1 Friday, 3 April 2009
2 [Rule 98 bis]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE ORIE: Good morning to everyone in and around this
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in the courtroom. This is case number IT-06-90-T, The
11 Prosecutor versus Ante Gotovina et al.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 On our agenda this mourning is the delivery of the decision under
14 Rule 98 bis, and there a few procedural matters not very important, but
15 with which I would like to deal with after I have read the decision.
16 The Chamber will now deliver its decision under Rule 98 bis.
17 The Chamber has heard oral submissions from the Defence and the
18 Prosecution on the 19th through the 25th of March, 2009. And in reaching
19 its decision the Chamber has considered all of the parties submissions.
20 The Chamber will first give a brief summary of these submissions.
21 The Defence for all three accused requested a judgement of
22 acquittal on all counts of the indictment. The Gotovina Defence
23 submitted that in relation to persecution under Count 1, there is no
24 evidence of an unlawful and discriminatory attack directed against the
25 Serb civilian population, including through Operation Storm. It further
1 submitted that Counts 1 through 3, must be dismissed because the
2 Prosecution has not shown that the shelling that took place, whether
3 unlawful or not, was in fact the cause of the flight of civilians. The
4 Gotovina Defence also submitted that Counts 4 through 9 must be dismissed
5 because no evidence has been presented that Mr. Gotovina had the intent
6 to commit crimes against humanity or war crimes through murder, inhumane
7 acts, destruction or pillage of property or that he made a significant
8 contribution to the commission of such crimes. It added that there is no
9 direct or circumstantial evidence to support the Prosecution's theory of
10 a joint criminal enterprise.
11 In relation to liability, pursuant to Article 7(3) of the
12 Statute, the Gotovina Defence argued that there is no evidence to support
13 the Prosecution's theory that Gotovina failed to take necessary and
14 reasonable measures to prevent or punish crimes committed by his
15 subordinates. The Gotovina Defence further submitted that the Chamber
16 should not be barred from dismissing parts of a count, even where it
17 found that the count would otherwise stand.
18 The Cermak Defence asserted that Mr. Cermak had had no
19 operational function as a part of any Croatian military structures, nor
20 an operational role in relation to the civilian police, that he lacked
21 de facto effective control over any such structures and that the
22 Prosecution had presented no evidence to counter these assertions.
23 The Cermak Defence also asserted that Mr. Cermak's authority to
24 discipline members of the Croatian military was limited to his own
25 subordinates, of whom there were very few, and that there was no evidence
1 that they had committed any crimes charged in the indictment. The Cermak
2 Defence therefore submitted that Mr. Cermak could not be held responsible
3 under any theory of command responsibility. The Cermak Defence further
4 submitted that the evidence failed to demonstrate beyond a reasonable
5 doubt the existence of a joint criminal enterprise and adopted the
6 submissions of the Gotovina Defence in this respect; arguing that the
7 evidence also allowed for a reasonable inference of acts of revenge by
8 the civilian population, individual military personnel, and, perhaps,
9 military personnel grouped together. Based on these submissions, the
10 Cermak Defence argued that the evidence raised a reasonable doubt as to
11 whether there existed any joint criminal enterprise in which Mr. Cermak
12 had participated.
13 The Markac Defence argued, in relation to Count 1, that there is
14 no evidence that Mr. Markac held a discriminatory intent towards the Serb
15 civilian population based on their ethnicity. In relation to Counts 2
16 and 3, it argued that there is no evidence to sustain the allegation that
17 the civilian population fled due to unlawful shelling or any other
18 unlawful acts carried out by the special police. The Markac Defence
19 further submitted that there is no evidence that Mr. Markac participated
20 in a joint criminal enterprise with the objective of permanently removing
21 the Serb population from Krajina by launching large-scale indiscriminate
22 artillery attacks or by any other means.
23 Finally, the Markac Defence submitted that there is no evidence
24 that Mr. Markac had any ability to prevent, investigate, or prosecute
1 The Prosecution submitted that it had presented sufficient
2 evidence for every count and every mode of liability alleged in the
3 indictment. The Prosecution stated, in particular, that the evidence
4 showed that the Croatian leadership, including President Tudjman, wanted
5 Serbs to leave Croatia
6 that they did leave and that they would not return. These steps included
7 unlawful attacks and the creation of a hostile environment for any
8 remaining Serbs in Krajina through, inter alia, widespread and systematic
9 destruction of property, plunder, harassment, intimidation, and murder by
10 Croatian forces, including the special police.
11 The Prosecution submitted that each of the accused significantly
12 contributed to the achievement of the objective of the permanent removal
13 of Serbs from Krajina and that they shared this objective. The
14 Prosecution also submitted that each of the three accused had effective
15 control over one or more of either the Croatian armed forces, the
16 civilian police, or the special police, operating in the indictment area
17 during the indictment period; that each accused knew about crimes
18 committed by members of the units; and that each failed to prevent these
19 members' criminal conduct, or to punish them for that conduct.
20 Rule 98 bis of the Tribunal's Rules of Procedure and Evidence
21 provides as follows. I quote:
22 "At the close of the Prosecutor's case the Trial Chamber shall,
23 by oral decision and after hearing the oral submissions of the parties,
24 enter a judgement of acquittal on any count if there is no evidence
25 capable of supporting a conviction."
1 Under the case law of the Tribunal, the Chamber must examine
2 whether there is evidence upon which a reasonable trier of fact could be
3 satisfied beyond a reasonable doubt of the guilt of the accused. Thus,
4 if a reasonable chamber could be satisfied beyond a reasonable doubt of
5 the guilt of an accused on the basis of the evidence adduced to a count,
6 then the count must stand. There must be sufficient evidence for each
7 element of an alleged crime and mode of liability. The test would not be
8 satisfied if there were no evidence or if no reasonable chamber could
9 believe the evidence presented. At this stage, the evidence should be
10 taken at its highest for the Prosecution. The Chamber should not take
11 into consideration the credibility and liability of a witness, except if
12 no reasonable chamber could find him or her credible or reliable.
13 As for the applicable law, the Gotovina Defence claimed that the
14 amended Rule 98 bis cannot be operative due to Rule 6(D) of the Rules of
15 Procedure and Evidence, and the fact that the case against Mr. Gotovina
16 has been pending since his indictment was confirmed in 2001. The Chamber
17 recalls that Rule 98 bis was amended in December 2004 and that the trial
18 against Mr. Gotovina started in March 2008. Furthermore, Mr. Gotovina
19 was only apprehended in December 2005.
20 Rule 98 bis is a procedural rule and a corollary of the right of
21 an accused to be presumed innocent until proved guilty. In domestic
22 legal systems there are varies procedural avenues which give effect to
23 this right, and they are not necessarily limited to the stage of the
24 conclusion of the Prosecution's case. Limiting the scope of Rule 98 bis
25 decisions was intended to streamline the proceedings in the interests of
1 judicial economy by changing the proceedings from a written to an oral
2 one, and focussing on the counts rather than on the individual charges in
3 an indictment. The rules amendment, excluding acquittals on individual
4 charges, does not prejudice the right to be presumed innocent until
5 proved guilty. Effect will ultimately be given to this right in the
6 final written judgement.
7 The Chamber further notes that the failure of the Prosecution to
8 adduce evidence on individual charges has an effect on the proceedings
9 that will, in any event, follow. For the purpose of preparing and
10 presenting its evidence, the Defence will, in effect, be left with no
11 case to answer, in relation to those individual charges.
12 The Chamber will now provide a summary of the indictment.
13 The indictment against Ante Gotovina, Ivan Cermak, and
14 Mladen Markac covers nine counts of crimes allegedly committed from at
15 least July 1995 to 30 September 1995, in the following municipalities of
16 the Krajina area of Croatia
17 Ervenik, Gracac, Kistanje, Knin, Lisane, Ostrovicke, Lisicic, Nadvode,
18 Obrovac, Oklaj, and Orlic.
19 The indictment period includes Operation Storm, which allegedly
20 lasted from the 4th to the 7th of August, 1995, during which Croatian
21 forces took control of the southern part of Krajina. According to the
22 indictment, at the time, Mr. Gotovina was the commander of the Split
23 Military District of the Croatian army and the overall operational
24 commander of Operation Storm.
25 Mr. Cermak was appointed commander of the Knin garrison on the
1 5th of August, 1995, and remained in that position throughout the
2 indictment period.
3 Mr. Markac was the commander of the special police, members of
4 which were involved in Operation Storm and in ensuing operations and
6 The first three counts of the document charge persecutions,
7 deportation, and forcible transfer as crimes against humanity. The
8 fourth and fifth counts charge the war crimes of plunder and destruction
9 of property. Counts 6 and 7 charge murder as a crime against humanity
10 and as a war crime. The two final counts charge the crime against
11 humanity of inhumane acts and the war crime of cruel treatment.
12 The indictment alleges that the accused and others participated
13 in a joint criminal enterprise aimed at permanent removal of Serbs from
14 Krajina by the commission of crimes, or, in the course of which it was
15 natural and foreseeable, that crimes would be committed. The indictment
16 further charges the accused with otherwise committing, planning,
17 instigating, ordering, and/or aiding and abetting the crimes charged.
18 Finally, the indictment charges the accused with superior responsibility
19 for criminal acts and/or omissions of their subordinates by failure to
20 prevent the crimes or to punish the perpetrators thereof.
21 In its legal characterizations, the Chamber adopts and applies
22 the Tribunal's consistent case law with respect to the definition of
23 these elements of the crimes and modes of liability charged in this case.
24 In this decision, the Chamber will address the law more specifically
25 only, when, in view of the submissions of the parties, this is required
1 to explain the Chamber's findings.
2 The volume of evidence before the Chamber and the character of
3 the Rule 98 bis proceedings do not allow for a comprehensive discussion
4 of the evidence in this decision. The Chamber did, however, consider the
5 evidence in its entirety. The specific evidence that the Chamber will
6 refer to in this decision is merely a selection of what the Chamber
8 In relation to the crimes charged, the Chamber verified whether
9 the evidence addressed all the elements of each of the crimes.
10 Similarly, the Chamber verified whether the evidence addressed all the
11 requirements for criminal responsibility as charged for each accused.
12 Finally, the Chamber verified whether the evidence, taken at its highest
13 for the Prosecution, could lead a reasonable trier of fact to conclude,
14 beyond a reasonable doubt, both that a crime has occurred, and that the
15 accused are criminally responsible for it. All factual findings that
16 follow are made using the evidentiary standard for Rule 98 bis decisions
17 and do not prejudice any determinations to be made by the Chamber in its
18 final written judgement.
19 The Chamber will first examine the crime base, as alleged in
20 Counts 1 through 9, and determine whether there is sufficient evidence
21 with regard to each of the elements of the crimes to conclude that the
22 counts should stand. The Chamber will next turn to the question of the
23 individual criminal responsibility of the three accused.
24 The Chamber initially turns to general elements and
25 jurisdictional requirements that have to be proven under Articles 3 and 5
1 of the Statute of the Tribunal. There is evidence of a major military
2 operation in Krajina. Operation Storm, starting around 5.00 in the
3 morning of the 4th of August, 1995, and involving combat between Croatian
4 forces and forces of the army of the Republic of Serb Krajina
5 law of the Tribunal sets out that an armed conflict exists, and I quote:
6 "Until a general conclusion of peace is reached; or, in the case
7 of internal conflicts, a peaceful settlement is achieved."
8 Noting the absence of evidence with respect to reaching any
9 general conclusion of peace or achieving any peaceful settlement during
10 the indictment period, the Chamber concludes that there is sufficient
11 evidence to establish that an armed conflict commenced no later than at
12 5.00 a.m.
13 the indictment period and extended throughout the geographic area covered
14 by the indictment.
15 With regard to the element of a widespread or systematic attack
16 against a civilian population, the Gotovina Defence focussed, in its
17 submissions, on the artillery attacks during Operation Storm. However,
18 the indictment adopts a broader approach to this issue, setting out that
19 all crimes charged occurred as part of a widespread or systematic attack
20 against the Serb civilian population of the southern Krajina. The
21 Chamber has received evidence of numerous incidents of persons taking
22 possession from, and burning, houses in many villages during this period.
23 Philip Berikoff, for example, travelled extensively through Krajina
24 following Operation Storm and until the beginning of September 1995. He
25 testified to having observed numerous burnt or burning houses, dead live
1 stock, and burning fields in the area. He also testified to having
2 observed groups of Croatian soldiers going from house to house in varies
3 villages, taking items and livestock which they loaded onto trucks, after
4 which the houses burst into flames. According to Berikoff, he observed
5 on several indications, police directing traffic around these trucks and
6 making markings on clipboards. His testimony indicates how visible the
7 burning of houses and fields was from the roads on which he travelled.
8 The following witnesses also testified about looting by members of the
9 Croatian forces: Lennart Widen, about looting in Knin on the 6th of
10 August, 1995; Herman Steenbergen, about looting in Gracac on the 6th of
11 August, 1995, and during the subsequent weeks; Kari Anttila, about
12 looting in Palanka, in Gracac municipality on the 18th of August, 1995
13 Witness 69, about looting in Zagrovic in Knin municipality around
14 11 August 1995
15 municipality a few days after the 5th of August, 1995.
16 In examining the general elements of crimes against humanity, the
17 Chamber also considered incidents of deportation, forcible transfer,
18 murder, inhumane treatment, destruction, and plunder. Evidence relating
19 to these crimes will be addressed shortly, when discussing each count of
20 the indictment.
21 The mentioned examples, as well as other evidence considered by
22 the Chamber, indicate that the targets of the crimes were not merely a
23 limited and randomly selected number of individuals. Rather, an
24 examination of the number of incidents, the nature of those incidents, as
25 well as the age and ethnicity of the persons subjected to crimes,
1 provides a sufficient basis for establishing that there was an attack and
2 that it was directed against the Serb civilian population of the southern
3 portion of Krajina.
4 The Chamber concludes that the evidence is sufficient to
5 establish at this stage of the proceedings both that there was a
6 widespread attack against the Serb civilian population of the southern
7 portion of Krajina; and that the perpetrators must have known that their
8 acts were part of that attack.
9 The Chamber will now turn to examine the individual counts of the
11 There is evidence of murder taking place during the indictment
12 period and within the indictment area. For instance, Mile Djuric
13 testified that on the 6th of August, 1995, in Plavno village in Knin
14 municipality, soldiers detained and then threw his disabled father,
15 Sava Djuric, into a burning workshop and locked the door. The Chamber
16 received in evidence a death certificate for Sava Djuric.
17 Additionally, the Chamber received evidence from Vesela Damjanic
18 about the murder of her husband Lazo Damjanic on the 6th of August in
19 Vrbnik in Orlic municipality. Vesela Damjanic stated that soldiers
20 approached her house on that day and took her husband away. She heard
21 the soldiers threaten her husband, and a short while later the witness
22 heard shooting coming from the direction of where her husband had been
23 taken. Lazo Damjanic did not return home, and on the 8th of August, the
24 same two soldiers who had taken her husband away passed by her house and
25 told Vesela Damjanic that she would not see her husband alive again.
1 Relatives of the witness left the house to search for the body of
2 Lazo Damjanic and informed the witness when they returned that they had
3 found it.
4 The Chamber also heard evidence about murders in Grubori hamlet
5 in Plavno village in Knin municipality on the 25th of August, 1995
6 Jovan Grubor testified that on the morning of that day he saw three
7 groups of soldiers in camouflage uniform walking on the asphalt road in
8 the direction of Grubori and that later, when he arrived Grubori many
9 houses were burning. He also testified that he saw the body of
10 Jovo Grubor whose throat had been slit and whose body had been repeatedly
11 stabbed. He further testified that he observed the bodies of
12 Milica Grubor, Djuro Karanovic, and Milos Grubor, and in addition there
13 are testimonies as well as there is documentary evidence indicating that
14 these incidents were carried out by the Lucko Unit of the creation
15 special police during a mopping up operation, in follow-up to the
16 Operation Storm. In this respect, the Chamber refers in particular to
17 the testimonies of Josip Celic, Zdravko Janic, and Josip Turkalj.
18 This evidence addresses all the elements of murder as well as the
19 requirements that the victims were not actively participating in
20 hostilities at the time the offences were committed and that the murders
21 were closely related to the armed conflict. The Chamber concludes that
22 there is sufficient evidence of murder for Counts 6 and 7 to stand. As
23 mentioned, the Chamber will later turn to the question of whether any or
24 all of the accused are individually criminally responsible for the crime
25 of murder.
1 There is evidence of the commission of inhumane acts and cruel
2 treatment in the wake of Operation Storm. For instance, Bogdan Brkic
3 stated that, sometime between Operation Storm and the 12th of August,
4 1995 armed and uniformed Croatian soldiers tied him to a tree in Palanka
5 in Gracac municipality. They then placed a suit under his feet and set
6 it on fire. In pain, he managed to kick it away. The soldiers also told
7 him that they had killed his neighbour.
8 Another example came from Draginja Urukalo, a woman aged 73 at
9 the time, who stated that Croatian soldiers came to her village one day
10 early in August 1995. After smashing some of her belongings, shooting at
11 her house, and calling her a "Chetnik whore," the soldiers forced her to
12 strip to her underwear and play basketball with her elderly neighbour.
13 The Chamber also received evidence from Vesela Damjanic who testified
14 that around the 16th of August, 1995, she saw three soldiers shouting at
15 Djurdija Amanovic an elderly lady with mobility problems. The soldiers
16 were also arguing about whether they should set her on fire. After the
17 soldiers had left, Djurdija Amanovic told Vesela Damjanic that the
18 soldiers had indeed tried to burn her and had accused her sons of being
20 This evidence addresses all the elements of inhumane acts and
21 cruel treatment as well as the requirements that the victims were not
22 actively participating in hostilities at the time the offences were
23 committed and that these acts were closely related to the armed conflict.
24 The Chamber concludes that there is sufficient evidence of inhumane acts
25 and cruel treatment for Counts 8 and 9 to stand.
1 There is evidence of plunder occurring during the indictment
2 period and in the indictment area. The Chamber has already referred to
3 some of this evidence earlier in its discussion of the general elements
4 of crimes against humanity. For instance, Lennart Widen testified that
5 in Knin, on the 6th of August, 1995, he observed many ransacked shops an
6 apartments, soldiers of the creation Puma Brigade and civilian police
7 carrying items, such as television sets, video recorders, and furniture,
8 as well as military vehicles loaded with similar items departing from
9 Knin. The evidence addresses all the elements of plunder as well as the
10 requirements that the plunder had grave consequences for the victims and
11 that it was closely related to the armed conflict. The Chamber concludes
12 that there is sufficient evidence of plunder for Count 4 to stand.
13 The Chamber has also received evidence of large-scale destruction
14 of houses or entire villages within the indictment period and area. For
15 instance, several witnesses testified that on the 25th of August, 1995
16 numerous houses were set on fire and livestock killed in the hamlet of
17 Grubori in Plavno village, in Knin municipality. The Chamber has also
18 received video evidence, for example, P874, illustrating the destruction
19 in the hamlet. As indicated earlier, there are witness testimonies as
20 well as documentary evidence indicating that these actions were carried
21 out by the Lucko Unit of the Croatian special police.
22 A number of witnesses working for international organisations
23 also testified about large-scale destruction of property that they had
24 observed throughout the indictment area. For example Laila Malm,
25 Philip Berikoff, and Alun Roberts testified about the extensive burning
1 of houses in various villages in Kistanje municipality. The evidence
2 indicates that at least some of these acts were carried out by Croatian
3 soldiers. P707 and P709 contain pictures of the destruction in Knin,
4 Kistanje, and Gracac.
5 P754, P756, and P757 are videos showing the large-scale
6 destruction of Kistanje and other villages in the area.
7 Another example is the UNTV video footage in evidence under P26.
8 Normand Boucher testified that he saw soldiers taking out jerrycans from
9 a truck and taking them towards houses in the villages of Kosovo on the
10 Knin-Drnis road. When Boucher returned some hours later, the houses and
11 the adjacent crops were on fire.
12 The evidence addresses all the elements of the war crime of
13 wanton destruction and the requirement that these actions were closely
14 related to the armed conflict. The Chamber concludes that there is
15 sufficient evidence of destruction for Count 5 to stand.
16 There is evidence of deportation and forceable transfer of Serbs
17 out of the Krajina in the indictment period. For instance,
18 Marija Vecerina, a Serb woman, testified to a series of events which
19 began on the 5th of August, 1995, and which eventually led her and some
20 of her family members to leave Krajina for Serbia on the 16th of
21 September, 1995. These circumstances included their being detained at
22 various locations in Knin and Zadar from the 6th of August to the 16th of
23 September, 1995, and their being subjected to other forms of coercive and
24 intimidating treatment by Croatian soldiers and by Croatian civilian
1 Mira Grubor testified that on the 5th of August, 1995
2 Croatian forces entered town, she fled to the UN compound in Knin and
3 that she remained there until the 16th of September, 1995, when she and
4 others were transported in buses to Serbia. Before they could board the
5 buses and leave the compound, however, people, Mira Grubor thought of as
6 responsible to the Croatian authorities required them to sign a document
7 stating that they had been treated in a humane way and that they
8 voluntarily wished to move from Croatia
9 Another Serb woman, Witness 3, testified about her experiences
10 which were similar to those of Mira Grubor. She stated that she stayed
11 at the UN compound in Knin for 40 days, starting on the 6th of August,
12 and that a few days before the 16th of September, 1995, unknown persons
13 told her that she had to sign a form stating that she was leaving Croatia
14 voluntarily in order to be allowed to leave the UN compound. She signed
15 the form to be allowed to leave the camp, but testified that she was not
16 leaving Croatia
17 evidence under P55 and P57. Witness 3 left the UN compound in a convoy
18 of buses in the early morning hours of the 16th of September 1995
19 arrived in the Federal Republic of Yugoslavia the day after.
20 Other witnesses, including Mirko Ognjenovic, also testified about
21 leaving Croatia
22 mid-September 1995.
23 A report of the United Nations Secretary-General of the 23rd of
24 August, 1995, in evidence as D90, states that theres with a mass exodus
25 of the Krajina Serb population which create a humanitarian crisis with
1 only 3.500 Serbs remaining in the former Sector North, and 2.000 Serbs
2 remaining in the former Sector South, representing only a small
3 percentage of the former Krajina Serb population.
4 The evidence addresses all the elements of the crimes against
5 humanity of deportation and inhumane acts consisting of forcible
6 transfer. The Chamber concludes that there is sufficient evidence of
7 these crimes for Counts 2 and 3 to stand.
8 The previously discussed crimes also constitute some of the
9 underlying acts of the crime of persecution alleged in Count 1 of the
10 indictment. There is evidence indicating that some of these acts were
11 carried out as part of the crime of persecution against Krajina Serbs.
12 For instance, Smiljana Mirkovic stated that on the 12th of August, 1995
13 in Polaca in Knin municipality, a soldier shot and killed
14 Djurdija Mirkovic while cursing their Serbian mothers. Similar
15 discriminatory statements were made by the perpetrators of other crimes
16 on which the Chamber has received evidence. Petar Colovic stated that
17 Croatian soldiers entered his village in Orlic municipality a few days
18 after the 5th of August, 1995. The soldiers took personal belongs and
19 livestock from the witness, and one of the soldiers also cursed the
20 witness's mother and called her a Chetnik. Mira Grubor testified that
21 while she was in the UN compound between the of 5th August and the
22 16th of September, 1995, she heard Croatian soldiers outside screaming
23 things like "come out Chetnik bitches" and other similar pejorative
25 With regard to destruction of property and looting, the Chamber
1 notes the evidence it received from Philip Berikoff, Peter Marti,
2 Stig Marker Hansen, and through documents such as UNCIVPOL memo in
3 evidence under P228, indicating that houses in Knin and elsewhere were
4 marked as Croatian. There is evidence to the effect that the aim of this
5 was to save these houses, unlike the non-Croat houses, from destruction
6 or looting, although this was not always successful.
7 The evidence addresses all of the elements of the crimes against
8 humanity of persecution. The Chamber concludes that there is sufficient
9 evidence of persecution for Count 1 to stand.
10 Although the Gotovina Defence considered that Count 1 should be
11 dismissed in its entirety, it also invited the Chamber, in the
12 alternative, to dismiss Count 1 in part, namely with regard to the
13 underlying act of unlawful attacks on civilians and civilian objects. As
14 mentioned earlier, Rule 98 bis, as amended in December 2004 provides for
15 a review of the evidence on a count-by-count basis and not with regard to
16 specific charges of the. Since the Chamber considers that the evidence
17 presented is sufficient for at least some of the underlying acts of
18 persecution, Count 1 will stand in its entirety.
19 The Chamber does not accept the Gotovina Defence's suggested
20 approaches to dismissing counts in part.
21 Having found a sufficient evidentiary basis, under the
22 aforementioned Rule 98 bis standard of review of evidence, for the crimes
23 charged in each and all counts of indictment, the Chamber now turns to
24 the responsibility of the accused for those crimes.
25 The Chamber will first examine the evidence with regard to the
1 mode of liability of participation in a joint criminal enterprise. As
2 set out in the case law of the Tribunal, the elements of this mode of
3 liability are: A plurality of persons; a common objective which amounts
4 to or involves the commission of a crime provided for in the Statute; and
5 the participation of the accused in the objective's implementation. The
6 contribution of an accused need not have been substantial or necessary to
7 the achievement of the common objective. However, it should at least be
8 a significant contribution to the crimes forming part of the common
10 The mens rea required is that the participants in the joint
11 criminal enterprise, including the accused, had a common state of mind,
12 namely, the state of mind that the statutory crimes - I should say crime
13 or crimes - through which the common objective were to be achieved,
14 should be carried out. This is what in the case law is referred to as
15 the first form of joint criminal enterprise, and the Prosecution has
16 charged all three accused with this mode of liability with regard to
17 Counts 1 through 5 of the indictment. The Prosecution has also charged
18 the accused, in addition or in the alternative, with the third form of
19 joint criminal enterprise. The mens rea required with respect to this
20 charge is that the resulting crime or crimes were a natural and
21 foreseeable consequence of the execution of the joint criminal
22 enterprise, and that the accused was aware of this and participated with
23 that awareness.
24 There is evidence of a joint criminal enterprise between the
25 accused, with the objective of the permanent removal of Serbs from
2 When examining the first two elements of this mode of liability,
3 the Chamber considered evidence addressing the alleged participants in
4 the joint criminal enterprise agreeing, conspiring, discussing, or
5 otherwise manifesting the existence of a common objective, which amounts
6 to or involves the commission of crimes provided for in the Statute. The
7 Chamber also examined the evidence on the commission of such crimes in
8 the indictment area and during the indictment period. The Chamber
9 finally considered whether this evidence allows, on its own or together
10 with the other evidence, for an inference as to the existence of a common
12 The Chamber received into evidence the audio-recording and
13 minutes of a meeting held between President Tudjman, Mr. Gotovina,
14 Mr. Markac, and others at Brioni on the 31st of July, 1995. In this
15 respect, the Chamber considered Exhibit P461 and the submissions made by
16 the Gotovina Defence on the 1st of April, 2009, with regard to the
17 transcription and translation of the recordings of this meeting.
18 During the meeting, the participants discussed, among other
19 things, that civilians would be leaving the area in connection with the
20 armed operation. President Tudjman stated, for example, that:
21 "It is important that those civilians set out, and then the army
22 will follow them, and when the column sets out, they will have a
23 psychological impact on each other."
24 And Mr. Gotovina then responded:
25 "A large number of civilians are already evacuating Knin and
1 heading towards Banja Luka and Belgrade
2 this pressure, probably for some time to come, there won't be so many
3 civilians, just those who have to stay, who have no possibility of
5 The participants further discussed the possible routes that
6 should be left open for the civilians to leave Croatia. It was also
7 agreed at the meeting that information should be spread amongst the Serb
8 civilian population that Serb civilians were already leaving the area.
9 In proposing a text for a leaflet or a radio or television message,
10 President Tudjman stated:
11 "Serbs, you are already withdrawing, and so forth, and we are
12 appealing to you not to withdraw. We guarantee ... this means giving
13 them a way out."
14 This literally quote was followed by words strongly implying that
15 civil rights would ostensibly be guaranteed.
16 The Chamber has also heard witness's testimonies with regard to
17 the objective of the permanent removal of Serbs from Krajina.
18 Peter Galbraith testified that President Tudjman had informed him after
19 Krajina Serbs had left Croatia
20 left could not return to Croatia
21 laws on confiscation of property which required those who had left
23 property. Galbraith further testified that although this time-limit was
24 eventually abandoned, this was only after intense international pressure
25 on Croatia
1 Croatian political leadership, Galbraith formed the opinion that the
2 mentioned laws as well as other measures, including systematic looting
3 and burning of Serb homes, were all aimed at preventing those Serbs who
4 had left from ever returning.
5 The Chamber has already made findings on the various counts in
6 the indictment under the Rule 98 bis standard of review. As described,
7 there is evidence showing that many crimes were committed throughout the
8 indictment period by Croatian soldiers or special police on the ground in
9 Krajina. In particular, the Chamber found that the evidence is
10 sufficient to conclude that there was a widespread attack against the
11 Serb civilian population of the southern portion of Krajina.
12 The Chamber concludes that, for the purposes of a review of the
13 evidence, pursuant to Rule 98 bis of the Rules, there is sufficient
14 evidence of the existence of a common objective aimed at the permanent
15 removal of Serbs from Krajina by force or threat of force, persecution,
16 forced transfer, and deportation, as well as appropriation and
17 destruction of property as charged in Counts 1 through 5 of the
18 indictment. The Chamber further concludes that there is sufficient
19 evidence that the crimes charged in the Counts 6 through 9 were natural
20 and foreseeable consequences of the execution of this common objective.
21 The Chamber will next turn to the third element of joint criminal
22 enterprise; namely, the participation of the accused in the objective's
24 Both Mr. Gotovina and Mr. Markac participated in the
25 aforementioned Brioni meeting during which participants discussed how
1 civilians would leave Krajina. There is also evidence indicating that
2 Mr. Gotovina was in command and control of Croatian forces within the
3 Split Military District and that Mr. Markac was in command of special
4 police operations in Sector South during and after Operation Storm.
5 As indicated earlier, there is evidence that at least some of the
6 crimes under each of the Counts 1 through 5 of the indictment were
7 committed by Croatian forces, including the special police. The Chamber
8 also received further evidence placing Mr. Gotovina, Mr. Markac on the
9 ground in Krajina and being involved in military or special police
10 operations during the indictment period. In this respect, there is both
11 documentary evidence and testimony implicating Mr. Markac in activities
12 attempting to obscure crimes committed by the Lucko Unit of the special
13 police in Grubori on the 25th of August, 1995. The Chamber refers in
14 particular to the testimonies of Zdravko Janic and Josip Celic.
15 The Chamber has also received evidence of Mr. Gotovina's
16 awareness of crimes committed by men under his command during and
17 following Operation Storm. For example, in a letter to Mr. Gotovina on
18 the 5th of August, 1995, Alain Forand expressed concerns about
19 significant looting and destruction occurring in Knin. This letter is in
20 evidence under P347.
21 On the 12th of August, 1995, HV assistant commander for political
22 affairs, Captain Mario Tomasovic, addressed a notification entitled
23 "Warning" to, amongst others, Mr. Gotovina. It noted that the success of
24 Operation Storm had been partly brought into question by the
25 inappropriate acts of individual Croatian soldiers and stressed the need
1 to prevent the continued destruction and looting of property, killing of
2 livestock, and inappropriate conduct towards civilians and prisoners of
3 war. This notification is in evidence as P918.
4 In a letter dated the 13th of September, 1995, and in evidence as
5 Exhibit P407, Mr. Gotovina wrote to General Cervenko, noting that
6 Alun Roberts had stated that:
7 "The Croatian army is burning, looting, and violating human
9 Mr. Gotovina further indicated that he did not believe that this
10 conduct or that of his men conflicted with Croatian state policy.
11 The evidence heard allows for the conclusion that Mr. Gotovina
12 had the power and ability to discipline soldiers under his command.
13 However, the Chamber heard evidence from expert witness Reynaud Theunens
14 that Mr. Gotovina primarily used his powers to discipline men for
15 violations or crimes that would jeopardize the accomplishment of specific
16 combat tasks and combat operations, rather than for crimes against the
17 civilian population such as looting and burning.
18 The Chamber concludes that there is sufficient evidence to
19 establish the participation of Mr. Gotovina and Mr. Markac in the joint
20 criminal enterprise as described, and that their participation amounted
21 to a significant contribution to crimes charged in Counts 1 through 5.
22 The Chamber further concludes that the aforementioned evidence is
23 sufficient to establish both that Mr. Gotovina and Mr. Markac intended
24 the commission of these crimes and that they knowingly took the risk that
25 the other crimes charged in the indictment would be committed as a
1 natural and foreseeable consequence of the implementation of the
2 objective of the joint criminal enterprise.
3 Regard to Mr. Cermak, there is evidence that on the 5th of
4 August, 1995, President Tudjman personally appointed him commander of the
5 Knin garrison, with the stated tasks of restoring normal life in and
6 around Knin and dealing with the media and representatives of the
7 international community. Mr. Markac remained in his position throughout
8 the indictment period. Witness 86 and Stjepan Buhin testified that
9 Mr. Cermak chaired meetings held almost daily at his office in Knin, in
10 which representatives from various civilian and military structures,
11 including the civilian police, participated. During these meetings,
12 Mr. Cermak was informed, among other things, about crimes occurring in
13 and around Knin.
14 There is evidence of cooperation between Mr. Cermak and the other
15 two accused; for instance, with regard to freedom of movement and special
16 police mopping up operations. Mr. Cermak issued documents allowing or
17 denying free movement of civilians or members of international
18 organisations. His work also included administering a sanitary team
19 disposing of dead bodies and livestock.
20 There is evidence that Mr. Cermak, at times, either denied that
21 members of Croatian forces had committed crimes, attempted to downplay
22 these crimes, or promised that investigations would take place, but such
23 investigations either were not carried out or were not conducted until
24 much later. After the killings carried out this Grubori on 25th of
25 August, 1995, there is evidence indicating that Mr. Cermak knew that
1 civilians had been killed and that houses in the hamlet had been burned
2 down by members of the special police. For example, on the 26th of
3 August, Richard Lyntton interviewed Mr. Cermak and informed him about the
4 killing of two elderly men in the hamlet. Mr. Cermak also visited
5 Grubori himself around the same time, and observed the destruction of
6 houses. Nevertheless, through various communications during the
7 subsequent days, including those in evidence as P603 and P1222,
8 Mr. Cermak relayed to members of international organisations the version
9 of events given to him by the special police, despite evidence indicating
10 that he knew that this version was not reliable.
11 The Chamber also received evidence of Mr. Cermak's personal
12 involvement in securing the departure of hundreds of Serb civilians from
13 the UN compound in Knin on busses to Serbia. The Chamber earlier
14 referred to Witness 3 and Mira Grubor who each in various ways had been
15 forced to leave their homes and subsequently came to the UN compound.
16 The Chamber received from Alain Forand and other witnesses evidence
17 according to which Mr. Cermak had a central role in the negotiations
18 between Croatia
19 displaced persons at the UN compound. Moreover, the Chamber received
20 documentary evidence, under Exhibit D316, that portrayed Mr. Cermak as
21 one of the key persons responsible for the operation to move to Serbia
22 the Serb displaced civilians in a convoy of 35 buses on the 16th and
23 17th of September, 1995.
24 Taking the evidence at its highest for the Prosecution, the
25 Chamber concludes that there is sufficient evidence to establish the
1 participation of Mr. Cermak in the joint criminal enterprise, alongside
2 the two other accused, and that his participation amounted to a
3 significant contribution to the crimes charged in Counts 1 through 5.
4 The Chamber further concludes that the evidence is sufficient to show
5 that Mr. Cermak intended the commission of these crimes, and knowingly
6 took the risk that the other crimes charged in the indictment would be
7 committed as a natural and foreseeable consequence of the implementation
8 of the objective of the joint criminal enterprise.
9 Having thus found, under the Rule 98 bis standard of review,
10 sufficient evidence to sustain all counts of the indictment for each of
11 the accused under one mode of liability, the Chamber does not, at
12 present, need to examine the other modes of liability alleged in the
14 In conclusion, all three accused have a case to answer on all
15 nine counts of the indictment.
16 I continue with a related, although a bit separate issue.
17 On the 23rd of March, 2009, the Prosecution referred to a list of
18 32 specific murder victims mentioned in the indictment, as well as the
19 original and further clarification. The Prosecution conceded that for
20 these victims it had not presented any evidence of murder. This can be
21 found at transcript page 17.415. And on the 27th of March, the
22 Prosecution filed this list.
23 I am now addressing the Defence. The crimes for which -- I would
24 say especially the Gotovina Defence, argued that no evidence had been
25 presented was far longer than 32 names or persons identified. The
1 Chamber notes that five out of the list of 32 of the Prosecution's list
2 do not appear in the, by far, longer list of the Defence. The Chamber
3 wonders whether the Defence disagrees on those specific five, that no
4 evidence has been presented, or whether it agrees with the Prosecution
5 that no evidence has been presented. And I just give these five, the
6 first one being scheduled killing 83, Saric Danica, that's number 1 on
7 the Prosecution list. Number 26 on the Prosecution's list, killing
8 number 234, Supeljak Mirko. Number 27 on the Prosecutor's list, killing
9 number 239, Pribojan Darinka. Number 28 on the Prosecution's list,
10 killing number 243, Miljevic Ilija. And number 29 on the Prosecutor's
11 list, killing number 270, Simic Milica.
12 The Chamber would like to establish whether or not the Defence
13 would agree on no evidence having been presented, in relation to these
14 five cases, because the Prosecution states that no evidence was presented
15 but the Defence has not listed these five persons as cases where no
16 evidence was presented.
17 MR. MISETIC: Mr. President, I would -- in all honesty have to
18 look at our records on it, but can I tell you right now that if the
19 Prosecution believes it hasn't proven a charge, I'm not going to dispute
20 it. So -- we will certainly go back and look at it ourselves. Obviously
21 I don't think that our list was intended to be exhaustive when we recited
22 it at the 98 bis hearing, and therefore it is certainly possible that
23 there are more names than the ones we listed. But those were the names
24 in light of the amount of time to prepare on the variety of issues we
25 were addressing that we came up with at that time.
1 JUDGE ORIE: Could I hear from the other Defence teams. What
2 their position is.
3 MR. CAYLEY: I can't add anything to what Mr. Misetic has said,
4 Your Honour. Thank you.
5 JUDGE ORIE: Mr. Kuzmanovic.
6 MR. KUZMANOVIC: Same position, Your Honour. Thank you.
7 JUDGE ORIE: That means that, although still subject to
8 verification, that there seems to be, in principle, agreement among the
9 parties, and the Chamber takes note of that. That no evidence of murder
10 has been presented with regard to all of the 32 victims mentioned in the
11 Prosecution's notification of the 27th of March.
12 And, Mr. Misetic, I asked only about the five, but I took it from
13 your submissions under 98 bis that the remaining 27, that there was
14 agreement already on those.
15 If the verification would lead the Prosecution -- the Defence
16 teams to any other conclusion, the Chamber would like to be informed so
17 as to be able to correct what is now noted and put on the record as an
18 agreement among the parties, in relation to the 32 victims.
19 This concludes the Chamber decisions and the related issue, under
20 Rule 98 bis.
21 As I said before, I have a few matters.
22 The first we can deal with in open session. It is a notification
23 of the lifting of confidentiality of the Prosecution's motion seeking the
24 production of documents obtained by the Gotovina Defence and the fact
25 that it has been denied in a confidential decision. I read it in its
2 The Chamber informs the public that on the 22nd of January, 2009
3 the Prosecution filed a confidential motion in which it requested the
4 Chamber, pursuant to Rule 54 of the Tribunal's Rules of Procedure and
5 Evidence, to order the Gotovina Defence to produce any documents in its
6 possession obtained from sources other than the Prosecution, that fall
7 within the Prosecution's Artillery Document Request made to Croatia
8 a confidential decision to be filed this afternoon, or later this
9 morning, the Chamber denied that motion and also lifted the confidential
10 status of the motion and its Appendix C. Appendices A and B to the
11 motion and the Chamber's decision are to remain confidential, in order to
12 avoid any risk of inference with pending Rule 54 bis matters in this
14 And this concludes the statement of the Chamber in this respect.
15 The next -- for the next item I would like to go into private
17 [Private session]
11 Pages 17625-17626 redacted. Private session.
1 [Open session]
2 THE REGISTRAR: Your Honours, we're back in open session.
3 JUDGE ORIE: Thank you, Mr. Registrar.
4 The last item on my agenda is that the Gotovina Defence asked to
5 make further submissions on the issue of the lifting of restriction on
6 communication in relation to a witness which may be re-called. And I --
7 of course, I do not know exactly what are you going to say. I think
8 until now, it was -- I don't think that there is anything confidential in
9 the issue itself.
10 MR. MISETIC: We discussed that in public session on the 6th of
11 March, if I'm not mistaken.
12 JUDGE ORIE: Yes.
13 Mr. Tieger, I see you're not jumping, but you're raising your
14 eyebrows, which is also up for direction.
15 MR. TIEGER: Well, thank you, Your Honour, for attending to our
16 possible concerns.
17 Just wondering about the extent to which submissions related to
18 an issue of contact can -- or communication can take the inadvertent form
19 of communication. And since I don't know what the submissions might be,
20 it raises that potential concern.
21 JUDGE ORIE: Yes. That's what I said earlier when I said I don't
22 know what the content of Mr. Misetic's observations will be. But I think
23 he gave it some thought and considers that where the matter was raised
24 publicly earlier, that he certainly has thought about whether his
25 submissions would create any need to change the status of this
2 Mr. Misetic.
3 MR. MISETIC: If I could just have one moment, Mr. President.
4 Just as a matter of the status, it's my recollection that not
5 only did we discuss it in public, but the Chamber's filing on Friday
6 filing the e-mails was done publicly, and if I'm not mistaken, the
7 Prosecution filed their submission publicly, so I don't see why our reply
8 would suddenly have to be confidential.
9 JUDGE ORIE: Not knowing what you're going to say, of course,
10 Mr. Tieger says that if you talk about non-communication, then
11 submissions in itself could be a form of communication. But you are
12 aware of that, and that I take it that you have sufficiently considered
13 that, so you may proceed.
14 MR. MISETIC: Thank you, Mr. President.
15 Briefly there were two main issues that I wanted to address in
16 the Prosecution's response. First of all, the reason that --
17 THE INTERPRETER: Please slow down, please.
18 MR. MISETIC: The reason that we need to conduct this witness,
19 obviously, he is an important witness with respect to artillery issues in
20 this case. Information continues to come in at a pretty significant
21 clip. We have to prepare witnesses not the least of which are expert
22 witnesses on artillery issues, and we are hindered by an inability to
23 contact an important witness about a wide variety of issues including to
24 check additional information that was disclosed to us last week by an
25 order of the Chamber.
1 We had no objection initially to the non-contact because it was
2 our assumption that if he were recalled, it would be recalled while
3 Prosecution's case was still open. That obviously hasn't happened, and
4 we've now completed the 98 bis stage. We at this point have no
5 instruction from the Chamber as to whether there is any intent, and if
6 so, when to call him back, and so we're hampered in our preparations, and
7 I can use an example. Mr. Theunens testified here. I'm -- I feel
8 reasonably confident that once he finished testifying, the Prosecution
9 didn't stop communicating with him. As a matter of fact, I'm pretty sure
10 they now -- I would suggest regularly contact him regarding issues in
11 this case. Similarly the fact that Mr. Rajcic completed testimony does
12 not change the fact that he is still a valuable source of information for
13 the Defence in preparing its case whether he ultimately comes to testify
14 or not.
15 With respect to why we sent an e-mail, my understanding of the
16 procedural history of this is the Prosecution did not file a formal
17 motion but sent a request to the Chamber in the form of an e-mail. The
18 Chamber responded with an instruction in the form of an e-mail, and
19 therefore we also sent an e-mail. The fact that they had an opportunity
20 the next day because we happened to be sitting in court to raise the
21 issue is in our view certainly fine, I have no objection to it, but at
22 the time we sent our request, we of course did not have court the next
23 day, but we could raise the matter earlier with the Chamber. And in
24 light of the timing issues, we also, frankly, fell that we can't afford
25 14 days response plus reply because the time for us to prepare our
1 Defence is running.
2 Thank you, Mr. President.
3 JUDGE ORIE: Yes. As far as e-mail communications are concerned,
4 there certainly was an urgency in the matter, that is also a reason why
5 the Chamber has chosen to respond by e-mail. At the same time, by
6 putting all these e-mails on the record, the Chamber did stick to its
7 tripartition, purely practical matters can be exchanged by e-mail. If
8 not purely practical if there is any e-mail exchange, it should be put on
9 the record sooner or later. If it is a matter of substance, then the
10 e-mails should be filed so as to make the record fully transparent.
11 In this case, finally, the Chamber was in a position at this
12 moment to -- because we had to file something anyhow to use that
13 opportunity to do what we expect the parties to do under those
14 circumstances. At this moment I think that if everyone is fully and
15 constantly aware of what the background thoughts are, then there should
16 be no reason for major disagreement or major problems.
17 MR. MISETIC: Mr. President, if I could just -- I forgot to add
18 one thing.
19 JUDGE ORIE: You said there were two things.
20 MR. MISETIC: Well, I had two things, but there is a third matter
21 I should have addressed initially.
22 We are going to add Mr. Rajcic to our Defence witness list as
23 well. The reason being that there may be issues that come up with
24 witnesses in the Defence case concerning artillery where new factual
25 matters come up that will -- or new documents come in from the
1 Prosecution or the Defence that need further comment by Mr. Rajcic. For
2 that reason when we disclose our witness list, he will be on the witness
3 list. To that extent, I just wanted the Chamber to know that in its
4 consideration of how we recall Mr. Rajcic, whether we wait to see if, at
5 the end of the day, towards the end of the Defence case, he will be
6 recalled again, and therefore potentially a third time, or if for
7 whatever reason we ultimately chose not to recall him because there
8 weren't additional issues, there is of course - we're in the Defence case
9 now essentially - the opportunity for the Chamber then to give the
10 Prosecution an opportunity to recall him because of the Defence has
11 chosen not to call him, even though he is on the witness list. But at
12 this point we cannot know for sure, and it depends really on what happens
13 in the initial parts of the Defence case whether the Defence will be
14 calling Mr. Rajcic.
15 Thank you.
16 JUDGE ORIE: Thank you, that is it clearly on the record now.
17 These are the matters that the Chamber wanted to raise. Are
18 there any other matters that we have to urgently deal with? Because
19 we'll not be in court for a while.
20 MR. TIEGER: Very quickly, Your Honour, again, without making a
21 drama out it as the Court has urged, I just want to underscore the
22 Prosecution's earlier expressed concern about the distinction between
23 e-mails and motions. I understand that at the both ends of the spectrum,
24 formal motion on the one hand, practical communications on the other that
25 are e-mails, the Court' guidance that when something that normally would
1 fall at the practical end of the spectrum, may stray into something
2 substantive that needs to be memorialised in a formal pleading, it does
3 so. But that should not slip into the supplanting of e-mails for formal
4 motions, and we've expressed our concern about that; we continue to have
5 that concern for a variety of reasons.
6 JUDGE ORIE: Yes. That's clear we have to find a fair balance
7 between practicality and transparency.
8 MR. MISETIC: Your Honour, if I could just comment. I agree with
9 that, just in the context of this particular motion, from our
10 perspective, we wish to be treated the same way. And again as I say
11 there was no formal order from the Chamber that had been filed in the
12 first place. But certainly, if e-mails being filed is something that the
13 Chamber wishes, and I have no problem with that, we can file them, but
14 again our issue was with respect to the urgency that the matter needed to
15 be addressed.
16 JUDGE ORIE: Yes. The parties might receive soon further message
17 from the Chamber staff on what to copy the Chamber and on what not to
18 copy the Chamber. That is a matter which was discussed recently with the
19 Chamber and the Chamber staff.
20 Any other matter?
21 [Trial Chamber and registrar confer]
22 JUDGE ORIE: Nothing more to be discussed at this moment. The
23 Chamber will adjourn until the 27th of May, when a pre-Defence
24 conversation will be held. The courtroom in which this conference will
25 be held is not yet known, so the parties are invited to inquire into
1 which courtroom we expect you to appear.
2 We stand adjourned.
3 --- Whereupon the hearing adjourned at 10.38 a.m.
4 to be reconvened on Wednesday, the 27th day of May,