeals
13 Chamber held in the Strugar case, a commander has reason to know that
14 crimes are about to be committed or have been committed by his
15 subordinates where he has "information of a nature, which at the least,
16 would put him on notice of the risk of offences by indicating the need
17 for additional investigation in order to ascertain whether such crimes
18 were committed or were about to be committed."
19 That's at paragraphs 297 to 302.
20 In addressing the evidence of General Gotovina's notice of the
21 charged crimes, I will focus on the crime of murder as this has been
22 specifically challenged by the Defence.
23 The Defence position is that General Gotovina did not know or
24 have reason to know that his subordinates were committing murder because
25 his awareness of the disposal of bodies by sanitation crews does not
1 establish either that the deaths were unlawful or that his subordinates
2 were responsible. That was at page 17279.
3 This assertion is flawed in two respects. First, it reflects a
4 misapprehension of the relevant legal standard, which is not whether
5 General Gotovina received information establishing that his subordinates
6 had committed murder but whether he had information notifying him of a
7 risk of such offences.
8 Second, General Gotovina's knowledge that sanitation crews were
9 collecting and disposing of bodies during the indictment period is just
10 one of the many factors that, when taken together, put him on notice of
11 the risk that his subordinates had committed or might commit murder.
12 There is sufficient evidence to conclude that at the time
13 General Gotovina ordered the attack on the Krajina, he had information
14 that put him on notice of a risk that his subordinates might commit
15 crimes against Serb civilians and their property. Furthermore, this
16 evidence together with the evidence showing his participation in a joint
17 criminal enterprise is sufficient to conclude that he participated in
18 that JCE, knowing that murder and cruel treatment, as well as plunder,
19 wanton destruction and persecution, were at least possible consequences
20 of its execution and he willingly took that risk.
21 First, General Gotovina knew of the widespread commission of
22 crimes, particularly burning and looting, immediately prior to the
23 operation by the same units he used to carry out Operation Storm. And
24 this is clear from the numerous references in the Split Military District
25 operational diary to the looting, burning and destruction by HV members
1 in Grahovo and Glamoc during Operation Ljeto.
2 In addition, General Gotovina was well aware of the sense of
3 bitterness that prevailed after four years of a brutal ethnic war between
4 Serbs and Croats, and he knew that his subordinates, particularly the
5 Home Guard Regiments, were motivated by revenge, as he explained to
6 President Tudjman in Brioni. General Gotovina also knew that this
7 revenge element among his subordinates increased the risk that they would
8 commit crimes against the Krajina Serbs and their property, because he
9 referred to this same desire for revenge to justify their crimes when he
10 was confronted with them. See Exhibits P383 and P895.
11 Before Operation Storm, General Gotovina also correctly predicted
12 that some Serb civilians would remain in the Krajina following the
13 artillery attack and those who did remain would be among the most
14 vulnerable. Namely, those who have to stay, who have no possibility of
15 leaving, P461.
16 And finally, on the 4th of August, General Gotovina ordered his
17 subordinates to shell or at least was aware that they were shelling the
18 Serb civilian population through an indiscriminate artillery attack. The
19 knowledge that his subordinates were firing on civilians must have
20 signalled to General Gotovina the risk that once his ground forces
21 entered the territory they, too, would violently target those Serbs who
22 had been unable or unwilling to flee.
23 This evidence is sufficient to conclude that at least by the
24 4th of August, General Gotovina had information that put him on notice of
25 the risk that his subordinates may commit each of the crimes charged in
1 the indictment, thereby triggering his duty to prevent those crimes.
2 Immediately following the launch of Operation Storm, those risks
3 became reality. As Mr. Hedaraly has described, on the 5th of August,
4 Croatian ground forces began killing and mistreating the Serbs who
5 remained in the area, and looting and burning their homes. At least by
6 the 6th of August, General Gotovina had actual knowledge of these crimes.
7 At the meeting in Knin that morning he described his subordinates as
8 "barbarians and vandals who are paid with war booty and wage war for war
10 At this time General Gotovina would also have seen the smoke
11 rising from the villages around Knin, as described by Dzolic when he went
12 to the Knin fortress on the morning of the 6th of August; P875 and P876.
13 General Gotovina would also have heard the explosions and the small-arms
14 fire coming from downtown Knin and he would have seen the fires in Knin
15 itself as reported in P106, P825, and P826.
16 And he would likely have seen or received reports of some of the
17 dozens of dead civilians showing signs of deliberate killings by
18 small-arms fire that were scattered along the roads around Knin, such as
19 those witnessed by Murray Dawes and Andries Dreyer. Having witnessed for
20 himself the burning and looting and signs of killing around Knin, the
21 next day, General Gotovina received a report from his own political
22 affairs department that his subordinates were behaving similarly in the
23 zone of operations of OG Zadar, and particularly Benkovac. That's at
24 P1113, part II, page 326.
25 By the 8th of August --
1 JUDGE ORIE: No, no, no.
2 MS. GUSTAFSON: By the 8th of August the situation was such that
3 General Forand expressed his concerns about the risks to the civilian
4 population and warned General Gotovina of them. P347.
5 Those risks are also apparent in a 10th of August report from the
6 SIS commander for OG North to the Split Military District Command, P1134.
7 It states that in Knin "some HV members drove and seized cars about the
8 town, under the influence of alcohol, making noise, shooting, and
9 threatening people's lives."
10 The next day, the 11th of August, General Gotovina established a
11 sanitation detachment under his command. P496. Consistent with the
12 procedure implemented by the civil protection department, the order makes
13 no mention of conducting criminal investigations.
14 The following day, the 12th of August, General Gotovina receives
15 confirmation that his subordinates are burning and destroying property,
16 slaughtering livestock, and mistreating civilians and prisoners of war;
17 and that is through Exhibit P918. And throughout the remainder of
18 August and September, he continues to receive information from a variety
19 of sources that add to his actual or inquiry notice that his subordinates
20 were murdering Serb civilians, in addition to burning, looting and the
21 slaughter of livestock.
22 For example, contemporaneous media reports of crimes included
23 reports of murders in the area. P2319; P686; P712; P687; P451, page 243;
24 and P685 are examples.
25 And General Gotovina monitored such media reports of HV crimes.
1 This is clear from his 5th of September meeting with General Forand, at
2 which he threatened to execute the UN press officer, Alun Roberts. In
3 his subsequent letter to General Cervenko explaining his actions, he
4 cited a statement made to journalists by Mr. Roberts, reporting that the
5 Croatian army is burning, looting and violating human rights. P383, P385
6 and P407.
7 The signs indicating that Serb civilians were being murdered by
8 HV members were readily apparent to those monitoring and observing the
9 situation and must have been apparent as well to General Gotovina who was
10 well acquainted with the situation on the ground through various means
11 including the SIS, PD and his unit commanders. The evidence of
12 Mr. Rajcic, P918, and page 28 of General Cermak's 2004 suspect interview
13 confirm this.
14 Numerous witnesses described the signs on the ground indicating
15 the murder of Serbs by HV members. For example, Mr. Morneau testified
16 that under the circumstances it was just a matter of deduction that some
17 of the bodies found on the streets had been murdered by the military.
18 Page 4006 to 4007.
19 Similarly, Witness 84 gave evidence that:
20 "Most of the bodies were said to be victims of war, which was a
21 way of trying to cover up ... when people were killed after Storm, it was
22 obvious that these killings had nothing to do with the operation itself."
24 If these signs weren't enough, on the 16th of September,
25 General Gotovina received direct notice from General Lausic that the MP
1 had not been able to "completely prevent the commission of crimes,
2 especially theft of property, torching houses, and individual acts of
3 murder." D567.
4 At the same time, reports from the sanitation teams indicate
5 General Gotovina's knowledge that large numbers of corpses are being
6 collected and buried. See, for example, P507, a report from
7 General Gotovina's sanitation detachment to the Main Staff, indicating
8 that 418 corpses had been "cleared up in the Split Military District."
9 In summary, Your Honours, the evidence is sufficient for the
10 Chamber to conclude that within the first few days of the operation,
11 General Gotovina possessed information that indicated at least the risk
12 that his subordinates had committed the crimes charged in the indictment
13 that triggered his duty to punish those crimes. The same information
14 notified him of the risk that his subordinates would continue to commit
15 those crimes, triggering his duty to prevent them.
16 The evidence further supports the conclusion that with this
17 notice General Gotovina failed to take the necessary and reasonable
18 measures to prevent or punish the crimes of his subordinates.
19 This inquiry, whether a superior has fulfilled his duty to take
20 necessary and reasonable measures, is a matter of evidence to be assessed
21 on a case-by-case basis. The Defence reliance on other cases to
22 determine what is necessary and reasonable in the context of this case is
23 of little assistance.
24 In this case the evidence supports the conclusion that, prior to
25 the commencement of Operation Storm, General Gotovina failed to take the
1 necessary and reasonable measures to prevent the commission of the
2 charged crimes. As the Defence has pointed out, the attack order and the
3 relevant attachments, P1125, P1126 and D201, contain generic instructions
4 to "prevent burning and looting."
5 However, in light of the clear risk that General Gotovina's
6 subordinates would commit these and other crimes, the instructions do not
7 constitute necessary and reasonable measures.
8 First, General Gotovina knew that his subordinates had looted and
9 burned Grahovo and Glamoc immediately before Operation Storm. He failed
10 to punish the perpetrators of those crimes and he used the same
11 subordinates to carry out Operation Storm. See P71; P1113, pages 61 to
12 66, and page 310, the evidence of Dzolic.
13 As the Strugar Appeals Chamber noted "a superior's failure to
14 punish a crime of which he has actual knowledge is likely to be
15 understood at least as acceptance, if not encouragement, of such conduct,
16 with the effect of increasing the risk of new crimes being committed."
17 Secondly, similar orders to those contained in the attack order
18 had already been proven to be ineffective. The 29th of July operational
19 diary records General Ademi stating that "setting of fire to houses is
21 Yet the next day, the military police reported that members of
22 the 4th Guards Brigade, 7th Guards Brigade, 114th Brigade, and
23 126th Home Guard Regiment entered Grahovo and "began setting fire to
24 houses in an organised fashion."
25 P1113, page 66.
1 These two factors alone would be sufficient to conclude that
2 General Gotovina's mere repetition of earlier failed orders did not
3 constitute necessary and reasonable measures. In addition, the attack
4 order contains no instructions to unit commanders relating to the
5 punishment of crimes that, at this point, are a virtual certainty,
6 measures such as engaging the military police, conducting investigations,
7 imposing disciplinary measures, or initiating criminal proceedings.
8 Among the many tasks directed at the military police in these documents,
9 the only one relating to the investigation or punishment of crime is the
10 order to discover, arrest, and bring in enemy soldiers and officers.
11 Crucially, the attack order contains no measures to ensure the
12 implementation of the order to prevent burning and looting, such as
13 instructions to monitor or report on its implementation. And in spite of
14 the risks to the safety of the Serb civilian population in the
15 circumstances of this attack, there are virtually no measures aimed at
16 protecting them or preventing crimes against them. Just a generic
17 instruction to political affairs officers to "advise members of units on
18 conduct with civilians and POWs, in accordance with the
20 The Defence have also pointed to the orders that General Gotovina
21 issued after the commencement of Operation Storm which on their face
22 suggest an attempt to prevent the continued commissions of crimes. In
23 particular, on the 6th of August, D792; the 10th of August, D204; and the
24 16th of August, P71, page 107 and 108. Yet the evidence supports the
25 conclusion that none of these orders, either individually or
1 cumulatively, constituted necessary and reasonable measures to prevent
2 the wave of crime against Serbs and their property carried out by
3 General Gotovina's subordinates.
4 Two factors stand out in particular. First, the orders relate
5 almost exclusively to the prevention of burning and looting. They
6 contain little, if any, reference to crimes of mistreatment and killing
7 of Serbs despite the fact that General Gotovina had information mounted
8 over time that notified him of the risk that his subordinates might be
9 committing such crimes.
10 And second, although there are slight variations in their
11 wording, these orders more or less repeat the generic instruction to
12 prevent burning and looting. Other than the cynical threat issued to
13 units burning down houses that they will have to spend the winter in
14 them, recorded in the operational diary, General Gotovina took no
15 measures aimed at securing the implementation of these orders which he
16 knew were not being followed.
17 As Mr. Theunens explained, "Things will not get better just by
18 reissuing orders."
19 A commander must take steps to ascertain why his order has not
20 been followed and then take additional measure in order to guarantee his
21 orders are implemented.
22 The Chamber has received evidence indicating the kinds of
23 measures General Gotovina could have - and failed - to take. These
24 measures are apparent from the orders he issued in relation to other
25 matters. I refer the Court to P1142, D655, P1018 and 1019, P1033, and
2 It is the position of the Gotovina Defence that General Gotovina
3 set his command climate at the 6th of August videotaped meeting. That's
4 at page 17269. The Prosecution agrees. At this meeting, knowing that
5 his subordinates are committing crimes and that his instructions to
6 prevent burning and looting have not been followed, General Gotovina
7 takes steps to clean up the town in anticipation of the President's
8 visit. He issues no orders to identify or punish his subordinates who
9 have committed crimes, no orders to stop the ongoing crime or prevent
10 further crimes, and no measures to ensure the implementation of his prior
11 failed orders.
12 The evidence, Your Honours, supports the conclusion that
13 General Gotovina had no genuine intent to implement his orders to prevent
14 the charged crimes and that he repeatedly and persistently failed to take
15 the necessary and reasonable measures to stop their commission. This
16 evidence is not only sufficient to ground his superior responsibility, it
17 also supports the conclusion that General Gotovina condoned, assisted and
18 encouraged their commission thereby significantly contributing to the JCE
19 and aiding and abetting the commission of crimes by his subordinates.
20 There is also sufficient evidence to conclude that
21 General Gotovina failed to take the necessary and reasonable measures to
22 punish his subordinates for the crimes charged in the indictment. First,
23 none of his orders to prevent crimes include any instruction to
24 investigate the crimes that he knew had happened.
25 Secondly, although it is the position of the Gotovina Defence
1 that General Gotovina did not have the authority to order the military
2 police to investigate or punish crimes, as Mr. Waespi explained, the
3 evidence supports the contrary conclusion. Namely, that he had this
4 authority and he chose not to exercise it in relation to crimes against
5 Serbs and their property. And the evidence shows that General Gotovina
6 failed to use the disciplinary system that was at his disposal to punish
7 his subordinates' crimes. His orders to prevent burning and looting did
8 not direct his subordinate commanders to impose disciplinary measures in
9 relation to these crimes, and this can be contrasted with examples in
10 P1034, and P1028, and P1013, in which he ordered his subordinates to
11 impose disciplinary measures in relation to other matters.
12 Mr. Theunens concluded that General Gotovina had a narrow
13 interpretation of the concept of military discipline, exclusively
14 focussed on the accomplishment of combat tasks and combat operations.
15 Page 12868.
16 Mr. Lausic echoed this view at P1259, and General Gotovina
17 himself confirmed his narrow approach to military discipline when, on the
18 15th of August, in the midst of an HV crime wave he reported to the
19 Main Staff that military discipline and combat morale was exceptionally
20 high in the preparation, course and conclusion of combat operations.
22 Contrary to the assertion of the Defence, the evidence indicating
23 that General Gotovina demobilised soldier who is committed charged crimes
24 did not constitute a necessary and reasonable measure to punish them.
25 Ljiljan Botteri confirmed that there was no systematic reporting of these
1 demobilisations to the Military District Command. She was not aware of
2 any effort to obtain information on how many soldiers were being
3 demobilised for misconduct or the nature of such misconduct, and she was
4 unable to identify any specific case where criminal proceedings were
5 initiated against such a demobilised soldier.
6 The evidence supports the conclusion that this practice was a
7 reckless measure that General Gotovina used in an attempt to transfer
8 responsibility for the criminal elements among his subordinates to
9 another authority. The necessary and reasonable measure in the
10 circumstances would have been to keep the perpetrators within the
11 military structure, and ensure their adequate punishment through
12 disciplinary and/or criminal measures.
13 In conclusion, Your Honours, the evidence adduced by the
14 Prosecution is sufficient to support a finding that General Gotovina knew
15 or had reason to know that his subordinates were about to commit or had
16 committed crimes in relation to all counts in the indictment and he
17 failed to take the necessary and reasonable measures to prevent or punish
19 Thank you.
20 JUDGE ORIE: Thank you, Ms. Gustafson.
21 Mr. Hedaraly, would this be a suitable time to have a break first
22 and then --
23 MR. HEDARALY: Yes. If we take a 20-minute break, we should be
24 able to finish by today's session.
25 JUDGE ORIE: Yes. We will have a break and we'll resume at
1 20 minutes to 1.00.
2 --- Recess taken at 12.20 p.m.
3 --- On resuming at 12.43 p.m.
4 JUDGE ORIE: Mr. Margetts, you may proceed.
5 MR. MARGETTS: Thank you, Mr. President.
6 Mr. President, Your Honours, I will address the submissions made
7 by the Defence for Ivan Cermak.
8 The first issue I'd like to address is the issue of effective
9 control. Mr. Kay, in his oral submission and his further note, set out a
10 number of indicators of effective control. Whether any particular
11 accused possesses effective control is determined on a case-by-case
12 basis, taking into account all relevant indicators.
13 Some relevant indicators of effective control that the Defence
14 did not mention include the following. First, the procedure used for
15 appointment of an accused (See Halilovic trial judgement, paragraph 58).
16 The Court will recall that General Cermak was appointed by the
17 supreme commander, Franjo Tudjman. Exhibit D31.
18 Second, the position within the military or political structure.
19 Boskoski trial judgement, paragraph 411. The Court will recall that
20 General Cermak received direct ordered and provided reports directly to
21 the chief of the Main Staff, General Cervenko, D561, P1219.
22 General Cermak was also in direct contact with Franjo Tudjman and the
23 minister of the interior, Ivan Jarnjak.
24 Now, General Cermak refers to that in his 1998 interview, we
25 don't have exhibit numbers for the interviews that have been admitted, so
1 I will just refer to the interviews by their dates.
2 Third, the authority to apply disciplinary measures, Strugar
3 trial judgement paragraphs 393 to 397. He was vested with the authority
4 to ensure order and discipline; Article 52 of Exhibit D32.
5 Fourth, in general terms, it is the reality of the authority of
6 the accused that is at issue. Kordic trial judgement from 2001,
7 paragraph 418. In addition to the matters referred to above,
8 General Cermak held a high rank in the military, and he was a former
9 assistant defence minister, former minister for the economy, and advisor
10 to the President. That's his 1998 interview. He was known and trusted
11 by the President and supreme commander, Franjo Tudjman. 2001 interview.
12 Throughout this case, and during the course of the Defence
13 submissions, the Defence have sought to lessen the impact of the evidence
14 of the international witnesses. The international witnesses who were
15 present, meeting with General Cermak daily as they did their best to
16 carry out their humanitarian missions. The Defence argue that their
17 evidence is limited since they could not see the workings of the Croatian
18 state from the inside, regardless of the extent to which these inner
19 workings were manifest in the external expression of the state organs and
20 actors. However, the Defence failed to mention that not only the
21 international witnesses, but insider witnesses, too, provided consistent
22 and corroborative assessments of General Cermak's authority.
23 The insider witness, Stjepan Buhin, a high-level member of the
24 MUP in Zagreb deployed as a coordinator in the Kotar-Knin region, a
25 witness who was centrally placed in the state structures and could
1 observe the functioning of the state from the inside, described
2 General Cermak's authority as follows. He stated that:
3 "Cermak was the commander in chief in Knin."
4 "He was the main commander of the army."
5 He stated: "General Cermak was the highest ranking officer that
6 we worked with, in terms of coordinating the army," and "no one outranked
7 him in the area."
8 In regard to the area of General Cermak's authority, Buhin stated
9 that his area of responsibility was "the newly liberated territory or
10 what used to be known as Kotar-Knin."
11 The evidence of Buhin is pertinent. The witness had a sound
12 basis for this evidence, and I refer to transcripts 10049 and 10053.
13 General Ivan Cermak possessed de jure and de facto authority over
14 the units in the Knin garrison area, which comprised the majority of the
15 area of the Split Military District. Article 52 of Exhibit D32, and
16 paragraph 1(e) of Exhibit D33.
17 General Cermak had de facto authority over the units in the
18 larger Split Military District area. Examples of evidence establishing
19 this point, Exhibit D818, the evidence of Flynn, Buhin, Ermolaev.
20 He had the ability to directly investigate and discipline the
21 criminal conduct of the soldiers in these units.
22 He had the ability to initiate investigations into the conduct of
23 the soldiers in these units, using the military police and the civilian
25 Contemporaneous documentation prepared by General Cermak confirms
1 that he had command over the troops in the operational zone. On the
2 11th of August, 1995, General Cermak addressed a letter to
3 General Forand, in relation to the freedom of movement. It's
4 Exhibit P390.
5 In addition to General Forand, Cermak addressed this letter to
6 "the troops in the zone of separation."
7 In his 1998 interview, Cermak explained that this meant the
8 troops in the operational zone.
9 Further, in the 1998 interview, when discussing this letter and
10 incidences where internationals may have experienced problems with
11 freedom of movement, Cermak stated that in these circumstances:
12 "I would immediately phone either the civilian police or the
13 military police, or the operative zones. I would phone them and tell
14 them to tell -- say, tell the units on the ground that people had freedom
15 of movement and to let them through and so on."
16 Extensive evidence from international witnesses confirms that
17 problems with freedom of movement were resolved by General Cermak in
18 precisely the way he describes. Hansen, Hendriks, Liborius.
19 Later, in the year 2001, when General Cermak was again
20 interviewed by the Prosecutor, he realised the implications of this
21 admission and sought to explain this away, stating: "I went a bit too
22 far sending out this letter, but I didn't have the authority to do this."
23 That's the 2001 interview.
24 However, Exhibits D32, D33, P390, and the evidence of the
25 internationals confirms that the statement he made in 1998 is the truth.
1 It is a recurrent theme in the Cermak Defence case. The
2 Trial Chamber is asked to believe that General Cermak kept issuing orders
3 that he didn't have the authority to issue. Further, there is evidence
4 that orders that it is alleged should not have been issued were received
5 and acted on. For example, P509 and P510 and D303, and the evidence that
6 has been given in relation to those documents.
7 The Defence submission is neither compelling on the facts nor an
8 appropriate way to address the test that is applied under Article 7(3).
9 It is an attempt to re-interpret and isolate facts in a technical and
10 nuances way, the way that the law of Article 7(3) does not support and
11 will not bear. The law of Article 7(3) was expressed clearly in the
12 Kordic trial judgement at paragraph 418 where, and I quote:
13 "Whether de jure or de facto, military or civilian, the existence
14 of a position of authority will have to be based upon an assessment of
15 the reality of the authority of the accused."
16 Mr. Kay in his submissions took some time focussing on the use of
17 the words "ordering" and "telling" by the Witness Dzolic, suggesting that
18 the use of these words was of critical significance. However, in a
19 revealing passage at transcript pages 9113 to 9115 the Trial Chamber
20 questioned this witness on this issue, and the reality of the situation
21 was immediately revealed.
22 In answer to the Court's questions the witness stated that he
23 could remember only one instance when General Cermak asked, requested,
24 ordered, or suggested something, and he didn't do it. The reason he
25 didn't is that he couldn't. He didn't have the manpower. That's at
1 transcript 9114, line 12 to 9114 -- 9115, line 4. It is the reality of
2 the authority of General Cermak that is at issue, not the words that any
3 particular witness may use at any particular time. General Cermak cannot
4 hide his authority in semantics.
5 As the Kordic judgement and all of the decisions that have
6 followed it demonstrate, the law will be practical. And the practical
7 reality of the matter is abundantly clear: General Cermak exercised
8 enormous power for many and varied reasons.
9 The international witnesses knew that. The insider witnesses
10 knew that and the contemporaneous records show it.
11 A recording of a conversation between General Cermak and Tudjman
12 in early 1999 reveals General Cermak's true perception of his command
13 authority. Having become aware that he was suspected of war crimes he
14 said to Tudjman:
15 "Norac and Gotovina were conducting military operations. They
16 were in command of the military actions. I was in command of my part and
17 none of us is as bad as to kill."
18 And he also said:
19 "Norac, Gotovina and I, we are all innocent before God. Those
20 are political stories. None of us ordered any killing. That's rubbish."
21 In this conversation, Cermak placed himself together with Norac
22 and Gotovina as a commander, who could issue orders and had
23 responsibility for events in Operation Storm. He observed that he was
24 not an operational commander but he acknowledged that he was in command
25 of his part.
1 Turning now to General Cermak's authority over the military
2 police and the civilian police. Cermak's control over the military
3 police and the civilian police is confirmed by, first, the orders that he
4 issued to them; P512, P513, D303, D503, P509. The fact that he met with
5 them daily. They came to his office every morning and he received
6 reports from them.
7 Witness 84, Witness 86, Buhin, Dzolic, his interview in 1998.
8 The fact that police and military witnesses confirm -- and the
9 third point I'm moving to now, and that is the fact that the police and
10 military witnesses confirm that they were answerable to him. The witness
11 Dzolic, Witness 86, whether they did what he said or they did what he
12 ordered is not irrelevant to the assessment of the factors relating to
13 effective control but the difference in this case is marginal at best
14 and, as demonstrated above, is practically of very little significance.
15 As regards the evidence of the military witness Dzolic, Mr. Kay
16 in his submission indicated that he thought it odd that there could be a
17 dual chain of command. There is nothing odd about that at all. Dzolic
18 acted on orders that were given to him by either Colonel Budimir or
19 General Cermak. It could not be more straightforward.
20 Mr. Kay said that as Defence counsel this paragraph referring to
21 the dual command placed him on "alert." So it should have. In our
22 submission, this evidence at law is sufficient to defeat his 98 bis
24 As regards the civilian police, in his 1998 interview, Cermak
25 gave a clear example demonstrating that he could ensure investigations by
1 the civilian police. He admitted that when televisions he had delivered
2 to a village were looted he "called the civilian police commander"
3 Mr. Gambiroza, and said, Do whatever you want. I want the culprits to be
4 found, and he got everything going. He states that: "Two or three hours
5 went by and the culprits were captured."
6 1998 interview at page 82.
7 The Defence also raised the so-called UNCRO orders. The
8 principle that is reflected in the order Cermak issued - that's D303 - is
9 clear. Cermak could, if he chose to, if it promoted his objectives,
10 order the civilian and military police to investigate crime.
11 The evidence of the internationals as to General Cermak's
12 authority was also clear. When dealing with the most serious issues
13 humanity can face, issues of life and death, issues of widespread
14 destruction, the decimation of people's lives and communities, they were
15 directed to General Cermak, who told them on a daily basis that he would
16 ensure that these major crimes were investigated and ultimately ensure
17 that these crimes did not continue.
18 The Trial Chamber has seen the television interviews of
19 General Cermak in relation to the events in Grubori, given on the
20 26th of August, and 27th of August, 1995. P504, P2386. In these
21 interviews General Cermak refers to his personal authority to conduct an
22 investigation or ensure an investigation takes place. He provides a
23 false version of events and he provides false assurances that he would
25 The Defence submissions concede that General Cermak may have made
1 these representations to the internationals. In his submission, Mr. Kay
2 stated that "even though he may have held himself out or people had
3 expectations of him, the fact of the matter is that that does not
4 determine the matter."
5 The Defence is inviting a conclusion --
6 JUDGE ORIE: Mr. Margetts.
7 MR. MARGETTS: Apologies, Mr. President.
8 The Defence is inviting a conclusion that when confronted with
9 these most serious crimes, General Cermak considered it appropriate to
10 pass himself off as someone he wasn't, to mislead UNCIVPOL, ECMM, UNCRO,
11 and the Red Cross.
12 General Cermak didn't mislead the internationals as to who he
13 was; he misled them as to what he knew about the crimes and what he
14 intended to do about them.
15 I would now like to address General Cermak's knowledge and
17 Immediately following his arrival in Knin on the 6th of August,
18 1995, General Cermak knew that Croatian soldiers were committing crimes.
19 On the 5th of August, 1995, General Forand had already forwarded a
20 request for a meeting. He noted the destruction and looting in this
21 request and said he wasn't satisfied the Croatian army was fully under
23 At this early point, he protested the restrictions of freedom of
24 movement and suggested that that will increase suspicions of abuse.
25 That's P347.
1 In terms of notice and knowledge I probably don't have time to go
2 into the details, and I just refer the Court to General Cermak's
3 1998 interview. He admits he knew about arson, looting. He admits he
4 knew that Kistanje was completely burned down.
5 JUDGE ORIE: Mr. Margetts.
6 MR. MARGETTS: Thank you, Mr. President.
7 I'll just cut that short. He was the interface with the
8 internationals. He knew what they knew. He knew what the intelligence
9 services of the Croatian army knew. There's no doubt he knew about
10 crimes, and he also knew that it was the HV committing the crimes. He
11 received the intelligence report that Ms. Gustafson referred to, P918,
12 the one drafted by Tomasovic. It's a familiar document to the
13 Trial Chamber. He admitted in a 7th September 1995 interview in
14 Slobodna Dalmacija that he knew about the looting and torching of homes
15 and that these crimes were most often committed by members of the
16 Croatian army; D59. 2001 interview.
17 In the -- turning now to the issue of killing. In the
18 conversation he had with Tudjman in early 1999, P1144, he said to
19 Tudjman: "You had fighters on the front-line for three, four years.
20 They lost their houses, ancestors' land. They're already a bit damaged
21 by the Vietnam syndrome, and in that state, they were killing." He knew
22 they were killing.
23 He says in his 1998 interview that his first tasks were to
24 urgently start clearing up the area to get rid of the dead bodies.
25 Trial Chamber's received the lists that he had in his possession, that he
1 gave to the internationals. He admits he received the MUP lists in his
2 2001 interview.
3 Trial Chamber also heard the evidence of the witness Hayden.
4 General Cermak misrepresented the number of civilians killed. First
5 meeting with Hayden, the list that Hayden reviewed showed 41 civilians.
6 General Cermak said there were two. General Cermak also related on the
7 19th of August, 1995, to Hayden a chilling report. He said when Hayden
8 asked him about summary executions, he said: "There are probably 200 to
9 300 bodies in the hills with bullet-holes in their heads." That's a
10 General, that is the most powerful person in Knin, that's the person who
11 knew everything that was going on. An unnerving report, and one that at
12 that time is appallingly accurate.
13 I'll move on, Mr. President. I had some more details to address
14 about his failure to act and his awareness and intent that the crimes
15 would be committed.
16 I'll move straight to the Grubori incident.
17 Out of the many hundreds of killing incidents that occurred and
18 the many hundreds of incidents that he knew of, there is only one crime
19 scene that was caught on video by the internationals moments after the
20 commission of the crime. This incident has provided the Trial Chamber
21 with an insight into the way General Cermak denied, covered up, and
22 promoted crime. From the 21st of August, 1995, Cermak was fully informed
23 about the coming special police operations. He met with Markac and
24 Gotovina; Exhibits D561, D562, P1219 and others.
25 General Cermak received maps from General Markac before Markac
1 embarked on operations. General Cermak's 1998 interview.
2 Trial Chamber is familiar with the events in Grubori; I won't
3 detail them again.
4 When the internationals reported the events in Grubori to
5 Cermak's office, Cermak immediately telephoned General Markac. If not
6 immediately, he did it that evening, on the 25th of August, 1995.
7 2004 Markac interview also confirmed an interview -- interview of
8 General Cermak.
9 He didn't inform the civilian police. He informed his friend and
10 the commander of the units suspected of the crime. First the civilian
11 police knew about it, that was on the 26th at 10.00 a.m., when Romasev
12 reported it to Mihic. Civilian police planned an on-site investigation,
13 Exhibits D57, P503, P501. But parallel with the efforts of the civilian
14 police who were awaiting a meeting on the 27th with General Cermak,
15 parallel with their efforts to ensure an on-site investigation took
16 place, Markac and Cermak were taking steps to ensure that no
17 investigation was conducted.
18 Markac and Sacic were dealing with Celic. Your Honours have
19 heard the evidence and seen Exhibit P563. You've seen the interview that
20 the witness Lyntton conducted with Cermak, where Cermak related a false
21 story. A similarly false story to the one that Sacic was dictating to
22 Celic. Cermak sent Karolj Dondo to the scene. 1645, on the 26th he was
23 in Grubori, telling those that had survived, those that were fortunate
24 enough not to be in the village at the time of the killings and the
25 burning, he was telling them the bodies would be cleaned away. He
1 already knew that there would be no on-site investigation. He recorded
2 that or had it recorded in Exhibit D57, when he returned from the
4 It was not until the morning meeting on the 27th of August, 1995,
5 that the chief of the police of the region -- of the Kotar-Knin region
6 and the chief of police of the Knin police station learnt that there
7 would be no investigation. It was only after this meeting that the chief
8 of the Kotar-Knin region recorded in Exhibit P501 that would there would
9 be sanitation of the Grubori village. The investigation recorded and
10 contemplated in that same diary and in other documents was not to take
12 Cermak knew the truth on the 25th, when the internationals told
13 his office. He knew the truth when Lyntton told him the truth on the
14 26th. He knew the truth when he was at the Grubori hamlet. He saw it
15 with his own eyes. He covered it up by denying it. The internationals
16 didn't believe him. But it was his version of events that was the reason
17 there was no investigation into this incident.
18 Mr. President, I see that the clock is running. I will conclude.
19 Through his omissions, Cermak significantly and substantial
20 contributed to the crimes. Had he acted, he would have made the
21 realisation of the crimes that were part of the joint criminal enterprise
22 more difficult. Cermak was the central figure in ensuring that a climate
23 of threat and fear endured and that those Serbs who had not fled the
24 artillery attack would leave the Krajina in fear for their life. Based
25 on his position of authority, Cermak had a duty to protect the Serb
1 population. He failed to so.
2 Thank you, Mr. President. Thank you, Your Honours.
3 JUDGE ORIE: Thank you, Mr. Margetts.
4 MR. MARGETTS: I will turn over to Ms. Mahindaratne.
5 JUDGE ORIE: Ms. Mahindaratne, unnecessary to remind you that
6 speed of speech is, even if there is only half an hour left, is something
7 to considered.
8 MS. MAHINDARATNE: I will bear that in mind, Mr. President.
9 JUDGE ORIE: Please proceed.
10 MS. MAHINDARATNE: Mr. President, Your Honours, I will be
11 addressing Court on General Markac's criminal responsibility under
12 Article 7(1) and 7(3).
13 General Markac participated in the joint criminal enterprise. As
14 already referred to, he was present at the 31st July meeting in Brioni
15 and discussed his contribution towards the plan.
16 I'd like to particularly refer Court to page 19 of P461 where
17 General Markac is recorded as stating as follows:
18 "There is no change in the task, except that Mr. Norac is heading
19 upward. That means that we are going to drive them into a pocket here,
20 and from that point we can head towards Norac, while Norac can head
21 towards Lapac, and we have practically evacuated the entire area.
22 Everything fits in and to all practical purposes we gain with this plan
23 proposed by Mr. Gotovina ..."
24 Now this statement resonates with statements made by
25 President Tudjman and General Gotovina, particularly recorded at page 15
1 of the transcript.
2 General Markac contributed towards the joint criminal enterprise
3 by planning and commanding the special police part of the operation.
4 He was the assistant minister in charge -- assistant minister of
5 interior in charge of the special police sector and its commander.
6 Special police was subordinated to the HV General Staff for
7 Operation Storm, and General Markac was appointed as the action
8 commander. And the chief of General Staff held Mr. Markac personally
9 responsible for the special police part of the operation.
10 I refer to the testimony of witnesses Janic, Turkalj, P554, and
12 General Markac planned the operation in coordination with other
13 members of the JCE. He conducted planning meetings where he briefed his
14 subordinate commanders and provided them with the required intelligence
15 gathered from HV intelligence branches and he also secured the required
16 material. I refer to testimony of Witness Janic, D544 and D545.
17 He issued orders for combat readiness of the units and the
18 special police artillery batteries. I refer to D541, D1206 and D1207.
19 Mr. Russo has already referred to orders issued by General Markac
20 during the course of the operation, so I will not go into that. But I
21 would particularly draw attention of Court to P2385, page 7, and the
22 testimony of witness Janic.
23 After the territory was taken, General Markac also issued orders
24 for mop-up operations which were implemented. P1153, page 6; D562; P574;
25 and P575.
1 He had the material ability to punish his subordinates. The
2 inner control branch of the special police monitored discipline within
3 the special police. The head of inner control department was directly
4 subordinated to the chief of the sector and to General Markac and
5 reported to both. Witness Janic, Turkalj, D528, D529.
6 Witness Turkalj also described the Ministry of Interior
7 disciplinary procedure, in addition to which P2370 extracts of the MUP
8 employment code, Article 49, 59, 60, and P1155, P2364, 2369 - these are
9 all P numbers, Mr. President - 609, 610, 587, reflect General Markac's
10 disciplinary authority over special police units.
11 Witness Janic testified if that a serious crime was committed by
12 a member of the special police, the matter would be reported to the chief
13 of the sector or General Markac who would in turn notify the matter to
14 criminal police for investigation. And independent of that criminal
15 investigation, the special police authorities were required to initiate
16 an internal disciplinary procedure. D530 and D531 reflect
17 General Markac's ability to initiate investigations into crime within the
18 special police itself.
19 Finally, as Witness Janic testified, special police -- members of
20 the special police were policemen themselves, and more importantly,
21 General Markac was an assistant minister of interior and, as such, was
22 well placed to activate the other components of the Ministry of Interior,
23 for example, crime police, if he deemed it necessary.
24 Now, Mr. Russo has already referred to the illegal artillery
25 attack carried out by General Markac. As the special police forces
1 entered the formerly Serb-held territory, they plundered and destroyed
2 civilian property. General Markac ordered or condoned this criminal
3 activity. General Markac commanded and directed the operation in person.
4 He led the troops in person as they advanced. I refer to his
5 2003 interview, page 53 to 54.
6 The discipline of the special police forces was at a very high
7 level and not a singular part of the special police was out of control.
8 Witness Janic. General Markac entered Gracac at 1001 hours on
9 5th August, and by 1200, Gracac was completely under the control of the
10 special police. And from that point onwards, the special police
11 headquarters was set up in Gracac and operated there throughout the
12 period relevant to the indictment. Since then there were approximately
13 500 members of the special police based in Gracac at any given time, and
14 General Markac was present in Gracac fairly regularly. D555, page 29;
15 P238, page 7. Testimony of Janic.
16 Having captured Gracac, General Markac ordered his forces to
17 advance to Donji Lapac. General Markac entered Donji Lapac with his
18 forces around 1.00 or 2.00 p.m. on 7th August and was present in
19 Donji Lapac that night. Janjic, Turkalj, D555, page 47.
20 The Trial Chamber has heard evidence of destruction and of
21 organised looting in Gracac. Witness Steenbergen saw its tensile
22 destruction and looting in Gracac on 6th August. And on 8th August,
23 witness Vanderostyne saw burning buildings in the outskirts of Gracac and
24 photographed special police looting property in the centre of the Gracac
25 town where special police officers were located in the presence of a
2 Witness 82 saw a large amount of houses along the road between
3 Gracac and Donji Lapac burned down or destroyed and members of the
4 special police present in the area while the dwellings were still ablaze.
5 Witness Galbraith saw approximately 70 per cent of the buildings in
6 Donji Lapac systematically torched, and at a meeting on 26 August,
7 minister of defence, Mr. Susak, and the Gospic Military District
8 Commander, Mr. Norac informed President Tudjman that the destruction in
9 Donji Lapac was carried out by General Markac's forces. I refer to P470,
10 page 53 to 54.
11 The burning in Donji Lapac started the very evening special
12 police forces entered the town. General Markac -- and entered the town
13 with General Markac, and everything burned down during that night itself.
14 P586; D556; P470, page 53 to 54.
15 The population in Donji Lapac was 90 to 98 per cent Serb prior to
16 the operation, as already referred to, which reflects the persecutory
17 intent behind the criminal acts. Further, Witness 82 testified to being
18 ordered to mark property with HV or MUP signs which were preserved, while
19 those that were not marked were destroyed. This reflects the systematic
20 nature of the criminal conduct.
21 In addition to the acts of plunder and destruction, the special
22 police killed Serb civilians who remained in the area after the
23 operation. General Markac was aware that killings of Serb civilians was
24 a possible consequence in the execution of the enterprise. He deployed
25 members of the special police who had a propensity for violence and who
1 had been described as undisciplined and nationalistic. Witness Turkalj
2 and P1088, the official note of interview, in fact, reflects the violent
3 disposition of a particular member of the special police regarding whom
4 General Markac was warned prior to the operation.
5 General Markac was thus aware that in a climate where plunder and
6 destruction of property belonging to the Serb population was encouraged
7 Serb civilians could be killed or be subject to inhumane or cruel
9 General Markac contributed to the joint criminal enterprise by
10 participating in the reporting of false information and thereby
11 encouraged further crimes.
12 The Lucko unit was considered to be an elite unit of the special
13 police and it was deployed in three mop-up operations; one in the area of
14 Petrova Gora on 13th and 14th August; the second in the Plavno valley on
15 25th August; and the third in the Promina hills on 26th August.
16 Members of the unit committed crimes in two of the three
17 operations which reflects that this was indeed the order of the day.
18 General Markac covered up both crimes. I will refer to the case of
19 Grubori, Mr. President. Due to lack of time, I will not go into the
20 second incident.
21 The crimes committed in the special police operation in Plavno
22 valley have already been addressed at length, so I will only focus on
23 General Markac's personal involvement in the cover-up.
24 Now, conspicuously absent in Mr. Kuzmanovic's address on the
25 incident was a reference to the three reports submitted by General Markac
1 on the incident. In General Markac's first report, on the event of
2 25th August, that is P575, dated 26 August, General Markac reported that
3 none of the six units which participated in the mop-up operation were
4 involved in combat. Then when he became aware that the incident was
5 receiving scrutiny by the international community, he cancelled P575, and
6 issued P576, also dated 26 August, by which he reported that the
7 Lucko unit had met with resistance and civilians were killed and houses
8 were caught fire in the course of combat.
9 By P576 he also reported that one of the enemy soldiers by the
10 name of Duro Karanovic was killed and another by the name of
11 Stevan Karanovic was arrested. And then in March 1996 when alerted to
12 the fact that this combat version could no longer be sustained in the
13 face of the overwhelming evidence that it was an outright crime, he
14 issued a third report, P505, by which he now reported that the crimes
15 were committed by enemy soldiers.
16 Witness Celic testified regarding General Markac's personal
17 involvement in the cover-up. On 26th August, witness Celic was summoned
18 to General Markac's office where General Markac and Chief of Staff Sacic
19 informed him that an incident had occurred in Grubori, and then he was
20 ordered to write another report. He was not asked questions. He was not
21 asked to provide an explanation as to why he did not report the matter.
22 Instead, he was ordered to write another report. And then soon after
23 that meeting, Celic was taken to another room in the same special police
24 headquarters where Sacic, the Chief of Staff, dictated the new report to
25 him. That is P563.
1 Witness Celic testified that he was completely unaware of the
2 contents of the report and that he merely went along with what he was
3 ordered to do.
4 Court has heard sufficient evidence to conclude that
5 General Markac's reports P576 and P505 are false and that the Lucko unit
6 committed the crime. Members of the unit were present in Grubori at the
7 time. P559, P1226, Celic, Roberts, P28, P561, P562.
8 JUDGE ORIE: Ms. Mahindaratne, you're developing a speed again
9 which is unbearable for all those who are assisting us. Take a breath
10 now and then.
11 MS. MAHINDARATNE: I apologise, Mr. President.
12 May I proceed?
13 None of the units participating in the operation met with any
14 form of resistance contrary to what General Markac reported. Testimony
15 of Janic, Celic, Exhibit P560, P577, page 5, notes of interview of the
16 members of the Lucko unit which have been admitted into evidence. There
17 are several, and I will not go into all of them. And contrary to what is
18 reported in P576, Court has heard testimony that Duro Karanovic was one
19 of the civilians killed in the incident. And P624 and 626 confirm that
20 no one by the name of Stevan Karanovic was ever arrested by Ministry of
21 Interior or, for that matter, Ministry of Defence forces.
22 Similarly, General Markac submitted a false report, P579, in
23 relation to the incidents of burning houses which were -- which was
24 committed by members of the Lucko unit on 26th August in the area of
25 Ramljane. That is in the course of the operation that was conducted on
1 26th August.
2 Due to lack of time I will not go into details of that incident.
3 General Markac contracted to the joint criminal enterprise by his
4 failure to act, namely, his failure to investigate and punish
5 subordinates for crimes committed, thereby he encouraged the commission
6 of further crimes. By his failure to act, General Markac sent out a
7 message to his subordinates that crimes could be committed with impunity.
8 In fact the statement made by member of the special police soon after he
9 burned houses in Ramljane to General Markac to the effect, So I did it,
10 so I burnt them, so what now? Kill me if you want, captures the sense of
11 the command climate he created which encouraged his subordinates to
12 commit crimes.
13 I will now address Court on General Markac's 7(3) liability, his
14 command responsibility. The evidence that I've already discussed
15 establishes that he had effective control over his subordinates and that
16 he had notice of crimes, particularly Grubori, the destruction in Gracac,
17 Donji Lapac, and Ramljane. In addition, General Markac admitted in
18 statement that he had indeed seen destruction. This is at page 44 of his
19 2004 statement. He says: "Look, I don't know that they were
20 deliberately burned. I saw there houses that were burned but I can't say
21 it was deliberate, and I can't whether it was during Operation Storm or
23 Further, the number of burials in the cemetery in Gracac, which
24 were increasing by the day, placed him on inquiry notice of the killings.
25 I refer to P41, P49, P35.
1 And he knew of crimes committed in previous operations. I refer
2 to his 2002 statement, page 59 to 61, 81 to 82, 88 to 89.
3 Notwithstanding General Markac's knowledge of -- knowledge that
4 his subordinates had committed crimes, he failed to take reasonable
5 measures to prevent crimes by his subordinates. He failed to issue a
6 specific order prohibiting crimes prior to the operation and in the face
7 of extensive crimes committed in the course of the operation, for
8 instance, in the case of Grubori and Ramljane he still did not issue a
9 single order to prevent further crimes. I draw Court's attention to P556
10 and P557.
11 He deployed members of the special police who had a propensity
12 for violence, notwithstanding warnings from his subordinated commanders.
13 By failing to act, on receipt of notice of crimes, he failed to prevent
14 further crimes. For example, he received notice of crimes committed in
15 Grubori on 25th August itself. And he was aware that the same units were
16 to be deployed the next day in the course of an operation. Yet his
17 failure to withdraw the units immediately, at least on the 25th evening
18 or 26th morning prior to the next day's operation, led to the crimes
19 committed by the same unit on the 26th.
20 He failed to prevent the crimes on 26th by his failure to act on
21 25th, regarding the crimes committed in Grubori.
22 General Markac failed to take necessary and reasonable measures
23 to punish crimes by his subordinates. Witnesses Janic and Turkalj
24 testified that no member of the special police was investigated and
25 punished for crimes committed during or in the aftermath of
1 Operation Storm.
2 The Grubori incident was not investigated by any authority,
3 either the special police or the civilian police, until witness Zganjer,
4 the Sibenik prosecutor, initiated an investigation in 2001. Instead of
5 punishment, all members of the special police who participated in
6 Operation Storm, including those who committed crimes, were awarded
7 medals. Particularly the member of the special police who admitted to
8 General Markac that he burned houses on 26th August, Franjo Drljo was
9 promoted. I refer to testimony of witness Celic, P1237, page 4; and
11 In addition to the modes of liability that are covered,
12 Mr. President, Your Honours, if the Trial Chamber does not find
13 General Markac to have participated in a joint criminal enterprise, the
14 evidence referred to allows the Chamber to find him criminally
15 responsible under Article 7(1) for ordering or aiding and abetting the
16 crimes charged in the indictment.
17 In conclusion, Mr. President, Your Honours, the Prosecution
18 submits that it has adduced sufficient evidence upon which the
19 Trial Chamber could convict Generals Ante Gotovina, Ivan Cermak, and
20 Mladen Markac as charged in the indictment.
21 This concludes the Prosecution addresses.
22 JUDGE ORIE: Thank you, Ms. Mahindaratne.
23 To be quite fair to the Prosecution, you used three hours and
24 approximately 45 minutes so, therefore, formally, 15 minutes would be
25 left, but perhaps I can imagine that you have now concluded your
1 submissions in such a way that you're not going to spend one minute more
2 on this or one minute more on that.
3 MR. TIEGER: Your Honour, that's correct. I'm -- I have to say I
4 think we would have -- it was a little confusing. I would have
5 appreciated that guidance a bit earlier. I think the Court can see that
6 some of the participants felt fairly rushed to complete today based on
7 Court's earlier comments.
8 In any event, I don't think there is any particular point in
9 revisiting the presentations, but thank the Court for the opportunity.
10 JUDGE ORIE: Tomorrow, the Defence will have three times one hour
11 to make further submissions. Tomorrow we'll not start at 2.15 but at
12 2.30. There is a plenary planned which is planned until 2.30. That's
13 the reason why we start late. Nevertheless, I take it that for the three
14 hours that would do, which, Mr. Tieger, would then lead to the
15 Prosecution making their last submissions on Wednesday.
16 Therefore, we adjourn until tomorrow, Tuesday, 24th of March,
17 half past 2.00 in the afternoon, Courtroom I.
18 --- Whereupon the hearing adjourned at 1.45 p.m.
19 to be reconvened on Tuesday, the 24th day of
20 March, 2009, at 2.30 p.m.