Tribunal Criminal Tribunal for the Former Yugoslavia

Page 29020

 1                           Monday, 30 August 2010

 2                           [Open session]

 3                           [Prosecution Closing Statement]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.06 a.m.

 6             JUDGE ORIE:  Good morning to everyone in and around this

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

10     everyone in and around the courtroom.  This is case number IT-06-90-T,

11     the Prosecutor versus Gotovina et al.

12             JUDGE ORIE:  Thank you, Madam Registrar.

13             We will hear, in the coming days, the final argument of the

14     parties in this case.

15             Before I give an opportunity to the Prosecution to start, I have

16     a few matters which I'd like to raise.

17             First, the Cermak and Markac Defence are invited to file their

18     public redacted versions of their final briefs as soon as possible.  The

19     Gotovina Defence has filed its redacted version.

20             Then, I'd like to read a statement on behalf of the Chamber on

21     sentencing submissions.

22             The Chamber will now address the parties' submissions on

23     sentencing.

24             In its final brief, paragraph 589, the Cermak Defence requests

25     that it be granted an opportunity to address the Chamber orally regarding

Page 29021

 1     sentencing, should the Chamber find Cermak guilty of any of the charges.

 2     Its request notwithstanding, the Cermak Defence addresses sentencing in

 3     its final brief with the exception of the gravity of the offence and the

 4     totality of the conduct.

 5             The Markac Defence objects to the Tribunal's practice of

 6     pronouncing on the accused's guilt and issuing a sentence at the same

 7     time.  This objection can be found in paragraph 284 of the

 8     Markac Defence's final briefly.  The Markac Defence does not seek any

 9     relief in this regard and notwithstanding its objection makes submissions

10     on sentencing in its final brief.

11             The original version of the Rules of Procedure and Evidence

12     provided for separate guilt and sentencing proceedings.  This was

13     abandoned in 1998 with the adoption of Rule 87(C), establishing a

14     combined guilt and sentencing phase.  This new practice is also reflected

15     in Rule 86(C) which sets out that the parties shall also address matters

16     of sentencing in closing arguments.  The Chamber finds no reason to

17     deviate from this practice in the present case.  Therefore, the Cermak

18     Defence's request is denied.

19             In light of this decision, if the Cermak Defence and the Markac

20     Defence wish to make any further submissions on sentencing, they have the

21     opportunity to do so during their closing arguments.

22             In its final brief, the Gotovina Defence indicated that it chose

23     not to make any submissions on sentencing.  Although the Chamber takes it

24     that this position has been adopted after careful consideration, it does

25     not consider it to be binding, and therefore the Gotovina Defence is not

Page 29022

 1     deprived of the opportunity to make oral submissions on sentencing as

 2     part of its closing argument, if it should wish to do so.

 3             And this concludes the Chamber's statement on the parties'

 4     sentencing submissions.

 5             Finally, in relation to the closing arguments, the Prosecution

 6     has six hours to deliver its closing arguments.

 7             Defence teams each have two and a half hours to deliver their

 8     closing arguments.  And as the Chamber indicated earlier, the Defence

 9     teams may divide their time for closing arguments amongst themselves as

10     they see fit.

11             The Prosecution has one hour for rebuttal arguments and the

12     Defence teams have one hour in total for rejoinder arguments.

13             These are the practical arrangements the parties are aware of.

14             Mr. Tieger, is the Prosecution ready to present its final

15     arguments?

16             MR. TIEGER:  It is, Your Honour.

17             JUDGE ORIE:  Then please proceed.

18             MR. TIEGER:  Thank you.

19             Mr. President, Your Honours, good morning.  Learned colleagues

20     for the Defence, and all those in the courtroom and in the booths.

21             Your Honours, I will speak first for the Prosecution, discussing

22     the JCE, its common purpose to forcibly displace Serbs, its members,

23     including General Gotovina, General Cermak and General Markac, and its

24     means, including unlawful shelling attacks and destruction and looting.

25             Mr. Russo will discuss in more detail the artillery attacks and

Page 29023

 1     the resulting deportation and forcible transfer of Croatian Serbs.

 2             Mr. Hedaraly will then speak about the crimes committed against

 3     Croatian Serbs and against Croatian Serb property.

 4             Ms. Gustafson, Mr. Carrier, and Ms. Mahindaratne, the latter two

 5     who will be joining us for the submissions later will discuss the

 6     contributions to the JCE and the individual criminal responsibility of

 7     Generals Gotovina, Cermak, and Markac, respectively.

 8             Your Honours, on the 4th of August, 1995, Croatian military

 9     forces commenced Operation Storm to retake territory that had been under

10     Croatian Serb control since 1991, including Sector South.  Towns and

11     villages, including Knin, Benkovac, Obrovac, and Gracac, were placed

12     under artillery fire beginning at 0500 hours.  The people who lived

13     there, and international observers who witnesses those attacks, realised

14     as they were happening that they were directed at civilians and civilian

15     areas, that it was the civilian towns and villages themselves that were

16     under attack, that no place was safe.  What they didn't know was that the

17     attack on their towns and villages was the result of an order from

18     General Gotovina which specified that, in addition to communication

19     centres and command posts, the towns themselves should be shelled.  And

20     what those terrified civilians also didn't know was that the order to

21     shell the towns had resulted from a meeting of the Supreme Commander of

22     Croatian forces Franjo Tudjman and his top military advisors, including

23     General Gotovina, General Markac, Minister of Defence Susak and others,

24     about, among other things, the importance of producing civilian flight

25     through shelling.  That objective succeeded and President Tudjman was

Page 29024

 1     able to say shortly after, referring to the fact that most of the Serbs

 2     were gone, "what we have created just now is a Croat state which will

 3     last for centuries."

 4             That's P467, page 2.

 5             And after the successful completion of this aspect of the

 6     operation and the flight of most of the Serbs, President Tudjman and

 7     other officials implemented measures and willfully failed to implement

 8     other necessary measures in order to ensure that Serbs would not return

 9     in sufficient number to again represent a demographic threat.  As Serb

10     homes and farms were destroyed and pillaged by General Gotovina's and

11     General Markac's men, among others, and many Serb civilians were killed,

12     a climate of impunity prevailed.

13             Croatian officials, particularly, General Cermak, who was

14     personally installed by President Tudjman to handle the Knin area,

15     deflected inquiries and denied the crimes, attempted to limit and control

16     access and reporting by internationals and media, collected hundreds of

17     bodies without accompanying investigations, and failed to institute the

18     necessary preventative or punitive measures to stop the crimes they were

19     denying.

20             President Tudjman and other officials also erected administrative

21     barriers to ensure that Serbs would not return in meaningful number, and

22     initiated areas to repopulate the areas from which Serbs had fled not

23     with returning Serbs but with ethnic Croats, and thus cement the

24     demographic transformation that would, as noted earlier, ensure a Croat

25     state that would last for centuries.

Page 29025

 1             The Defence has argued, among other things that "Croatia" had no

 2     plan or policy to expel the Serb population but "instead" was a victim of

 3     Serbian aggression and wanted to reintegrate its territories peacefully

 4     as evidenced by the Vance Plan.

 5             Now it should be noted first that no one is alleging that Croatia

 6     had a plan or policy to expel.  It was the members of the JCE.  Further,

 7     there is no dispute that the Croatian people suffered from terrible

 8     crimes committed by Serbian forces.  But there is likewise no conflict

 9     between that victimisation and the plan to expel Serbs.  They coexist

10     logically and factually in an all too common tragic cycle of

11     victimisation.  And the fact that President Tudjman agreed to the

12     Vance Plan at a time when Croatia had not yet built its army and when

13     one-third of its territory was controlled by Krajina Serbs tells us

14     little about President Tudjman's concerns and objectives when Croatia had

15     become militarily powerfully and the opportunity arose, in his own words,

16     to be bold and pay them back.  And that reference you'll see at P461,

17     page 11.

18             The General Gotovina Defence devotes considerable attention in

19     its brief to the crimes committed by Serb forces against Croats, to the

20     support the Krajina Serbs received from other Serbs, to the unsuccessful

21     negotiations to reintegrate the Krajina, and to the various military

22     operations that preceded and followed Operation Storm.  Some of that

23     lengthy section is intended to buttress the argument that Serbian flight

24     resulted from an RSK evacuation decision and that the flight of tens of

25     thousands of Serbs had nothing to do with the unlawful shelling attack.

Page 29026

 1             Your Honours, as you will hear in more detail from Mr. Russo,

 2     this argument not only ignores the relationship between the evacuation

 3     decision and the unlawful shelling attack, but, more importantly, ignores

 4     the evidence that the shelling was a primary cause of flight for many

 5     persons, including those who never heard of the evacuation decision or

 6     who fled before the decision or who made their minds up to flee because

 7     of the shelling or who were convinced to follow others who were leaving,

 8     because the shelling made it clear to them that they had no other choice.

 9     And you will find such references in the final brief at paragraph 616

10     through 618, 623 through 624, 626, 629, and 641.

11             Now the Defence backdrop section also casts United Nations

12     personnel as enemies bent on undermining Croatia and suggests that

13     therefore their reports should be regarded or disregarded as mere

14     propaganda.  A reference seen at paragraph 119 of the Gotovina brief.  In

15     part, these characterisations conflate UN decisions and actions in

16     Bosnia, where difference circumstances prompted different decisions.

17     Ironically, the Defence brief attacks the United Nations for passivity in

18     Bosnia and then, for subsequent decisions, to stand firm on its mission

19     in Croatia.  Additionally, it attaches, inaccurately, ill motives to such

20     decisions.  For example, Operation Active Presence is cast as an effort

21     to purposefully place in harm's way UN troops in order to trigger

22     international condemnation of Croatia's military offensive.  But the

23     citation for that proposition reveals that the UN considered the

24     alternative to remaining in position either impracticable or more likely

25     to provoke action against UN personnel and, therefore, made a decision

Page 29027

 1     which it believed reduced the likelihood of the very circumstances that

 2     the Defence accuses them of trying to create.

 3             Similarly, Your Honours, the Defence inflates and

 4     mischaracterises events in Sector South preceding Storm.  Thus,

 5     General Forand's evidence that he knew of one unit which sold fuel and

 6     stopped it as soon as he found out, is conflated with a comment that Hill

 7     heard from someone that some sectors had sold fuel in large amounts, and

 8     is thus falsely attributed to Sector South, UNCRO.

 9             Alun Roberts is condemned, when the citations are checked, for

10     such transgressions as failing to put the name RSK in quotation marks or

11     for "trying to describe two-sided violations of the agreement, the

12     responsibility of the Croatian side and of the rebel Serbs."

13             That's found at footnote 92 and D1344.

14             Most obviously, Your Honours, the attempt to suggest that

15     UN personnel were biased in favour of Serbs and therefore provided

16     evidence consistent with that view is not supported by the actual

17     attitudes of UN personnel whom the Court had an opportunity to meet.  As

18     well as some of the reasons why they would not be supporters of the RSK.

19     For example, the very statement of Hill about the fuel also makes clear

20     the problems that UNCRO had with Serbian officials, including being held

21     at gunpoint.  And that's P292, page 7.

22             Your Honours, on the heels of some of the references I just

23     mentioned, it should be noted that the Prosecution has found numerous

24     citations in Defence briefs that do not support the proposition for which

25     they are cited or that do not accurately reflect the exhibit or

Page 29028

 1     transcript.  We're not suggesting that this was purposeful.  Merely

 2     urging the Court to examine carefully any citations upon which it may

 3     wish to rely, whether Defence or Prosecution.

 4             And the same is true for legal citations.  For example, the

 5     Defence cites Blaskic for the proposition that a Trial Chamber cannot

 6     draw adverse inferences from circumstantial evidence where there are

 7     factual inconsistencies, that is paragraph 152, and indeed, cites it

 8     throughout the brief, including in support of the position that the

 9     existence of prohibitory orders precludes the Court from drawing adverse

10     inferences about the accused's responsibility from such factors as the

11     scale of the crimes.  This interpretation is incorrect.

12             Blaskic established no specific or new rule regarding

13     circumstantial evidence but merely applied the standard rule which does

14     not provide, as the Defence suggests, that any actual inconsistencies

15     preclude an adverse finding.  Instead, that rule requires the Court to

16     determine from the totality of evidence whether a reasonable alternative

17     is made out from the evidence overall.  Thus, in the context of orders,

18     the Milutinovic Trial Chamber found that the "manifest insufficiency" of

19     orders against crimes, in view of the wide-spread criminality known to an

20     accused, was an indication of his shared intent in the JCE and a means by

21     which he significantly contributed to it through creation and maintenance

22     of a climate of impunity.

23             That's Milutinovic, paragraph 772, 777, through 78 and 782.

24             Finally, with respect to the Defence's backdrop section, its

25     express purpose is identified in its conclusion at paragraph 142, which

Page 29029

 1     states that the Trial Chamber cannot conclude that Croatia was pursuing a

 2     policy of expelling its Serb population by launching an unnecessary war,

 3     and thus, no adverse inference can be made as to the purpose or objective

 4     of Operation Storm and subsequent events.  The Defence therefore spends a

 5     great deal of effort debunking an argument that has never been made.  To

 6     the contrary, the Prosecution has made clear from the start that it did

 7     not assert that the mere fact that Operation Storm was undertaken was to

 8     be taken as evidence of criminal intent for the charges in the

 9     indictment.  So, again, Croatia's decision to conduct a military

10     operation --

11             So I will say again, as we said in the opening.  Croatia's

12     decision to conduct a military operation to retake the Krajina is not at

13     issue.  What is at issue is the successful effort undertaken by certain

14     officials, including the three accused, to use that circumstance to

15     eliminate much of the Serb presence in the Krajina.

16             The fact that Storm was going to be launched and the confidence

17     of Croatian military and political leaders that the Krajina would be

18     successfully retaken, based in part on Croatia's new military prowess,

19     its string of recent victories and President Tudjman's certitude that

20     Milosevic would not intervene with the VJ meant that there was an

21     opportunity not only to finally reintegrate Croatian territory within its

22     internationally recognised borders, but also, as President Tudjman saw

23     it, to ensure the long-term existence of the state.

24             President Tudjman, the undisputed political and military leader

25     of Croatia, and a man devoted to the vision of an enduring Croatian state

Page 29030

 1     resurrected from the past, was convinced that multi-ethnic countries were

 2     not sustainable and that nations should be as ethnically homogeneous as

 3     possible.  That's P444, paragraph 31.  To him, this was so indisputable

 4     that he made no attempts to hide his views, even lecturing dignitaries

 5     from multi-cultural nations about this danger.  And that is found at

 6     P452, Your Honour, and at transcript 4936 through 37.

 7             JUDGE ORIE:  Mr. Tieger, if you slow down four per cent while

 8     reading, then the French interpreters will be able to follow you.

 9             Please proceed.

10             MR. TIEGER:  In the context of Croatia, this referred to Serbs

11     whom President Tudjman regarded as belonging to a different civilisation

12     and who didn't belong together with Croats; P444, paragraphs 32, and

13     P452.  In his eyes, Croatia represented the border between the east and

14     west, a buffer preventing Orthodox incursion from the east.  That's P452,

15     page 9.  This perception that Serbs were of a different civilisation, a

16     foreign body, was also reflected in comments by Tudjman or his Chief of

17     Staff, Sarinic, that Serbs were a cancer on the stomach of Croatia; P444.

18     Or that after Storm, Serbs would no longer "spread cancer which has been

19     destroying Croatian national being in the middle of Croatia and didn't

20     allow Croatian people to be truly alone on its own."  P473, page 3.  Or

21     that Serbs in Croatia were a "potential Trojan horse."  P465, page 12.

22     Or a potential "bomb in our hands."  P468, page 14.

23             In short, President Tudjman believed that Serbs were too numerous

24     in Croatia and constituted a strategic threat for that reason.  P444,

25     paragraph 31.  And the answer to this danger was to move them elsewhere.

Page 29031

 1     President Tudjman spoke very approvingly of population transfers to

 2     achieve ethnic homogeneity.  See P444, paragraph 31.  And on that, key

 3     members of the Croatian leadership saw eye to eye with Serbian national

 4     leaders from the beginning.  In January 1992, during a discussion about

 5     "lasting solutions" based on the "homogeneity of certain areas," see

 6     P459, pages 4 and 13, President Tudjman told Bosnian Serb leader Koljevic

 7     that "wherever national problems so conceived emerged as they did with

 8     us ... that was brought to a conclusion by exchanges."  P459, page 32.

 9             More than three and a half years later, Sarinic reported to

10     Tudjman about two recent meetings with Milosevic, during which Sarinic

11     conveyed to Milosevic that the fewer Serbs in Croatia and Croats in

12     Serbia, the better for future relations, reminding Milosevic of the

13     demographic changes after World War II and suggesting that it was not

14     necessary to use "big words" like ethnic cleansing.  P465, page 12.

15             So when President Tudjman gathered in Brioni on the

16     31st of July with his top military advisors, who were confident that they

17     could quickly prevail over the outnumbered, ill-equipped and

18     overstretched Serbs, and he listened to their detailed logistical and

19     tactical proposals, President Tudjman noted that "there is something

20     still missing."  P461, page 10.  And went on to remind them of several

21     things.

22             He urged them to remember how many Croatian villages and towns

23     had been destroyed but that this was still not the situation in Knin;

24     461, page 10.  But now, he noted, they had the "pretext" to strike Knin

25     with artillery.  Page 10.  Noting that there would be great panic anyway

Page 29032

 1     once the offensive began, President Tudjman called for an exit route from

 2     Knin "because it is important that those civilians set out, and then the

 3     army will follow them, and when the columns set out, they will have a

 4     psychological effect on each other."  Page 15 of 461.

 5             It was, as President Tudjman said, time to be bold.

 6             The importance of getting civilians out was underscored by

 7     proposals for the use of psychological operations, psy-ops, to ensure

 8     their flight.  Miroslav Tudjman, President Tudjman's son and the head of

 9     military intelligence, and President Tudjman proposed radio broadcasts

10     stating that civilians are leaving, telling them which direction to head

11     in "so we have as little to do as possible."  461, page 23.

12             A bit later in the discussion, Minister of Defence Susak

13     suggested dropping leaflets, "instilling the feeling among them that you

14     have succeeded, that you are above them, that you are dropping leaflets,

15     this will provoke something."  461, page 29.

16             Now this would simultaneously advance the objective while

17     assuaging international concerns.  As President Tudjman noted, "This

18     means giving them a way out, while ostensibly guaranteeing them civil

19     rights, et cetera."  Followed, as you will recall, by a little chuckle.

20     Later, Susak expressed great satisfaction about the effect of the

21     electronic warfare in causing Serbs to leave.  That is transcript 4192

22     through 93.  And indeed, this successful approach was replicated in a

23     later operation in Bosnia, during which the HV, under General Gotovina,

24     disseminated leaflets which pretended to be an order from the Bosnian

25     Serb army telling Serb civilians to flee.  That's P1113, page 464.

Page 29033

 1             The Defences argue that there is no evidence that any leaflet was

 2     either received by or directed at any Serb civilian.  Even if accurate,

 3     Your Honours, this would not change the focus at the Brioni meeting on

 4     causing civilian flight.  But, in any event, as you will hear in more

 5     detail from Mr. Russo, it is not accurate.

 6             And as you will hear in great detail in further submissions, the

 7     gap that President Tudjman pointed out between the Croat towns and

 8     villages that had been attacked and as yet untouched Knin was bridged by

 9     the bold action he called for.  You will hear about the order to put Knin

10     and other towns under shelling and the unlawful attack that followed.

11     That will be addressed in more detail by Mr. Russo, so I'd now like to

12     move on to another aspect of the common purpose, burning and destruction.

13             Your Honours, as the evidence reveals and as you will hear in

14     more detail from Mr. Hedaraly, the devastation of Serbian property as

15     well as attacks on Serbian civilians began almost immediately and

16     persisted throughout the indictment period.

17             The Defence has asserted that there is no express statement in

18     the Brioni meeting about achieving the common purpose through crimes such

19     as plunder or wanton destruction, and no evidence that would allow for an

20     inference that there was a common purpose to commit such crimes.  But

21     what needs to be enunciated or expressed at any given moment is dependant

22     upon context.  Some things do not need to be said to be readily

23     understood.

24             The Defence itself has underscored the extent of crimes committed

25     by Serbs against Croats prior to Storm and the number of people affected.

Page 29034

 1     That awareness alone would inform any discussion about sending troops

 2     into the very area that symbolised that victimisation about the

 3     inevitably of vengeful criminal acts of the absence of meaningful

 4     preventative measures.  And that was only underscored by

 5     General Gotovina's reminder of the troops under his command who were

 6     literally from that area.  That's at P461, page 10.

 7             But even if that factor was not as pronounced as the Defence

 8     itself has insisted, the Brioni meeting took place immediately after

 9     Croatian troops burned and looted Grahovo.  Virtually all units were

10     involved and "the entire Grahovo was on fire."  P71, pages 49 through 50.

11     And the awareness of these crimes was reflected in the very orders that

12     preceded and accompanied Storm and which the Defence has again

13     underlined.

14             So the Defence acknowledges, albeit indirectly, that the prospect

15     of burning and looting in the absence of meaningful preventative measures

16     was apparent to those at Brioni as they discussed the forced departure of

17     the Serb civilian population.  But the Defence argues that it was

18     precisely those orders, as well as orders that followed, that

19     contradicted any intention for the crimes to occur.  They suggest that

20     the issuance of orders by "the entire Croatian leadership, civilian and

21     military" renders it patently absurd to conclude that there was no

22     genuine intent to implement them.

23             The significance of such orders, however, as the Milutinovic

24     Chamber has recognised, cannot be understood in the abstract.  The intent

25     behind them must be measured against such factors as the scale, duration,

Page 29035

 1     and gravity of the crimes, the extent of the real efforts to curtail

 2     them, and the overall objectives of those who issued them.  When orders

 3     are reissued to soldiers who have just committed crimes with impunity,

 4     when hundreds of bodies are collected without accompanying investigation,

 5     when the crimes are denied, when the arrests or detentions dictated by

 6     the massive crimes - but that would expose the denials as untrue - do not

 7     take place, when those who might expose the crimes are kept away from the

 8     area or threatened, when satisfaction is taken from the results of the

 9     crimes, when the totality, Your Honours, of the evidence is considered,

10     the lack of genuine intent to implement such orders is exposed.

11             And, in any event, even if there was insufficient evidence that

12     the common purpose included looting and burning, it is clear based on the

13     above that the attacks on Serb property - the burning and looting - were

14     natural and foreseeable consequences of an effort to force Serbs from the

15     Krajina, just as were the killings and inhumane treatment against Serb

16     civilians and therefore fall within JCE 3.  There is, therefore, no issue

17     of an extended or expanded JCE as the Defence has suggested.

18             Ambassador Galbraith, who met regularly with the Croatian

19     leadership, who received information from many sources about the

20     extensive and systematic destruction of Serb property and crimes against

21     Serbs, and who constantly raised the issue with the Croatian leadership,

22     testified that these crimes could not have taken place without the

23     acquiescence of Croatia's leadership.  And you will see a portion of that

24     testimony, Your Honours, on screen:

25             "These were serious and systematic crimes for which the Croatian

Page 29036

 1     leadership is fully responsible.  Given the disciplined nature of the

 2     army and the leadership was fully in command and had full power to

 3     prevent, these were crimes committed on orders, or it was a matter of

 4     state policy to tolerate or encourage them."

 5             That's P444 at paragraph 46.

 6             The Defence insists that, to the contrary, other internationals

 7     "repeatedly stated that they did not believe that the looting and burning

 8     was part of a government plan."  It is instructive to look briefly at the

 9     testimony they cite and, in particular, the testimony of PW-AG18.

10             And with that in mind, Your Honours, may we move into private

11     sessions for approximately 30 to 60 seconds.

12             JUDGE ORIE:  We move into private session.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29037

 1   (redacted)

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 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13                           [Open session]

14             THE REGISTRAR:  We're in open session, Your Honours.

15             JUDGE ORIE:  Thank you, Madam Registrar.

16             MR. TIEGER:  Thus, Your Honours, this witness didn't contradict

17     Galbraith.  He corroborated him.  The principle difference is that

18     Galbraith named those who sought a more radical approach to the national

19     problem and they were the very top leadership: President Tudjman,

20     Minister Susak, in particular.  A position that is confirmed by numbers

21     of Presidential transcripts that the Court has seen.

22             This is also wholly consistent with the testimony of

23     Special Rapporteur Rehn, who testified that she had no doubt that the

24     crimes committed by Croatian forces were pursuant to orders or silent

25     approval; P598, page 8.

Page 29038

 1             As for the proposition that orders belie intent,

 2     Ambassador Galbraith was presented with that proposition.  He was asked

 3     by the Defence, after he testified that he had been told of orders to

 4     stop the crimes, if there were orders being given to stop the burning of

 5     houses, then permitting those criminal activities was not state policy,

 6     was it?  That's at transcript 5077 through 78.

 7             And Ambassador Galbraith explained:

 8             "I do not agree with -- with what you've just stated.  I have

 9     enough experience over the years that I served in Croatia with Croatian

10     officials and Serb officials giving orders and saying that they'd given

11     orders that they had -- and making promises they had no intention of

12     keeping, and I do not believe that the Croatian government made a serious

13     attempt to bring this destruction under control until such time as it was

14     basically -- there was nothing left for the Serbs to return to."

15             And that's at transcript 5078.

16             The reference we've heard to persons in the Croatian government

17     structure who did not share the radical approach to the national problem

18     but who were nevertheless unable or unwilling to change the passivity or

19     inaction also provides insight into the suggestion by the Defence that it

20     is absurd to suggest that everyone who issued an order must have done so

21     without any intention that it be followed.  With the key members of the

22     leadership committed to ensuring a permanent removal of Serbs, it is

23     unlikely that others would generate the will to overcome that position

24     or, in any event, be able to effectively counteract it, if they did.

25     Recall, for example, that the chief of military police administration,

Page 29039

 1     Lausic explained that maintaining military discipline is first and

 2     foremost the task of the commanders.  That's P2159 at paragraph 21.  And,

 3     as he reminded colleagues even before the commencement of Storm, if

 4     commanders did not do this job, even huge numbers of military police

 5     would not be able to prevent crimes.  D45, transcript 15257 through 58.

 6             When the Supreme Commander and the top military commander of the

 7     district share the purpose of forcing Serbs from the Krajina, the

 8     prospect of impacting or reversing the climate of impunity is meager.

 9             I should also note that the Defence effort to suggest that the

10     discipline or law and order responsibilities of persons such as Lausic

11     created a kind of zero-sum calculus, if Lausic has responsibilities,

12     Gotovina, Cermak, and Markac do not, is belied by HV regulations, for

13     example, P880, articles 9 and 10, transcript 15214, belied by the

14     jurisprudence which recognises the responsibility of superiors for the

15     conduct of their subordinates, and is belied by common sense.  As Lausic

16     also noted, that is akin to the suggestion that parents who expect -- of

17     parents who expect police to discipline their children.  That's at P2159,

18     paragraph 210.  By then, it's far too late, even assuming that the police

19     are interested or capable of doing that job.

20             And the gap between the issuance of an order and the intention to

21     see that it is meaningfully implemented is further illustrated by one of

22     the orders cited by the Defence, Susak's prohibitions on the

23     2nd of August against "any kind of uncontrolled conduct."  That's P409,

24     page 3.  As discussed in more detail in the Prosecution's final brief, at

25     paragraphs 16, and 60 through 69, the reality of Susak's intentions

Page 29040

 1     regarding the implementation of those prohibitions is reflected in his

 2     reaction to the results of the systematic burning of Grahovo, declaring

 3     that Grahovo now being "ethnically clean" was one of the leadership's

 4     successes; by his ignoring of HV crimes, even when called upon to report

 5     about the situation in the liberated territory, see P2673, page 1; his

 6     active efforts to deny crimes to the international community, P598,

 7     pages 5 through 6; his role in devising strategies to keep Serbs from

 8     returning, P466, page 9; and his earlier involvement in psy-ops, intended

 9     to get civilians to flee while simultaneously providing a fig-leaf for

10     Croatian authorities.

11             The Prosecution's final brief also presents a detailed account of

12     the measures undertaken by Croatian authorities in order to keep Serbs

13     out after the vast majority had fled.  Led by President Tudjman, the

14     Croatian leadership instituted laws, under the "pretext" of preserving

15     property - you will see that at P462, page 15 - during a discussion about

16     those properties -- those measures with President Tudjman -- measures to

17     effectively confiscate the property of those who did not reclaim it

18     within an impossibly short deadline, also imposing bureaucratic obstacles

19     to further ensure that the deadline could not be met.  "The requirement

20     that owners must reclaim their property by 27 December constitutes a

21     virtually insurmountable obstacle for most Serb refugees."  P650, page 9.

22             Croatian authorities controlled this spigot of possible return

23     and ensured that Serbs would not return in numbers that threatened the

24     reversal of what had been achieved.  And to further cement that

25     demographic transformation, the Croatian leadership pursued a policy to

Page 29041

 1     resettle ethnic Croats, including persons from the diaspora, into

 2     formerly Serb areas.

 3             Now the Gotovina Defence has argued that Croatia was under no

 4     obligation to permit the return of Serbs who had opted to leave Croatia,

 5     and indeed, that Croatia was -- would have been within its rights to

 6     expel them, citing the Eritrea-Ethiopia Claims Commission Partial Award

 7     which the Trial Chamber has asked us to address.

 8             These arguments, Your Honours, ignore the very telling

 9     distinctions between that situation and this case.  That award was based

10     on findings that the expulsions were the result of a system applying a

11     reasonable criteria to identify individuals thought to pose a threat,

12     that is, individualised deportation through reasonable measures, and upon

13     voluntary departure to reside on the territory of the enemy.  Find those

14     references at paragraph 72 and 73 of the decision.

15             The award decision does not apply here.  Individual

16     determinations based on reasonable criteria are not analogous to forced

17     deportation through shelling, burning or pillaging, and the award

18     decision explicitly identifies that distinction at paragraph 89.

19     Similarly, the accused are not charged for the voluntary departure of

20     Serb civilians, so it is irrelevant that the -- a decision found that a

21     country may be permitted to impose obstacles to return for those who left

22     pursuant to a reasonable process or voluntarily.

23             But the award decision, in another way, does remind us what the

24     obstacles to return were about, where there seems no question that

25     Ethiopia wanted these people out.  The obstacles to return were intended

Page 29042

 1     to make permanent the departure of Serbs from the Krajina, not individual

 2     Serbs who posed a specific threat, but simply too many Serbs, whoever

 3     they were.  As Tudjman said on the 30th of August:

 4             "If we let 204 come here, tomorrow you would have 1204, and in

 5     ten days 12.000.  Nothing for now."

 6             As Sarinic said about Western Slavonia:

 7             "It was very positive for us, because no one came back."

 8             And, in that way, as another official told President Tudjman:

 9             "The Serb problem in Western Slavonia has been solved."

10             Indeed, President Tudjman was so determined to cement the

11     demographic transformation that he rejected proposals to return Croats

12     who had been expelled from their homes in the Posavina because he feared

13     that the same principle would be applied in Croatia, giving Serbs from

14     Knin and Western Slavonia leverage to return to Croatia.  As he said:

15             "If we request for those 100.000 of Croats from Posavina to go

16     back, then those 300.000 Serbs who left Croatia will request to come back

17     as well."

18             Even innocent Croats, like many innocent Serbs, were sacrificed

19     to the vision of an ethnically homogeneous Croatia.

20             In short, the ban or the obstacles to return were not about

21     individualised concerns or bureaucratic difficulties, as Tudjman

22     explicitly told Galbraith, Serbs could not be permitted to return.  P445,

23     paragraph 16.  Or as he later told visiting dignitaries --

24             JUDGE ORIE:  Mr. Tieger, sometimes it's the interpreters who have

25     difficulties to follow your speed of speech, sometimes it's the

Page 29043

 1     transcribers.  Would you please make them at ease, both.

 2             MR. TIEGER:  As we see this contemporaneous cable on screen, Your

 3     Honour, which reflects:

 4             "Far from being apologetic, Tudjman yesterday told visiting

 5     congressmen that it would be impossible for these Serbs to return to the

 6     place where their families lived for centuries."

 7             President Tudjman was proud of what he had -- of what had been

 8     achieved and was not about to let it be undone.  Look at his words on the

 9     one-year after anniversary of Storm:

10             "The results that we have achieved are of historical importance.

11     We have returned Zvonimir's Croatian town," that's Knin, "to the fold of

12     its motherland Croatia, as pure as it was in Zvonimir's time."

13             The accomplishment in which President Tudjman took such

14     satisfaction, an ethnically pure Knin, was not his alone but was achieved

15     by the acts and failures to act of a group, including the three accused,

16     who implemented a common purpose to bring that about.

17             Your Honours, I've nearly used up my allotted time.  I wanted

18     merely to quickly address one issue the Chamber raised in a question it

19     had to the parties, and that's the issue of armed conflict, whether

20     international or non-international.

21             And in that respect, I wanted to note the following.  First, the

22     distinction between an international armed conflict and a

23     non-international armed conflict is not relevant in this case.  No

24     Article 2 crime has been charged, so the Trial Chamber need not make that

25     decision.  It need only find that an armed conflict existed and in fact

Page 29044

 1     on that, the parties agree, with some dispute, as the Court is aware,

 2     about when it ended.

 3             However, should the Court be inclined to find from the evidence

 4     adduced or to characterise the conflict as international or

 5     non-international, we note the following.  That per Tadic, a conflict is

 6     international, among other things, if another state intervenes in that

 7     conflict or if some participants act on its behalf.  The record amply

 8     reveals the involvement of both factors.  Indeed, the evidence is so

 9     extensive, I'll simply cite some categories.  First is the direct

10     involvement of outside forces, including the JNA and the HVO.  Second is

11     military operations outside the borders as part of the overall effort to

12     subdue the Krajina Serbs.  Third is the dependency of RSK political and

13     military leaders on Serbian leaders.  And the fourth I will mention is

14     that a considerable part of the Defence was premised on the international

15     aspect, including the need to finally defeat the RSK by going into Bosnia

16     both before and after Storm, as well as the evidence detailed in

17     paragraphs 44 through 49 of the Gotovina brief.

18             And as for when the armed conflict ended, law is clear that the

19     protections of international law apply from the beginning of an armed

20     conflict beyond the cessation of general hostilities until a general

21     conclusion of peace or a peaceful settlement is achieved.  Once that

22     conflict commences, fluctuations in intensity don't mean that the

23     conflict is over.  And the settlement of this conflict occurred with the

24     Erdut Agreement in November and the Dayton agreement in December 1995,

25     which ended the overall conflict.  That's found at P451, pages xx and

Page 29045

 1     xxi.

 2             Your Honours, thank you for your attention.  Mr. Russo will now

 3     address the Chamber concerning the unlawful shelling attack, forcible

 4     deportation -- or deportation and forcible transfer.

 5             JUDGE ORIE:  Thank you, Mr. Tieger.

 6             Mr. Russo, once you're ready, please proceed.

 7             MR. RUSSO:  Thank you, Mr.  President.  And good morning to you

 8     good morning to Your Honours.

 9             I will be addressing the unlawful artillery attacks underlying

10     the counts of persecution, forcible transfer and deportation which form

11     part of the individual liability and JCE contributions of Generals

12     Gotovina and Markac.

13             I will begin by explaining how shelling caused the civilians to

14     flee and then demonstrate the unlawfulness of that shelling.

15             The Prosecution's case in a nutshell is that at the Brioni island

16     meeting, a criminal plan was formed to force Serb civilians out of

17     Croatia by targeting them with a combination of artillery strikes and

18     psychological operations.  That plan was successfully implemented during

19     Operation Storm through shelling of Serb civilian population centres and

20     the use of duplicitous leaflets and radio broadcasts telling Serb

21     civilians to flee.  The evidence could not be clearer or more consistent

22     in showing that this is exactly what happened.  All the arguments raised

23     by the Defence are either irrelevant or contradicted by the totality of

24     the evidence.  And in some cases, both.

25             For example, the Gotovina Defence argues that a pre-planned mass

Page 29046

 1     evacuation was the sole cause of civilian flight.  This ignores the fact

 2     that the decision to evacuate civilians was made in response to the fact

 3     that civilians were already fleeing, in an unorganised manner, during the

 4     11 hours preceding that decision.  That can be found in the Prosecution's

 5     brief, paragraphs 637 to 642.

 6             The Milutinovic Chamber has recognised that the realities of war

 7     are not as simplistic as suggested by the Defence, and the fact that

 8     people may have left their homes for different reasons, even including

 9     instructions to leave, does not absolve an accused when their unlawful

10     conduct was a primary cause of civilian flight.  And that can be found in

11     the Milutinovic Trial Judgement, volume 2, paragraphs 1175 and 76.

12             But even if there was a pre-planned mass evacuation, which the

13     facts do not support, it is irrelevant, because the civilian victims

14     themselves testified to fleeing because of the unlawful shelling.  The

15     Defence ignored the witness evidence on this issue but the Chamber cannot

16     because the only relevant question is what primarily caused the civilians

17     themselves to flee.

18             The civilian witnesses in this case, including Dopudj, Ilic,

19     Torbica, and Witness P54, expressly stated that they fled because of the

20     unlawful shelling.  And that evidence can be found P548, paragraph 4;

21     P726, page 2; P630, paragraph 4; and transcript page 2855.

22             Other witnesses testified that they either fled as soon as

23     possible after the shelling began or specifically mentioned shelling

24     among the reasons why they fled.  That evidence can be found in our brief

25     at paragraphs 615 to 630.

Page 29047

 1             Contemporaneous reports of the HV and of international observers

 2     confirms that civilians began fleeing their towns and villages as soon as

 3     possible after the shelling began and, in any event, well before the

 4     decision to evacuate was even made.  That evidence is at paragraphs 637

 5     to 638 in our brief.  The fact that so many of the civilian witnesses in

 6     this case had never heard of the evacuation decision, much less any plans

 7     for an organised and permanent departure from their ancestral homes in

 8     the Krajina, further demonstrates how immaterial the Defence's theory is

 9     to the ultimate issue before the Chamber.  And that evidence is at

10     paragraph 641 in our brief.

11             Your Honours, I must ask to go briefly into private session for

12     just a moment or two to discuss some of the evidence on this issue.

13             JUDGE ORIE:  We move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29048

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             THE REGISTRAR:  We're in open session, Your Honours.

16             JUDGE ORIE:  Thank you, Madam Registrar.

17             MR. RUSSO:  Jovan Dopudj observed people fleeing from Obrovac for

18     the outlying villages as soon as the shelling started, and that the

19     shelling soon spread to those outlying villages.  That's P548,

20     paragraphs 3 to 4.

21             By 10.00 a.m., the shelling had spread to the villages around the

22     roads, from Obrovac to Benkovac, namely, Krusevo, Bilisane and Zelengrad,

23     as well as the villages on the road from Obrovac to Gracac.  Namely,

24     Zaton and Muskovci.  That's also P548, paragraph 4.

25             Here we see Mr. Dopudj's statement, P548, paragraph 8, where he

Page 29049

 1     recalled:

 2             "The way the attacks spread from the town of Obrovac to the other

 3     villages made it impossible to return at any point.  It showed the goal

 4     of the operation was to cleanse the territory of Serbs, to expel them

 5     from there."

 6             This last comment cannot be dismissed as mere opinion because

 7     what the civilians themselves believed and felt as a direct result of the

 8     unlawful shelling of their towns is critical in determining the primary

 9     cause of their flight.  The terrifying experience of having one's home

10     attacked by artillery cannot be overstated or exaggerated, and the

11     terrorising effect of an indiscriminate artillery attack is well

12     established in the record.

13             Witness after witness appeared before this Chamber to tell of

14     watching their neighbours' houses and businesses being shelled.  They

15     attested to the hours of panic and uncertainty they and others suffered

16     while cowering for shelter in basements or making a run for their lives

17     on tractors to escape the shelling of their towns and villages.  That

18     evidence can be found in paragraphs 615 to 630 of our brief.

19             Andries Dreyer, a UN security officer who led the effort to

20     rescue civilians from the shelling in Knin, testified to finding them in

21     states of extreme shock and panic, forcing him to slap some of them and

22     to carry out others who could not be brought around.

23             The natural and inevitable effect of such an attack on civilians

24     was fear, panic and uncertainty, not only during those moments when they

25     were in immediate danger from artillery, but also when considering their

Page 29050

 1     fate when the same Croatian soldiers who were attacking them with

 2     artillery arrived with guns in their hands.

 3             Vida Gacesa, a resident of Gracac who fled the shelling, summed

 4     it up perfectly in her statement.  That's P119, paragraph 13:

 5             "The fact that we had been shelled all day and the fact that we

 6     were concerned that we would be alone in the village in the night and the

 7     panic that had been created amongst the people were the reasons that we

 8     decided to follow the others, even though we did not know where we were

 9     going to go."

10             This and other evidence from the victims themselves admits of

11     only one reasonable conclusion: That they fled to escape the widespread

12     and unlawful artillery attacks on their towns and villages.

13             I will now turn to the unlawfulness of the artillery attacks

14     conducted by Generals Gotovina and Markac, in accordance with the common

15     criminal plan.  I will begin with the evidence that the JCE members

16     planned and intended to conduct an unlawful attack on the Serb civilian

17     population.  I will then discuss how the method and means chosen for that

18     attack demonstrate its unlawfulness and the intent behind it.  I will end

19     with the evidence showing that the attack was, in fact, directed at the

20     civilian population.

21             An unlawful attack is proven by: 1, an attack directed against

22     the civilian population; or 2, an indiscriminate attack; or 3, a

23     disproportionate attack.

24             The Prosecution has presented evidence to establish all three

25     types of unlawful attack beyond a reasonable doubt.  But the Chamber need

Page 29051

 1     not consider the question of disproportionate attacks, as the evidence

 2     easily demonstrates that the artillery strikes ordered by

 3     Generals Gotovina and Markac were directed at the civilian population or

 4     were at least indiscriminate, in accordance with the common criminal plan

 5     formed at Brioni.  In either case, the Prosecution has established the

 6     unlawfulness of the artillery attacks.

 7             The indiscriminate nature of the artillery attacks and the intent

 8     to drive out civilians is revealed through the statements of the accused

 9     and their co-conspirators, and also from the remarkable consistency

10     between their statements and their actions, as documented in

11     contemporaneous HV reports and corroborated by the percipient witnesses

12     to the artillery attacks.  The only reasonable explanation for that

13     consistency is that the accused said what they meant and did what they

14     said.

15             As discussed earlier by Mr. Tieger, Tudjman put forward a plan at

16     the Brioni meeting to seize the political opportunity to spark a mass

17     flight of civilians by using a combination of psychological operations

18     and unlawful artillery attacks.  Generals Gotovina and Markac actively

19     participated in that discussion and carried out their operations in

20     accordance with it.  And that's at P461, pages 10 through 15 for

21     General Gotovina; and P461, pages 18 to 19 for General Markac, as an

22     example.

23             Mr. President, I'm about to go into an area which will cover

24     several slides, and I see that we're approaching the break.

25             JUDGE ORIE:  Yes, we are approaching the break.  If this would be

Page 29052

 1     a suitable moment, we'll take the break now, and we will then resume at

 2     ten minutes to 11.00.

 3                           --- Recess taken at 10.25 a.m.

 4                           --- On resuming at 10.59 a.m.

 5             JUDGE ORIE:  Mr. Russo, you may proceed.

 6             MR. RUSSO:  Thank you, Mr.  President.

 7             The Gotovina Defence asks the Chamber to disregard the plain

 8     meaning of what Tudjman and others said at Brioni about getting the

 9     civilians out and to substitute an innocuous explanation which no witness

10     substantiates and which is unreasonable, given the direct evidence of

11     intent to force out civilians.  The Defence would have the Court accept

12     that all of these statements were simply recognitions that civilian

13     flight would be a side effect of lawful military action.  The Chamber

14     must ask itself:  Why would so much planning and discussion go into a

15     mere side effect?

16             President Tudjman tells us why at P461, page 15:

17             "Because it was important that those civilians set out."

18             His express indication of its importance meant that it was a

19     definite objective not a possible side effect.

20             No other reading is reasonable.  Otherwise, why plan to drop

21     leaflets telling Serb civilians to flee?  Gojko Susak tells us why at

22     P461, page 29.  Because dropping leaflets "will provoke something."

23             If civilian flight was just a side effect, why plan to broadcast

24     the direction in which Serb civilians should flee?  Dr. Miroslav Tudjman

25     tells us why at P461, page 23:

Page 29053

 1             "So we have as little to do as possible."

 2             In his book, General Gotovina admitted to using leaflets directed

 3     at the civilian population.  We see here in P1113, page 456, he even

 4     argued that they were successful:

 5             "If there had been no leaflets, they would have certainly

 6     stayed."

 7             The Gotovina Defence argues that General Gotovina is wrong about

 8     this, that leaflets were only used in Bosnia and that the Prosecution

 9     presented no witness who received a leaflet.  But General Gotovina's

10     account was confirmed by witness Marija Vecerina, who found one of the

11     false ARSK leaflets on Mount Velebit and fled along the route indicated

12     in the leaflet.  That can be found at P652, paragraphs 7 through 10, and

13     P653, paragraph 5.

14             So it is clear that the Brioni plan to drive out civilians using

15     psychological operations was successfully implemented.

16             Let us now turn to the use of artillery.  Tudjman's language at

17     Brioni was clear and unambiguous.  As we see from P461, page 10, he

18     reminded everyone how many Croatian towns and villages had been

19     destroyed, lamenting that Knin had not suffered the same fate.  Tudjman

20     was mindful of the political ramifications of completely destroying Knin

21     with artillery which, by the way, General Gotovina, expressly offered to

22     do.  But Tudjman warned against doing anything in such an ill-conceived

23     manner.  And as we see at P461, page 11, he suggested instead that they

24     give them just "a taste of it and we pay him back."

25             This plan to use a measured dose of unlawful artillery strikes

Page 29054

 1     against the Serbs was in keeping with the plan to avoid international

 2     condemnation, but also with the effort to preserve the major civilian

 3     population centres from destruction so they could be swiftly repopulated

 4     with Croats, and you will hear more about that effort in Mr. Carrier's

 5     presentation.  Tudjman made it clear that their planned use of artillery

 6     to get the Serb civilians out had to be disguised behind what could at

 7     least be argued as a legitimate use of artillery.  P461, page 10, he

 8     says:

 9             "... their counter-attack from Knin and so forth, it would

10     provide very good justification for this action, and, accordingly, we

11     have the pretext to strike, if we can, with artillery ..."

12             Your Honours, there is no misunderstanding or misinterpreting the

13     word "pretext."  The only reasonable explanation for needing a pretext

14     was to disguise their true actions and motives for using artillery

15     against civilian-populated areas.

16             On 26 June 1995, approximately one month before the Brioni

17     meaning, the HV Main Staff issued a directive regarding, among other

18     things, the use of artillery in Operation Storm.  That is Exhibit D956.

19     The Defence concedes that General Gotovina's planning was to be governed

20     by that directive, but they offer no discussion or explanation for why he

21     deviated so significantly from it.  Also absent is a discussion of the

22     timing of that deviation, which happened immediately after the Brioni

23     meeting.

24             Here we see Exhibit D956, page 6, and the directive clearly

25     indicates that artillery should focus on neutralising only two targets

Page 29055

 1     inside of Knin:  One, the Main Staff which was in the ARSK HQ building;

 2     and, two, the 7th Corps Command, which, at the time was located in the

 3     northern barracks.  In addition, it focuses on brigade command post,

 4     concentrations of enemy man power, et cetera, "in the area of Knin and

 5     Benkovac."

 6             But this directive is most important for what it does not say.

 7     It says nothing about using artillery against the civilian populations

 8     centres of Obrovac, Gracac, or Drvar.

 9             Immediately following the Brioni meeting, however,

10     General Gotovina directed his chief of artillery, who was also present at

11     that meeting, to begin selecting the targets for Operation Storm.  That

12     can be found in the Gotovina brief at paragraph 205.

13             As we know from General Gotovina's attack order, the targets

14     selected included whole towns that are not even included in this

15     Main Staff directive.  This proves that the original plan for the use of

16     artillery was altered by General Gotovina as a result of the Brioni

17     meeting, in order to make whole towns populated by Serbs the targets for

18     artillery fire.  In his attack order, which we see here, P1125, page 14,

19     Gotovina explicitly directs his artillery to "put the towns of Drvar,

20     Knin, Benkovac, Obrovac, and Gracac under artillery fire."

21             This order is not consistent with the Main Staff directive but is

22     consistent with the Brioni plan to get civilians out because it

23     unambiguously orders a direct attack on the Serb civilian population.

24     Without any credible evidentiary support, the Gotovina Defence argue that

25     everyone knew that this order actually meant to fire only against

Page 29056

 1     specific military targets within these towns.  Nothing in the order

 2     itself, or in the way it was executed, supports that conclusion.  There

 3     are no references to a tabular/textual attachment or to any other outside

 4     reference material clarifying any alleged targets inside of these towns.

 5             General Gotovina's order is detailed and specific in terms of

 6     what tasks were to be accomplished, by whom, when, and how.  The precise

 7     detail with which he assigned all tasks in that order does not permit the

 8     Chamber to accept the Defence's unreasonable explanation, particularly in

 9     light of how of order was carried out.

10             The Gotovina Defence also argue that the inclusion of Drvar in

11     the order is somehow inconsistent with the Brioni plan to expel civilians

12     from Croatian territory.  General Gotovina answers this argument himself

13     in his order appointing a commander in Drvar.  That's D656, at page 1,

14     where he explains that Drvar is "an area designated for the settling of

15     displaced Croats."

16             I refer the Court also to P447, page 1, a coded cable from

17     Ambassador Galbraith to the Secretary of State, where he mentions the

18     strategy to create a "Serb-free cordon sanitaire around the Croatian

19     heartland ... by destroying Serb towns in western Bosnia."  So the

20     inclusion of Drvar, a town in western Bosnia, was entirely consistent

21     with the Brioni plan to drive out Serbs and move in Croats.

22             The Defence wrongly suggests that any evidence of HV artillery

23     fire on ARSK front lines or other military objectives is somehow

24     inconsistent with the Prosecution's position that Gotovina said precisely

25     what he meant in his artillery order.  But General Gotovina issued two

Page 29057

 1     separate orders in relation to use of artillery.  We see again P1125,

 2     page 14.  One order was to fire on military objectives, enemy front

 3     lines, command posts, et cetera; and the other, clearly separate order,

 4     directed the use of artillery against whole towns.  Both orders were

 5     followed.

 6             Within the same reports, the HV simultaneously specify firing at

 7     whole towns and at specific targets within those towns and elsewhere.

 8     Just a few examples, P2533, page 3, where TS-4 reports "keeping Knin

 9     under fire."

10             And also reporting firing at living buildings block in Knin, post

11     office, police station, et cetera.

12             P1200, page 2, the 134th Home Guard Regiment:

13             "In the first few hours, we had no support from Zadar OG except

14     for shelling of the general area of Benkovac without monitoring, and the

15     message at 0530 hours of the following contents:  Is anything falling on

16     Benkovac?"

17             P71, page 82, General Gotovina's own chief of artillery reporting

18     to him:

19             "Artillery attacks against enemy towns.  Things were also done

20     upon the requests of units."

21             I'll refer the Chamber also to P1277, page 2, where OG Sibenik

22     reports firing MBRLs "at Knin."  P2436, page 6, where OG Zadar reports

23     firing "at Gracac."

24             This evidence is entirely consistent with the plain reading of

25     General Gotovina's order and the Brioni plan to exploit a pretext for

Page 29058

 1     using artillery against civilians.  General Gotovina's order was passed

 2     down almost verbatim, confirming a clear understanding of the plain

 3     language he used.  His subordinates recognised that he meant what he said

 4     and understood that they were to pass on his order without further

 5     explanation or specification.  We see the evidence of that here.

 6     General Gotovina's own chief of artillery:

 7             "Put the following towns -- put the towns of Drvar, Knin,

 8     Benkovac, Obrovac, and Gracac under artillery fire."

 9             That's D970, page 3.

10             One level below him, the OG Zadar commander:

11             "Lay down fire on the towns of Benkovac and Obrovac."

12             That's P1263, page 8.  The OG Zadar chief of artillery:

13             "Put the following towns under artillery fire:  Benkovac,

14     Obrovac, and Gracac."

15             That's P1201, page 4.

16             The plain meaning of General Gotovina's order is also borne out

17     by the way in which it was executed.  Both the method and the means of

18     attack each violated the principle of distinction and reveal the intent

19     to directly target civilians.

20             As we have seen through General Gotovina's order and the

21     contemporaneous reports of his troops, the method of his attack violated

22     the principle of distinction because it treated entire civilian towns as

23     targets.  As the Milosevic Chamber recognised, the indiscriminate nature

24     of an attack is strong indicia that it was, in fact, directed against the

25     civilian population.  That's the Milosevic Appeals Judgement,

Page 29059

 1     paragraph 66.

 2             As I demonstrated earlier, the decision to target whole towns and

 3     to deviate from the prior Main Staff directive was made at the Brioni

 4     meeting in accordance with the plan to force out civilians.  Rajcic's

 5     report to General Gotovina that we just saw, indicating that the attack

 6     was against "enemy towns," reveals that the Serb civilian population was

 7     indeed considered the enemy and the target of attack.

 8             With regard to the means of attack, the weaponry chosen by

 9     General Gotovina was not capable of discriminating between military and

10     civilian objects under the circumstances and therefore violated the

11     principle of distinction.  This is particularly true of the MBRLs, the

12     air-burst artillery and the cluster munitions employed by

13     General Gotovina against Knin.  The evidence relating to that,

14     Your Honours, can be found in our brief at paragraphs 594 to 613.

15             The Gotovina Defence argument at paragraph 259 of their brief,

16     that the principle of proportionality assumes that not all attacks will

17     be able to hit only their intended objectives is not only wrong but fails

18     to recognise that the principle of proportionality will only apply where

19     the attack and the method and means of the attack is actually capable of

20     distinguishing between military and civilian objects.

21             Whether the weaponry used by General Gotovina complied with the

22     principle of distinction is not a per se analysis, as suggested by the

23     Defence, because Article 51(4) of Additional Protocol 1 makes clear that

24     a case-by-case analysis is required for such a determination.  The

25     Chamber must determine whether General Gotovina's use of artillery and

Page 29060

 1     rockets in the particular circumstances of this case complied with the

 2     principle of distinction.  In making that determination, the Chamber must

 3     consider that General Gotovina was firing at point targets in residential

 4     areas from 18 to 27 kilometres away, using weapons he knew would strike

 5     beyond those targets.  That can be found in Rajcic's testimony,

 6     transcript page 16280 to 284.

 7             Under those circumstances, the weapons he chose were of a nature

 8     to strike both military and civilian objects without distinction, and

 9     that makes a proportionality analysis superfluous.

10             In his book, General Gotovina only indicated that 130-millimetre

11     cannons were used against Knin, significantly omitting his use of MBRLs.

12     This telling omission reveals his awareness that his use of MBRLs in Knin

13     could not be justified.

14             Every witness with artillery knowledge in this case, including

15     General Gotovina's own chief of artillery, testified that MBRLs are area

16     weapons which are inappropriate for use against point targets in

17     residential areas.  That evidence is in our brief at 588 to 89.

18             A perfect example of this is the ARSK HQ building, which the

19     Defence claims to have been one of the primary targets of MBRL fire.  Not

20     one MBRL rocket out of the hundreds fired into Knin actually struck that

21     building, despite the evidence that MBRLs were, in fact, fired at it.

22     That can be found in Rajcic's evidence, P2339, section 3.2.1,

23     transcript 16415 to 426.

24             This demonstrates just how indiscriminate those weapons were

25     under the circumstances.  Given the inaccuracy and widespread use of

Page 29061

 1     MBRLs in Knin, MBRL rockets were landing in areas all over the town,

 2     including residential areas not close to any alleged military targets.

 3     That evidence is at paragraphs 595 to 601 in our brief.

 4             Although MBRLs were not capable of the necessary distinction

 5     under the circumstances, the evidence also shows that the HV deliberately

 6     targeted residential areas in Knin with MBRLs.  One example is the

 7     7th Guards Brigade's deliberate targeting of a residential area.  The

 8     diary of the 7th Guards Brigade artillery commander shows that they fired

 9     MBRLs at targets labelled S-15, S-16, and S-54 on the Coded map entitled

10     "Ivancica," which is Exhibit P2338.

11             As a demonstrative aid to the Chamber, we have enlarged the

12     relevant portion of the Ivancica map and have identified and highlighted

13     the target circles S-15, S-16, and S-54.

14             Just to orient the Chamber, the target S-15, which is the middle

15     circle, is centred on the railway overpass bridge in the centre of

16     down-town Knin.  The target circle below that, which is S-54, is roughly

17     centred on the ARSK HQ building, while S-16, which is the top circle, is

18     centred on a residential area across the main road from the northern

19     barracks.

20             As a further demonstrative aid, we have overlaid these target

21     circles on the aerial photograph of Knin, which is Exhibit P62, and have

22     rotated that to correspond with the orientation of the Ivancica map.

23             When considering the widespread effects of a rocket attack, it

24     becomes clear that the 7th Guards Brigade basically blanketed down-town

25     Knin with MBRL fire in clear violation of the principle of distinction.

Page 29062

 1     Even worse, however, is the direct targeting of S-16.  As the Chamber

 2     will recall, that when this matter was put to Rajcic, he unsuccessfully

 3     tried to convince the Chamber that the 7th Guards Brigade actually fired

 4     on the northern barracks and not on the target S-16.  That can be

 5     found --

 6             JUDGE ORIE:  Is there any way that the picture we see now on the

 7     e-court is so that we can normally read it?

 8             MR. RUSSO:  We'll get to that --

 9             JUDGE ORIE:  We've got it -- if you --

10             MR. RUSSO:  I'll get to that in a moment, Your Honour.

11             JUDGE ORIE:  If you turn it anti-clockwise, then --

12             MR. RUSSO:  Yes, that's my next slide.

13             Your Honours, even though the 7th Guards Brigade diary

14     establishes that MBRLs were fired into the residential area, S-16, the

15     Chamber also heard evidence of that fact from Captain Geoffrey Hill who

16     testified to finding two exploded rocket bodies on the lawn of

17     General Forand's house.  What we have here is a further demonstrative

18     showing that the target S-16, which was the top target on the previous

19     slide, corresponds to the neighbourhood where Hill identified

20     General Forand's residence on Exhibit P300.  The two smaller red circles

21     were places identified by Hill, and the one which appears within the

22     overlay of target S-16 was the location where he found the rockets.

23             Aside from the direct targeting of residential areas, the

24     evidence also shows that MBRLs were fired into Knin at no particular

25     targets during the night.  The 7th Guards Brigade artillery commander's

Page 29063

 1     diary, P2455, records at page 21 that 40 MBRL rockets were fired "on

 2     Knin" at 40 minutes past midnight, between the 4th and 5th of August.

 3     That coincided with the time when Serb refugees were out in the open and

 4     being processed into the Sector South HQ.  And that be found out P740,

 5     paragraph 2i; D284, page 12; and P748, page 6.

 6             At paragraphs 283 and 284 of their brief, the Gotovina Defence

 7     claims that these rockets were fired in the midst of alleged ARSK

 8     movements towards and through Knin.  A close look at the evidence they

 9     cite, however, establishes that those movements were five to six hours

10     after this volley of 40 rockets was fired into Knin.  And that can be

11     found specifically in the Gotovina brief, paragraph 284, footnote 492.

12             The evidence of the percipient witnesses to the artillery attacks

13     is fully consistent with the kind of indiscriminate attacks revealed by

14     HV reports.  In fact, not a single witness to the shelling gave an

15     account even remotely consistent with the Defence's theory of a,

16     quote/unquote, precise artillery strike on only high-value military

17     targets.  On the contrary, witnesses testified that shells fell all over

18     their towns in no discernible pattern, and the damage to residential

19     areas and the corresponding lack of damage to alleged military targets

20     corroborates those accounts.

21             That evidence can be found at paragraphs 525 to 537, and 544 to

22     560 of our brief.

23             The Gotovina Defence's theory that the UN witnesses were all in

24     collusion to falsely accuse Croatia of illegal shelling fails to account

25     for the fact that the testimony of the UN witnesses is fully corroborated

Page 29064

 1     by and consistent with the testimony of all other international observers

 2     and also Serb civilians regarding the indiscriminate nature of the

 3     shelling.  That evidence can be found in paragraphs 525 to 537 of our

 4     brief.

 5             In their brief, the Gotovina Defence did not discuss any evidence

 6     from the UNMO and Serb civilian witnesses regarding the shelling of

 7     Benkovac, Obrovac or Gracac.  That testimony demonstrates the pattern of

 8     indiscriminate fire and the illegitimacy of the artillery attack as a

 9     whole.

10             Now, Your Honours, my next set of slides are demonstratives

11     regarding the towns identified in General Gotovina's order.  And what

12     I've done is overlaid on maps of these towns the alleged targets

13     identified by the Gotovina Defence and by Rajcic, and also the areas

14     where the witnesses identified shelling impacts.  In the legend for each

15     map, I have provided a citation to the evidence underlying the map, and

16     I'm happy to provide copies of those demonstratives to the Chamber and to

17     counsel as I will not be reading those citations into the record.

18             Let's begin with Benkovac.

19             Here we have the targets which the Gotovina Defence initially

20     suggested were inside the town of Benkovac.  These were based on maps

21     prepared by the Gotovina Defence which cited no evidence indicating that

22     the HV specifically fired at any of these alleged targets during

23     Operation Storm.  When General Gotovina's chief of artillery,

24     Marko Rajcic, came to testify, the Defence did not put these targets to

25     him, even though, according to his Defence statement, he selected the

Page 29065

 1     targets for the military operation and was "in charge of planning,

 2     coordinating, and controlling the use of artillery during

 3     Operation Storm."

 4             That can be found at D1425, paragraphs 1 and 5.

 5             Rajcic identified only one target actually inside the town of

 6     Benkovac itself and that's the middle target, which he identified as the

 7     police station.  Now, the evidence established that there were no

 8     military targets in Benkovac on 4 August and that the police station was

 9     not a legitimate target for artillery fire.  That evidence is set forth

10     in paragraphs 570 to 572 of our brief.  However, as with every other town

11     named in General Gotovina's order, an argument about whether the targets

12     identified by Rajcic were legitimate or not is unnecessary, once we

13     consider the evidence of where the shells fired on Benkovac actually

14     fell.  We see those here in red.  And these cannot be reasonably

15     explained by a, quote/unquote, precise artillery strike against the only

16     alleged target inside that town.

17             Next is Obrovac.  And we begin again with the targets which the

18     Gotovina Defence initially claimed to have been in the town.  Again, no

19     evidence was provided to substantiate that the HV actually targeted these

20     areas during Operation Storm, and, again, the Defence chose not to put

21     these targets to Rajcic.  He identified different targets.  And taking a

22     look at where the shells fell, we see again that they cannot be

23     reasonably explained by reference to these alleged targets.

24             Moving on to Gracac.  We have the alleged targets initially

25     identified by the Gotovina Defence.  But Rajcic testified that with the

Page 29066

 1     exception of the cross-roads he circled:

 2             "There were no such military targets as could have been taken

 3     into consideration for firing with a view to possibly gaining a military

 4     advantage."

 5             That's transcript 16365.

 6             Zdravko Janic, a special police witness, testified that there

 7     were no military targets inside the town of Gracac proper.  That's

 8     transcript 16 -- I'm sorry, 6393 to 94.

 9             Nevertheless, we see shells were indeed fired into Gracac proper

10     and not only in the vicinity of the cross-roads.

11             Before moving on to Knin, I would like to address

12     General Markac's JCE contribution and separate individual liability for

13     the planning and ordering of the illegal special police artillery attack

14     on Gracac.

15             Now, with regard to the shelling of the town, the evidence does

16     not distinguish which of the areas depicted here in red are attributable

17     just to General Markac versus General Gotovina, but the distinction,

18     Your Honours, is irrelevant, not only because of their JCE participation

19     but because they both ordered firing into Gracac.  And that evidence is

20     in our brief at paragraph 413.  And the lack of military targets inside

21     the town made any firing into Gracac unlawful.

22             As argued in our final brief, General Markac bears responsibility

23     for all crimes charged in the indictment, including the unlawful

24     artillery attacks on all towns, given his participation in the JCE, but I

25     will focus here only on his liability for planning and organising the

Page 29067

 1     attack on Gracac.

 2             General Markac participated in the Brioni meeting.  The town of

 3     Gracac was in his area of responsibility and he participated in the

 4     planning and ordering of the attack on that town consistent with the

 5     criminal plan formed at Brioni.  For purposes of Operation Storm, the

 6     special police forces were subordinated to the Main Staff, and

 7     General Markac was directed by the Main Staff to coordinate his attack

 8     with General Gotovina, which he did.  That evidence can be found, P1150,

 9     pages 37 to 38; P554, page 1; D543, page 2; D1094, page 2; and D1425,

10     paragraph 57.

11             General Markac also issued the special police attack order for

12     Storm which included the special police artillery attack.  And that's

13     P614, page 6.

14             Despite there being no military targets inside the town of Gracac

15     itself, the town was shelled on both the orders of Gotovina and Markac.

16     Rajcic attempted to isolate himself and General Gotovina from the

17     shelling of Gracac by testifying that the 130-millimetre guns of TRS-5,

18     which had Gracac in range, were resubordinated to General Markac's

19     special police forces.  And that's in the Gotovina brief, paragraph 228.

20             However, the evidence demonstrates that the 130-millimetre guns

21     which were used to fire on Gracac remained under the command of Gotovina

22     and simply provided support to General Markac on his axis of attack.  In

23     his analysis of Operation Storm, General Gotovina later recalled that

24     this is exactly how it happened when he wrote that he ordered the TRS-5

25     to "provide a constant and uninterrupted support to the forces on my left

Page 29068

 1     wing and on their right flank."  Referring to the special police forces.

 2     That's P1192, page 3.

 3             Josip Turkalj, General Markac's chief of artillery, also

 4     testified that for firing on Gracac, he only received support from the

 5     guns belonging to the Croatian army, not that they were resubordinated to

 6     the special police.  That's at transcript pages 13599 to 600.  The fact

 7     that Gracac was shelled under both General Gotovina's and General

 8     Markac's orders is proven by the contemporaneous HV and special police

 9     reports which show that the first special police request for artillery

10     fire "on Gracac" did not come until 9.00 a.m. on 4 August.  But

11     consistent with all other towns shelled by General Gotovina, the shelling

12     of Gracac began at 5.00 a.m., and only General Gotovina's 130-millimetre

13     guns had Gracac in range at that time.  That evidence is P2385, page 2;

14     P2436, page 6; P516, paragraph 20; and P553, page 59; and D971.

15             Now on to Knin.  Though the scale of shelling in Knin dwarfs that

16     of the other towns, the pattern remains the same.  We begin with the

17     alleged targets initially identified by the Gotovina Defence.  These

18     29 alleged targets were not put to Rajcic either in his Defence statement

19     or during his testimony, despite the fact that he personally oversaw the

20     shelling of Knin.  Rajcic himself identified only the following

21     11 targets.  The Defence have not discussed the obvious discrepancy

22     between their version of events and that of Gotovina's own chief of

23     artillery.

24             Nevertheless, the question of whether the alleged targets

25     identified by Rajcic were legitimately attacked with artillery is

Page 29069

 1     superfluous, in light of where the shells actually landed in Knin.

 2             Your Honours, no amount of military jargon about the centre of

 3     gravity, or full-spectrum operational dominance, or air/land battle, or

 4     the manoeuvrist approach, or any other military doctrine justifies the

 5     wild discrepancies between the alleged targets of attack and the actual

 6     evidence of what was shelled in Knin.

 7             Looking at the cumulative evidence of the percipient witnesses to

 8     the artillery attack on Knin, it is a small wonder that they uniformly

 9     report that shells were falling all over the town.  Indeed, it is just as

10     Andries Dryer observed when he was asked to circle on this photo the

11     areas where he saw shells land.  He said:

12             "What I should have done is I should have taken a big pen and

13     drawn a circle right around Knin and not specify and say, This is the

14     area of impact, because that was the area of impact.  Knin itself, in all

15     directions where I travelled."  That is transcript page 1740 to 41.

16             The HV fired a minimum of 1.000 shells into Knin over the course

17     of a 25-hour artillery campaign.  That evidence is detailed at

18     paragraph 544 of our brief in footnote 1993.  But only a handful of those

19     1.000 shells actually struck any of the alleged targets.  Rajcic

20     identified only three "main and highest payoff targets" for the attack,

21     which were the ARSK HQ, the northern barracks, and the post office.

22     Than's at D1425, paragraph 15.

23             The number of artillery strikes these alleged targets received

24     after 25 hours of attack belies the, quote/unquote, precise shelling

25     argued by the Defence.  The ARSK HQ, the alleged highest-value target,

Page 29070

 1     according to Rajcic, received one shell hit.  And that one shell landed

 2     in the parking lot.  Than's transcript page 18465, Witness AG58; and

 3     P1094, paragraph 41, Witness Novakovic.

 4             The evidence also showed that civilians actually ran into this

 5     building during the artillery attack, which is hardly a situation that

 6     can be envisioned were it the obvious object of a precise and

 7     concentrated artillery attack.  And that evidence is at P1094, page --

 8     paragraph 19.

 9             The post office received no shell hits and no damage.  No witness

10     who testified about damage from artillery in down-town Knin mentioned any

11     damage to the post office.  And D389, the ARSK report on shelling damage

12     early on 4 August does not mention any damage or strikes on the post

13     office.

14             The northern barracks received an unknown but completely

15     negligible number of artillery strikes, given that it showed no visible

16     damage and that the HV moved right in and started using it on 5 August.

17     That is P292, page 100; P429, paragraph 32; P84, page 2; P980, page 4.

18             Here again, the evidence showed civilians running into this

19     complex.  That is P71, page 84.

20             The Chamber will recall that the northern barracks is a very

21     large facility encompassing approximately 150.000 square metres and could

22     unquestionably have been much more precisely targeted with the

23     130-millimetre guns used by General Gotovina.

24             Even looking beyond the alleged highest-value targets, we see

25     that the same pattern generally holds, few hits and negligible damage to

Page 29071

 1     all of the remaining targets with the sole exception of the Tvik factory.

 2     That evidence is in our brief at paragraphs 550 to 563.

 3             JUDGE ORIE:  Mr. Russo, if would you allow me one question so

 4     that I'm better able to follow your argument.

 5             In respect of the ARSK headquarters and the northern barracks,

 6     you say -- I didn't hear you say that these are not considered to be

 7     military targets.  You said, But the civilians fled into that complex or

 8     in that building.  Wise or unwise, but that's what they did.  I mean, if

 9     I were a civilian, I don't know whether I would seek refuge in a complex

10     or a building which could be considered to be a military target.  That's

11     at least -- some risks involved.

12             But I do not fully understand what you mean exactly when you say,

13     Well, even if it is a military target, civilians fled into that building

14     or that complex.  Is that that they would -- well, just don't fully

15     understand what the reasoning is you're applying there.

16             MR. RUSSO:  Mr. President, let me first clarify that I'm not

17     attempting to indicate that the fact that civilians ran in somehow

18     changes the military character of that particular building.  The reason

19     I'm pointing out that evidence is an indication that the ARSK HQ and the

20     northern barracks were not actually, as suggested by the Defence, the

21     focus of this artillery attack.  In other words, if they had been

22     precisely and concentratedly shelled as suggested, then perhaps the

23     civilians would not have run towards those buildings in order to get in

24     them.  That's the only point I'm making.

25             JUDGE ORIE:  Yes.  If I understand you well, you say that the

Page 29072

 1     fact that they were hit or seen to have been targeted only so little by

 2     civilians would have caused them to overcome any doubt as to whether you

 3     could go there or not.

 4             Is that --

 5             MR. RUSSO:  Precisely, Mr. President.

 6             JUDGE ORIE:  Thank you.  Please proceed.

 7             MR. RUSSO:  The extremely low number of artillery strikes on the

 8     alleged targets compared to the number of shells fired into the town

 9     cannot be reasonably explained.  The Defence's argument that the HV was

10     only trying to harass, suppress or neutralise these alleged targets is

11     nonsense.  How is this pattern of shelling, which we see here, reasonably

12     possible if General Gotovina conducted a, quote/unquote, precise and,

13     quote/unquote, judicious artillery attack with appropriately discriminate

14     weapon.  It is not possible.  The only reasonable conclusion is that,

15     consistent with his explicit order, General Gotovina directly targeted

16     the civilian population of Knin and other civilian towns in the Krajina,

17     causing almost the entire Serb civilian population to flee for their

18     lives.  In the aftermath of this unlawful attack, those few Serbs who

19     could not or would not flee their homes would soon face the wave of

20     burnings, lootings, killings, and harassment at the hands of Croatian

21     forces, and I will leave it to Mr. Hedaraly to address those crimes.

22             Thank you, Your Honours.

23             JUDGE ORIE:  Thank you, Mr. Russo.

24             Mr. Hedaraly, I will also ask your attention for all those who

25     have to transcribe or translate your words.

Page 29073

 1             MR. HEDARALY:  Mr. President, thank you.

 2             JUDGE ORIE:  Please proceed.

 3             MR. HEDARALY:  Good morning, Mr. President, Your Honours.

 4             The end of the artillery attack was a beginning of a nightmare

 5     for Serb civilians, mostly infirm and elderly, who remained in their

 6     homes.  They were harassed, intimidated, many killed.  They saw members

 7     of the Croatian forces plunder their property and destroy their houses.

 8             The destruction was widespread and in many, if not most cases,

 9     Croatian forces looted the houses before burning them.  As referenced in

10     paragraph 646 of the Prosecution's final trial brief, ECMM reported in

11     late August 1995 that 60 to 80 per cent of houses had been destroyed;

12     UNMO reported 73 per cent on 13 September; and other internationals

13     placed the figure closer to 80 to 90 per cent of the villages having

14     suffered some form of burning.  International witnesses and reports

15     regularly made statements such as:

16             "The majority of the sector was on fire."  And, "The Krajina is

17     burning."

18             As an example, Mr. Vanderostyne testified that the burning was on

19     a large scale and was asked to clarify for this Chamber what he meant by

20     a large scale, he told this Trial Chamber - it's on the screen - that

21     from a small hill between Gospic and Gracac, he could see the entire

22     country side burning "everywhere, every farm, every barn, every annex,

23     every house in the countryside."

24             As the Chamber can see from Annex A of the Prosecution's final

25     brief, this destruction started as soon as HV forces entered the former

Page 29074

 1     RSK-controlled territory on 5 August 1995, with Serb houses seen burning

 2     on that day in the municipalities of Knin, Benkovac, Kistanje, Orlic, and

 3     Ervenik.  HV reports themselves confirmed that significant amount of

 4     destruction took place almost immediately following the arrival of

 5     Croatian soldiers.

 6             On 13 August, Colonel Zelic writes that:

 7             "The largest number of fires occurred a day or two following the

 8     entry of HV units into newly liberated villages."

 9             And that the arson was "most often carried out by members of

10     Home Guards Regiments."

11             These Croatian forces which entered the area on 5 August also

12     engaged in extensive looting.  For example, the Prosecution has referred

13     in its final brief, at paragraph 659, about looted goods being collected

14     outside the UN camp.  International witnesses, upon being able to go into

15     Knin, noted that "each and every single house was broken into" and

16     looted.

17             Although the Gotovina Defence suggested at paragraph 414 of its

18     brief that these were "security sweeps" in Knin, at least one witness,

19     Erik Hendriks, when asked specifically at transcript reference 9823

20     whether what he saw in Knin on 7 August was consistent with such searches

21     said that it was not.

22             Croatian forces were continuing to plunder Serb property and

23     destroy Serb houses.  In the words of the UN political and humanity

24     coordinator for Sector South, Hussein Al-Alfi, it was "a daily ritual."

25             The HV operational diary for the Split Military District, P71,

Page 29075

 1     itself noted the problem of looting and burning.

 2             11 August:  "Everything is looted.  The looting is the problem."

 3             14 August:  "Complaints against burning of village Benkovac where

 4     there are no Chetniks."

 5             19 August:  "Burning is a huge problem.  Journalists and others

 6     could prove that it was arson."

 7             On 14 August 1995, ECMM reported that the systematic destruction

 8     and burning of large areas was continuing, with houses burnt in

 9     practically every town.

10             On 20 August, UNCIVPOL reported a callous trend of widespread

11     arson, involving Croatian military personnel spotted at the scene.

12             On 22 August, Eric Hendriks observed this house in Guglete, P948,

13     burning, with two uniformed military police HV members with 72nd

14     Battalion insignia, together with three civilians and the support of a

15     INA light truck leaving the scene.  D820, page 5; and P938.

16             On 24 August, the Knin police administration responded to

17     Assistant Minister Moric and stated that HV members with military

18     vehicles were driving away stolen property.

19             On 31 August, UNCRO reports that the "burning of houses continues

20     in a steady and methodical manner ... and that it is difficult to believe

21     that these atrocities -- these activities are occurring without at least

22     the tacit approval of the authorities."

23             Your Honours, in addition to the reports of the international

24     observers, almost every single Serb civilian who stayed in his or her

25     village and who provided evidence to this Chamber described soldiers

Page 29076

 1     entering their villages and either burning, looting, or both.  Bogdan

 2     Brkic in Palanka; Petar Colovic in Orlic; Vesela Damjanic in Biskupija;

 3     Bogdan Dobric in Dobropoljci; Konstantin Drca in Parcici; Milica Djuric

 4     in Djurici; Jovan Grubor in Grubori; Rajko Gusa in Bukovic; Milan Ilic,

 5     Orahovac; Milica Karanovic in Grubori; Petar Knezevic, Oton Polje;

 6     Milan Letunica in Gosic; Smiljana Mirkovic, Polaca; Mirko Ognjenovic,

 7     Kakanj; Jovan Popovic in Mokro Polje; Manda Rodic, Strmica; Draginja

 8     Urukalo, Biskupija; Jovan Vujnovic, Oton Polje; Stevan Zaric, Orlic;

 9     Junjga Dragutin, Uzdolje; as well as witnesses --

10             JUDGE ORIE:  Mr. Hedaraly, I see we have a problem with the

11     transcript.  It has stopped after the first name you started mentioning

12     and many followed.

13             MR. HEDARALY:  Are these only the individual screens, Your

14     Honour, or is it the -- I don't have access to the main --

15             JUDGE ORIE:  No, I think it's also my ... well, it seems that now

16     the -- our transcriber has apparently put all the names in but it did not

17     appear on our screens.  The matter seems to be resolved.

18             Please proceed.

19             MR. HEDARALY:  Your Honours, those are no less than 22 names who

20     provided evidence to this Chamber.  And with the exception of the

21     witnesses who discussed Grubori, the incidents referred by these

22     witnesses took place between the 5th and the 11th of August.

23             As indicated in Annex A of the Prosecution's final brief, the

24     burning and looting continued throughout the months of August and

25     September, with reports of Croatian soldiers looting in late

Page 29077

 1     September and also seen in the immediate vicinity of burning houses.  To

 2     add to the reports from internationals and testimony from local Serb

 3     civilians, Pero Perkovic, a soldier in the 15th Home Guard Regiment,

 4     testified how he rode on a truck that contained television sets and other

 5     goods that had been looted from the Serb houses in Kistanje on the

 6     6th or 7th of August.  That can be found at transcript reference 19534,

 7     35, 38, as well as 45 and 46.

 8             Mr. Perkovic's testimony was also indicative of the general

 9     climate of impunity that reigned in the area.  All a commander did when

10     he saw the truck was to shout at the soldiers by asking them what kind of

11     soldiers they were to be looting.  That truck was never stopped and went

12     through two or three check-points manned by the civilian and the military

13     police.

14             International witnesses, such as Mr. Marker Hansen, testified

15     that it was a regular occurrence for him and his ECMM patrol to be

16     stopped at check-points while military vehicles loaded with looted goods

17     would get through.  Transcript 14927.

18             One of the few soldiers ... one of the few soldiers who was

19     convicted for these acts, in this case for looting in the Kosovo valley

20     on 2 September, provided a glimpse into the attitude that prevailed among

21     Croatian forces at the time.  A member of the 113th Brigade, his defence

22     before the military court, was that since everyone was looting, why not

23     him?  That's at P2609, page 5.

24             Some of the soldiers carrying out these crimes did not seem to

25     care that they were observed looting goods and burning houses in public,

Page 29078

 1     with the presence of internationals not disturbing them and without

 2     trying to hide what they were doing.

 3             In other cases, the Croatian soldiers carrying out these crimes

 4     threatened international observers.  For example, Mr. Flynn, at P20,

 5     page 26, about soldiers threatening an HRAT team who wished to inspect

 6     one of the houses they could see burning; or Mr. Berikoff,

 7     transcript 7706, who said he was threatened and soldiers tried to take

 8     his camera; and at transcript 8325 and 8569, ECMM monitors observing

 9     Croatian soldiers burning houses along the Knin-Drnis road had shots

10     fired above their head.

11             The destruction was targeted predominantly against Serbs.  As

12     noted in paragraph 646 of the Prosecution's final brief and its

13     accompanying footnotes, the mainly Serb towns of Kistanje, Djevrske,

14     Cetina, Donji Lapac, were more than 95 per cent destroyed, with

15     Donji Lapac, 99 per cent Serb before the war, described by Minister Susak

16     as nothing more than a name on a map.  P470, page 53.

17             By contrast, the villages of Podlapac, Siveric and Bruska, which

18     according to international observers were mainly Croat, were spared from

19     destruction.  Spared also were the larger towns so that they could be

20     repopulated with Croat displaced persons.  Spared also were houses that

21     had been marked as being Croat so that they would not be destroyed or

22     looted further.  For example, one witness who also stated how he believed

23     the looting and the burning was organised, also stated how only Serb

24     houses were burned in villages where the population was mixed; P487,

25     paragraph 74.

Page 29079

 1             The Prosecution also included in its final brief evidence

 2     relating to churches having been preserved and in some cases being

 3     guarded and not destroyed.  This is footnote 2333 of the Prosecution's

 4     brief, indicating a level of organisation belying random acts of isolated

 5     individuals.

 6             Witnesses often indicated that these crimes were committed by

 7     Croatian soldiers, identifying them because of their uniform.  The

 8     Prosecution does not deny that civilians were involved in the commission

 9     of crimes, and particularly looting as time went on, but most of these

10     crimes were committed by soldiers or by civilians in concert with

11     soldiers, and there are examples in our brief.

12             Even when witnesses did not identify a specific unit, there is

13     ample evidence showing that the HV had virtual complete control of the

14     territory when it entered on 5 August.  Most internationals were not

15     allowed to leave the UN camp before the 7th of August, and patrol outside

16     Knin even later.  Check-points were established to prevent civilians from

17     entering the area, and the first significant arrival of Croat displaced

18     persons was on the 15th of August, when passes were no longer necessary.

19             Further references can be found at paragraph 479 of the

20     Prosecution's brief.

21             But as the UN CIVPOL report for 20 August that I referred to

22     earlier stated, there was hardly anyone else in the area to blame.

23             Some witnesses did specifically identify units.  For example, at

24     P2395, one witness specifically named the 4th Guards Brigade and the

25     Pumas, and gave an example of ten military trucks of the 7th Guards

Page 29080

 1     Brigade and ten military trucks carrying looted goods.  That's page 5, 6,

 2     and 7 of P2395.

 3             In the face of all of this evidence about systematic, organised

 4     and open destruction and plunder, the Gotovina Defence has chosen to

 5     focus its attention on the flaws that it found with P176, the UNMO

 6     assessment of damage.  The Chamber will recall that the UNMOs found that

 7     of 22.213 buildings, 8.063 were totally damaged and 9.207 partially

 8     damaged.  The Prosecution is not claiming that the UNMO survey represents

 9     a perfect and flawless account of the destruction but, rather, only one

10     of many sources of evidence indicating the widespread nature of the

11     destruction.  Recognising that there were some discrepancies in the

12     totals, the Prosecution did the following, and simply for demonstrative

13     and illustrative purposes, we removed the villages that were duplicated,

14     removed entries where there were blank entries for the total number of

15     houses and removed the entries where the survey itself noted pre-Storm

16     damage and we have re-totalled the columns.

17             There were also other issues raised --

18             JUDGE ORIE:  Mr. Kehoe.

19             MR. KEHOE:  Excuse me, Mr. President.  With all due respect, and

20     I do apologise to my colleague, there is simply no basis for this,

21     nothing whatsoever, coming in and recalculating this, and offer as if

22     it's now a gospel truth.  And I do -- I'm hesitant to object because I

23     know that the Chamber is not in favour of that.  But I do feel quite

24     strongly about this document that it's completely of no basis whatsoever.

25             JUDGE ORIE:  Yes.  Let the Prosecution develop its argument.

Page 29081

 1     Gospel truth is not, at this moment, immediately decided whether it

 2     exists or not.  The apparently new calculations have been made by the

 3     Prosecution.  We'll see to what extent that does in any way remedy the

 4     flaws that were indicated and whether it's complete or not.  At the same

 5     time, Mr. Hedaraly will be aware that just giving one screen, not knowing

 6     exactly what was considered to be duplicate, what was -- I mean, what's

 7     the basis for the new calculations, that, of course, the Chamber, in

 8     order to verify the accuracy of it, that it might need more information

 9     and just the pink colour on the screen.

10             MR. KEHOE:  And just for the record, Mr. President, on behalf of

11     the Gotovina Defence, we simply have no way to verify the accuracy or to

12     investigate this at this point.

13             JUDGE ORIE:  I think I was clear enough that you would need more

14     information to verify the accuracy, and we leave it to Mr. Hedaraly

15     whether he comes back to it.  He might also wait and see what the Defence

16     teams in their final arguments will raise in respect of this and then use

17     the time remaining to give further explanation.

18             Mr. Kuzmanovic.

19             MR. KUZMANOVIC:  Thank you, Your Honour.  And I apologise to

20     Mr. Hedaraly, but we will join in that objection, Your Honour.  And in

21     addition, obviously leaves us no opportunity to cross-examine anything

22     relating to this document since this underlying survey was the subject of

23     intense cross-examination.

24             JUDGE ORIE:  What apparently the Prosecution has done is to -- it

25     has reviewed some of the evidence and has developed some thoughts on it,

Page 29082

 1     in view of what was argued by the various Defence teams as being flawed,

 2     and I think they're entitled to do so.  If they do not give sufficient

 3     explanation, it is not only the Defence but also the Chamber which will

 4     not be able to verify that.

 5             So let's see what comes and let's -- let's allow the Prosecution

 6     to develop its thoughts.

 7             Mr. Hedaraly, anything -- I briefly responded to the observations

 8     made by Mr. Kehoe and by Mr. Kuzmanovic.  If you want to add something,

 9     that's fine.  If you consider that the Chamber has understood what you

10     are doing at this moment, and if you have also understood that presenting

11     new numbers as apparently the result of a new calculation, that it's

12     difficult to verify with not knowing exactly what the basis for that new

13     calculation is.  That if you have understood that well, and if you will

14     address that matter now or at any later stage, you may proceed.

15             MR. HEDARALY:  Thank you, Your Honour.  Of course, in the -- and

16     this is simply meant to show that the factors that I have raised, some of

17     them which were raised by the Defence, simply those factors that I have

18     already listed just to illustrate the difference was not as significant.

19     This is not evidence that I'm tendering or these numbers are not

20     submitted as evidence.  But the Chamber has understood the purpose of

21     what I was trying to achieve.

22             There were also other issues raised regarding the survey, such as

23     discrepancies with the 1991 census, the methodology as to how the numbers

24     were obtained, and whether all the teams reported pre-Storm damage.  I

25     will not address all of these but simply point out, Your Honours, that

Page 29083

 1     there is evidence in the record regarding these issues.  Sometimes -- for

 2     example, the evidence of Mr. Puhovski, at 16121, regarding the census

 3     numbers; the evidence of Mr. Marti and Mr. Tchernetsky, saying that they

 4     did, in fact, record pre-Storm damage, at 4705 and 3225.  And even though

 5     this survey that the UNMOs conducted may not be a perfect account of each

 6     and every single house or structure that was destroyed after the

 7     5th of August, in fact, you will note if you examine the survey, that

 8     neither Kistanje nor Djevrska, where the destruction is well documented,

 9     are included in P176.

10             The more important point, Your Honour, is the following.  What

11     the UNMO survey does is confirm and corroborate all the other evidence I

12     have recited to you in these last few minutes.  The evidence of other

13     internationals who stated that at almost every village houses were

14     destroyed, the figures of 60 per cent destruction rising up to 90 in

15     rural areas mentioned by others, and the evidence of almost all the Serb

16     civilians who stayed in their homes and who provided evidence to this

17     Chamber.

18             One last note on the destruction, the Gotovina Defence cites to

19     Mr. Flynn and his estimate of at least 500 houses being destroyed about

20     three weeks after Operation Storm.  Mr. Flynn himself, several times, at

21     transcript reference 1314 to 18, stated that it was probably a very

22     conservative estimate.  It is an indeed an extremely low figure at odds

23     with the weight of the evidence but I also remind the Chamber that

24     Mr. Flynn also testified that the burning was a result of a systematic

25     campaign.  P21, paragraph 11.  And when asked to explain, he stated that

Page 29084

 1     it was the scale of the burning and the large number of fires that

 2     principally led him to this conclusion.  The effect of all of this,

 3     Your Honours, as one international organisation has noted, was that the

 4     burning of the Krajina Serb farming resources effectively prevents them

 5     to return in large numbers; P2150.

 6             Indeed, when one witness was asked why after seven weeks in the

 7     UN camp she went to Serbia rather than return to her home, she answered

 8     at transcript 16652, and I quote:

 9             "How could we possibly go back home if our home had been burned

10     down?  We had no home to go back to."

11             Your Honour, I note the time.  I will be moving in a different

12     area, so this may be a suitable time for an earlier break.

13             JUDGE ORIE:  It is, Mr. Hedaraly.

14             We'll have a break and we will resume at a quarter to 1.00.

15                           --- Recess taken at 12.23 p.m.

16                           --- On resuming at 12.51 p.m.

17             JUDGE ORIE:  Mr. Hedaraly, please proceed.

18             MR. HEDARALY:  Thank you, Mr. President.

19             The criminality in the Krajina after 4 August extended beyond

20     plundering and destroying Serb property and included the killing of

21     hundreds of Serb civilians.  These killings also started as soon as the

22     Croatian forces entered the area, with most occurring in the first

23     several days after 5 August.

24             The murders charged by the Prosecution were all against

25     civilians, including women and elderly, and they were often killed by

Page 29085

 1     gun-shots.  When looking at the evidence in its totality and also

 2     considering the considerable evidence regarding killings, both from the

 3     witnesses who testified in court and those who provided evidence under

 4     Rules 92 bis and 92 quater, a certain pattern does emerge.

 5             Before going into specific incidents, I want to discuss three

 6     general factors that make this pattern apparent and refutes claims that

 7     these killings were random.

 8             First, the date of the killings; second, the age and sex of the

 9     victims; and third, the cause of death.

10             With respect to the date of the killings, the Prosecution has

11     reviewed all its evidence in Appendix B, which is additional killings and

12     its scheduled killings, and has come to the following conclusion.  Before

13     showing you my next slide, though, there was one methodological point

14     that I want to make.  In cases where there was no specific date of death

15     because the only evidence was that the body was collected, the

16     Prosecution, relying on the evidence that the later the body was

17     collected the more decomposed it used to be, has considered the following

18     dates of death.  If the body was collected the 15th of -- before the

19     15th of August, it considered that the death has -- had occurred the day

20     before.  If -- if the body was collected before the 31st of August, it

21     considered that death had occurred three days before.  And if the body

22     was collected in the month of September, it considered that it was five

23     days before.

24             Once again, this is simply for illustrative purposes and is

25     underlied by the evidence in the Prosecution's final brief.

Page 29086

 1             So when we look at this evidence on the date of the killings, we

 2     can see that the 182 of the 324 victims, both scheduled and from the

 3     further clarification killings, occurred before the 10th of August.

 4     That's the figure in the red on your screen.

 5             And if we include the figure in orange, the killings that

 6     occurred before the 15th of August, where, once again, there is

 7     significant evidence that the area was under exclusive control of

 8     Croatian forces, the proportion reaches over two-thirds.

 9             In terms of victims, all 324 victims were either civilians or

10     soldiers hors de combat.  But within that group, we can see that 97 were

11     women, that 55 of these women were over the age of 60; 87 of the victims

12     were men over the age of 60.

13             When we put that in a graphic form, we see that 184 of the 324

14     victims were women, including elderly ones, and elderly -- elderly men.

15             Just -- just for the Court's reference, the term "others" does

16     not only include men who were 60 or younger but also those men for whom a

17     specific date of birth was not available.

18             Now while all the victims were civilians or hors de combat, this

19     large proportion of women and elderly victims suggests that anyone

20     remaining in the Krajina was a target.

21             In terms of cause of death, the Chamber knows that there are not

22     autopsy reports for all the victims, most often in the case of bodies

23     that were not buried in the Knin or Gracac cemeteries from where the

24     Prosecution carried out its exhumations.  Therefore, the evidence must be

25     examined in its totality, including, for example, the presence of visible

Page 29087

 1     injuries at the time the body was collected or accounts that the body had

 2     been burnt.

 3             In some cases, despite the presence of an autopsy report, the

 4     cause of death is unascertained.  An unascertained cause of death does

 5     not necessarily exclude a violent death and the Chamber has already

 6     noted, in an exchange with Dr. Clark, at transcript reference 14251, that

 7     the evidence must be - and I'm paraphrasing, obviously - that other

 8     factors must also be considered.

 9             In some case, the cause of death is unascertained because of the

10     advanced state of decomposition of the body and the fact that the

11     forensic examination took place years after the death, or, in some cases,

12     in the case of Nikica Panic, victim number 124, his head was missing and

13     a forensic examination could therefore not determine a specific cause of

14     death.

15             Once again, the evidence must be addressed in its totality,

16     including evidence of internationals and locals who saw the body, as well

17     as evidence that the Chamber has received regarding the murders and

18     violence committed against the Serb civilians.

19             What we do find in those autopsy reports, however, is the

20     following.  81 of the 324 victims - that's the portion in red - listed by

21     the Prosecution, died from at least one gun-shot injury to the head.

22     Another 96 from gun-shots to other parts of their body for a total of

23     177, more than half.  That's in the orange.  If we look at the yellow, at

24     the bottom, this is a category called "Possible Gun-shots" which is

25     simply when the autopsy report specifically included a gun-shot as a

Page 29088

 1     likely cause of death.  So, for example, if it said "blast injury" or

 2     "gun-shot," those are classified as possible gun-shots.

 3             Any claim that these killings by gun-shots were result of combat

 4     is rendered even more unreasonable if we look at the data for women

 5     and -- and elderly men.  And once again the data underlying all these

 6     charts is found in the evidence regarding each of these killings.

 7             We can see that more than half the elderly men, the blue and

 8     the darker purple at the top, were killed by gun-shots.  And if we add

 9     the possible gun-shots, the proportion reaches over 70 per cent.

10             With the women as well, more than half were killed by gun-shots.

11             I also take this opportunity to note one of these women that was

12     killed by gun-shot to the head was Ilinka Crnogorac, which is victim

13     number 156.  In their brief, the Gotovina Defence referred to the Knin

14     police log-book in support of the proposition that she had died of

15     natural causes.  The Gotovina Defence lists victim number 314 but the

16     name that appears on the document is this victim, but that -- be that as

17     it may.

18             The Knin police log-book entry states that the victim had died of

19     natural causes.  The Croatian police told the same thing to ECMM

20     monitors, that's recorded at P2157, telling them that the 67-year-old

21     woman had died of low blood pressure, even though the monitors found

22     blood and a bullet casing in the house of the victim and were told by

23     other locals that the woman was killed by HV soldiers.  The autopsy

24     report, which will come up on your screen, confirms the account of the

25     locals and internationals as it shows that she, in fact, died from a

Page 29089

 1     close-range gun-shot wound to the head.

 2             There is another similar example also cited in the Gotovina final

 3     brief from victim number 127, where the Knin log-book at page 70, state

 4     that she died of natural causes, but where Dr. Clark testified that she

 5     likely died of a gun-shot injury.  The references are in footnote 660 of

 6     Appendix B of the Prosecution's final brief.

 7             As I alluded to earlier, assessing this evidence in its totality

 8     also means considering it in light of the detailed evidence you have

 9     received about other killings.  You saw the statistical evidence showing

10     that most killings occurred before 10 August and that two thirds occurred

11     before the 15th of August.  You also heard testimonial evidence that

12     Croatian forces started killing civilians as soon as they entered the

13     territory.  For example, scheduled killings number 2, 3, 7, and 10, all

14     occurred between the 5th and the 7th of August.  You have also received

15     significant evidence regarding other killings from witnesses who provided

16     evidence under Rules 92 bis and 92 quater.  These witnesses describe,

17     sometimes in detail, the circumstances of the murder of their family

18     members and neighbours.

19             With respect to some specific murders, the Gotovina Defence has

20     presented a number of arguments, and in many cases its interpretation of

21     what happened, or, rather, in many cases, what may have happened, often

22     based on unreasonable and implausible conclusions.  I will not have time

23     to address all of these today but simply a few examples to show the

24     Chamber why they should exercise strong caution when assessing these

25     arguments and carefully analyse all the evidence before drawing its

Page 29090

 1     inferences.

 2             At the outset, for example, you are told about alleged

 3     duplications.  For example, that victims 48 and 79 are likely duplicates.

 4     They are not.  The bodies were recovered in different locations between

 5     3 and 5 kilometres apart, and witnesses who recovered one of the bodies

 6     noted bullet wounds on the legs which the autopsy report of the other

 7     victim did not.

 8             This can be found in footnotes 374 and 493 of Appendix B.

 9             Similarly, it is suggested that victims 305 and 306 are the same,

10     although you heard from the ECMM witness who found the bodies,

11     Eric Hendriks, who testified to having seen two bodies and also saw

12     photographs depicting two bodies.  This evidence is found at

13     footnotes 984 and 985 of Appendix B.

14             I have already discussed two of the examples given for death by

15     natural causes.

16             Let me go into a little more detail about one particular example,

17     the killing of Jovica Plavsa, with respect to which the Chamber has

18     received a significant amount of evidence in the litigation surrounding

19     the admission into evidence of the statement of his father,

20     Nikola Plavsa.  The evidence from Nikola Plavsa is that his son was taken

21     away in handcuffs by Croatian soldiers on the 5th of August, that he

22     heard a shot from the direction where his son was taken, and found the

23     body of his son some 10, 15 minutes later.  P2686.  This account is

24     corroborated by the autopsy report, which found a set of handcuffs looped

25     in the right radial bone.

Page 29091

 1             After having argued the litigation surrounding the admission into

 2     evidence of the statement that Jovica Plavsa had died during combat, the

 3     Gotovina Defence is now attempting to convince you - paragraphs 262 to

 4     264 - that the victim was shot while the military police was trying to

 5     handcuff him, as regular soldiers apparently don't carry handcuffs,

 6     because handcuffs were found looped around one bone of the victim's arm.

 7             Your Honour, this farfetched conclusion proposed by the Defence

 8     is not plausible, is not reasonable and, crucially, is not supported by

 9     the evidence.  The only reasonable conclusion is that the victim was

10     taken away in handcuffs, as stated by the victim's father, and executed

11     by the 4th Guards Brigade soldiers in Golubic whose presence there on

12     that day is not disputed.

13             Let me quickly mention one more example, the murder of

14     Jovanka Mizdrak.  That's number 180.  Here, a witness testified that two

15     HV soldiers left the convoy.  One of them shot at her house, destroying

16     all the windows.  When the victim refused to leave her house, she was

17     shot by an HV soldier.  That is at P637.  Pointing to an UNMO report,

18     P229, where apparently this witness told UNMOs that the HV soldier asked

19     the women to surrender and that the victim refused and ran into her

20     house, the soldier shot her in the back.  Leaving aside why an HV soldier

21     would ask two women to surrender on 8th August, according to the Defence,

22     it was not unreasonable for an HV soldier to shoot a 50-year-old woman in

23     the back, whose only fault seems to have been to be scared by the

24     presence of armed HV soldiers apparently asking her to surrender.

25             With respect to the scheduled killings, Your Honour, the

Page 29092

 1     Prosecution is mindful of the Chamber's guidance and will therefore not

 2     repeat the arguments contained in our final brief, just make one general

 3     comment which extends beyond the killings, that is the cases where the

 4     credibility of the Prosecution witnesses were put into question and,

 5     particularly, its so-called crime-base witnesses.  The Chamber is aware

 6     of the difficult task facing these witnesses, often elderly, who are

 7     forced to relive traumatic circumstances.  The Chamber has observed their

 8     testimony and their demeanour and, from the Prosecution's view, the

 9     truthful accounts of what they have witnessed.

10             This is an example.  You will recall the difficult questions that

11     Milica Djurica had to answer regarding why she didn't say anything about

12     smelling her husband's burning flesh, how it was suggested that she was

13     lying about having to bury her husband's remains and so on.  And you

14     heard her responses.  You can find one of these at transcript reference

15     10821.

16             Quickly, in passing, on scheduled killing number 7, the

17     Gotovina Defence only addressed the evidence of Witness P3, did not

18     address the very powerful, very important and very compelling evidence of

19     other witnesses, including Witness P67.  The reference is in our final

20     brief.

21             Finally, one very quick word on Counts 8 and 9.  The Prosecution

22     simply notes that the Gotovina Defence, on a few instances, particularly

23     when discussing the case of Draginja Urukalo, the Chamber will recall was

24     a 70-year-old woman who was forced by an HV soldier to strip to her

25     underwear and play basketball, that she was physically unharmed by a

Page 29093

 1     one-time event of limited duration and that therefore did not qualify as

 2     a violation under Counts 8 and 9.

 3             Now whether the Gotovina Defence considers that forcing a

 4     70-year-old woman to undress in such a way and play basketball is

 5     inhumane or not, the law is clear.  In the recent Haradinaj case, the

 6     Appeals Chamber last month found, in paragraphs 95 and 96, that mental

 7     suffering which constituted a serious attack on human dignity constituted

 8     cruel treatment.

 9             Applying this law to the facts in the case of Ms. Urukalo, the

10     only reasonable inference to be drawn is that the HV soldiers who forced

11     her to strip and play basketball committed cruel treatment.

12             Your Honours, what I have cited today in terms of murder, cruel

13     treatment, destruction, and plunder are only examples of what took place

14     in the Krajina after the 5th of August.  The extent, scale, and

15     regularity of these crimes are well-documented and the testimony of the

16     numerous witnesses, including those with victims who suffered the most

17     from these crimes, can lead to only one reasonable conclusion.  They were

18     primarily carried out by Croatian forces against Serb civilians and Serb

19     property.

20             Mr. President, Your Honours, thank you for carefully listening to

21     these submissions.  Ms. Gustafson will now address the criminal liability

22     of General Gotovina for these crimes.

23             JUDGE ORIE:  Thank you, Mr. Hedaraly.

24             Ms. Gustafson, if you're ready, you may proceed.

25             MS. GUSTAFSON:  Yes, Your Honours.  Good afternoon and thank you.

Page 29094

 1             Your Honours, you have heard from Mr. Russo about

 2     General Gotovina's active participation in the Brioni meeting, and how he

 3     implemented the plan formed at that meeting by commanding a shelling

 4     attack directed at civilian populated areas in the Krajina aimed at

 5     driving out the Krajina Serbs.

 6             The shelling attack was only the beginning of General Gotovina's

 7     participation in the JCE.  Following that attack, as his forces entered

 8     towns and villages in the Krajina, they participated in a large-scale

 9     campaign of looting and burning that forced out many of the Serbs who had

10     not fled the shelling, and prevented the return of those who had.

11     International observers concluded, based on the scale of the destruction

12     and its systematic and prolonged nature, that this campaign was carried

13     out pursuant to orders or silent approval of the Croatian leadership.

14     And with respect to General Gotovina, they were correct.

15             General Gotovina implemented and fostered a climate of impunity

16     and official inaction that encouraged and condoned his subordinates'

17     crimes by deliberately failing to take genuine measures to prevent or

18     stop them.

19             In their brief, the Gotovina Defence claim that the Chamber

20     cannot reach this conclusion because General Gotovina issued orders that,

21     on their face, were aimed at preventing his subordinates burning and

22     looting.  Mr. Tieger has already identified the legal errors based on a

23     mischaracterisation of the Blaskic case that ground this claim, and has

24     explained that these orders must be assessed in context and in light of

25     the evidence as a whole.  The evidence, as a whole, demonstrates that

Page 29095

 1     General Gotovina's orders to prevent looting and burning were aimed at

 2     masking his acceptance of those crimes, not at preventing them.

 3             And what is that context?  Well, as we have explained at

 4     paragraph 146 and 147 of our brief, immediately before Operation Storm,

 5     General Gotovina's subordinates were looting and burning in Grahovo and

 6     Glamoc, even after the Split Military District had ordered them to stop.

 7     In this context, the only preventative measure with any substantial

 8     likelihood of success would be to identify and punish or at least remove

 9     from combat those who were looting or burning.

10             General Gotovina did nothing aimed at achieving either measure.

11     Instead, he ordered all forces involved in Operation Summer to remain in

12     position and await further orders.  He issued instructions to promote and

13     reward soldiers and officers, and he order the dissemination of a false

14     report on the use of phosphoric shells to cover up the burning of Grahovo

15     and Glamoc.  I refer you to our final brief at paragraphs 149 to 151.

16             Thus, on the eve of Storm, General Gotovina sent this message to

17     his subordinates:  I will not punish you for your crimes and I will take

18     steps to cover them up.  In this context, he must have expected his

19     subordinates to repeat their looting and burning, regardless of contrary

20     orders.  His subordinates had already done that and they had gotten away

21     with it.  Yet in the attack orders attachments, he simply repeated the

22     same instruction to prevent looting and burning that had already failed.

23             On top of that, General Gotovina included no measures to monitor

24     the implementation of these instructions.  He also took no measures to

25     secure their implementation, except for his order to OG commanders to

Page 29096

 1     station MUP and MP in large towns to secure the town and important

 2     buildings.  As we have pointed out in paragraphs 21 to 23 of our brief,

 3     this instruction, which was consistent with the common purpose, had a

 4     measure of success, as large towns and important buildings were

 5     practically the only structures relatively spared from otherwise total

 6     devastation.

 7             Apart from this particular measure, it is clear that

 8     General Gotovina expected his orders to prevent looting and burning to

 9     fail, and when they did, he did not want to know about it or do anything

10     about it.

11             Any uncertainty about that is resolved by his response to the

12     ensuing wave of looting and burning carried out in contravention of those

13     orders.  By at least 6 August, General Gotovina's comments at the Knin

14     fortress and the independent evidence of the situation in and around the

15     town at this time show that General Gotovina knew his orders were totally

16     ineffective.

17             Was he generally concerned about stopping these crimes or

18     punishing the perpetrators?  At this time, with his subordinate

19     commanders sitting all around him, he would have taken immediate steps to

20     find out why his orders had not been followed.  He would have held his

21     subordinate commanders accountable for failing to implement his orders.

22     He would have initiated concrete measures such as detention, disciplinary

23     punishments, arrests, and curfews to bring his subordinates under control

24     and prevent further crimes.  And crucially, he would have taken steps to

25     secure the implementation of his orders.  General Gotovina did none of

Page 29097

 1     those things either on the 6th of August or at any time in the ensuing

 2     days and weeks, despite a constant flow of information that his orders

 3     continued to be disobeyed on a massive scale.  In this context, his

 4     repeated incantations over the following days of the same hollow order

 5     that had already failed at least twice were not genuine.

 6             Barkovic and Theunens both confirmed what any teacher, parent or

 7     other authority figure knows and what an experienced commander like

 8     General Gotovina certainly knew:  Reissuing the same failed order is not

 9     an effective measure.  A commander who becomes aware his orders are not

10     being implemented must take steps to find out what has gone wrong and

11     secure the implementation of his orders.  I refer you to paragraphs 193

12     to 195 of our brief.

13             I will turn now to a few of the purported preventative measures

14     the Gotovina Defence relies upon in an effort to demonstrate that

15     General Gotovina took genuine steps to prevent or punish crimes.  One of

16     these is General Gotovina's 9 August instruction, documented at page 95

17     of the operational diary, to photograph and video record criminal acts,

18     which can you see on this slide.  There are at least three reasons that

19     this order does not reflect a genuine attempt to prevent or punish

20     crimes.

21             First, General Gotovina does not actually instruct anyone to

22     implement this claimed order.  And the evidence at paragraph 175 of our

23     brief demonstrates it was not, in fact, implemented.

24             Secondly, General Gotovina's subordinates were already committing

25     their crimes openly.  It would have been fanciful to think that

Page 29098

 1     photographing soldiers who are already committing crimes in front of

 2     their commanders and with their acquiescence would be an effective

 3     measure.

 4             Third, and most importantly, General Gotovina made this comment

 5     at a meeting with his subordinate commanders.  Were he genuinely

 6     interested in stopping these crimes, he would have ordered those

 7     commanders to detain and punish those caught looting and burning, not

 8     take photographs of them.

 9             In short, this order is a farce.  Its only utility is to

10     demonstrate to this Chamber the deliberate nature of General Gotovina's

11     failure to take simple measures to ensure the crime wave was stopped and

12     his subordinates punished.

13             At paragraph 765 of their brief, the Gotovina Defence continues

14     to claim that the demobilisation of criminals was a necessary and

15     reasonable measure of punishment.  They assert that the Prosecution has

16     offered no evidence to justify its position that it was not.  Well, it is

17     up to the Chamber to determine whether or not demobilisation in the

18     circumstances of this case was a necessary and reasonable measure, and it

19     is proper for the Prosecution to make submissions on this, as we have

20     done at paragraphs 236 to 237 of our brief.

21             The Gotovina Defence also claims that Lausic described

22     demobilisation as the strongest measure in dealing with undisciplined

23     soldiers.  That mischaracterises Lausic's evidence.  As you can see, at

24     paragraph 210 of Exhibit P2159, Lausic described using the threat of

25     demobilisation as leverage to maintain discipline among reserve units.

Page 29099

 1     This does not support the proposition that criminals within the HV could

 2     be appropriately punished through their simple demobilisation.

 3             At paragraphs 771 to 737, the Gotovina Defence has argued that

 4     General Gotovina's purported measures to prevent and punish crime were

 5     effective and that General Gotovina believed they were effective by

 6     claiming that:

 7             "There is no evidence of any HV units engaging in unlawful

 8     activity in Croatia after 18 August."

 9             The annexes to the Prosecution's final brief demonstrate this is

10     false.  Furthermore, as we pointed out at paragraphs 185 to 189 of our

11     brief, this continued criminal activity was repeatedly reported to

12     General Gotovina.

13             The Gotovina Defence also rely on Exhibit D1286, Budimir's

14     7 September report to the MP administration, which can you see here.  In

15     this report, Budimir stated that:

16             "After the initial four to five days," all instances of setting

17     fire to houses were prevented.

18             The Gotovina Defence claims that Budimir would have reported this

19     to General Gotovina, indicating to him that the measures he took as of

20     18 August were effective.  First, as you can see, Budimir only mentions

21     burning and says nothing about looting, contrary to what is stated at

22     paragraph 772 of the Defence brief.

23             But, in any event, Budimir's statement is absurd.  It is

24     contradicted by voluminous and readily observable evidence of burning far

25     beyond the initial four to five days, as Budimir and General Gotovina

Page 29100

 1     knew full well.  For example, as you can see here, on the 18th of August,

 2     as recorded in P71, page 116, the military police reported to the Split

 3     MD command that "the burning of houses and killing of cattle is being

 4     continued."

 5             Had Budimir reported to General Gotovina what is stated in

 6     Budimir's 7 September report, it should have alarmed General Gotovina

 7     that his own MP battalion commander was willing to present such a

 8     blatantly false picture of the crime situation.

 9             At paragraph 591 of their brief, the Defence sets out a complete

10     list of measures they claim were aimed at preventing and punishing crime

11     in an attempt to undermine the conclusion that General Gotovina

12     contributed to the JCE through his failure to act.  I do not have time to

13     address them all today.  Suffice it to say that when the evidence

14     underlying these purported measures is contrasted with the evidence

15     demonstrating General Gotovina's broad prevention and punishment powers,

16     and his exercise of those powers in matters unrelated to the indictment,

17     this list merely highlights General Gotovina's failure to take genuine

18     measures aimed at preventing and punishing his subordinates' crimes.

19             The evidence, as a whole, demonstrates that General Gotovina

20     intended the crimes committed through looting and burning and contributed

21     to this aspect of the common purpose through his deliberate, persistent

22     inaction.  At the very least, the evidence shows that he was aware that

23     these crimes were foreseeable consequences of the execution of the common

24     purpose, and willingly took the risk they might be committed in its

25     execution.

Page 29101

 1             I will move on now to discuss General Gotovina's mens rea for the

 2     crime of murder.  Although the Prosecution relies principally on the mode

 3     of liability of JCE, the Prosecution also relies on several alternative

 4     modes of liability.  Although the mens rea standards for these modes vary

 5     somewhat, all are based on an awareness standard.

 6             I refer the Chamber to paragraphs 122 to 129 and 199 to 205 of

 7     our brief, which discusses the factors and evidence demonstrating that

 8     each of these standards is satisfied.  Rather than repeat that summary

 9     today, I will address some of the Defence submissions on that evidence

10     and those factors.

11             As a general matter, the Defence have separated out individual

12     pieces of information and put forward arguments aimed at showing that

13     each particular piece of information did not serve to notify

14     General Gotovina that his subordinates were committing murder.  This

15     approach is flawed in two respects.  First, the Defence applies an actual

16     knowledge standard, a standard which is not necessary to satisfy any of

17     the applicable mens rea standards in this case.

18             Second, this approach improperly addresses the evidence in a

19     piecemeal manner rather than considering the evidence as a whole, and

20     thereby fails to consider the cumulative effect these pieces of

21     information had on General Gotovina's awareness.  Bearing in mind this

22     generally erroneous approach, I will address a few of the Defence claims

23     about these individual pieces of information.

24             The first relates to General Gotovina's comments at Brioni about

25     the difficulty of keeping his subordinates on a leash.  At paragraph 693

Page 29102

 1     of their brief, the Defence relies on General Gotovina's later use of the

 2     term "leash" in a different context to support their assertion that this

 3     comment was about troop morale.  This doesn't make sense.  The Chamber

 4     should interpret General Gotovina's remarks in the context in which they

 5     were given, and General Gotovina made those remarks in response to

 6     Tudjman's comments which included his reminder to "please remember how

 7     many Croatian towns and villages have been destroyed, but that is still

 8     not the situation in Knin today."

 9             Another Defence claim is that General Gotovina's knowledge of the

10     attitude of his subordinates is limited to the 3rd Battalion of the

11     126th Regiment, because that was the unit he specifically mentioned at

12     Brioni.  Well, regardless of how one interprets this particular comment,

13     General Gotovina knew this attitude of revenge was a broader phenomenon.

14     Revenge and hatred were the justifications he gave to internationals when

15     they confronted him with crimes.  Furthermore, it was common knowledge

16     that the Home Guard units were made up of soldiers who had been expelled

17     from the Krajina and had otherwise suffered at the hands of the

18     Krajina Serb regime.  It is a simple matter of common sense to connect

19     that fact to the propensity for revenge and the corresponding need for

20     extra measures of monitoring and control in the context of

21     Operation Storm.

22             Mladen Barkovic was more or less stating the obvious when he drew

23     those connections, at page 20175 of the transcript, which can you see

24     here.  He testified that because Home Guard unit members had had their

25     properties in the Krajina destroyed, the situation required "a high

Page 29103

 1     degree of strict control to make sure that such individuals did not

 2     engage in misdeeds."

 3             And the same logical connection between Home Guards, revenge and

 4     crime was made by General Gotovina only assistant commander for political

 5     affairs in his 13 August report, D810, which you can see here.  Noting

 6     that arson was most often carried out by Home Guards, he stated:

 7             "It should be assumed that their motive is revenge."

 8             This evidence contradicts the Defence claim in paragraph 695 that

 9     there is no evidence that Home Guard units harboured particular animosity

10     towards the civilian population beyond what could reasonably be expected

11     in wartime circumstances.

12             At paragraph 693 of their brief, the Defence makes another false

13     claim that the 3rd Battalion of the 126th Regiment did not even

14     participate in the Grahovo operation.

15             The entries at pages 2, 18, 29, 39, 51, and 63 of P71 make clear

16     that the 126th Regiment, and, in particular, its 3rd Battalion, did

17     participate in this operation.

18             Furthermore, as you can see from this 13 August MP report,

19     Exhibit P2665, this unit also participated in burning the houses in

20     Grahovo in an organised fashion.  And this latter exhibit also

21     demonstrates that the Defence claim at paragraph 695 of their brief that

22     there is no evidence in the record of any Home Guard unit of the Split MD

23     committing any crime against Serbs or Serb property at any time prior to

24     Storm is also false.

25             At paragraph 708 of their brief, the Defence claim that

Page 29104

 1     General Gotovina's knowledge of his subordinates' property destruction

 2     and looting cannot constitute inquiry notice of murder and mistreatment

 3     based on a claimed fundamental principle that knowledge must relate to

 4     specific crimes.

 5             This claim is not substantiated by the jurisprudence the

 6     Gotovina Defence relies upon.  Although the Krnojelac Appeals Judgement

 7     held, at paragraph 155, that a commander must be in possession of

 8     sufficiently alarming information to put him on notice of the particular

 9     offence with which he is charged.  There is no rule that the sufficiently

10     alarming information standard is only met where the commander has actual

11     knowledge of his subordinates committing past acts of that particular

12     offence."

13             The jurisprudence is clear that whether an accused had

14     sufficiently alarming information to constitute inquiry notice must be

15     assessed in the particular circumstances of the case and that relevant

16     factors are not limited to knowledge of past crimes.  For example, at

17     paragraph 238 of the Celebici appeals judgement, the Chamber held that:

18             "A military commander who has received information that some of

19     the soldiers under his command have a violent or unstable character or

20     have been drinking prior to being sent on mission may be considered as

21     having the required knowledge."

22             In this case, a number of factors, including but not limited to

23     General Gotovina's knowledge of his subordinates burning and looting are

24     relevant to assessing his awareness of the substantial likelihood or at

25     least the risk of murder once Operation Storm began.

Page 29105

 1             Furthermore, in the circumstances of this case, the line between

 2     crimes against Serb property and crimes against Serbs themselves is a

 3     thin one.  The evidence shows soldiers torching homes on a massive scale,

 4     frequently using fuel or other means to accelerate the burning, sometimes

 5     burning down entire villages at a time.  Burning of this nature is an act

 6     of violence directed not just at the homes and villages themselves but at

 7     anyone unlucky enough to be in or around them.

 8             So, for example, when it was reported to the Split MD command on

 9     29 July that all units in the area save two were burning houses in

10     Grahovo, and that "the entire Grahovo was on fire," and that's P71, pages

11     49 to 50, this was a clear signal of the disregard those units, which

12     included General Gotovina's so-called professional units, had for the

13     lives and safety of Serb civilians.

14             In short, Your Honours, the prospects for the Krajina Serbs who

15     did not flee the shelling were grim.  Gotovina's forces had shelled their

16     homes and villages for two days.  Heading toward them were thousands of

17     armed soldiers, many of whom were clearly willing to commit crimes that

18     they did not expect to be punished for and willing to risk the lives of

19     Serbs who happened to be in their path of destruction.  Many were also

20     fueled by revenge, aimed at those they perceived responsible for

21     expelling them from the Krajina.  General Gotovina knew all this when he

22     ordered those soldiers to attack towns and villages in the Krajina, and

23     consequently, he must have been aware of the substantial likelihood or at

24     least the risk of some of his subordinates murdering and mistreating

25     Serbs in those towns and villages.  And the evidence shows that is

Page 29106

 1     exactly what happened.

 2             Your Honours, I've reached a point in my presentation where it

 3     would be convenient to take a break if that suits the Chamber.

 4             MR. MISETIC:  I'm sorry to rise, Mr. President.

 5             JUDGE ORIE:  Mr. Misetic.

 6             MR. MISETIC:  I wanted to wait for Ms. Gustafson to finish.  The

 7     Gotovina Defence notes that a concern that we had raised, I believe, the

 8     last time we were in court about the division of time amongst the Defence

 9     teams, due to how the Prosecution will use its time, has now arisen.  In

10     the approximately four hours, maybe a little bit less, I've done a

11     WordWheel search and the Prosecution has not addressed a single point

12     from the briefs of the other two accused and which would then indicate

13     that approximately two-thirds of its time has been directed to the

14     Gotovina Defence.  And accordingly, for us to be able to respond, since

15     the balance of the Prosecution's time has not been used equally among the

16     three Defence teams, we would ask for an additional hour tomorrow to do

17     our presentation.

18             JUDGE ORIE:  Yes, the first step to be taken is to first

19     consider with your colleagues whether that would -- I think we said three

20     times two and a half hours, to rearrange for that.  The Chamber is not

21     much inclined to extend the number of hours and is, first of all,

22     inclined to see whether the parties can reach an agreement on certain

23     matters; and if do you not, then, of course, we would hear what the real

24     problem is.  If it would be limited to one hour, it might that be that we

25     would -- if that -- I mean, let me be very practical.

Page 29107

 1             If it takes us half an hour to hear the arguments why it would be

 2     unfair to divide it equally among yourself and then hear something of

 3     another 15 minutes, then, of course, we are close to that hour, so I'm

 4     inclined to be very practical.  But the first step I expect the Defence

 5     teams to take is to see whether they, on the basis of their knowledge at

 6     this moment, perhaps after having consulted with the Prosecution what to

 7     expect this afternoon, whether they can come to any new agreement.  If

 8     not, of course, the Chamber will consider your request.

 9             MR. KEHOE:  Mr. President, one last point.  I didn't objection to

10     Mr. Hedaraly's using those documents based on a prior discussion on his

11     use of the UNMO recalculated figures.  Obviously we have some -- we have

12     objections to those documents.  In any event, we intend to challenge the

13     accuracy and truthfulness put forth in that, so we would ask the Office

14     of the Prosecutor to turn those charts over to us for our use in our

15     argument.

16             JUDGE ORIE:  Yes.  I think there was more or less a kind of a

17     standing offer that whatever new visualisation of what you said will be

18     available as both as hard copies and in -- mostly likely in the -- is

19     that correct, Mr. Hedaraly?

20             MR. HEDARALY:  Referring to the charts about the killings,

21     absolutely.  There is no problem.  Both or --

22             MR. KEHOE:  All of the charts.  All of the charts.

23             MR. HEDARALY:  Sure.  Absolutely, no problem.

24             JUDGE ORIE:  All of the charts are available.

25             MR. TIEGER:  Excuse me, Your Honour.

Page 29108

 1             JUDGE ORIE:  Mr. Tieger.

 2             MR. TIEGER:  I know you want a break.  I trust the matter raised

 3     by Mr. Misetic will be resolved by his discussion with his other

 4     colleagues from the Defence.  But if the matter is raised again, I also

 5     trust the Court will give the Prosecution an opportunity to be heard

 6     before it allocates additional time beyond the seven and a half hours

 7     already allocated to the Defence before making any decision.

 8             JUDGE ORIE:  I'll consider this request with my colleagues.  We

 9     will have a break and we'll resume at a quarter to 3.00.

10                           --- Luncheon recess taken at 1.47 p.m.

11                           --- On resuming at 2.51 p.m.

12             JUDGE ORIE:  The Chamber has been informed that the discussions

13     among the party have not yet led to a solution and that this was partly

14     due to the fact that some of the Defence teams still didn't know what

15     would come for the next two hours.

16             The Chamber, therefore, will continue at this moment, have our

17     first break at approximately five minutes to 4.00.  Then after having

18     resumed at 20 minutes past 4.00, to take the second break at

19     approximately 25 minutes past 5.00, that would then approximately also

20     conclude the time available for the Prosecution.  We would -- they are

21     close to four hours.  This is a little bit over two hours, that would

22     bring us to six hours.

23             Then the Chamber would request the Gotovina Defence to start for

24     the last hour today, if it is the Gotovina Defence who goes first.  I do

25     not whether there's any -- whether the sequence has been discussed among

Page 29109

 1     the parties.

 2             MR. MISETIC:  Mr. President, I think we would ask that -- again,

 3     in addition to now the additional time being given, that the whole day

 4     has been committed to responding to the Gotovina Defence by the

 5     Prosecution, that we adjourn when the Prosecution completes its testimony

 6     so we at least have some time to go back and prepare a response.

 7             JUDGE ORIE:  The Chamber is not much inclined and would like the

 8     Gotovina to at least start with the first hour of their time.

 9             But let's see what we know after the second break.

10             MR. KEHOE:  Mr. President, just on that score, just to echo

11     Mr. Misetic's comments, some of these charts, as I noted this morning,

12     and not revisiting the charts, but of course they were seen and argued

13     for the first time.  I mean, I need to have -- we need to have some

14     degree of opportunity to review these and obviously discuss with them

15     with our client, and in that sense, that is one of the additional reasons

16     that we would ask that this be kicked over.

17             I have been informed by my Court Officer that we are not going to

18     get these charts until 7.00 tonight.  That -- that just raises a

19     practical problem.  I mean, even with that, we will have to talk about it

20     among and between ourselves and then talk to our client in the morning.

21     But those are very significant items that need to be addressed, pieces of

22     the arguments that we have not seen before, pieces of course that were

23     not included in their final trial brief.  And we respectfully request

24     that we commence in the morning.

25             JUDGE ORIE:  It sounds to me very much as that if you earlier

Page 29110

 1     have heard that 5 plus 3 is 8, that if you take 1 off the 5, it makes 4,

 2     and add 1 to the 3, that you still have 4 plus 4 is 8.  It is another way

 3     of presenting the same material with some assumption in it.  For example,

 4     if it is before the 15th of August, we take it that it is one day before

 5     that.  On the basis of what that is, I do not know.  I don't think that

 6     it changes that much.

 7             But let's first hear the Prosecution for the next two hours and

 8     then see where we are.

 9             Mr. Tieger.

10             MR. TIEGER:  And just one matter the Court raised.  I don't know

11     if -- just so I signal it and I don't stand up belatedly, the Court

12     indicated that it thought that the Prosecution was close to four hours.

13     But my calculation, it is closer to 3, 20, or 3 and a half.  I didn't add

14     up the times precisely but I didn't know if the Court meant a precise

15     number or a general number.

16             JUDGE ORIE:  No, I had a general number on my mind.  I said close

17     to 4 hours.  Otherwise I would have said 3 hours and 52 minutes, or

18     something like that.

19             Ms. Gustafson, are you ready to proceed.

20             MS. GUSTAFSON:  Yes, Your Honour.  Thank you.

21             Before the break I had summarised the dangers that General

22     Gotovina's subordinates posed to the Krajina Serbs who did not flee the

23     shelling and Gotovina's awareness of those dangers.

24             And as the evidence --

25             JUDGE ORIE:  By the way, if you do not mind, I didn't respond to

Page 29111

 1     one issue.  Why are these charts, which I take it are available

 2     electronically without any problem, why do the Defence have to wait until

 3     7.00?

 4             MR. TIEGER:  I don't know, Your Honour, and I will have it

 5     checked immediately and the earliest we can get it to the Defence

 6     logistically we will.  But I'll --

 7             JUDGE ORIE:  Yes, I do understand that, but if you put them on

 8     the screen, that means that they're electronically available, and then it

 9     is my experience that it takes you less than five minutes to get them on

10     another screen or on another computer.

11             MR. TIEGER:  That makes sense to me but I'll find out if there's

12     some issue I'm unaware of.

13             JUDGE ORIE:  Okay.  Thank you.

14             Sorry to interrupt you, Ms. Gustafson.  I should have thought of

15     it earlier.  Please proceed.

16             MS. GUSTAFSON:  Not at all, Your Honour.  Thank you.

17             And as the evidence described in the Prosecution's brief

18     demonstrates, General Gotovina's forces, indeed, murdered dozens of Serbs

19     in the initial days of the ground attack.

20             And evidence of those murders was visible to Murray Dawes and

21     Andries Dreyer who managed to leave the UN compound and move around Knin

22     during those first few days of Storm, before this evidence was cleared

23     away by sanitation efforts.  They observed dozens of dead bodies in the

24     streets around Knin, many of whom were civilians showing signs of murder.

25     And I refer you to paragraph 202 of our brief.

Page 29112

 1             In addition to describing the dead bodies he saw, at P980,

 2     page 9, Dawes added that:

 3             "All over the town there was rotten smell which I'll never

 4     forget."

 5             General Gotovina's exchange with an unknown interlocutor on the

 6     6th of August meeting in Knin, which can you see on this slide, from

 7     D792, indicates that he, too, must have seen such dead bodies in and

 8     around Knin on the 6th of August.

 9             He asks:  "Did you restore the town?"

10             The answer:  "I did."

11             And he says:

12             "And those dogs, those cats in the street, which are in the

13     middle of the street."

14             And the response:

15             "First we had to collect ..."

16             And there's a further exchange, and the unknown person says:

17             "Well, there was some 150 so far.

18             And General Gotovina says:

19             "I don't care how many there were.  I didn't ask you for a

20     figure."

21             Now, regardless of how one interprets General Gotovina's

22     references at this video-recorded meeting to dogs and cats in the middle

23     of the street, it is clear from this exchange that General Gotovina had

24     closely observed the streets around Knin, which were then littered with

25     human remains, and he urgently want those streets cleaned up.  And he

Page 29113

 1     could not have avoided the stench of death permeating the town at this

 2     time or the sound of small arms fire emanating from down-town Knin.  And

 3     I refer you again to paragraph 202 of our brief.

 4             On top of signs pointing specifically to murder, the overall

 5     situation in and around Knin on 6 August was one of open and widespread

 6     criminality.  General Gotovina himself referred to his subordinates as

 7     barbarians and vandals.  Hill's description of Knin on 6 August, at

 8     page 22 of P292, which can you see here, illustrates the nature of the

 9     crime spree that General Gotovina observed.

10             "Soldiers were looting everywhere, absolutely everywhere.  They

11     were drinking, they were firing.  Places were on fire ... everywhere you

12     go, there's soldiers stealing cars.  And [sic] any car that wasn't

13     destroyed or run over by a tank, or whatever, they were stealing."

14             Even if he didn't actually see any of his subordinates kill or

15     mistreat Serbs in Knin, the total criminality among his subordinates that

16     General Gotovina witnessed on 6 August heightened his awareness of the

17     dangers his subordinates posed to the Krajina Serbs in the area.

18             At paragraph 745 of their brief, the Gotovina Defence claims

19     that:

20             "Both political affairs and SIS reported to Gotovina that

21     civilians had been property treated by HV forces."

22             They rely on two reports.  One of those is P1134, and you can see

23     the relevant extract on this slide.  The report does state that:

24             "The civilians found in the town were treated properly and

25     professionally by the army."

Page 29114

 1             However, the report also states that HV members demolished shops,

 2     ran tanks over cars, and drove around Knin in seized cars, drunkenly

 3     shooting and threatening people's lives.

 4             The contradictory statements in this report would have signalled

 5     to General Gotovina not only that his subordinates were drunkenly

 6     shooting their weapons and threatening lives, but also that HV officials

 7     did not consider this behaviour to constitute improper treatment of

 8     civilians.  Were General Gotovina genuinely concerned about the safety of

 9     Serbs in the area, this report would not have reassured him.  To the

10     contrary, this report is a classic example of the alarming information

11     that should have triggered General Gotovina to make further inquiries,

12     inquiries that he chose not to make.

13             In paragraph 703, the Defence claims the Chamber should not

14     consider media reports of murder and mistreatment as notice evidence.

15     They claim, as can you see here, that the Prosecution has failed to

16     provide a single piece of evidence that General Gotovina read

17     contemporaneous media reports of crimes.  The evidence of

18     General Gotovina reading media reports is clear, as can you see from this

19     extract of P407.  On 13 September, General Gotovina wrote to Cervenko,

20     stating:

21             "I would like to take this opportunity to cite a statement made

22     to journalists by Mr. Roberts which reads, 'The Croatian Army is burning,

23     looting and violating human rights.'"

24             General Gotovina does not use the word "murder" here, but this

25     was yet another piece of information adding to his awareness relating to

Page 29115

 1     murder and mistreatment among his subordinates.  And, indeed, Mr. Roberts

 2     had referred specifically to murder in his media statement a few days

 3     before this, as this 1st of September UN radio report, P712, makes clear.

 4     It quotes Alun Roberts stating that killing, looting and burning of

 5     houses are continuing, often by members of the Croatian Army.

 6             At paragraph 710 of their brief, the Defence addresses

 7     General Lausic's 16 September report, D567, copied to General Gotovina

 8     which, as can you see here, reported the occurrence of HV murders in the

 9     liberated area.  I apologise for the typo on this slide.  It results from

10     a typo in the English translation of this document.

11             The Defence claims that this report:

12             "Reassured every MD commander that the MPs were taking all

13     appropriate measures to prevent and punish crime by HV wrongdoers."

14             Now whether or not the measures described in D567 were

15     appropriate, this report is direct notice to General Gotovina of

16     HV murders in the Krajina after Storm.

17             Furthermore, this report could not possibly have reassured

18     General Gotovina that MPs were effectively preventing murders or other HV

19     crimes.  After stating that the MP was unable to completely prevent

20     crimes, Lausic stated in this report that commanders of HV units could

21     make a "great contribution" to improving security situations in the

22     liberated areas, and he proposed that measures be taken to assure the

23     line of command within HV units.  And that's at page 10, D567.

24             In sum, General Gotovina received persistent and escalating signs

25     of murder and mistreatment by his subordinates.  If his actual knowledge

Page 29116

 1     of such crimes was delayed, this was as a result of his choice not to

 2     take simple and obvious steps to follow up on these signs.

 3             I'll now address General Gotovina's superior responsibility,

 4     starting with his effective control.  I'll first address the Chamber's

 5     request, under point 4 of its e-mail to the parties, to respond to

 6     Defence arguments that General Gotovina did not have effective control

 7     based on claims about layers of commands, and the nature of Home Guard

 8     conscripts, recently mobilised soldiers, and the NCO corps.

 9             First, the mere fact of intervening of layers of command is

10     irrelevant to the question of effective control.  As the Oric Appeals

11     Chamber made clear at paragraph 20 of its judgement, the existence of

12     intermediary subordinates is immaterial as a matter of law.  What matters

13     is whether a superior had the material ability to prevent or punish his

14     criminally responsible subordinate, and that is a matter of evidence.

15             At paragraph 626, the Defence claim the Prosecution must

16     establish that each commander in the chain of command possessed effective

17     control over his subordinate commanders.  The Oric Appeals Judgement

18     makes clear that this is false.  What the Prosecution must establish is

19     that General Gotovina had the material power to prevent or punish his

20     criminally responsible subordinates.

21             The Defence also claims, at paragraph 621, that it was the

22     primary job of commanders at the scene to prevent or punish soldiers.

23     Apart from the fact that this is not supported by the legal authorities

24     or evidence they cite, it does not address the question of

25     General Gotovina's effective control, which is simply whether he had the

Page 29117

 1     material ability to prevent or punish his subordinates.  And for the same

 2     reasons, the Defence claims about inexperienced NCOs or the breakdown of

 3     authority in a particular unit do not demonstrate that General Gotovina

 4     lacked the material ability to prevent or punish those soldiers.

 5             It is useful to look at an example here, and the Gotovina Defence

 6     provides one at paragraphs 641 to 643 of their brief.  Here, the Defence

 7     points to this extract from Exhibit D984, a report from the OG West

 8     assistant commander for SIS, stating that the commander of 134th lacked

 9     the necessary authority to implement orders and that the members of the

10     unit were continuously destroying property.

11             The Defence relies on this evidence to claim that this unit was

12     "not under effective control."  But this assertion confuses the fact that

13     a unit is out of control with a lack of effective control, but these are

14     two completely different questions.  The only relevant question is

15     whether General Gotovina had the material power to prevent the property

16     destruction committed by the 134th members or punish them for these

17     crimes.  As a Colonel General and commander of the military district,

18     General Gotovina had enormous and varied powers to prevent and punish

19     these crimes, including measures which did not depend upon the ability of

20     the 134th commander to implement orders.  Orders General Gotovina

21     actually issued concerning matters unrelated to the charged crimes

22     illustrate the measures available to him to prevent and punish these

23     crimes, crimes, which, in this case were reported to him.

24             For example, he could have ordered the 134th commander, the

25     OG West commander or any other officer under his command to establish a

Page 29118

 1     system of monitoring, identifying and punishing perpetrators, as he did

 2     in Exhibit D655.  He could have suspended and punished any of his

 3     subordinate commanders for failing to follow his orders, as he did in

 4     P1033.  He could have ordered a military police unit to the area to

 5     monitor and police the regiment, as he did in Exhibit P1142.  He could

 6     have ordered the military police to arrest the perpetrators and initiate

 7     criminal proceedings, as he did at page 7 of P1013, and page 3 of P1126.

 8     He could have set up a commission to investigate the 134th Regiment and

 9     initiate disciplinary, criminal and preventative measures, as he did in

10     P1013 and P1019.  He could have established a security force to secure

11     the towns and villages in the 134th Regiment's AOR, as he did in

12     Exhibit D773.  Or he could formed an intervention unit to restrict and

13     control the movement of the 134th Regiment members, as he did in P1142.

14             With respect to all the above orders, General Gotovina could have

15     taken measures to monitor and ensure their implementation, as he did in

16     many of the examples I just cited.

17             General Gotovina took no such measures, either with respect to

18     the crimes of the 134th Regiment, or any other charged crimes.  Although

19     we are focussed here on effective control, while we're on this example of

20     the 134th Home Guards, I would like to digress for a moment to look at

21     the Defence claim that General Gotovina took the necessary and reasonable

22     measures in this instance.

23             Those measures are identified at paragraphs 761 to 762 of their

24     brief, and they are:  1, demobilising members of the units; 2,

25     Colonel Fuzul's 19 August order, Exhibit D650, to take measures to

Page 29119

 1     restore discipline; and 3, General Gotovina's order, Exhibit D985,

 2     forming a commission to "check and list the war booty of the

 3     134th Home Guard Regiment" and report back to him.

 4             I have addressed that demobilisation was not a necessary or

 5     reasonable punishment measure.  Colonel Fuzul's order essentially repeats

 6     numerous prior failed orders, without any measures to monitor or secure

 7     its implementation and, therefore, was neither necessary nor reasonable

 8     in the circumstances.

 9             With respect to General Gotovina's war booty order, the

10     Prosecution has explained, at paragraphs 169 to 173 of its brief, how

11     these orders were not even aimed at preventing or punishing crimes, let

12     alone necessary or reasonable measures.  In any event, the report to the

13     Split MD was of property destruction.  So a commission to list war booty

14     could not even arguably be responsive to that report.

15             Turning back to the issue of effective control, the evidence

16     shows that General Gotovina's war booty order was effective, as this

17     extract from page 19 of D987, a 30 October 1995 Main Staff report to

18     the -- indicates.  The report states that the war booty of the

19     134th Regiment was duly and completely registered and, in accordance with

20     the Split MD command, part of it was handed over to other units.

21             The Defence claim at paragraph 640 that large numbers of

22     mobilised soldiers made it "exceeding difficult" for General Gotovina to

23     exercise effective control.  First, this is an theoretical proposition,

24     since General Gotovina never tried to exercise the measures available to

25     him.

Page 29120

 1             Second, all the measures I listed above applied equally to

 2     reserves and recently mobilised soldiers.

 3             Third, at the time of Operation Storm, General Gotovina never

 4     reported to his superiors that mobilisation or the level of experience of

 5     his NCO corps caused problems with effective control or command and

 6     control, more generally.  To the contrary, as Exhibit P1132,

 7     General Gotovina's 15 August assessment, makes clear, General Gotovina

 8     noted the successful completion of tasks by his units.  He stated that

 9     military discipline and combat morale was exceptionally high, and

10     declared that command and control was uninterrupted and at the required

11     level.

12             The only mention he made of NCOs in this assessment was his

13     remark that proposals for NCO commendations would be submitted later.

14     And the only problems he identified in this report related to

15     communications equipment.  In a similar analysis he produced a month

16     later, Exhibit P2585, General Gotovina again stated that command and

17     control functioned relatively well, and again, he made no mention of any

18     problems with NCOs, mobilisation or ill-discipline.  The discrepancy

19     between General Gotovina's satisfaction with command and control and

20     military discipline within his units and these same units' obvious lack

21     of discipline relating to crimes against Serbs and their property is yet

22     another illustration of General Gotovina's lack of concern about these

23     crimes.

24             Exhibit D987, which contains a 25 October report of a political

25     affairs inspection of the Split MD, more explicitly reveals the lack of

Page 29121

 1     concern over military discipline relating to crimes versus that relating

 2     to combat tasks.  That report states that there is a difference in the

 3     level of discipline for the execution of tasks versus the treatment of

 4     property.  It states that property crimes still persist due to

 5     undisciplined contact and a lack of sanctions, and it observes that there

 6     is no systematic monitoring, analysing or proposing measures to prevent

 7     such incidents.

 8             In this case, there are three primary factors demonstrating

 9     General Gotovina's effective control over all his subordinates, including

10     reserves, Home Guards and recently mobilised units.  First, and most

11     importantly, General Gotovina had significant material powers of

12     prevention and punishment available but did not use them to address his

13     subordinates' crimes.

14             Two, his subordinates generally followed his orders and

15     General Gotovina had the ability to ensure compliance with them.  And I

16     refer you to paragraph 206 of our final brief.

17             And, three, General Gotovina expressed his satisfaction with his

18     command and control over his subordinates and their level of military

19     discipline.

20             The Defence claim, in paragraph 637, that General Gotovina's

21     issuance of failed orders to prevent crimes - orders which he failed to

22     monitor or enforce - evidences a lack of effective control is circular

23     and it is flawed.  Because General Gotovina chose not to act to enforce

24     these orders, non-compliance with those same orders does not show a lack

25     of effective control.  And I refer the Chamber to the Strugar Appeals

Page 29122

 1     Judgement at paragraphs 257 to 258, where they address a similar issue.

 2             Contrary to the Defence claims in paragraphs 624 and 774 of their

 3     brief, whether or not General Gotovina's "normal duties included

 4     monitoring specific disciplinary sanctions imposed by lower-level

 5     commanders" is irrelevant, as it does not address the question of

 6     reasonably available measures.  To the extent his material ability to

 7     monitor such disciplinary measures is relevant, General Gotovina did

 8     monitor such disciplinary measures when he wanted to be informed about

 9     them, as illustrated by P1013 and P1034.

10             The claim in paragraph 624 that Barkovic "testified that a

11     commander is expected to monitor his own level of command and two levels

12     below him," again, does not address reasonably available measures and it

13     mischaracterises Barkovic's evidence.  This slide shows that evidence.

14     Barkovic's answer, at page 20186, when he was asked to confirm that a

15     commander should not simply reissue an earlier failed order, Barkovic was

16     not saying here that General Gotovina need only ensure that commanders

17     two levels down from him were not committing crimes, but, rather, that he

18     was required to take measures at least through those two levels to get to

19     the bottom of the problem and ensure that appropriate conduct was

20     achieved.

21             As a general matter, the Defence submissions on effective control

22     are replete with claims that General Gotovina's position and function

23     minimised or absolved his responsibility for his subordinates' crimes.

24     For example, they argue that General Gotovina was "not burdened with

25     security obligations" because he was conducting military operations in

Page 29123

 1     Bosnia.  That's at paragraph 652.  Similar claims can be found at

 2     paragraphs 660 to 662.

 3             Apart from the fact that these claims are largely not supported

 4     by the evidence or the legal authorities cited in support, they confuse

 5     arguments about the reasonableness of the measures General Gotovina took

 6     with the question of effective control, which is simply whether or not

 7     General Gotovina had the material ability to prevent and punish his

 8     subordinates.  The evidence cited in support of these Defence arguments

 9     does not support the proposition that those prevention or punishment

10     powers were somehow diminished or abrogated in the circumstances.

11             That concludes my submissions on effective control.  As I have

12     already discussed General Gotovina's actual and inquiry notice, I will

13     move on to discuss his failure to take necessary and reasonable measures.

14             Earlier in my submissions I discussed how General Gotovina's

15     purported orders to prevent crimes were not necessary and reasonable in

16     the circumstances.  So I will now address some of the specific arguments

17     raised in the Defence brief.

18             The Oric Appeals Chamber stated clearly at paragraph 177 of its

19     judgement:

20             "... that 'necessary' measures are the measures appropriate for

21     the superior to discharge his obligation (showing that he genuinely tried

22     to prevent or punish) and 'reasonable' measures are those reasonably

23     following within the material powers of the superior ..."  And the

24     Chamber emphasised that this is the only relevant legal standard.  The

25     Defence has incorrectly attempted to apply a different standard at

Page 29124

 1     paragraph 711 of its brief.  Also incorrect is the claim at paragraph 715

 2     that a different legal standard applies to operational commanders.

 3             At paragraph 746 to 748, the Defence makes the unfounded claim

 4     that General Gotovina had no duty to punish crimes that the military

 5     police were aware of.  This argument is based on General Gotovina's

 6     alleged duty within the "Croatian system" which is irrelevant to his

 7     duties under international law.  In any event, it ignores his duties,

 8     even under the Croatian system, to ensure discipline among his

 9     subordinates.  I refer to you paragraph 211 of our brief.

10             The further claim that this proposition is supported by the

11     Hadzihasanovic Trial Judgement improperly attempts to turn a specific

12     factual finding in that case into a general legal proposition.  In the

13     same vein, at paragraphs 774 through 783, the Defence claim that

14     General Gotovina "discharged his disciplinary duties by ensuring that

15     there is a system established to address discipline concerns and that the

16     system functions."

17             This does not address the question as to whether or not he took

18     measures reasonably within his material powers, demonstrating that he

19     genuinely tried to prevent or punish crimes in the circumstances.  In any

20     event, this claim is based on a mischaracterisation of both Deverell's

21     evidence and the Boskoski Appeals Judgement.  It also does not account

22     for General Gotovina's focussed interventions in that disciplinary system

23     to address matters other than the crimes with which he is charged, as

24     illustrated by P1019, P1013, and P1034.  And I note in passing that with

25     respect to P1013, he issued the orders in that document in late

Page 29125

 1     August and early September, a time when the Defence claim he was too

 2     focussed on the ongoing battle in Bosnia to be expected to bother himself

 3     with disciplinary matters.

 4             At paragraph 660 to 662, the Defence claims that General Gotovina

 5     justifiably relied on others, particularly the MP, SIS and PD, to

 6     discharge his obligation to prevent and punish.  And, at paragraph 749,

 7     they claim that through his remarks at the 6 August meeting in Knin,

 8     General Gotovina satisfied his duty to punish crimes, at least in part,

 9     by "alerting" these organs about crime and reminding them that it was

10     "their duty to enforce the rules of armed forces."

11             I have already addressed what one would have expected

12     General Gotovina to do and say at this meeting were he genuinely

13     interested in preventing and punishing crimes.  In any event, these

14     claims again are largely based on General Gotovina's alleged duties

15     within the Croatian system.

16             Furthermore, these claims are based on General Gotovina's own

17     personal interpretation of his duties versus the duties of the MP, SIS

18     and PD that he expressed on videotape after witnessing the disastrous

19     behaviour of his subordinates.  His interpretation is wrong.  First, it

20     is contradicted by the evidence showing that it was General Gotovina's

21     duty, even under the Croatian system, to command and control and ensure

22     discipline among his subordinates.  I refer you to P1187, Article 5;

23     P1116, Article 49; and references at footnote 651 of our brief.

24             Secondly, his interpretation ignores General Gotovina's power and

25     authority over these very organs to assist him in fulfilling his duties.

Page 29126

 1     The Defence claims at paragraph 607(G) that SIS, PD, and MP were not

 2     under General Gotovina's command.  And at paragraph 750, they claim that

 3     all he could do was implore them to act.

 4             The Prosecution has addressed the evidence that shows

 5     conclusively that General Gotovina had command authority over the MP and

 6     the ability to order them to take crime prevention and punishment

 7     measures at paragraphs 239 to 269 of its brief, and I will not address

 8     that topic today.

 9             I will address the novel claim that General Gotovina was not in

10     command of the SIS or PD.  General Gotovina's own staff included

11     assistant commanders for both services.  There is no merit to the claim

12     that General Gotovina did not command these members of his own staff, and

13     the evidence is clear that he did.  I refer you to general evidence at

14     P1187, Article 5; P1113, pages 89 to 102; and specific examples at D792,

15     pages 3 to 4; P1126; D201; P982, page 1; D985; and P2349, page 3.

16             In any event, the role of SIS and PD was limited to tasks such as

17     monitoring, collecting information, and providing advice.  It was for

18     this reason that Theunens found it "unusual that General Gotovina casted

19     blame on these services."

20             As you can see from this slide, at page 12771, Theunens explained

21     that these services do not have command authority over the perpetrators

22     and that it was up to the operational commander to use the advice he

23     receives from the PD and SIS to issue orders and verify their

24     implementation.

25             The OG North assistant PD commander made a similar observation in

Page 29127

 1     his 10 August report, D982.  He noted that commanders were not taking

 2     appropriate measures to prevent arson and destruction in large towns and

 3     settlements, and then were elegantly shifting the blame to the PD, SIS

 4     and MP "who do not have the authority to give orders."

 5             As my final point on this issue, Your Honours, although the

 6     determination of necessary and reasonable measures is a matter of

 7     evidence, I refer the Chamber to a useful list of relevant factors, at

 8     paragraph 378 of the Strugar Trial Judgement.

 9             I would like to conclude by addressing a common them that runs

10     throughout the General Gotovina Defence brief.  This is the claim that

11     General Gotovina was somehow too senior in the military hierarchy for him

12     to bear responsibility for the crimes of his subordinates.  This theme

13     arises in the JCE context at paragraphs 600 to 601, and arises repeatedly

14     in the discussion of superior responsibility.

15             I have already addressed General Gotovina's tremendous prevention

16     and punishment powers, arising from his senior position, that show his

17     effective control over perpetrators regardless of their level in the

18     hierarchy.  I have also discussed how he failed to exercise those powers,

19     and how his position at the top of the command chain did not mean that he

20     satisfied his duty to prevent or punish by simply double-checking that

21     there was a functioning system of military discipline and then expecting

22     others to deal with his subordinates' crime wave.

23             In relation to JCE, contrary to the suggestion at paragraph 601

24     of the Defence brief, the Brdjanin Appeals Judgement does not support the

25     proposition that the mere existence of intervening layers of command

Page 29128

 1     between an accused and the physical perpetrators within a hierarchical

 2     structure such as the HV precludes a finding of JCE liability.  To the

 3     contrary, although the sufficiency of the link is a factual matter that

 4     must be determined in the circumstances of the case, the Appeals Chamber

 5     has found relationships of command and control sufficient to establish

 6     such a link in the case of senior leaders.  And I refer you to

 7     paragraphs 187 and 210 of the Martic Appeals Judgement.

 8             On the facts of this case, at paragraph 600, the Defence claims

 9     that because General Gotovina was the highest ranking commander in the

10     Split MD, JCE liability is precluded, due to an alleged remoteness

11     between his failure to act and the commission of crimes.  That argument

12     turns the reality of this case on its head.

13             Colonel General Gotovina was a respected and highly effective

14     military commander.  The evidence show that he demanded and ensured

15     compliance with his orders when he was interested in enforcing them.  He

16     commanded 30.000 troops in the largest military operation in Croatia's

17     history, and from a purely combat-related perspective, executed that

18     operation skillfully and successfully.  Through his leadership and

19     command, General Gotovina set the command climate for the entire

20     Military District.  He insisted on military discipline in combat-related

21     matters all the way down to the lowest level soldier, while ignoring the

22     rampant criminality among those soldiers directed at Serbs and their

23     property.  General Gotovina permitted this climate of impunity to flow

24     down his chain of command and permeate the entire Military District.  His

25     persistent failure to take measures genuinely aimed at preventing or

Page 29129

 1     stopping his subordinates' crimes was not remote from those crimes.  To

 2     the contrary, it was a crucial contributing factor to the breakdown in

 3     discipline that allowed those crimes to be committed as a matter of

 4     course and become the rule rather than the exception to the rule within

 5     his Military District.

 6             That concludes my submissions, Your Honour.  I would like to

 7     thank the Court and pass the floor to Mr. Carrier.

 8             JUDGE ORIE:  Thank you, Ms. Gustafson.

 9             Mr. Carrier, please proceed.

10             MR. CARRIER:  Thank you.  Good afternoon, Your Honours.  I will

11     be dealing with the Cermak part of the Prosecution's submissions.

12             Just as a preliminary matter before I start to answer questions

13     number 1 and questions number 8 that were received from the Chamber last

14     week, just to provide the following answers.

15             Question number 1, regarding footnote 859, we confirm that the

16     Chamber correctly understood the acts underlying the crime of persecution

17     that are relied upon by the Prosecution in respect of General Cermak.

18             And for question number 8, which is the sentence contained in

19     paragraph 361 of the Prosecution's brief, and associated footnote 1263,

20     the text of that sentence, the word "and" located between the words

21     "investigate" and "crimes" should be replaced with the word "the."

22             And turning to the presentation, I will provide an overview of

23     the three fundamental parts of the Prosecution case against

24     General Cermak.  Namely, General Cermak's presidential appointment to the

25     JCE and his related enhanced authority; 2, General Cermak's intentional

Page 29130

 1     disregard for his duty as Knin garrison commander to establish order and

 2     maintain discipline within his area of responsibility, and this failure

 3     was in stark contrast to General Cermak's successful mobilisation and

 4     command of the resources that he used to immediately repopulate the

 5     liberated areas with ethnic Croat civilians in order to permanently

 6     displace the Krajina Serbs; and, 3, General Cermak's intentional

 7     obstruction of the international community in order to cover up the

 8     crimes being committed against Serbs and to allow these crimes to

 9     continue.

10             Obviously, Your Honours, I will not attempt to recite in detail

11     the evidence contained in the Prosecution brief.  However, I will

12     highlight certain issues and address particular issues raised in the

13     Cermak Defence brief such as General Cermak being a mere conduit and the

14     impact of his admissions that certain crimes were committed.  I'll turn

15     to his appointment.

16             President Tudjman personally recruited General Cermak into the

17     JCE and appointed him Knin garrison commander on 5 August 1995.

18     General Cermak was a trusted political insider and he operated under the

19     auspices and direction of President Tudjman from Knin.  These are

20     contained in the -- the Prosecution's brief at paragraphs 289 to 298.

21             General Cermak's appointment cannot be understood as anything

22     other than extraordinary given the circumstances under which it occurred.

23             President Tudjman was the commander of the Croatian forces

24     engaged in Operation Storm and would have quickly learned that, as

25     planned, Serbs had start to the flee in response to the illegal shelling

Page 29131

 1     campaign.

 2             On 4 August, after receiving a progress report on Storm from

 3     Minister Susak, but before the HV had liberated Knin and before any

 4     assessment of any damage to infrastructure or public works,

 5     President Tudjman had decided to personally seek out Mr. Cermak and only

 6     Mr. Cermak.  See, for instance, D1678 at paragraphs 8 to 9, and

 7     Prosecution brief at paragraph 295.

 8             In a telephone conversation with Mr. Cermak, President Tudjman

 9     reveals his secret location and requested a face-to-face meeting.  See,

10     for instance, P2525, page 9 and page 65.  During their private meeting on

11     5 August, President Tudjman issued an oral order reactivating

12     Colonel General Cermak and sent him to Knin as garrison commander but

13     with the additional authority to execute his presidential assignment.

14             The Defence assert that General Cermak had become somewhat of a

15     political outsider after leaving public office in 1993.  And in their

16     brief they assert that he was someone who had little contact with

17     President Tudjman from Knin; had returned to public service in

18     August 1995 with limited powers as a garrison commander; and that he had

19     focussed his attention on reconnecting the water, telephones,

20     electricity, and passing on messages from the international community.

21     This is contained in the Defence brief in part 3, in paragraphs 77, 78,

22     116, 136, and on.

23             Such assertions are inconsistent with the weight of the evidence,

24     particularly considering the following facts.  First, only a trusted

25     insider would have been summoned for a private audience with the

Page 29132

 1     Supreme Commander of Croatian forces in the midst of what was deemed

 2     Croatia's most important military offensive.

 3             The need for a private face-to-face meeting between these long

 4     time political allies the day after they had been able to communicate by

 5     telephone, and in light of the fact that they were able to meet publicly

 6     the day after this private meeting, suggests that their brief meeting in

 7     Zagreb was necessary in order to conduct private matters that were to

 8     remain outside of the public eye.

 9             Second, General Cermak continued to communicate with the

10     president and the office of the president while he was in Knin, even

11     travelling back to Zagreb to meet with the president on occasion.  For

12     instance, D618 at page 1.  General Cermak was also in regular

13     communication with other JCE members during this period, including

14     Minister Jarnjak and Generals Gotovina and Markac.  And I refer you to

15     the Prosecution's brief at paragraphs 291, 347, 367, 370.

16             The slide on the screen is in reference to Exhibit P2525, page

17     23, and page -- and Exhibit P2532, page 42.  When asked if he could

18     communicate with President Tudjman after his appointment, General Cermak

19     responded:

20             "Of course, I could talk to the president."

21             He also said:

22             "I was more connected to the office of the president.  Because I

23     went down there with special tasks from him."

24             The next slide is in reference to Exhibit P2527, page 2.

25     General Cermak's enhanced military status was also reflected in his

Page 29133

 1     meeting with General Cervenko on 5 August, and the fact that the Chief of

 2     the Main Staff also took the time in the midst of Operation Storm to meet

 3     permanently with the man he described as "the president's personal man of

 4     confidence."

 5             Third, the low-ranking post of garrison commander was at odds

 6     with Mr. Cermak's status as a former assistant minister of defence, the

 7     former minister of economy, a presidential advisor, a very senior HDZ

 8     member, as well as with his newly reactivated rank of Colonel General in

 9     the Croatian Army.

10             Fourth, General Cermak's position of authority, trust, and

11     insider status was displayed during his introduction and praise of

12     President Tudjman on 26 August in Knin, where he stood shoulder to

13     shoulder with Tudjman on stage and he declared an end to Croatia's

14     historical burden.

15             In that same exhibit, P473, on page 2 and through to 5,

16     President Tudjman then delivered the Freedom Train speech in which he

17     rejected any notion that Serbs would ever again dominate that region,

18     openly compared Serbs to a cancer in Croatia, and encouraged ethnic

19     Croats to colonise liberated areas.

20             In order to permanently end this historical burden,

21     President Tudjman had granted General Cermak authority and

22     responsibilities that extended well beyond those normally associated with

23     the formal military powers of a garrison commander.  General Cermak's

24     enhanced authority emanated from President Tudjman's appointment, and

25     also corresponded precisely with the president's authority over the

Page 29134

 1     Ministry of Defence, the Ministry of Interior, and diplomatic activities.

 2     For instance, Witness Granic at transcript page 24647.

 3             The combination of authorities granted to General Cermak allowed

 4     him to exercise enhanced authority over military and civilian structures

 5     on the ground in the aftermath of Storm, which, in turn, allowed

 6     General Cermak to use his position as the primary point of contact for

 7     Croatian authorities in order to solicit and neutralise the protests and

 8     efforts of the international community aimed at protecting Serbs in the

 9     Krajina, and also by ensuring that the common criminal purpose would be

10     carried out with minimal international intervention and observation by

11     imposing restrictions on their movements to obstruct international

12     observers.  I refer the Chamber to Prosecution's brief at 333 through to

13     337, and 347 through to 370.

14             General Cermak's appointment to his post of Knin garrison

15     commander also served to ensure that the common criminal purpose to

16     permanently remove the Serbs from the Krajina would be significantly

17     advanced on two specific fronts.  First, because he allowed the intended

18     crimes to be committed with impunity within the territory that he

19     controlled; and, second, through his efforts to colonise that area with

20     ethnic Croats.

21             This slide references Exhibit P2715.  As garrison commander,

22     General Cermak was responsible for order and discipline of all

23     HV personnel within the territorial boundaries of the garrison, which is

24     shown in green on this map, which I'll put back up on the screen.

25     General Cermak's formal authority as garrison commander is set out in the

Page 29135

 1     Prosecution brief at paragraphs 299 through to 314, and paragraphs 319 to

 2     323.

 3             During General Cermak's suspect interview, he admitted that a

 4     garrison commander was obligated to maintain order and discipline.  This

 5     slide is in reference to Exhibits P2532, pages 58 to 59; and P2525, at

 6     page 57.  In the words of General Cermak:

 7             "When you have the military accommodated in a place ... and if

 8     there is any disorder that happens, that happens, then he," referring to

 9     the garrison commander, "can use the military police to discipline them."

10             General Cermak also acknowledged his personal responsibility to

11     prevent and punish crimes committed by soldiers, saying:

12             "In Knin itself, I didn't see destruction and looting.  Had I

13     seen anything like that, I would have prevented them.  I would have

14     arrested people."

15             Obviously, General Cermak saw the crimes that were being

16     committed by Croatian forces in the aftermath of Storm.  In fact, he

17     acknowledged that the situation on the ground was chaotic and urgent.

18     This is in Prosecution's brief at paragraphs 320 and 358.

19             Your Honour, I note the time, if this is a convenient point for a

20     break ...

21             JUDGE ORIE:  I think it is a convenient time, but give me one

22     second.

23                           [Trial Chamber and Registrar confer]

24             JUDGE ORIE:  We'll take a break now.  We resume at 20 minutes

25     past 4.00.  And during the break, I'll try to get more detailed

Page 29136

 1     information about the time used by the Prosecution until now.

 2             Mr. Misetic -- oh, no, you just --

 3             We resume at 20 minutes past 4.00.

 4                           --- Recess taken at 3.56 p.m.

 5                           --- On resuming at 4.23 p.m.

 6             JUDGE ORIE:  Mr. Carrier, you may proceed.

 7             MR. CARRIER:  Thank you very much, Your Honour.

 8             Your Honour, the JCE members intended the crimes to be committed

 9     against Serbs in order to drive them out of Knin and the Krajina.  As a

10     result of this intention, the Knin garrison commander is going to be

11     placed under pressure from the internationals that were stationed there.

12     He is going to be asked to address the crimes that were going to be

13     committed throughout the area by Croatian forces.  It was therefore

14     necessary to recruit a trusted insider to be appointed to this position,

15     and General Cermak immediately supplanted the originally named commander

16     of the garrison, Major Gojevic.  That's Prosecution's brief at

17     paragraph 300.

18             As planned, General Cermak took no direct disciplinary action

19     against anyone during his tenure as garrison commander, and he made no

20     meaningful attempt to discharge his duty to control the crimes of burning

21     and looting committed throughout his area of responsibility.  This

22     inaction contributed to creating a climate of impunity among Croatian

23     forces which assisted in driving out the remaining Serbs from the

24     Krajina.  Prosecution's brief at paragraphs 356 to 362.

25             General Cermak had the material ability to control the military

Page 29137

 1     personnel within his area of responsibility, and he could have used the

 2     military police and the civilian police that he controlled in Knin to

 3     prevent and punish the crimes, as set out in the Prosecution brief at

 4     paragraphs 315 to 319, 324 through to 332, 338 to paragraph 345, 360, 364

 5     through to 376.

 6             Instead of using these police forces, General Cermak used these

 7     police resources at his disposal to advance the JCE.  For instance, he

 8     used them to guard factories and infrastructure, to look for UN vehicles,

 9     and to control the movement of the internationals.

10             General Cermak diverted an inordinate amount of military police

11     and civilian police resources to accomplish these objectives, which in

12     the assessment of General Cermak's own expert, Mr. Albiston, would have

13     had the inevitable effect of reducing police resources for more pressing

14     tasks.  See D1776 at paragraph 3.74.

15             During his suspect interview, General Cermak revealed that he

16     intentionally ignored discharging certain duties that were formally

17     attached to his military post and he did this on the instruction of

18     President Tudjman.  In this slide, reference is made to Exhibit P2525,

19     page 6 and page 13.

20             In General Cermak's own words:

21             "I never did anything that other commanders of garrisons were

22     doing ... because I was a person of trust for President Tudjman.  He knew

23     I would do my job helping normalising."

24             And:  "In the garrison, I only did the jobs that I was given by

25     the president."

Page 29138

 1             In effect, this meant General Cermak focused his authority and

 2     resources on colonising the liberated areas with ethnic Croats, as well

 3     as taking steps to obstruct the internationals, rather than to fulfil his

 4     promise to the internationals, to discharge his duty to control military

 5     personnel committing crimes within his area of responsibility.

 6             General Cermak listed return, i.e., Povratak, as one of the tasks

 7     that was assigned to him by President Tudjman, although he preferred the

 8     euphemism "normalisation" for his involvement in the process of rapid

 9     repopulation of the area with ethnic Croats.  This is found at P114,

10     page 4.

11             General Cermak was instrumental in accomplishing the process of

12     normalisation which not only served to physically displace the Serbs that

13     had fled, but it also created an inhospitable environment for Serbs

14     generally, thereby continuing the forced exodus and cementing their

15     removal from the Krajina.  The Prosecution has set out General Cermak's

16     role in normalisation in paragraphs 289, 333 through to 337,

17     paragraph 346, and paragraphs 371 through to 328 in the Prosecution

18     brief.

19             General Cermak began mobilising resource for normalisation before

20     he even left Zagreb.  For instance, on 5 August, General Cermak requested

21     his associates, Major Jonjic, Brigadier Brkic and Brigadier Teskeredzic,

22     to mobilise logistics, sanitation and de-mining teams for use in Knin.

23     In fact, both Jonjic and Brkic's activity reports cover periods beginning

24     from August 5th.  General Cermak's immediate action was related to his

25     responsibility for overseeing the sanitation operation, an operation that

Page 29139

 1     was aimed at obscuring evidence of murders and clearing a sanitised path

 2     for ethnic Croat repopulation.

 3             The slide that should be coming up on the screen now is from

 4     Exhibit P2525, pages 73 and page 10.  In General Cermak' own words:

 5             "This," referring to sanitation, "one of my first jobs that I

 6     started dealing with."

 7             And:  "We immediately started with hygiene and sanitation."

 8             Although General Cermak confirmed that both civil protection and

 9     the HV were involved in sanitation, he maintained that he was tasked with

10     coordinating the process and ensuring that it was carried out.

11             This next slide references Exhibit P2525, page 74.  In

12     General Cermak's own words:

13             "The Civilian Defence was there ... we were all there to help

14     each other ... we had to carry out hygiene and sanitation."

15             And there's a question to General Cermak:

16             "But, of course, you were sent by the president as the senior

17     person to coordinate and to ensure that this was done; is that right?"

18             General Cermak answered:  "That's right."

19             Your Honours, I will now turn to General Cermak's role in respect

20     of the internationals.

21             The JCE members understood that they risked international

22     condemnation in pursuit of their goal to drive the Serbs out of the

23     Krajina.  President Tudjman recognised the need to immediately isolate

24     the international community but without alienating them.  This was

25     required in order to prevent and manage, to whatever extent possible

Page 29140

 1     under the circumstances, unwanted international intervention or

 2     condemnation that might result from the intentional expulsion of ethnic

 3     Serbs and the intended and inevitable crimes that would take place.

 4             Dealing with the internationals would be a delicate task that

 5     would require diplomacy.  It required someone senior enough to command

 6     the attention and respect of the internationals on the ground, and

 7     someone that would be able to pacify the internationals with believable

 8     false promises of official action, in order to obscure the true intention

 9     behind the crimes and to allow the crimes to continue unabated.  In

10     Brioni, Minister of Defence Susak told President Tudjman that it was

11     important to have one person who was in contact with them to be a

12     permanent liaison with the internationals in order to resolve their

13     concerns and to prevent unwanted interventions.

14             This next slide references Exhibit P461 at page 27.  Minister

15     Susak said:

16             "Another staff would be for relations with UNCRO, someone who

17     would be a permanent liaison, someone who would be in touch with us and

18     resolve things with them, for us to get instructions, because matters

19     will evolve too rapidly for us to start looking around for them and

20     calling them."

21             President Tudjman ultimately chose General Cermak to fill the

22     role that was discussed during the Brioni meeting and sent him to Knin to

23     become the central Croatian official attached to his office who would be

24     responsible for dealing with the internationals on the grounds.

25             The international community was largely based in Knin, and it

Page 29141

 1     became the obvious centre of attention for the mass media and the

 2     international organisations on the ground.  These internationals were

 3     explicitly told that they were to deal directly with General Cermak.

 4             This next slide references Exhibit P2526 at page 61.  In the

 5     words of General Cermak:

 6             "I was responsible for contact with the international community.

 7     For that reason, they came to me.  The intention was for us to be at

 8     their service as quickly as possible and to allow them to sort things out

 9     immediately, so they had one contact person."

10             Immediate steps were undertaken to ensure that General Cermak

11     became the central depository and ultimately a black hole for the

12     complaints of the international community.  For instance,

13     General Cermak's presidential appointments to his post in Knin was widely

14     publicised in the media, including facts about his high-profile

15     background.  Moreover, Croatian authorities and key JCE members were

16     immediately made aware of General Cermak's appointment to Knin.

17             President Tudjman took steps to ensure that the internationals

18     knew that he personally had sent General Cermak to solve their problems

19     on the ground.  This is at Prosecution brief paragraph 297 through to

20     298.

21             This slide references Exhibit D296 at page 20.  In the words of

22     President Tudjman:

23             "Tell them I appointed as commander of the Knin garrison

24     Colonel General Cermak, a former minister, a serious man, to solve those

25     matters."

Page 29142

 1             General Cermak immediately made contact with the internationals

 2     and not only insisted on having frequent ongoing contact with them, but

 3     he also demanded that the internationals report all problems to him

 4     directly so that he could take action.

 5             This slide references Exhibit P2525 at page 50, where

 6     General Cermak said:

 7             "I asked everybody I ever met that whenever they had information,

 8     to inform me about it because I needed the information so I could go take

 9     the appropriate steps for people to do something."

10             As requested, the internationals personally and regularly met

11     with General Cermak to inform him directly about the ongoing crimes of

12     looting, arson, and murder being perpetrated against Serbs by members of

13     the Croatian forces.

14             The next slide references Exhibit P2526, page 9, and P2525 at

15     page 12.  General Cermak admitted in his suspect interviews that during

16     the relevant period, everything came to him or went through him.

17     Prosecution brief at paragraphs 351 through to 352, and 355.

18             General Cermak intentionally used his rank of Colonel General,

19     matching that of General Gotovina, and his prior status as a senior

20     Croatian statesman in order to attract and focus the attention of the

21     international community, thereby isolating their complaints and

22     insulating senior members of the Croatian Army and government.

23             For the JCE members to effectively carry out their criminal

24     objective, they needed a front man, someone to deal with the

25     internationals, and someone senior enough that the internationals on the

Page 29143

 1     ground would not look for someone higher up the Croatian chain of

 2     command, either from the Croatian government or from the military.

 3             Consistent with this approach, General Gotovina almost

 4     immediately insulated himself from the internationals, and directed them

 5     to address their complaints about crimes and any other complaints to

 6     General Cermak.  Prosecution's brief, paragraph 352.

 7             General Cermak now argues that he had no authority to fulfil the

 8     promises that he made to the internationals that direct action was being

 9     undertaken to address the crimes that were being committed by Croatian

10     forces in the wake of Storm.

11             He makes this argument despite the evidence that he was, in fact,

12     the very person who represented himself to the internationals and the

13     media as the person responsible for law and order throughout the area,

14     the person who guaranteed that Croatian forces would abide by

15     international human rights standards, and the person to whom

16     internationals should direct their complaints about HV crimes so that he

17     could take direct action to resolve their protests.

18             It is unreasonable to believe that by some incredible coincidence

19     the formal and informal powers that were granted to General Cermak in

20     Knin precisely mirrored the false assurances that he routinely issued to

21     the internationals in the aftermath of Storm.  For instance, General

22     Cermak promised investigations.  He promised orders to the military

23     police.  He promised disciplinary action.  He promised to issue orders to

24     the civilian police.  And he promised arrests.  To provide just a few

25     examples of General Cermak's own words to the internationals, the first

Page 29144

 1     slide references Exhibit P1147:

 2             "I have issued an order to the military police to investigate the

 3     case and make every attempt to discover the perpetrator."

 4             Exhibit P1223, page 1:

 5             "I would like to inform you that the civilian and military police

 6     services have launched comprehensive operations to uncover and punish the

 7     perpetrators of criminal acts against the civilian population."

 8             Exhibit P409, at page 2:

 9             "I have a list, I have [sic] submitted it to the civilian and

10     military police.  This is very embarrassing for me ... I will repeat my

11     orders."

12             Exhibit P2520:

13             "I have submitted a request to the competent commander to launch

14     an investigation and take disciplinary actions [sic] against the

15     perpetrators."

16             Exhibit D618, page 2:

17             "I regret that someone has been behaving inappropriately.  Give

18     me the information so I can take measures.  We arrest those that [sic]

19     cause trouble."

20             The clear language used by General Cermak gave the intentional

21     and unmistakable impression that General Cermak was taking official

22     action to end the crimes being committed in the wake of Storm.

23             General Cermak told President Tudjman in 1999 that Croatian

24     forces were killing people in the aftermath of Storm and that no one

25     could have prevented it.  P1144 at page 7.  Such an admission is in stark

Page 29145

 1     contrast to the routine statements that were made by General Cermak to

 2     the international community and to the media that the situation was under

 3     control, as well as his promises to the internationals that efforts had

 4     already been made to establish order and discipline within his area of

 5     responsibility.  See, for instance, P1099 at paragraphs 2 and 5 and 6;

 6     and P719, page 4; and the Prosecution's brief at paragraph 353.

 7             General Cermak's misleading information and false assurances of

 8     official action in response to the protests that he actively solicited

 9     from the internationals resulted in the internationals placing confidence

10     in General Cermak to act.  As intended, this misplaced confidence

11     effectively stalled the internationals from the timely pursuit of other

12     avenues of redress.

13             General Cermak's obfuscation bought valuable time for the JCE to

14     accomplish its common criminal purpose because it allowed the crimes to

15     continue long enough to drive the remaining Krajina Serbs out of the

16     Krajina, while simultaneously allowing for the completion of the second

17     phase of the process which was to repopulate the Krajina with ethnic

18     Croats.

19             General Cermak clearly had the attention of the media and the

20     international community in Knin, and he took advantage of his position in

21     order to obstruct the international community.

22             General Cermak argues that he was a mere conduit for any

23     information that was exchanged between the internationals and those

24     Croatian authorities who were ultimately responsible for addressing the

25     crime and disorder.  The premise that General Cermak's actions were

Page 29146

 1     limited to simply passing on information that he received is inconsistent

 2     with a number of facts already reviewed but also in light of the

 3     following facts.  First, General Cermak was granted broad discretion by

 4     the president in the execution of his task to deal with the

 5     internationals and the media.  See the Prosecution's brief at

 6     paragraphs 349 to 350, and 333 through 334.

 7             During his suspect interview, General Cermak was asked what the

 8     president had directed him to say when he dispatched Cermak to Knin to

 9     negotiate with the internationals.

10             This slide references P2525 at page 32.

11             General Cermak's response was:

12             "He," referring to the president, "didn't tell me anything.  He

13     told me, Go down there, deal with the internationals."

14             General Cermak was also responsible for conducting all contacts

15     with the media and was free to take whatever steps he deemed necessary in

16     this respect.

17             The next slide references Exhibits 2525, pages 13, as well as 32

18     to 33.

19             In the words of General Cermak:

20             "He," referring to the president, "told me to be in contact with

21     media and to do what is necessary."

22             And:  "Nobody ever told me anything, what to say to the media."

23             And:  "I had complete freedom there."

24             Second, there was already a conduit system in place; namely, the

25     fully functioning system of Croatian Army liaison officers from the

Page 29147

 1     office for the UN and EU.  The CALOS were a professional branch of the

 2     Ministry of Defence and designed specifically to serve as a conduit

 3     between the international community and the Croatian authorities.

 4             On 5 August, Minister of Defence Susak ordered General Gotovina

 5     to dispatch the CALOS to Knin to work for General Cermak.  See

 6     Exhibit D1688 at paragraph 10.  General Cermak was intentionally inserted

 7     as a filter into the CALO system in order to ensure that all complaints

 8     about Croatian forces' crimes were funneled directly to him.  For

 9     instance, internationals reported, this is in reference to Exhibit P147

10     at page 6:

11             "As per order of the Ministry of Defence, only the

12     Generals Gotovina and Cermak can deal with the international

13     organisations directly.  All other official contacts have to pass through

14     the CALOs."

15             Third, General Cermak never told the internationals that he was

16     not the person ultimately responsible for addressing their concerns, and

17     he never told them to take their protests to anyone else, despite his

18     mounting notice of unabated criminal activity.

19             The Chamber should consider Exhibit D618, which are the minutes

20     from a meeting between General Cermak and Mr. Al-Alfi, as well as

21     Forand's deputy, on 7 September 1995, a meeting that was conducted over

22     one month after General Cermak had arrived in Knin, after he had

23     solicited and received countless reports of crimes, after he witnessed

24     the scene in Grubori, and after Forand had accused General Cermak

25     personally of trying to hide the ethnic cleansing being perpetrated by

Page 29148

 1     Croatian forces.

 2             During this meeting, General Cermak continued to solicit reports

 3     of crime.  He promised arrests.  He promised that HV members would be

 4     disciplined.  He promised investigations into reported murders.  He

 5     promised police patrols in response to HV members apparently burning down

 6     houses.  He promised freedom of movement, and he failed to correct

 7     Al-Alfi who referred to the civilian police as "your civil police" and

 8     "your men" in conversation with General Cermak.

 9             Fourth, given the number of the reports that General Cermak

10     received directly from the internationals, it is revealing that he never

11     personally created a paper trail that reflected the extent of Croatian

12     forces' crimes.  This is inconsistent with being a mere conduit.  For

13     instance, this slide references Exhibits P2532 at page 43, and P2525 at

14     pages 50 and 120.  In General Cermak's words:

15             "I didn't put anything in writing to the president."

16             And:  "There was no need to write it," referring to Gotovina.

17             And:  "I didn't write any reports to him," referring to Gotovina.

18             The core of General Cermak's liability lies in the fact that he

19     intentionally took no bona fide action in response to complaints about

20     crimes committed against Serbs that he collected from the internationals.

21     Referring to the Prosecution's brief at 356 through to paragraph 362.

22             As pointed out by General Forand during his cross-examination by

23     Mr. Kay, the real problem was Mr. Cermak was, and this slide references

24     transcript page 4251:

25             "... the fact that it was reported and nothing was being done

Page 29149

 1     about it."

 2             General Cermak had the discretion to say whatever he deemed

 3     necessary to the internationals and the media because he was tasked with

 4     public relations, which, for him, meant protecting the image of the

 5     Croatian government and the Croatian Army in the face of widespread and

 6     systematic crimes being committed against the Serb population.  See

 7     Prosecution's brief at paragraphs 349 through to 350.

 8             This next slide references Exhibit 2525 at page 32.

 9     General Cermak acknowledged that one of his goals in Knin was:

10             "... to defend the interests of Croatia when there were negative

11     articles and negative questions ..."

12             The Cermak Defence assert that General Cermak admitted that

13     crimes were being committed by Croatian forces and that this fact is

14     inconsistent with the allegation that he was a member of the JCE.  The

15     Defence assertion in this respect is misleading, because General Cermak's

16     limited admissions information reflect his contribution to the JCE, and

17     there are two reasons for this.

18             First, General Cermak was careful not to provoke independent

19     international intervention to stop the crimes that were successfully

20     driving out the remaining Serbs from the Krajina.

21             General Cermak could not reasonably deny that Croatian forces

22     participated in the widespread crimes being committed in the wake of

23     Operation Storm, given their obvious participation.

24             Categorical denials of Croatian forces involvement, not only

25     risked alienating the internationals and damaging Croatia's credibility,

Page 29150

 1     it also risked the internationals pursuing means outside of the control

 2     of the JCE members.  General Cermak made this precise point to

 3     General Tolj, the head of political administration for Croatia, the

 4     Croatian Army, when he reprimanded Tolj for lying in the media about the

 5     lack of any HV involvement in crimes, and for saying that all the crimes

 6     on the ground were being committed by civilians in uniform.  The Chamber

 7     should note, however, that General Cermak did offer the identical excuse

 8     of civilians in uniforms to the internationals when he deemed it

 9     convenient.  For instance, P372, and D56, D151, P1223.

10             Second, it is important to consider what General Cermak did not

11     admit in relation to crimes.  General Cermak denied accusations that

12     implicated the Croatian Army or the Croatian government in the systematic

13     and widespread crimes being perpetrated against the Krajina Serbs.

14     General Cermak was the apologist for the Croatian state and the Croatian

15     Army, not for individual HV soldiers.  He actively solicited and openly

16     acknowledged internationals' complaints about individual members of

17     Croatian forces committing crimes in ordered to neutralise such

18     complaints and to thwart independent action to stop these crimes.

19             General Cermak's role as the government's apologist was confirmed

20     during General Gotovina's briefing of subordinate HV commanders on the

21     morning of 6 August in Knin, see D792, where General Cermak echoed

22     General Gotovina's displeasure at the potentially negative image of the

23     Croatian Army that would be created if the international community was

24     exposed to the chaos, destruction, and undisciplined behaviour of

25     HV soldiers in Knin.  This slide references Exhibit D792 at pages 4 to 5.

Page 29151

 1             During this meeting, General Cermak noted that Akashi, UNPROFOR

 2     and the American, French, and German ambassadors would shortly be

 3     arriving in Knin, and he openly stated that was tasked with urgently

 4     salvaging the situation and getting things in order because "people will

 5     be coming, delegations will be coming, ministers, journalists, to see

 6     what the Croatian Army is, to see what the Croatian Army is capable of."

 7             The weight of the evidence demonstrates that General Cermak was

 8     only concerned with public relations and image control, rather than

 9     exerting actual control over the army.

10             General Cermak issued denials to the internationals and the media

11     of any possible higher-level or systematic involvement by the Croatian

12     forces, Croatian Army, or the state in the widespread crimes.  This

13     exhibit -- this slide references Exhibit P1223 at page 1.  For instance,

14     in response to complaints about soldiers committing crimes, he told the

15     Red Cross:

16             "The acts that you mentioned were perpetrated by individuals who

17     were trying to exploit a brilliant military operation for illegal

18     material gains and for the fulfilment of sick, murderous impulses.  Such

19     individuals are criminals, who, dressed in camouflage uniforms, cast

20     suspicions on the honesty of the Croatian soldier and the correct

21     policies of the Republic of Croatia."

22             And to UN reports that men dressed in civilian clothing were

23     found with gun-shot wounds to the back of the head, General Cermak

24     responded that these were lies and insinuations which damaged the

25     reputation of the Croatian Army and the Croatian state.  See, for

Page 29152

 1     instance, Exhibit P2572 at page 5.  And another example is at P504, pages

 2     3 to 4.

 3             The Chamber should also consider General Cermak's defensive and

 4     aggressive response to General Forand at the accusation that General

 5     Cermak was restricting the movement of the internationals in order to

 6     obscure the ethnic cleansing that was being committed by Croatian forces.

 7             "I do not understand how those under your command are able to

 8     control so effectively all movement and, at the same time, almost one

 9     month after hostilities, so many houses continue to be burned, driving

10     poor and destitute persons homeless from their land ...

11             "I also request that you stop restricting the movement of the UN

12     elements.  If you are sincere about stopping the wanton destruction of

13     property, then I urge you to welcome the independent surveillance of UN

14     teams as a valuable tool in countering banditry."

15             The next slide references Exhibit D145, which was General

16     Cermak's response.  Far from admitting the crimes, General Cermak

17     expressed astonishment at what he called General Forand's unfounded

18     allegations, and challenged General Forand to produce evidence of even

19     one single case of Croatian forces burning down a house and driving

20     people from their homes, even warning Forand to be careful about making

21     insinuations without proof.

22             During his cross-examination of General Forand, Mr. Kay

23     highlighted the change in tone exhibited by General Cermak in response to

24     such allegations, even implying that General Cermak may not have written

25     this letter.  See transcript pages 4253 to 4257.

Page 29153

 1             The next slide is in reference to Exhibit P1144 at page 4.

 2     However, in 1999, General Cermak even reminded President Tudjman of

 3     General Forand's accusations of ethnic cleansing and explicitly admitted

 4     that he had responded in writing to General Forand, telling him to stop

 5     playing with insinuations and false stories.  General Cermak also talked

 6     about his response in his own suspect interview at paragraph -- at

 7     Exhibit P2525 at page 57.  Given the extent of General Cermak's notice of

 8     the number of houses being burned down by HV soldiers, his declaration of

 9     astonishment, his demand for evidence, his warning to General Forand

10     about making unfounded accusations, is inconsistent with the image he now

11     attempts to portray of himself as the good-nature, politically

12     disinterested, and impotent messenger for the international community,

13     who is openly admitting the commission of crimes by HV forces.

14             Of course, General Cermak did not limit himself to issuing

15     denials in defence of the JCE.  His direct involvement in covering up

16     crimes that were being committed by Croatian forces was exposed by the

17     murders in the hamlet of Grubori, which Ms. Mahindaratne will cover

18     during the next part of the presentation.

19             General Cermak's pledge of political and personal loyalty to

20     President Tudjman in 1999, promising that he would never turn against

21     Tudjman and, "I am here whenever you may need me, for anything.  You can

22     always count on me," was precisely the reason that President Tudjman had

23     recruited General Cermak into the JCE in the first place.  During this

24     meeting and the ensuing discussion about the ICTY investigation - and

25     this next slide is in reference to Exhibit P1144 at page 6 -

Page 29154

 1     General Cermak reverted to his old role as the JCE's apologist and

 2     Tudjman's surrogate in the media, offering to wash up the events in

 3     question when he spoke with the media about the facts underlying the

 4     investigation.

 5             "Yesterday I was called by 10, 15 journalists, the BBC, and many

 6     local papers.  I refused to make any statement.  But if you think we

 7     should start hammering about that, clear things up and talk about the

 8     relationship between us, on which those who accused us found their

 9     insinuations, I can wash it up a little."

10             President Tudjman could not resist the offer and reminded

11     Mr. Cermak of the party line.  In the same exhibit on the same page,

12     President Tudjman responded:

13             "I don't think you'll manage to avoid answering all the

14     questions.  You should say that the accusations are unfounded, then you

15     use all the arguments referring to Knin, mention the shelling of Zagreb

16     in which 100 people were wounded and several were killed.  Tell them that

17     the president asked them," the Serbs, "to stay, but their people ordered

18     them to leave, et cetera.  Also say that we have instituted legal

19     proceedings against the perpetrators of the crimes that they are

20     mentioning."

21             Your Honours, I am out of time but I would very briefly direct

22     the Trial Chamber's attention to the Trial Judgement in Popovic, where it

23     was found that the acts of an accused in misleading international

24     organisations, where the deception was undertaken in furtherance of a

25     common criminal purpose with a goal of deflecting scrutiny or thwarting

Page 29155

 1     interference, that that can be considered as significant contributions in

 2     terms of JCE liability.  And I refer to the Chamber to paragraphs 1815,

 3     1820, 1822, 2203 in the Popovic trial judgement.

 4             Thank you very much, Your Honours.  Ms. Mahindaratne will now

 5     continue with the Prosecution's closing arguments for General Markac.

 6             JUDGE ORIE:  Thank you, Mr. Carrier.

 7             Ms. Mahindaratne, I had on my mind to take the next break at

 8     approximately 5.30.

 9             MS. MAHINDARATNE:  Good afternoon, Your Honours.

10             General Markac was assistant minister of interior and the

11     commander of the special police.  He played a key role in the execution

12     of the criminal enterprise in his capacity as a commander of the special

13     police forces that committed crimes in Operation Storm and the related

14     search operations.  As discussed in our final trial brief and the

15     previous addresses, General Markac actively participated in the Brioni

16     meeting.  The Markac Defence argues that the sum total of General

17     Markac's spoken contribution to the meeting consisted of a statement at

18     page 19 of the Brioni transcripts, P461.  The Markac Defence argues that

19     it contains no suggestion of General Markac's intent to participate in a

20     JCE.  I refer to paragraphs 131 and 132 of the Markac brief.  As

21     discussed at length in our final brief, the plan to permanently and

22     forcibly remove the Krajina Serbs crystallised at the Brioni meeting.

23             This morning, Mr. Russo discussed the details of the Brioni plan

24     to use a combination of psychological operations and unlawful artillery

25     strikes to spark off a mass flight of civilians.  General Markac actively

Page 29156

 1     participated in the meeting.  He expressly endorsed it and discussed how

 2     his forces would coordinate with the HV in the execution of the plan.  He

 3     predicted the outcome of the proposed operation in the following terms:

 4             "That means that we are going to drive them into a pocket here,

 5     and from that point, we can head towards Norac while Norac can head

 6     towards Lapac, and we have practically evacuated the entire area.

 7     Everything fits in and to all practical purposes we gain with this plan

 8     proposed by Mr. Gotovina."

 9             Page 461, page 19.

10             The Markac Defence also appears to have failed to notice General

11     Markac's spoken contributions at page 18, 24 to 25, 31 to 32, and

12     particularly, the discussion between President Tudjman, General Cervenko

13     and General Markac at pages 19 to 20 of the transcript.

14             This excerpt of the transcript shows General Markac agreeing to

15     use his subordinates to stage a provocation as a pretext to justify the

16     launch of the operation at President Tudjman's suggestion.  P461,

17     pages 19 to 20.

18             The next excerpt shows a continuation of that discussion when

19     Minister Susak suggested a coordinated HV special police effort to stage

20     a provocation.  He proposed that two shells be fired at Gospic, a

21     Croatian town, and particularly "an inhabited place -- at an inhabited

22     place.  P461, page 30.

23             And as planned, the staged provocation was carried out.  I refer

24     to ECMM report dated 2nd August 1995.  P831, pages 1 to 2.  That is the

25     paragraph numbered 3C of the report.

Page 29157

 1             General Markac shared the common criminal purpose to permanently

 2     remove the Serb population from the Krajina region by means of the crimes

 3     charged.  This demonstrated not only by his active participation in the

 4     Brioni meeting, but also by his conduct thereafter in the implementation

 5     of the decision reached at the Brioni meeting.  I refer Court to

 6     paragraph 384 of our brief.

 7             As discussed at length in our brief, General Markac significantly

 8     contributed to the common criminal purpose through a number of acts.  He

 9     planned Operation Storm and the related search operations in coordination

10     with JCE members.  He prepared his subordinates for their tasks.  He

11     participated in the planning and ordering of an illegal artillery attack

12     against civilian populated towns, including Gracac and Donji Lapac.  He

13     commanded his subordinates during Operation Storm and the related search

14     operations.  He was physically present in the field and personally

15     directed his subordinates during the Storm attack, and thereby

16     participated in the crimes.  He issued orders to conduct search

17     operations in the aftermath of Operation Storm.  And he permitted a

18     climate of impunity among his subordinates in the face of repeated crimes

19     by failing to intervene either to prevent or punish their crimes.  And

20     when there was a risk of his subordinates' crimes being revealed,

21     General Markac covered up the crimes by reporting false information and

22     suppressing investigations.

23             The Chamber has already heard our arguments on General Markac's

24     JCE contribution and separate individual liability for the planning and

25     ordering of the illegal artillery attack on civilian-populated towns, and

Page 29158

 1     I will not go into that topic.

 2             As mentioned by Mr. Russo, General Markac issued a special police

 3     attack order for Storm.  As the operation progressed, General Markac

 4     continued to issue orders to his forces to attack formally Serb-held

 5     territory, including Gracac, Otric, and Donji Lapac.  I refer to P2385,

 6     page 7; P614, page 11; P2384, page 2; and P552, paragraph 34.

 7             General Markac personally led these forces into the liberated

 8     territory.  He was physically present in the field and directed his

 9     subordinates.  I refer to evidence cited at footnote 1477 of our brief.

10             As the special police forces took control of the territory, they

11     destroyed Serb towns, villages and hamlets they passed by, systematically

12     plundering and burning civilian property.  Remaining Serb civilians who

13     were discovered were executed.  The evidence cited in support of

14     paragraphs 414 to 426 of the Prosecution's brief and the annexes show the

15     devastation and carnage left behind by the special police forces as they

16     moved north from Gracac, through Otric and Donji Lapac, to BiH border.

17     To illustrate this further, on 5th August, the special police captured

18     Gracac and started looting and destroying private property.  On

19     6th August, they captured Otric, and plundered and destroyed property en

20     route to and in and around Otric.

21             By 11th August, Otric was almost completely destroyed.

22             On 7th August, the special police captured Donji Lapac.  En route

23     from Gracac to Donji Lapac, the special police burnt and destroyed as

24     much as 90 per cent of homes and properties situated along that route.

25     As General Markac's deputy testified in response to a question by the

Page 29159

 1     Bench, there were no other forces present on those axes of attack, and

 2     the special police was the first Croatian forces to advance on those

 3     routes.  I refer to transcript page 27756.

 4             The special police entered Donji Lapac in the afternoon of

 5     7th August and immediately started burning down the place.  Donji Lapac

 6     was completely destroyed within that night itself and rendered

 7     uninhabitable even for purposes of billeting Croatian military units.

 8     The special police remained within Donji Lapac until 9th August.  I refer

 9     to evidence cited at footnote 1514 of our brief.  Thus, on 26 August, as

10     mentioned before, at a meeting between President Tudjman, Minister Susak,

11     Generals Cervenko, Gotovina, and Norac, among others, Minister Susak

12     reported that Donji Lapac was completely destroyed.  I refer to P470,

13     page 53.

14             At that same meeting, the Gospic Military District commander,

15     General Norac, attributed the crimes to the special police.  P470,

16     page 54.

17             Paragraph 422 of the Prosecution's brief addresses the evidence

18     showing the exchanges within the Croatian leadership and the authorities

19     regarding the state of the crimes in Donji Lapac.  General Markac

20     discussed the crimes in Donji Lapac with his deputy, Sasic.  I refer to

21     evidence cited at footnote 1530 of our brief.  However, despite receiving

22     attention even at the presidential level, the destruction of Donji Lapac

23     was never investigated by any Croatian authorities, which indeed reflects

24     the prevailing climate of impunity.

25             Serb stragglers who had the misfortune to be in the way of the

Page 29160

 1     special police onslaught were executed.  The spate of killings left

 2     behind by the special police on their axis of attack and areas of search

 3     operations is evidenced by the bodies of civilians recovered along their

 4     routes and in the areas captured by the special police.  I refer to

 5     Annex B of the final trial brief.  For example, within Gracac

 6     municipality, where General Markac set up his headquarters on 5th August,

 7     and which remain as a special police base throughout the indictment

 8     period, 53 bodies of civilians were recovered.  I refer to Annex B,

 9     pages 22 to 33.

10             General Markac's attempt to minimise the special police crimes by

11     making weak attacks against isolated items of evidence is unsustainable.

12     I refer to paragraphs 238, 239, and 258 of the Markac brief.  The

13     magnitude of the spate of crimes in areas of special police operations,

14     proof of the presence of special police forces during the time of

15     commission of crimes as discussed in paragraphs 414 to 426 of our brief

16     and the annexes and the -- and the annexes, and the exchanges within the

17     Croatian establishment regarding the crimes cited at paragraph 422 of our

18     brief, corroborate the evidence that General Markac seeks to challenge.

19             The Chamber is also in receipt of photographic evidence of

20     special police crimes in Gracac on 8 August.  I refer to P324.  As

21     discussed in -- at paragraphs 414 to 423 of our brief, General Markac was

22     present at the crime sites at the time of the commission of the crimes or

23     in its immediate aftermath.  As discussed in paragraphs 401 to 404 of our

24     brief, General Markac possessed effective control over the special police

25     forces deployed in the Storm attack and the subsequent search operations.

Page 29161

 1     During the Storm attack, he closely monitored forces and they remained

 2     under his control throughout the operations.  I refer to evidence cited

 3     at footnotes 1478 and 1479 of our brief.

 4             As demonstrated in paragraphs 466 to 468 of our brief,

 5     General Markac failed to intervene to either prevent or punish his

 6     subordinates' crimes, despite being present in the vicinity of the

 7     criminal activity.  Thus, General Markac tacitly approved and encouraged

 8     his subordinates to commit crimes.

 9             After the completion of the Storm attack, General Markac ordered

10     his subordinates to conduct search operations.  The special police

11     conducted a series of operations during August and September which led to

12     a further spate of crimes, as borne out by the evidence cited in the

13     annexes.  By late August, special police crimes had been ongoing for

14     weeks without meaningful efforts by General Markac to investigate or

15     punish.  He had thus created an environment permissive of criminal

16     behaviour by failing to take measures against crime.  General Markac was

17     placed on notice of the possibility that his subordinates were killing

18     civilians, despite which he continued to deploy his subordinates,

19     including some that he knew to be undisciplined and nationalistic, in

20     areas where elderly Serb stragglers remained, without taking precautions.

21     I refer to footnotes 1533, 1544 and 1545 of our brief that cites the

22     relevant evidence.

23             He thus knew of the substantial likelihood that murders would be

24     committed in the execution of his orders.

25             The Lucko Unit, which was considered to be the elite combat unit

Page 29162

 1     of the special police, participated in three search operations.  One in

 2     the area of Petrova Gora on 13th to 14th August; the second in the Plavno

 3     valley on 25th August; and the third in the Promina hills on 26th August.

 4     They committed crimes in at least two of those operations, on consecutive

 5     days, which reflect that this was indeed the order of the day among

 6     General Markac's subordinates.

 7             Mr. President, I note the time.  I -- I am about to move into the

 8     area of the crimes in Grubori.  I wonder whether this would be an

 9     appropriate time to take the break and if so --

10             JUDGE ORIE:  Could I hear from you.  Grubori, what else is still

11     to be addressed after the break?

12             MS. MAHINDARATNE:  The arguments of the Defence, Mr. President.

13             JUDGE ORIE:  Yes.  But all about Grubori or ...

14             MS. MAHINDARATNE:  Grubori and Ramljane.

15             JUDGE ORIE:  How much time would you need for that?

16             MS. MAHINDARATNE:  I believe about 30 to 40 minutes,

17     Mr. President.

18             JUDGE ORIE:  Yes.  Because, as far as I am aware of, the

19     Prosecution has used five and a half hours out of its six hours, which

20     would leave you another 30 minutes.

21             If you give me one second.

22                           [Trial Chamber confers]

23             JUDGE ORIE:  Let's -- before we take a break, let's briefly look

24     at how we'll spend the remaining time.

25             After the break, half an hour will still be available for the

Page 29163

 1     Prosecution to use its six hours.

 2             Then we can do two things.  First of all, the Gotovina Defence

 3     has suggested that we would continue tomorrow.  They have pointed at new

 4     charts which is, as far as the Chamber is aware, mainly a different way

 5     of presenting what is in evidence or perhaps you would even argue that it

 6     is not even in evidence but it is not new evidence.  That's one issue.

 7             The other issue raised by the Gotovina Defence was that more

 8     attention has been paid to the -- to the accused Mr. Gotovina than to the

 9     others.  Now to what extent that is accurate is something you could have

10     a debate on.  I mean, if we're talking about the crimes committed by HV

11     forces, that's, of course, not exclusively relevant for Mr. Gotovina but

12     is also for the other accused who are charged with participation in a

13     joint criminal enterprise and may have some relevance for them as well.

14             The Chamber suggests two following -- two of the following

15     options to some extent, however, the Chamber does agree that a bit more

16     attention is paid to the Gotovina case by the Prosecution than in --

17     directly related to other accused.

18             So we've two options which the Chamber now suggests.  The first

19     is that we will continue tomorrow but slightly adapt the time allotted to

20     each of the Defence teams.  The Chamber -- I don't know, the Chamber was

21     wondering whether it would assist the parties if it would suggest that,

22     for example, instead of three times 150 minutes, because that's three

23     times two and a half hours, whether a division of, well, let's say

24     180 minutes, that half an hour extra for the Gotovina Defence and

25     135 minutes for the other Defence team, whether that would solve the

Page 29164

 1     matter.  We would then have 180 minutes, 135, another time 135, we would

 2     then also, that would -- if we are very strict tomorrow on timing, that

 3     would fit in one day, and the Chamber would very much like to hear the

 4     first round of final argument by the Defence tomorrow so that we can

 5     finalise and hear rebuttal and rejoinder on Wednesday morning.

 6             So there are -- we would gain half an hour by continuing today

 7     and then the parties could still again discuss the division of time

 8     amongst themselves.  Another way of dealing with the remaining time would

 9     be not to start today but then to -- perhaps on a slightly adapted

10     schedule, to start tomorrow and finish tomorrow.

11             I'm not seeking immediately, at this moment, the responses by the

12     parties.  I would first like to take a break, then resume at 6.00, and

13     perhaps after the break hear whether there's any problem.  Unless,

14     Mr. Misetic, you want to inform the Chamber right away that the matter is

15     easily resolved.

16             MR. MISETIC:  Perhaps another solution that we all may consider

17     during the break is that if we can get a half an hour, from 6.30 to 7.00,

18     for example, just so that we actually get the 30 minutes that would

19     otherwise not be used today, and then get two and a half hours tomorrow,

20     that way none of the other Defence teams would be prejudiced and we could

21     still stay on schedule tomorrow.

22             JUDGE ORIE:  Yes, that was, I think, the first option I raised,

23     start today and then see how the time will be divided.  Then you would

24     have that half an hour extra.

25             Let's just see whether that work.  First of all, half an hour for

Page 29165

 1     the Prosecution seems to be fair in light of the six hours granted.

 2             MR. TIEGER:  Well, I must say, Your Honour, I have been keeping

 3     precise time by stopwatch.  I had it at 3 hours and 22 minutes.  I

 4     wouldn't normally quibble but --

 5             JUDGE ORIE:  I had 3 hours and 28 minutes so therefore -- but

 6     let's -- you know who will be the victims, that will be the interpreters

 7     and the transcribers at five minutes past 7.00.

 8             Okay.  You say 7 or 8 minutes extra would do.  Do the other

 9     Defence teams, in -- would they agree with two and a half hours tomorrow

10     and half an hour extra for the Defence for the Gotovina Defence today.  I

11     see Mr. Kuzmanovic is nodding yes.

12             MR. KAY:  Yes.  I agree that the Gotovina Defence should have the

13     extra time, Your Honour.  As long as I don't lose any time myself, I'm

14     quite happy for them to have an extra half an hour.

15             JUDGE ORIE:  Then it is important, whether it is five or six

16     minutes, we'll take the break now.  The break is 20 minutes.  Then

17     Ms. Mahindaratne would have 36 more minutes.  Then it's 31.  Then you

18     would have 29 minutes today, Mr. Misetic.  And tomorrow let's be, then,

19     very strict.  The Chamber will take care that we are there always

20     accurately at the time of the start.  Then we expect everyone to -- to be

21     there as well so that we do not lose any more time.

22             MR. TIEGER:  Your Honour, I had asked to be heard before that

23     time was granted.  I appreciate the Court has ruled.  I just want to note

24     for the record that --

25             JUDGE ORIE:  Yes, please.

Page 29166

 1             MR. TIEGER:  Sorry.

 2             JUDGE ORIE:  No, no, I interrupted you, I'm sorry.  Please.

 3             MR. TIEGER:  I would have noted, among other things, that when I

 4     calculate the amount of time devoted to shelling and so on, it basically

 5     comes out to exactly the two and a half hours that the Gotovina case was

 6     originally allotted, thereby actually highlighting the fact that the

 7     other two Defence teams get more.  And I would have highlighted the fact

 8     that when it came to the final brief, which is the basis for these

 9     submissions and much more detailed, all sides got equal amount of words

10     which means that the Prosecution had to respond to all three, when the

11     Defence had three times the words.  But again, that's not to re-open the

12     issue --

13             JUDGE ORIE:  Then we might -- if there are great problems

14     remaining, perhaps on Wednesday morning we could perhaps give another

15     additional 10 or 15 minutes.  Is that -- would that be -- let's -- let's

16     see that everyone leaves this courtroom with the feeling that it has had

17     a fair opportunity to present what it wanted to present.  We have some

18     manoeuvring time perhaps on Wednesday morning, Mr. Tieger, would that

19     help us out?

20             MR. TIEGER:  I'm only at the moment trying to ensure that

21     Ms. Mahindaratne doesn't have to truncate it unfairly.  But I -- and we

22     can deal with the other matters.  I think -- we'll speak and if she needs

23     another -- I gather if she needs a few more minutes, the Court is

24     amenable to that given the -- but let's -- why don't we take the break.

25     Let's proceed --

Page 29167

 1             JUDGE ORIE:  Let's take the break and let's be back at five

 2     minutes to 6.00.  And let's not forget that 5, 6 or 7 minutes on a total

 3     of 13 and a half hours is a minimal percentage.

 4             We resume at five minutes to 6.00.

 5                           --- Recess taken at 5.39 p.m.

 6                           --- On resuming at 5.58 p.m.

 7             JUDGE ORIE:  Ms. Mahindaratne, 36 minutes for you.  Please

 8     proceed.

 9             MS. MAHINDARATNE:  Thank you, Mr.  President.

10             On 25th August, the Lucko Unit murdered five civilians in the

11     hamlet of Grubori, in the Plavno valley, including 80-year-old

12     Milos Grubor who was shot in his bed.  They torched many houses, farm

13     buildings and killed livestock.  They torched 20 houses, many farm

14     buildings and killed livestock.  The following day, 26th August, they

15     torched civilian houses in Ramljane.

16             The Chamber has received a substantial amount of evidence

17     relating to the Grubori crimes, including video footage and photographs.

18     Much attention has been paid to the massacre in these proceedings.

19     However, Grubori wasn't an extra-special event in the context of spate of

20     crimes committed by General Markac's subordinates.  It received attention

21     due to one reason and one reason only.  A UN human rights action team and

22     a camera crew happened to be present in the vicinity of the crime and

23     reached the hamlet soon after the commission of the crime and video

24     recorded the consequences.  If not for their presence, the Grubori

25     victims, too, may have been buried under a blanket of anonymity, like the

Page 29168

 1     many hundreds of the other victims in the Krajina.

 2             General Cermak, whose primary role was to cloak the crimes and

 3     prevent their exposure to the international community, worked in

 4     collusion with General Markac to cover up the special police crimes in

 5     Grubori.  They issued false reports, misrepresented facts and prevented

 6     an investigation.

 7             The Cermak and Markac Defences do not contest the crime by the

 8     special police.  I refer to paragraphs 210 and 216 of the Cermak brief,

 9     and the propositions made by the Markac Defence during trial at

10     transcript page 28030.

11             General Cermak claims that he was misled about the incident by

12     the special police.  He claims that the information he disseminated to

13     the international community and the media was based on the false special

14     police reports and that he had no reason to believe them at the time.

15             General Cermak is on record at least on five occasions, from

16     26th to 31st August, falsely claiming that the killings and the

17     destruction in Grubori were collateral consequences of combat.  He

18     provided different details at different times, depending on where he was

19     and who he was addressing, and provided false assurances to his audience

20     on the truthfulness of his reports.

21             On 26 August, at approximately 11.30, General Cermak made the

22     first public statement regarding the incident to UNTV.  I refer to P504.

23     To his interviewer, Richard Lyntton, General Cermak said:

24             "Yes, I know about these events.  That happened yesterday ...

25     during the operation itself there was exchange of fire.  In the village

Page 29169

 1     of Grubori itself, one or two houses were burnt in the operation.  One

 2     Serbian terrorist was arrested, and one body was found and we believe it

 3     was the body of a Croatian Army soldier because he had his hands tied

 4     with a wire behind his back.  P504, page 1.

 5             General Cermak claims that the basis for his statement was

 6     General Markac's false report, P576, which was produced after the UNTV,

 7     late in the day.  General Cermak argues that although the special police

 8     false reports were written later, the information may have been conceived

 9     earlier.  By P576, General Markac reports the death of one enemy soldier

10     and four civilians.  By P504, General Cermak refers only to the recovery

11     of one body, with hand tied, presumably of that of a Croatian soldier.

12             In his statement to UNTV, General Cermak does not refer to any

13     other persons being killed in the incident, either combatants or

14     civilians.  When specifically questioned, he denied any knowledge of

15     civilians being killed in Grubori.  P504, pages 1 to 2.  That is because

16     General Cermak's statement was made at a time when all of the details

17     were not known, while General Markac's report, P576 was produced at a

18     time when all of the details, such as the numbers and the identities of

19     the deceased, were known.  Otherwise, it would not have made any sense

20     for General Cermak to deny knowledge of the death of civilians to UNTV if

21     that fact was known.

22             General Cermak points out that his reference to a corpse found

23     with hands tied behind the back is reported in special police reports.  I

24     refer to argument at paragraph 218, subparagraph 10, of the Cermak brief.

25     This is a reference to special police units of the Split-Dalmatia police

Page 29170

 1     administration finding a body with hands tied, reported in a special

 2     police report cited by the Cermak Defence.

 3             General Cermak argues that this demonstrates that the information

 4     he disseminated originated from the special police.  Indeed, the

 5     Prosecution alleges that General Cermak and General Markac were in

 6     communication from the point of receipt of notice of the crimes in

 7     Grubori, and agreed prior to the UNTV interview as to what should be

 8     reported as the cause of the incident.  I refer Court to paragraph 434 of

 9     the Prosecution brief.

10             As such, it would be logical for General Markac to pass on

11     factual information in his possession that General Cermak could use to

12     impress his audience with.  However, contrary to the Defence argument,

13     General Cermak did not innocently rely on information provided by the

14     special police for his statements.  He knew the truth and worked in

15     collusion with General Markac in the fabrication of false reports, false

16     information.  For example, none of the special police reports cited by

17     General Cermak to advance his argument at paragraph 218, subparagraph 10,

18     described the body found with the hands tied as that of a Croatian

19     soldier.  Neither the special police nor the civilian police informed

20     General Cermak that the body was suspected to be that of a Croatian

21     soldier.  I refer to testimony at transcript page 5292.

22             Yet upon recognising the implications of a body found with hands

23     tied, even one that may have been construed to be that of a combatant,

24     General Cermak lied to UNTV to deflect blame from the Croatian forces.

25             In the evening of 26 August, General Cermak's liaison officer,

Page 29171

 1     Dondo, Mr. Dondo, submitted a report to him on his observations in

 2     Grubori pursuant to a fact-finding mission.  I refer to P764.

 3     General Cermak read that report at the latest on 27th August morning, on

 4     his way to visit Grubori.  P764 does not support an allegation of combat

 5     and its content indicates clear signs of a crime.  Therefore, at the

 6     latest when General Cermak read that report, if not before, he knew that

 7     what he had advanced to UNTV was false.

 8             General Cermak claims in his brief that as a person who had never

 9     served in the military, he had no expertise to interpret events from the

10     condition of the village, as far as he saw it, or from Dondo's report.  I

11     refer to paragraph 228 of the Cermak arguments.

12             One does not require expertise of any type to comprehend P764.

13     If I may read a brief excerpt.  Dondo reported to General Cermak that:

14             "Some 20 houses and many farm buildings were set ablaze, there

15     was no evidence of looting in the houses that remained.

16             "We found five bodies.

17             "300 metres above the village, in a small meadow, was a body of

18     an elderly woman born in 1944.

19             "Next to the woman's body was the body of a man some 35 to

20     40 years old, Djuro Karanovic, who allegedly came from Belgrade two days

21     ago for the hay-making.

22             "A body of a man, born in 1930, inside a partly burned house,

23     allegedly his wife had brought him from the meadow."

24             "Inside a burned house, a carbonised body, allegedly an elderly

25     woman born in 1905.

Page 29172

 1             "Inside a dilapidated house on an improvised upper floor, there

 2     lay the body of an old man born in 1915, in a pool of blood, without

 3     visible injuries and dressed in a shirt and underpants.

 4             "We also noticed a dead cow and a dog in the meadow."

 5             That is all General Cermak had to read to know that what he had

 6     been advancing up to that point as a cause of the incident was a complete

 7     lie.

 8             In Grubori General Cermak saw the crime site.

 9             The Chamber will recall that a number of witnesses who had no

10     military background testified that what they saw in Grubori did not

11     support the allegation of combat.  The Chamber saw photographs and

12     footage of the crime scene.

13             I refer to testimony cited at footnote 1549 and 1659.

14             General Cermak saw the -- that same crime site and now he

15     suggests in his brief that he did not enter the village, that he may not

16     have entered the village.  It's a mere suggestion.  I refer to

17     paragraph 228 of the Cermak brief.  Evidence shows that this is not true,

18     that General Cermak indeed entered the village.  The HTV video footage,

19     P2386, recorded on 27th August, shows General Cermak standing in the

20     village, next to burned buildings, where he starts off his statement with

21     the words, "We are in the village of Grubor."

22             In Grubori, having seen the crime site, and having read Dondo's

23     report moments before, General Cermak claimed:

24             "As can you see, there was an exchange of fire ... the village

25     was set on fire.  During the action itself, three members of Chetnik

Page 29173

 1     groups and two civilians got killed."

 2             And then he went on to assure his audience and he said:

 3             "I came personally to the village of Grubori [sic] to see for

 4     myself the entire course of the action ... so that attempts are not made

 5     again to impute something to Croatia, that it was a deliberate arson,

 6     that there were deliberate killings ..."   P2386, page 1.

 7             General Cermak assured his audience the veracity of the

 8     truthfulness of the report he just made.  A comparison of

 9     General Cermak's statement here with the special police force reports,

10     P576 and P563, shows that General Cermak fabricated the information

11     regarding the killing of three enemy soldiers when confronted with the

12     five bodies in Grubori.  However, having observed the extent of the

13     destruction, which was difficult to minimise, standing there in Grubori

14     with a TV crew recording the scene, he reported accurately the extent of

15     the damage as the village on fire, as opposed to General Markac who

16     recalls only three cow-sheds and two houses on fire.  I refer to P576,

17     page 2, General Markac's report.

18             After the 27th, General Cermak made three further statements to

19     the international community.  Due to lack of time, I'll flip through them

20     quickly.

21             On 29th August, at a meeting with General Forand and Al-Alfi,

22     General Cermak maintained the same false version of events.  P409,

23     page 3.  He reported three renegades and two civilians had been killed,

24     however, minimised the damage as several cattle sheds set on fire.  The

25     following day, in response to ICRC inquiries, at P1221, General Cermak

Page 29174

 1     responded, by P1222, maintaining the same false allegation of combat.  By

 2     P1222, General Cermak reported the details as to the number of the

 3     deceased, their military/civilian status and their identities consistent

 4     with General Markac's false report, P576.  This reflects that at this

 5     stage, General Cermak and General Markac had started to synchronise their

 6     reports with one exception.  Having visited Grubori and being aware that

 7     the footage of the massive destruction was on video record and accessible

 8     to the international community, General Cermak was careful not to

 9     minimise what was too obvious so he reported that several cattle sheds

10     and houses were burned.  And he assured the ICRC that he had personally

11     visited the area the following day and convinced himself of the truth of

12     the matter.

13             The next day, 31 August, he made a further false report to UNCRO,

14     P603, maintaining the same false allegation of combat.  There too he gave

15     the same assurance that he had personally verified the facts he reported.

16     These false assurances show that General Cermak wanted his audience to

17     believe the information he was disseminating.

18             I will move on to General Markac's false report.

19             General Markac reported three different versions of events

20     regarding activities of the Lucko Unit for 25th August.  By his first

21     report to General Cervenko, dated 26th August, he reported that the

22     Lucko Unit had not met with combat and no material was recovered by the

23     unit; P575.

24             Then when he learned that the international community was privy

25     to his subordinates' crimes in Grubori, he cancelled this report, P575,

Page 29175

 1     and issued the second report, P576.  By P576, General Markac reported

 2     that the Lucko Unit had met with combat, and in the course of the

 3     conflict, one enemy soldier was killed and another was arrested.  Due to

 4     the use of hand-grenades, three cow-sheds and two houses caught fire and

 5     four civilians were killed in the incident.

 6             General Markac weaved some of the factual information he had

 7     received from Grubori into his false report, P576.  Thus he included the

 8     identities of some of the Grubori victims in his report, although falsely

 9     claiming that Djuro Karanovic was one of the civilians killed in

10     Grubori -- Djuro Karanovic, one of the civilians killed in Grubori, was,

11     in fact, a combatant which is false.

12             By February/March 1996, with the heightened scrutiny of the

13     incident by the international community and being aware that the

14     international community was in possession of evidence that clearly

15     indicated that the incompetence was a crime, General Markac issued his

16     third report, P505.

17             I draw the Chamber's attention to the highlighted section of this

18     report.  By P505, General Markac maintained that the special police was

19     in conflict with a group of ARSK soldiers, resulting in the death of one

20     enemy soldier and the arrest of another, but he now made a brand new

21     allegation.  He reported that the civilians were executed and houses were

22     burnt by the enemy soldiers before they fled.  Even the Croatian

23     government found this new allegation too incredible to advance to the

24     international community, and in June 1996, in a response to Rehn --

25     Rehn's letter, the foreign minister finally admitted that what occurred

Page 29176

 1     in Grubori on 25th August was indeed a crime.  He, however, falsely

 2     reported on the status of an investigation into the crime when there was

 3     none.  I refer to P2674.

 4             The Markac Defence fails to address the evidence of

 5     General Markac personally in -- I'm sorry, Your Honour.

 6             Fails to address evidence of General Markac's personal

 7     involvement in the fabrication of false reports cited in support of

 8     paragraphs 440 to 444, and 450, of the Prosecution's brief, particularly

 9     the testimony of Witness Celic.  The Markac Defence also fails to address

10     the evidence of General Markac's personal involvement in attempts to

11     destroy ballistic evidence cited at paragraph 453 of the Prosecution

12     brief.

13             An investigation into the Grubori crimes was prevented through

14     the collaboration of many -- many, including, General Cermak,

15     General Markac, Sasic, Minister Jarnjak, and Assistant Minister Moric,

16     amongst others.  I refer to evidence cited in support of paragraph 455 of

17     our brief.

18             As discussed in paragraphs 436, 437, 445 to 449, of the

19     Prosecution's brief, General Cermak played the primary role in the

20     suppression of the investigation.  In its brief -- in its brief,

21     General Cermak claims he wanted an on-site investigation and that he

22     insisted that an on-site investigation be conducted in front of the

23     media.  I refer to paragraph 229, 235, and 257 of the Cermak brief.

24             The following factors, which I will quickly go through due to

25     lack of time, lead to the only reasonable conclusion that the Grubori

Page 29177

 1     victims' bodies were disposed of without an on-site investigation

 2     following General Cermak's direction to the police, pursuant to an

 3     agreement he reached with Minister Jarnjak.  Firstly, the Knin police

 4     intended to conduct an on-site investigation.  D57, page 59; P503,

 5     page 27, under seal; and evidence cited at footnotes 1580 and 1639.

 6     However, when the Knin police attempted to obtain the assistance of

 7     UNCIVPOL to locate the bodies, General Cermak --

 8             JUDGE ORIE:  Ms. Mahindaratne, the French booth is -- states that

 9     your reading goes very quickly and it's increasing its speed, it seems.

10     So if you could please --

11             MS. MAHINDARATNE:  I will try, Mr. President.

12             However, when the Knin police attempted to obtain assistance of

13     UNCIVPOL to locate the bodies, General Cermak advised the police to wait

14     and see.  P487, page 15, under seal.

15             On 26 August, General Cermak entertained the dispute between

16     Sasic and the Knin police when Sasic advocated for the disposal of bodies

17     without an on-site investigation, contrary to the intentions of the

18     police.  In the course of the dispute, General Cermak did not take a

19     stand on the issue.  Paragraph 438 of the Prosecution's brief, and 246 of

20     the Cermak brief.

21             In its brief, General Cermak states that he neither opposed nor

22     was explicitly in favour of an on-site investigation at the time.

23     Paragraph 235 of the Cermak brief.

24             In General Cermak's presence, Sasic telephoned Minister Jarnjak

25     and complained against the police and agitated for disposal of bodies

Page 29178

 1     without an investigation.  Paragraph 438 of the Prosecution's brief and

 2     para 246 of the Cermak brief.

 3             After Sasic's conversation, General Cermak himself had a

 4     telephone conversation with Minister Jarnjak.  Paragraph 438 of the

 5     Prosecution's brief and paragraph 246 of the Cermak brief.  At 2000 hours

 6     that evening, Dondo made an entry in the Knin police log to the effect

 7     that victims were killed during Operation Storm and requesting civilian

 8     protection to be sent to the site for urgent clearing up of the bodies.

 9     D57, page 61; and P764, page 2.  The following morning, 27th August, the

10     Knin police met General Cermak for the morning briefing.  The police were

11     anticipating an agreement from General Cermak with regard to the civilian

12     casualties in Grubori.  P501, page 9, under seal.

13             After the meeting, the police cancelled the on-site investigation

14     that was scheduled and ordered sanitation teams to Grubori for disposal

15     of bodies.  P501, page 9, under seal.

16             On 27th August, General Cermak or a member of his entourage, in

17     his presence, requested forensic technicians to send -- forensic

18     technicians sent to sanitise the bodies to place weapons by the bodies to

19     stage a post-combat scene.  The forensic technicians refused.  Paragraph

20     446 of the Prosecution brief.

21             On arrival in Grubori, General Cermak requested the forensic

22     technicians who were there for sanitation to conduct an on-site

23     investigation.  The forensic technician Bilobrk refused, informing

24     General Cermak that they were not authorised to conduct an on-site

25     investigation, and that -- that this required the presence of an

Page 29179

 1     investigative judge, the authorised prosecutor and crime police.

 2             When Bilobrk said this to General Cermak, General Cermak became

 3     aware, if he didn't know before, that an investigative judge, a

 4     prosecutor, and crime police were required for an on-site investigation

 5     and that they were not present at the time.  He also learned that

 6     forensic technicians were neither authorised nor equipped to conduct an

 7     on-site investigation.  Regardless, General Cermak still persisted with

 8     that request.

 9             General Cermak then attempted to have forensic technicians carry

10     out their sanitation work, such as photographing and registering the

11     bodies, in front of the TV crew.  The forensic technicians rejected that

12     proposition too.  These factors clearly reflect that what General Cermak

13     was seeking was not an actual onsite investigation which would have

14     revealed the special police crime.  If that was the case, he would

15     requested for the presence of the investigative judge, the authorised

16     prosecutor and the crime police when he was informed of their absence.

17     His intent was to stage an investigation for the benefit of the media

18     present, and through that, to impress the international community that

19     the crime was investigated.

20             As I'm running out of time, Mr. President, I will move to the

21     incident in Ramljane.

22             Despite knowing that the Lucko Unit had committed crimes in

23     Grubori, General Markac deployed the unit the following day in an

24     operation in civilian settlements without taking precautions to prevent

25     any further crimes.  As mentioned earlier, the members of the unit

Page 29180

 1     torched civilian homes in Ramljane.

 2             I refer to paragraphs 456 to 465 of the Prosecution's brief.

 3             In Ramljane, General Markac was present by the crime site soon

 4     after the commission of the crimes.  He saw the houses on fire.  I refer

 5     to evidence cited at footnotes 1719 and 1722 of our brief.

 6             General Markac was concerned that passengers on the Freedom

 7     Train, which was scheduled to pass close to the area, may see the smoke.

 8     Therefore, he angrily confronted the unit and started to interrogate the

 9     suspected perpetrators.  In the course of the confrontation, a group

10     leader of the unit, Franjo Drljo, admitted to General Markac that he

11     burnt the houses.  I refer to evidence at footnote 1723, 1724, 1725, and

12     1726.

13             The Chamber heard the testimony of several witnesses who were

14     privy to that dialogue between General Markac and Drljo, cited at

15     footnote 1727 of our brief.  In Ramljane, standing by the crime site,

16     Drljo told General Markac that he had set alight to everything, whatever

17     he could or whatever he wanted.  I cite testimony of Balunovic at

18     transcript page 28363.

19             Members of the special police are police officers with

20     specialised skills.  General Markac and all other members of the special

21     police present in Ramljane, including General Markac's deputy Sasic and

22     the head of the anti-terrorist department Janic, had powers to arrest any

23     person suspected of committing a crime.  I refer to the testimony of

24     Janic, transcript 6101 and 6225, regarding police powers of the special

25     police.

Page 29181

 1             So all General Markac had to do was arrest Drljo, or direct one

 2     of his subordinates present to arrest him, when he admitted to committing

 3     arson.  However, by his inaction in the face of repeated crimes,

 4     General Markac had set a command climate, where he had given clear

 5     signals to his subordinates that he approved and condoned their crimes.

 6             Having committed crimes with impunity in Grubori the previous

 7     day, General Markac's subordinates had no doubt of this fact when they

 8     committed crimes in Ramljane, which is demonstrated by Drljo's response

 9     to General Markac.

10             In light of all the evidence that the Court had heard of the

11     number of crimes committed by General Markac's subordinates from

12     beginning of the operation, and General Markac's own involvement in

13     directing and encouraging their conduct in the field during the Storm

14     attack and his inaction to punish thereafter, it was obvious that

15     General Markac was not going make an exception in this case.  His only

16     response was to withdraw the unit to Zagreb.

17             No further action was taken either to investigate the crime or to

18     sanction any member of the Lucko Unit.  Drljo, who blatantly admitted the

19     crimes to General Markac, remained within the Lucko Unit and joined the

20     special police command in due course.  The Markac Defence does not

21     address any of this evidence.  In fact, they failed to even mention this

22     specific crime in their brief and the events in Ramljane.

23             I will take a quick five minutes of response to General Markac's

24     arguments regarding the Boskoski decision.

25             General Markac argues that once he learned of the serious

Page 29182

 1     crime -- the serious nature of the incident in Grubori, he declined to

 2     investigate out of comity and respect for the MUP investigative

 3     procedures, as he was aware that the police was seized of the matters.

 4     Paragraphs 170 and 179 of the Markac brief.  In advancing this argument,

 5     General Markac partially misstates the significance of the decisions in

 6     Boskoski, suggesting that awareness that subordinates have referred a

 7     matter or that other competent agencies or persons have initiated

 8     investigations or discipline generally excuses a superior's inaction with

 9     respect to crimes involving subordinates.  Rather, the issue in Boskoski

10     was not one of excuse, but simply whether the superior had satisfied

11     their duty or not.  General Markac's conclusion, under customary

12     international law, a superior may satisfy his duty to take necessary and

13     reasonable measures by reporting to competent authorities, omits an

14     important qualification, depending on the circumstances of each case.

15     Relevant circumstances identified by the Appeals Chamber include the

16     degree to which a superior knows that the appropriate authorities are not

17     functioning or the possibility of a sham investigation.  I refer to

18     Boskoski Appeals Judgement paragraph 234.

19             In general, the submission of a report will only satisfy the

20     superior's duty where the report is likely to trigger an investigation or

21     initiate disciplinary or criminal proceedings.  Boskoski Appeals

22     Judgement paragraph 231, citing Blaskic Appeals Judgement paragraph 72.

23             General Markac's statement, therefore, that an actual

24     investigation is not required where the report concerned should have been

25     sufficient to trigger an investigation is neither logical nor correct in

Page 29183

 1     law.

 2             Factually, neither General Markac nor any of his subordinates

 3     reported the matter to civilian or crime police.  Even where the police

 4     was seized of the matter, having received a report from other sources, no

 5     investigation was initiated.  Moreover, the one that was scheduled to

 6     take place was prevented by General Markac and General Cermak, in

 7     collusion with others.

 8             General Markac was an assistant minister of interior.  As

 9     asserted by him at paragraph 163 of his brief, he was in daily contact

10     with the Ministry of Interior.  Six months after the incident in Grubori,

11     and the incident in Ramljane, his deputy Sasic was appointed the

12     assistant minister in charge of crime police.  So General Markac was well

13     placed to initiate a criminal investigation, if he so desired, without

14     being perceived as interfering in MUP investigative procedures.

15             Mr. President, if I could take just three more minutes to -- I'm

16     told I have four minutes.

17             JUDGE ORIE:  No, you have three more minutes.  And I will be very

18     strict.

19             MS. MAHINDARATNE:  General Markac appears to argue that he took

20     reasonable measures with regard to the crimes in Grubori when on notice

21     of crimes.  He lists a number of such measures at paragraph 175, and

22     surprisingly includes his false report to General Cervenko as a

23     reasonable measure he took to keep his superiors informed of what had

24     transpired in Grubori.  Similarly, General Cermak argues that he

25     identified the suspected perpetrators of the crime in his public

Page 29184

 1     statements by stating that the incident was caused when special units of

 2     the Croatian Interior Ministry had come under fire.  I refer to

 3     paragraph 261 of the Cermak brief.  The Cermak Defence claims that if he

 4     intended to deceive the audience, he would have claimed that the

 5     perpetrators were unknown.  These arguments of Generals Markac and Cermak

 6     are without any merit.  In misrepresenting the deaths and destruction in

 7     Grubori as consequences of legitimate combat, General Markac and

 8     General Cermak excluded any prospect for a criminal investigation.  If

 9     their reports were believed, an issue of a perpetrator would never have

10     arisen.

11             Mr. President, before I conclude I wish to respond to the inquiry

12     made by the Chamber by point 2 of the e-mail of 26 August.  The

13     Prosecution confirms the Chamber's understanding of the Prosecution

14     position as set out in footnote 1403 is accurate.

15             Thank you, Your Honours.  And I conclude my arguments and give

16     the floor to Mr. Tieger to make concluding remarks.

17             JUDGE ORIE:  Thank you, Ms. Mahindaratne.

18             Mr. Misetic, there are 27 minutes left today.

19             MR. TIEGER:  And, Your Honours, so the record is not confused, I

20     understand that our time has been concluded and no concluding remarks

21     under these circumstances will therefore be made.

22             MR. MISETIC:  I thank Mr. Tieger for clarifying.

23             Good evening, Your Honours.

24             JUDGE ORIE:  Mr. Tieger, I take that it, at the very end, if you

25     would need five or seven or ten minutes to make final observations --

Page 29185

 1             MR. TIEGER:  Much appreciated, Your Honour.

 2             JUDGE ORIE:  Yes.  Yes, I had in my mind, as a matter of fact,

 3     that Ms. Mahindaratne has told us how much the Prosecution would still

 4     need and then she said 30 to 40 minutes, not knowing that you wanted to

 5     make some concluding remarks, but there will be an opportunity for that

 6     on Wednesday.

 7             Yes, Mr. Misetic.

 8             MR. MISETIC:  Good evening Your Honours.

 9             In our opening statement, in March of 2008, we told you about the

10     principle of Occam's Razor, and that all other things being equal, the

11     simplest answer is usually the best one.  We told you that we would

12     provide you with the simple, straightforward explanation of the evidence,

13     while the Prosecution would offer you nothing but convoluted conspiracy

14     theories.

15             After two and a half years of trial, we can safely say here today

16     we were right.  We told you so.  OTP's final brief and now final argument

17     can be summed in one sentence; Your Honours, you cannot believe your own

18     eyes because nothing is as it appears.

19             The Prosecution's brief is written not from the perspective of

20     Prosecutors sworn to an oath to seek justice and the truth, without

21     regard to whether that will result in conviction or acquittal.  Rather,

22     it is written from the perspective of the Advocatus Diaboli, the

23     Devil's Advocate.  The role of the Advocatus Diaboli in the Roman

24     Catholic church was to argue against the canonisation of a candidate, to

25     take a skeptical view of the candidate's character, to look for holes in

Page 29186

 1     the evidence, and to argue that any good deeds attributed to the

 2     candidate were fraudulent.  That's exactly what the Prosecution has done

 3     here.  Like the Advocatus Diaboli, the Prosecution argues as if it is

 4     their task to take a skeptical view of General Gotovina, to look for

 5     holes in the evidence of his innocence, and to argue that every good

 6     thing he did to prevent and punish crime was fraudulent.  Moreover, the

 7     Prosecution's brief, does not allow for the possibility that even one

 8     person in the entire state of Croatia did a good thing, or that he did it

 9     for the right reasons.  It is unfortunate that the Prosecution, very

10     early in this case, lost sight of what its true role should be in the

11     pursuit of justice.

12             We will show you on Sanction now this example from paragraph 7 of

13     the Prosecution's brief.  This encapsulates the Prosecution's case:

14             "Tudjman recognised that the international community, although

15     largely not opposed to Croatia's use of force to take back the Krajina,

16     would vigorously oppose its ethnic cleansing.  With these considerations

17     in mind, Tudjman and other JCE members took steps to force the Krajina

18     Serbs out of Croatia in a manner that would mask their real intention and

19     later allow the Croatian authorities to plausibly deny responsibility for

20     the exodus of the Serb population."

21             That is their case, Your Honours, plausibly deny responsibility.

22     What is the Prosecution really saying in that paragraph?  This was

23     invisible ethnic cleansing.

24             Over 100.000 people, according to the Prosecution, were

25     ethnically cleansed, but those devious Croats did it in a manner that no

Page 29187

 1     one could see it.  And they say "plausibly deny" because they know that

 2     you, the Judges, if you rely on your eyes, will find that not only is it

 3     plausible but likely that Croatia did not ethnically cleanse the Serbs.

 4     So the message from the Prosecution is:  Don't believe your own eyes.

 5             It was invisible ethnic cleansing that no one else could see.  It

 6     was so invisible that even the Serbs themselves who left did not know

 7     that the real reason they were leaving was because they felt terrorised

 8     by shelling.  The evidence demonstrates that the international media

 9     descended upon Croatia before and during Operation Storm.  It was in

10     Banja Luka and Serbia, interviewing Krajina Serb refugees.  And yet not a

11     single international media reported that anyone at the time claimed to

12     have left due to shelling.

13             There is not a single contemporaneous report, UNMO report, NGO

14     report about a single person who claimed to have left Croatia because he

15     left -- because he felt terrorised by shelling.

16             Over 100.000 people fled terrorising shelling, yet the media did

17     not contemporaneously record the statement of a single Krajina Serb who

18     said that.  Compare this state of the evidence, Your Honours, to the

19     Prosecution's cases involving the shelling of Sarajevo, and you will be

20     struck by the jarring lack of evidence.  Unlike the Sarajevo cases, you

21     have not been provided with the testimony of a single person, whether

22     viva voce, or hearsay, or through a media report, who claims to have lost

23     a family member in the widespread and systematic terrorising shelling of

24     civilians.  Likewise, a year later, Human Rights Watch published a report

25     on Operation Storm after interviewing refugees from the so-called

Page 29188

 1     Krajina, and that is Exhibit D183, and that entire report did not record

 2     a single claim by a single refugee who claimed to have left because of

 3     fear of shelling.

 4             Four years later, the Croatian Helsinki Committee report also did

 5     not identify a single account of a single Krajina Serb who claimed to

 6     have left Croatia due to fear of shelling.  That's P2402.

 7             Serbian intelligence on the morning of 4 August failed to see the

 8     invisible ethnic cleansing was targeting civilians, that's D389, in which

 9     the ARSK itself reported that the artillery attack was concentrated

10     against "the northern barracks, the ARSK command, the Tvik factory, the

11     railway intersection and others."

12             Despite the fact that the ARSK intelligence specifically reported

13     its assessment on the morning of 4 August, the Prosecution this morning

14     argued that the northern barracks "were not actually targeted, as

15     suggested by the Defence."

16             The Prosecution apparently argues that not only are your eyes

17     deceiving you, Your Honours, but the eyes of the ARSK intelligence

18     operatives, on the morning of 4 August, were deceiving them as well.

19             Alun Roberts didn't see the invisible ethnic shelling --

20     spreading terror through shelling -- the invisible ethnic cleansing

21     spreading terror through shelling that is seen by this Prosecution trial

22     team.  In D712 and D1369, Roberts -- those are media reports of

23     Alun Roberts, on afternoon of 4 August, telling the international media

24     that he -- after having been in the town with General Forand for a

25     meeting with -- at the ARSK headquarters but before the Martic evacuation

Page 29189

 1     order, he told the media that there was "no panic amongst the civilians."

 2     And that:  "It is rather calm, but people inside Knin are concerned what

 3     may follow next."

 4             He too didn't see the invisible ethnic cleansing.

 5             Martic issued the evacuation order, D137, for the entire civilian

 6     population in Dalmatia and parts of Lika, yet failed to note the shelling

 7     of civilians as a reason for the orders.  Instead, he said the reason for

 8     the order was the threat to the territory and the threat of encirclement.

 9     Martic must not have noticed the invisible ethnic cleansing.

10             Mrksic was on Radio Belgrade on the evening of 4 August.  That's

11     Exhibit D106 and D713.  And he told Radio Belgrade that the evacuation

12     was taking place to prevent the civilians from being encircled.  He too

13     failed to see that the Croatian Army was shelling civilians and that an

14     evacuation was required, as a result.  In fact, Mrksic told this

15     Trial Chamber that he thought the preparatory artillery attack on the

16     morning of 4 August, which, in fact, was the heaviest attack because by

17     sunrise, artillery was used for "harassment purposes only," was so

18     precise that he thought it must have been conducted by laser-guided

19     weapons systems.  He must not have noticed the ethnic cleansing the

20     Prosecution uncovered 11 years after the war ended.

21             On the 15th of August, the chief of the ECMM mission in Croatia

22     filed his report on Operation Storm and notably stated as follows, at

23     Exhibit D798, page 3, speaking of the reason of the departure of the

24     Krajina Serbs:

25             "Their departure seems to be final.  The Krajina authorities, in

Page 29190

 1     particular President Martic, encouraged their citizens to leave,

 2     stressing that the Croats wanted the territory without its population.

 3     Nowhere in the entire report is indiscriminate shelling mentioned as even

 4     a possible cause for the departure of Krajina Serbs."

 5             UNMO and UNCIVPOL did investigations specifically because of the

 6     allegations of indiscriminate shelling, and the results are in P64 and

 7     P228, and they found that the shelling of Knin was "concentrated against

 8     military objectives."

 9             The devious Croats were so good, Your Honours, that both UNMO and

10     UNCIVPOL couldn't find evidence of widespread indiscriminate shelling

11     despite conducting a specific investigation into that allegation.

12             Galbraith and his staff didn't see it.  Neither did AG18.

13     Witnesses Flynn and Akashi testified that they went to Knin on 7 August,

14     met the very same UNCRO personnel upon whose testimony the Prosecution

15     relies for its allegation of indiscriminate shelling.

16             Flynn testified that he went to Knin to, amongst other things,

17     specifically examine the allegations of indiscriminate shelling, and when

18     they came away from that meeting with the UNCRO personnel on 7 August,

19     they did not believe that widespread indiscriminate shelling forced the

20     departure of the Krajina Serbs.  In fact, at transcript 1308, Flynn

21     testified that, to him, the exodus of the Serbs was orderly and that it

22     was not mass chaos, people running in different directions.

23             Moreover, Flynn and Akashi and the international media flew into

24     Knin on 7 August via helicopter from Split, which means they must have

25     overflown much of Sector South and certainly the Split Military District

Page 29191

 1     portion of Sector South.  And from the helicopter, Mr. Akashi, Mr. Flynn,

 2     and the international media all failed to see the "massive burning" of

 3     Sector South that the Prosecution today claimed was taking place.

 4             Keep this in mind, Your Honours, all Sector South personnel was

 5     reporting to one boss.  That was Yasushi Akashi and his office.  It was

 6     Mr. Akashi's job to review his reports and assess their credibility and

 7     then to take action with New York, UN New York, if in fact these reports

 8     were credible.  Yet Akashi never claimed to the Croatian government that

 9     the United Nations believed there was a systematic campaign of burning

10     and looting and killing taking place.

11             In fact, on the 9th of September, Akashi reported to Annan, in

12     D1662, that he told Sarinic he did not believe the Croatian government to

13     be responsible for the crimes.  In his witness statement, D1646, Akashi

14     told this Court he did not consider the Croatian government to be behind

15     the burnings, and if he had, he would have raised the issue with Sarinic.

16     It would have been his duty to raise the issue with Sarinic, if he

17     received reports that the government was behind the burning and looting

18     campaign.

19             Your Honours, if the boss of the personnel in Sector South who

20     was receiving these reports did not ultimately agree with the conclusions

21     of his own personnel, and never passed their allegations on to the UN in

22     New York, the Prosecution fails to explain why this Trial Chamber should

23     find that their views of UN personnel in Sector South are not only

24     credible, but that they are the only reasonable explanation of the

25     evidence.

Page 29192

 1             Yet the Prosecution insists that it was invisible ethnic

 2     cleansing, driving the Serbs out in a way to mask the real intention of

 3     the Croatian leadership.  The Secretary-General filed a report with the

 4     Security Council on the 23rd of August, identified potential reasons for

 5     the departure of Krajina Serbs, and did not mention terrorisation through

 6     shelling as a possible cause.  The Secretary-General must not have

 7     noticed the invisible ethnic cleansing in his report of 23 August, which

 8     is D90.

 9             This is exactly what we told you would happen in opening

10     statements.  We offer you the simple, straightforward explanation, while

11     they offer you the convoluted conspiracy theory.  You must decide whether

12     to apply Occam's Razor and whether the simple, straightforward answer is

13     a "reasonable explanation of the evidence."

14             If it is, you must acquit.  In our opening statement, you will

15     recall that we cited to Judge Schomburg who said, when speaking of the

16     Prosecution's modus operandi:

17             "One can't help getting the impression that an arrest warrant is

18     issued first and only afterwards do the actual investigations begin."

19             At the time of opening statements we could not have known how

20     prophetic Judge Schomburg's observations would be.  Indeed, three months

21     into trial and after many of its shelling witnesses had testified, the

22     OTP filed its Rule 54 bis motion, looking for evidence of that which did

23     not exist.  There was no indiscriminate shelling.  They told you in their

24     opening statement that the indiscriminate shelling was "at the core of

25     the alleged JCE."  That's transcript 443, lines 24 to 25.

Page 29193

 1             And yet three months into trial they sought the Court's help in

 2     trying to find evidence to support this allegation.  It is precisely

 3     because of the woeful lack of evidence against General Gotovina that the

 4     Prosecution has had to change constantly its allegations, like a

 5     locksmith with a ring of keys furiously trying to find the right key that

 6     will unlock the door to a conviction.  These changing allegations are

 7     evident from the Prosecution's final brief in which the Prosecution no

 8     longer claims, for example, as it did in its pre-trial brief, that "in

 9     almost all cases there were no identifiable military targets" in Knin and

10     other towns.  That's paragraph 31 of the Prosecution's pre-trial brief.

11             Now -- that was the Prosecution case and that is the case the

12     Defence was required to meet.  Now the Prosecution attempts to hold it

13     against the Gotovina Defence that we pointed out what potential military

14     targets were in Knin, Benkovac, Obrovac, and other areas.  Indeed it was

15     not until November 2008, eight months into trial, that the Prosecution

16     submitted a new expert report from Witness Konings and abandoned the

17     theory that there were virtually no military targets in the so-called

18     Krajina.

19             Next, you were told by the Prosecution, in opening statements,

20     that the Prosecution would prove beyond a reasonable doubt through UNMO

21     assessments that 73 per cent of all houses in Sector South were destroyed

22     after Operation Storm by the 13th of September.  That's transcript 461,

23     lines 11 to 13.

24             In its final brief, the Prosecution makes no serious effort to

25     stand by that claim.

Page 29194

 1             Today, the Prosecution tried to distance itself from the UNMO

 2     assessment, claiming that "the Prosecution is not claiming that the UNMO

 3     surveys represent a perfect and flawless account of the destruction."

 4             This is telling in the context of the Prosecution's argument that

 5     international personnel in Sector South HQ were credible and didn't have

 6     a bias.  In defending UN Sector South personnel, the Prosecution this

 7     morning conveniently ignored other things that the personnel did,

 8     including tipping off the Krajina Serbs as to the start of

 9     Operation Storm.  They ignore the evidence that during the operation,

10     UNCRO was providing intelligence to ARSK commands.

11             Furthermore, the Prosecution now claims, contrary to its UNMO

12     assessment claims, that "larger towns were left relatively intact."  And

13     that's paragraph 157.  And that it was the "low density rural

14     environments" that suffered damage.  That is paragraph 89.

15             Now, in coming up with its theory that larger towns were spared

16     to prevent -- or to colonise the area with Croats but the rural areas

17     were burned down so as to prevent the return of Serbs, the Prosecution

18     has never offered an explanation for why Serbs couldn't return to the

19     larger settlements, or why the burning down of rural areas would have

20     impacted Serbs but wouldn't have impacts Croats living in these areas.

21     You were told in opening statements that Serb civilians were "marched and

22     forcibly transferred out of their hamlets and villages" by Croatian

23     soldiers and "transferred to collection centres or detained with the

24     objective of preventing them from returning to their settlements."

25             That's transcript 465, lines 19 to 23.

Page 29195

 1             In its final brief and now final argument, the Prosecution walks

 2     away from this claim and makes no mention of collection and reception

 3     centres.

 4             You were told today that psy-ops and fake leaflets were effective

 5     in secretly encouraging Serb civilians to evacuate from Sector South.

 6     Yet -- we can show Exhibit 13.  Yet when the Prosecution is confronted

 7     with the Martic evacuation order, the Prosecution argues the exact

 8     opposite.  This is paragraph 641 of their brief.

 9             "The ineffectual dissemination of the evacuation order reflected

10     its ad hoc nature.  Krajina civilians were unaware of the decision or any

11     organised evacuation, or otherwise did not refer to it in describing the

12     circumstances of their flight.  Witnesses who would be expected to be

13     aware of this decision, such as police or hospital staff, were not."

14             The Prosecution, of course, can't reconcile how, on the one hand,

15     civilians allegedly received leaflets telling them that there was an

16     evacuation and they should follow the following routes; but on the other

17     hand, when the issue is the Martic evacuation order, then there's no

18     evidence that anyone knew anything about any evacuation.

19             In short, the Prosecution has never been able to find the key to

20     open the door to a conviction because there is no such key.  But that

21     obviously won't stop the Prosecution from trying, no matter how absurd

22     the argument advanced may be.

23             One brief matter before we break, Mr. President.  The burden of

24     proof.  The Prosecution, in almost 400 pages of a final trial brief and

25     now six hours of argument, never once identifies what the burden of proof

Page 29196

 1     is, nor do they claim that they have met that burden.  In the history of

 2     this Tribunal has the Prosecution in any case ever filed a final brief

 3     and conducted a final argument without identifying its burden of proof or

 4     claiming that it has met that burden of proof.  The Prosecution's

 5     arguments are not analysed as against the burden of proof.  The

 6     Prosecution's brief and arguments today are advanced as if we were still

 7     at the 98 bis stage; or worse, that all the Prosecution has to do is

 8     establish reasonable doubt concerning General Gotovina's innocence.  On

 9     the contrary, the Prosecution must establish guilt beyond a reasonable

10     doubt, which the Martic Appeals Chamber said means that:

11             "There is no reasonable explanation of the evidence other than

12     the guilt of the accused."

13             Measured against that exacting burden of proof, it is clear that

14     the Prosecution cannot prove that its interpretations are plausible, let

15     alone that they are the only reasonable explanations of the evidence.

16             Your Honours, this is -- I have a new section.  Perhaps this is a

17     good time.

18             JUDGE ORIE:  Yes, perhaps, then, it is better to start with that

19     tomorrow.

20             We adjourn and we'll resume tomorrow, the 31st of August, 9.00 in

21     the morning, in this same Courtroom III.

22                            --- Whereupon the hearing adjourned at 7.02 p.m.,

23                           to be reconvened on Tuesday, the 31st day of

24                           August, 2010, at 9.00 a.m.