Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5840

1 Monday, 26 June 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.15 p.m.

5 JUDGE MOLOTO: Good afternoon, everybody.

6 We have not sort of formally set out time limits for today's

7 proceedings. I would imagine that it would be fair to say the Defence

8 would have this session to make its submissions; most probably the

9 Prosecution might make its response in the next session; and if there is

10 any reply, it will be in the third session. Would that be okay by

11 everybody?

12 Would it be okay with you, Mr. Milovancevic? You are the one to

13 start.

14 MR. MILOVANCEVIC: [Interpretation] Your Honours, I hope one

15 session will suffice for oral submissions. Perhaps there might be a need

16 for a small portion of the next session, but that will largely depend on

17 my pace and we shouldn't forget the interpretation, of course.

18 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic.

19 Do you have anything to say to that?

20 MR. WHITING: No, Your Honour. Obviously it depends on what

21 submissions are made by the Defence and how long it's going to take us to

22 respond to them and in what detail and so forth.

23 JUDGE MOLOTO: Thank you very much.

24 Mr. Milovancevic.

25 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

Page 5841

1 At this moment the Defence, according to Rule 98 bis, needs to put

2 forward oral submissions, after which the Chamber will be able to

3 potentially acquit our client, should the Chamber establish that there are

4 no foundations for the indictment in place. And the Defence intends to do

5 that in the following oral submissions. At the very beginning, we wish to

6 state that in these proceedings so far, against the accused, Milan Martic,

7 the OTP has not proven or even made it possible to further corroborate the

8 allegations from their indictment. At this moment the Defence is of the

9 view that there is no evidence against the accused, Martic, and we expect

10 the Chamber to acquit the accused on all counts.

11 At the beginning of our oral submissions, we wanted to mention one

12 thing. How was it possible that even before we submit our submissions and

13 before we hear the arguments of the OTP and before the Chamber has ruled

14 on it, that the Chamber issued a decision on the continuation of the

15 proceedings? Does that mean -- is this prejudicial to the Defence? We

16 also believe that the Defence suffered from another thing that may have

17 happened, and that was concerning the basic factual allegations after

18 we've heard the case of the Prosecutor, by such an order by the Chamber on

19 the continuation of the proceedings before we have submitted our oral

20 submissions; this went to the detriment of the Defence.

21 Another important issue needs to be raised, and we see no solution

22 for that issue at this moment in the proceedings that would be in keeping

23 with the interests of justice. The status of evidence of

24 Witness Milan Babic remains unresolved. We have the Chamber's decision,

25 which we may appeal against, and the rule on the admission of his evidence

Page 5842

1 is not final -- the ruling is not final yet. Therefore, in such a

2 situation, we ask: How is it possible for the Defence to continue working

3 and presenting its case and what is it that we have before us or we do not

4 have before us on the one hand? On the other hand, having in mind the

5 unresolved situation with Mr. Babic, how can the Chamber decide on the

6 Rule 98 bis in this case?

7 Since we find ourselves in such a factual and legal situation, the

8 Defence, in spite of all the problems, finds it in its interest and in

9 the -- it is in the interest of the accused, Milan Martic, to put forth

10 these oral submissions as to what has been proven in the previous phase of

11 the proceedings and what has not and what is the position of the Defence

12 concerning the legal position, as well as the allegations stipulated in

13 the indictment put forward by our learned friends from the OTP.

14 For one to be able to see what the position of Defence is, we need

15 to start with the basic allegations of the indictment from paragraph 4 of

16 the indictment, mentioning the purpose and the aim of the joint criminal

17 enterprise. In paragraph 3 of the indictment, the OTP states that

18 Milan Martic is held responsible for his participation in the joint

19 criminal enterprise, and furthermore they state that the purpose of this

20 joint criminal enterprise was the forcible removal of a majority of the

21 non-Serb populations, being Croat and Muslim populations, from

22 approximately one-third of the territory of the Republic of Croatia and

23 large parts of the Republic of Bosnia-Herzegovina, in order - and this is

24 the joint criminal enterprise explained by the OTP - to make them part of

25 a new Serb-dominated state.

Page 5843

1 In paragraph 4, the Prosecutor defines those territories, stating

2 that these are the territories of the SAO Krajina, the SAO Western

3 Slavonia, the SAO Slavonia, Baranja, and Western Srem, the area of the

4 Dubrovnik republic, although such a name does not exist ins history, as

5 well as the city of Zagreb. Therefore, in addition to the territory of

6 Krajina, the goal of the joint criminal enterprise to include all those

7 territories protected by the UN as well as the territory of the

8 so-called -- the Dubrovnik republic and the city of Zagreb to be put under

9 Serb domination within a single state.

10 Not one of the paragraphs of the indictment make it clear as to

11 who, when, where, how, and why made this plan of the joint criminal

12 enterprise. We can't see whether that plan was done covertly or openly.

13 Another thing that is not alleged, and it wasn't corroborated by any

14 evidence by the OTP, was as to whether that was an oral or a written plan.

15 The only thing alleged by the OTP is to be found in paragraph 6, and that

16 is that the so-called joint criminal enterprise - and it is a so-called

17 enterprise because we don't know who, when, where or how or by whom.

18 Therefore, the Prosecutor in paragraph 6 stipulates that the perpetrators

19 of the plan are the accused, Milan Martic; Slobodan Milosevic, the former

20 Serbian president who has recently died and who was the main person in the

21 plan; and on top of that, an entire spectrum of other people mentioned in

22 paragraph 6, including Borislav Jovic, one of the members of the

23 Presidency of Yugoslavia; and the president of the State Commission of

24 Yugoslavia for Cooperation with UNPROFOR throughout the relevant time in

25 the indictment; as well as Veljko Kadijevic, who was the federal secretary

Page 5844

1 for national against, who was an army general; as well as General Blagoje

2 Adzic, who was chief of the general staff of the armed forces of the SFRY.

3 It is a well-known fact that Mr. Adzic and Kadijevic, 15 years

4 after the commencement of the so-called joint criminal enterprise, have

5 not been indicted by any single indictment at this Tribunal. They will

6 never be tried, and I am not saying this because I think they should be.

7 There is no basis for them to be indicted, and we've heard Mr. Theunens',

8 the military expert of the OTP, who analysed in detail the constitutional

9 regulation and the federal regulation of Yugoslavia, as well as all other

10 relevant legal material, showed that the activities of the armed forces

11 were regular in the then-territory of Yugoslavia under the command of

12 those who had been authorised to command such armed forces and controlled

13 by civilian authorities.

14 That's why we do not have such an indictment in place. That's why

15 it is absurd that Martic is being charged or indicted for commanding over

16 the JNA forces and other forces that allegedly participated in the joint

17 criminal enterprise; and yet at the same time, we don't have the people

18 who truly commanded the armed forces of Yugoslavia, the JNA. This points

19 to the basic problem of the Prosecutor's fictitious tale of the joint

20 criminal enterprise.

21 The hypothesis by the Prosecutor on the joint criminal enterprise,

22 with the goal and purpose that we have mentioned already, is totally

23 fictional and that has been proven through their own witnesses, a highly

24 positioned official of the UN who holds a Ph.D. in science, Mr. Charles

25 Kirudja was one of the OTP's witnesses. Mr. Kirudja was a highly

Page 5845

1 positioned official of the UN, and he had been that before he came to

2 Yugoslavia and he still is a highly positioned official of the UN. It

3 is -- he's a well-educated person, he's knowledgeable; and based on that,

4 he could provide relevant testimony as an OTP witness before this

5 Tribunal. Mr. Kirudja managed to destroy the thesis of the -- the

6 hypothesis of the joint criminal enterprise. He's explained that

7 Mr. Milosevic, as the alleged creator of this infamous joint criminal

8 enterprise, wanted to see Krajina with a large degree of autonomy as a

9 part of the Republic of Croatia, whereas the OTP claims that the goal of

10 the enterprise was to extract Krajina from Croatia and join it with

11 Serbia. The president, the then-president, was of a completely different

12 view according to the statement of Mr. Charles Kirudja, the OTP witness.

13 He also testified that Milosevic, as the alleged head person of

14 the enterprise, always sought a peaceful solution for Yugoslavia and that

15 he kept telling him, as a UN official, that the situation in the Krajina

16 and in Bosnia could not be resolved by the use of arms, which is

17 completely contrary to the stipulations in the indictment. Mr. Kirudja,

18 under oath, explained that Mr. Milosevic together with General Kadijevic,

19 who was the then-federal secretary of national defence on the 23rd of

20 November, 1991, in Geneva signed an agreement foreseeing the cessation of

21 hostilities, the deblocking of the blocked JNA barracks, and the

22 withdrawal of the JNA from Croatia.

23 This was the person who, according to the OTP, was the person who

24 put together the devilish plan to remove that part of territory from

25 Croatia and join it with Serbia. It was in November 1991 that Mr. Kirudja

Page 5846

1 concluded this agreement, even before the UN deployment there, including a

2 paragraph on the withdrawal of the JNA from Croatia.

3 Mr. Kirudja also testified that Mr. Milosevic supported the

4 resolution of the UN called the Vance Plan, which established the

5 peacekeeping operation of the UN in Yugoslavia.

6 I wish to remind you, Your Honours, that this was a peacekeeping

7 UN operation in Yugoslavia, not in Croatia, according to the Security

8 Council's resolution. Mr. Kirudja, as an OTP witness and a high official

9 of the UN stated that Mr. Milosevic supported the resolution, that he

10 supported the leadership of Krajina, which in turn accepted the UN plan,

11 as well as he mentioned Mr. Paspalj and other people from the Krajina.

12 And he stated that Mr. Milosevic commented on Mr. Babic's behaviour in the

13 media as being the only person who was against the deployment of the

14 peacekeeping troops. During his testimony, the Defence put two documents

15 before the Chamber, sent to the Security Council, signed by

16 Mr. Milan Babic. We can see from those that he, as the president of the

17 SAO Krajina in February 1992, states to the Secretary-General that he

18 cannot accept the peacekeeping mission as envisaged and that the Assembly

19 of Krajina had no authority to adopt such a plan, and that therefore the

20 decision was an irregular and illegal one. Doesn't it strike you as

21 ironic that the only witness who opposed the deployment of the

22 peacekeeping forces in Yugoslavia, as confirmed by Mr. Kirudja, that that

23 particular witness was put forth by the OTP to support their hypothesis

24 that Milosevic was for war and that Babic, in turn, wanted something

25 completely different? Logically speaking, it doesn't add up; factually,

Page 5847

1 even worse or even less.

2 Mr. Kirudja confirmed that, as a high official of the UN, he came

3 to Yugoslavia in April. He stated that he met General Spiro Nikovic, who

4 was the commander of the 10th Corps, and he confirmed that the general, as

5 an honourable officer, a very senior officer of the JNA, stated that --

6 General Nikovic stated that the JNA supports the plan put forth, and that

7 that includes Mr. Milosevic as well as the Presidency and the Federal

8 Secretariat of National Defence. And that included the people from

9 Krajina, including Mr. Babic, who were in support of such a plan.

10 General Spiro Nikovic, according to Mr. Kirudja's words, told him that the

11 JNA will hand over the territory to the UN and that the JNA will be

12 withdrawing its forces in full from that area. Mr. Kirudja stated that

13 General Nikovic had plans made on the withdrawal of the JNA from the area

14 that UNPROFOR deployed in.

15 Mr. Kirudja testified that Spiro Nikovic, as the commander of the

16 10th Corps, put those plans into practice according to the instructions

17 from the Federal Secretariat of the National Defence from Belgrade.

18 Mr. Kirudja also testified here that the JNA indeed withdrew from the

19 territory of Krajina and Croatia, as planned by Mr. Kadijevic and

20 Mr. Adzic, the two being the chief of the General Staff and the secretary

21 for National Defence, and as agreed with Mr. Nambiar, who was commander of

22 the forces to be deployed in Yugoslavia.

23 Last but not least, Mr. Kirudja confirmed that the Serbs from

24 Krajina voluntarily withdrew their heavy artillery and tanks as well as

25 mortars and armoured vehicles. They put them in warehouses, and that was

Page 5848

1 done under the auspices of the UN. They also -- he also confirmed that

2 the Serbs from Krajina asked that these weapons be returned by UNPROFOR at

3 the moment the Croatian aggression against the Krajina and the UN

4 protected areas began.

5 Since we are discussing the hypothesis of the joint criminal

6 enterprise, according to which the plan encompassed Bosnia-Herzegovina as

7 well, which was supposed to have been cleansed of Serbs and joined with

8 the new -- cleansed of non-Serbs and joined with the Serb state,

9 Mr. Kirudja as regards that testified that Mr. Babic, as well as

10 Mr. Fikret Abdic, who was the then-leader of the Cazina Krajina, on the

11 23rd of October, 1993, signed a peace agreement. Mr. Kirudja also

12 testified that Fikret Abdic, as the leader, the Muslim leader, of the

13 Cazina region of the so-called Cazin pocket, was of the political view

14 that Croats, Serbs, and Muslims in Bosnia-Herzegovina, as autochthonous

15 populations should live together and in peace.

16 Mr. Kirudja confirmed that such a political position of

17 Fikret Abdic as a Muslim leader was contrary to the position of

18 Alija Izetbegovic, the Muslim president of the Bosnian Presidency.

19 Mr. Kirudja confirmed that due to his radicalism, Alija Izetbegovic had

20 sent the 5th Corps of the Army of Bosnia-Herzegovina, which was loyal to

21 Alija Izetbegovic, against the Muslim enclave known as Cazina -- Cazin

22 Krajina, and that this 5th Corps of the Bosnian army, commanded by

23 General Drekovic defeated militarily the forces of Fikret Abdic.

24 Mr. Kirudja confirmed another fact, namely that Fikret Abdic had

25 asked for military assistance from Serbs in the Krajina, in whose interest

Page 5849

1 it was to support a moderate Muslim leader such as Fikret Abdic, and they

2 assisted him to the best of their abilities. In the end, ultimately, they

3 were defeated militarily. Contrary to such evidence from Mr. Kirudja, we

4 heard some explanations given by Mr. Galbraith which are completely

5 illogical and which are completely rather opposed to these claims of

6 Mr. Kirudja. Mr. Galbraith was an ambassador to Croatia, not to

7 Yugoslavia, and unlike the high UNPROFOR official, such as Mr. Kirudja, he

8 focused only on Croatia not on Krajina. By testifying, Mr. Kirudja showed

9 that this thesis on joint criminal enterprise, which allegedly was carried

10 out by Milosevic and Martic in Bosnia-Herzegovina, is a complete fiction

11 and has nothing to do with reality. Mr. Kirudja also said in evidence

12 another matter, namely that in Bosnia everybody was armed; that both

13 Muslims, Serbs, and Croats, as residents of Bosnia-Herzegovina, were all

14 armed; and that it was a vicious circle of bloody vendettas and counter

15 vendettas. This is what Mr. Kirudja told us in his evidence; therefore,

16 all stories proposed by the Prosecution on some alleged joint criminal

17 enterprise are completely unfounded.

18 Now that we have touched upon this thesis of joint criminal

19 enterprise, which allegedly was in force from 1990 to 1995, because that

20 was the period of time to which the Prosecution evidence pertained, thus

21 Mr. Kirudja confirmed that Mr. Milosevic, as president of Serbia at the

22 elections for the president of Serbian Krajina in late 1993/early 1994,

23 supported Milan Martic as a candidate in those elections. That is to say

24 that he provided political support to Milan Martic, and Mr. Kirudja

25 explained what were the reasons for Mr. Milosevic doing that. He did that

Page 5850

1 in a situation where Mr. Martic was facing Mr. Babic as another candidate,

2 who, according to Mr. Kirudja, had majority in -- among the opposition and

3 the parliament of Serbian Krajina and who initiated political initiatives

4 aimed at falsely accusing UNPROFOR and expelling it from the territory of

5 Serbian Krajina.

6 Mr. Kirudja therefore confirmed that the essence of the political

7 support of Mr. Milosevic to Mr. Martic in political elections was aimed at

8 preserving the UNPROFOR mission in Yugoslavia. Both Mr. Kirudja and

9 American President -- American Ambassador, Mr. Galbraith, confirmed that

10 Mr. Martic, as president of the Serbian Krajina, concluded two

11 international agreements aimed at seeking peaceful solution. Zagreb

12 agreement on the 29th of March, 1994, immediately after he was elected

13 president, which envisaged end to hostilities and separation of forces on

14 the front line, Serbian and Croatian forces. There was supposed to be a

15 one kilometre separation line among them for infantry weapons, ten

16 kilometres for mortars and tanks, and 20 kilometres for artillery.

17 This agreement, this international agreement, was signed when

18 Mr. Martic was in the office of the president of Serbian Krajina.

19 Mr. Kirudja also testified that Mr. Martic was president of the Republic

20 of Serbian Krajina when the November agreement was signed as well, on the

21 measures for development and economic trust as the second phase of the

22 peace initiative in Krajina. The purpose of this was to establish an

23 economic ties between the Serbian Krajina and Croatia, by opening

24 highways, gas pipes, and other economic activities, oil pipelines as well.

25 Mr. Kirudja, as the OTP witness, also testified pertaining to this

Page 5851

1 joint criminal enterprise that it would have been wholly erroneous to

2 claim that Mr. Milosevic rejected the Z-4 plan. This was just an attempt

3 on the part of Mr. Milosevic to create some space for him for political

4 manoeuvres which would have an impact on the leadership of Serbian Krajina

5 so as to accept precisely what the Z-4 plan proposed, namely an autonomy

6 within the borders of Croatia.

7 Mr. Kirudja confirmed that Mr. Milosevic was opposed to any kind

8 of national approach in creating state structure, that, unlike some other

9 presidents of some other republics, he was not a nationalist.

10 Mr. Kirudja, as an OTP witness, also confirmed that under Tudjman's rule,

11 Croatia was declared to be a state of Croatian people, and the Serbs

12 rightfully emphasised that they wouldn't fare well in such a state; that's

13 what Mr. Kirudja testified. Unlike Croatia, Serbia under Mr. Milosevic's

14 rule was a civic state. Since Your Honours asked me once why we invoked

15 Mr. Milosevic so often, I told you on that occasion, Your Honours, that

16 Mr. Milosevic was designated as a leader within that joint criminal

17 enterprise and that Mr. Martic simply assisted him within that joint

18 criminal enterprise. Mr. Kirudja, both in his examination-in-chief and

19 cross-examination, testified otherwise, quite otherwise. And Mr. Kirudja

20 dismantled the OTP thesis on the joint criminal enterprise; he stated

21 directly that Milosevic supported Krajina within Croatia -- in Croatia.

22 The purpose of the joint criminal enterprise is completely

23 opposite, and this is why this thesis of the OTP does not stand.

24 Mr. Kirudja, as an OTP witness, spoke of Vance Plan. Once again

25 I'm reminding you that he was a highly educated official who testified

Page 5852

1 about the UN peace mission in Yugoslavia which had just a single goal,

2 namely to disarm all armed formations, to ensure the withdrawal of the

3 JNA, to ensure that the Serb TO weaponry was stored in warehouses under

4 the UNPROFOR double-key principle. So through all these means and through

5 ensuring peaceful return of refugees, this mission was supposed to bring

6 about a peaceful resolution to the Yugoslav crisis without prejudging its

7 outcome. This is something quite opposite, radically different, from what

8 is stated by the Prosecution and Mr. Maci Ratcliff [phoen]. Mr. Kirudja

9 explained that the Security Council in its Resolution 762 from 1992, 26th

10 of June, 1992, which condemned the Croatian aggression against the

11 Miljevac plateau, which took place on the 21st of June, 1992, in addition

12 to this resolution, the Security Council also adopted another decision on

13 pink zones. Mr. Kirudja explained that this decision of the Security

14 Council, namely the one on pink zones, was contrary to the Vance Plan,

15 that is to say the UN peacekeeping mission in Yugoslavia. It was contrary

16 in such a way that the Security Council decided in advance that the pink

17 zones would be immediately placed back under the Croatian control. Unlike

18 all other UNPA zones, the status of which was supposed to be resolved

19 through an overall solution to the Yugoslav crisis through political

20 negotiations, and also within the negotiations held at the conference for

21 the former Yugoslavia. By explaining in such terms the UN decision on

22 pink zones, Mr. Kirudja, as an OTP witness, said in evidence that such a

23 decision by Security Council against local Serbs in Croatia was seen as a

24 betrayal of Serbian interests and that, in those pink zones, it was used

25 as a trigger, it served as a trigger for local population, which, in

Page 5853

1 Mr. Kirudja's words, resorted to ensuring order through its own means,

2 by -- and then all these other developments, such as arsons and other

3 cases of disorder, were aimed at not allowing Croatia to take over control

4 over those territories. Mr. Kirudja, through his evidence, said that this

5 was no joint criminal enterprise, nothing of the sort; rather, this was a

6 political reality or rather this was a political reaction of the

7 population, a spontaneous one that had nothing to do with the

8 authorities. This was confirmed by the report of Mr. Viktor Andreev, who

9 was also a UN official.

10 Mr. Kirudja confirmed another matter when it comes to joint

11 criminal enterprise, namely that there was another function that the UN

12 peacekeeping mission in Yugoslavia had, namely that in the territories

13 where the UN forces were deployed - that is to say in the Krajina region -

14 regardless of any differences in faith, gender, political orientation, and

15 so on, the purpose of the UN mission was to chase away any political fears

16 that may have existed not only among Croats or Serbs but among all people

17 living in that area. Mr. Kirudja confirmed that while UNPROFOR was

18 present in protected zones, there were five aggressions carried out by

19 Croatian army against such zones. The first one was an aggression against

20 the Miljevac plateau which was condemned by the UN Security Council

21 Resolution 762, dated the 26th of June, 1992. On that occasion, Croatian

22 forces killed and threw in a pit 40 Serbs.

23 Another major aggression was in the Maslenica region, from

24 Maslenica Zrelo [phoen] to Sinj, which is an area of about 100

25 kilometres. On the 21st of January, 1993, an aggression was carried out

Page 5854

1 during which ten Serbian villages in Kotor area were torched to the

2 ground, churches destroyed, population expelled, driven out, and there

3 were 491 Serb victims as a result of that aggression. Nobody ever from

4 the political highest echelons of Croatia was ever held responsible for

5 that, nor will they be. And only under those circumstances, where such

6 people are not held responsible, can the OTP put forward such a thesis.

7 UNPROFOR confirmed that refugees from Ravni Kotar, which were Serbian

8 refugees driven out of their homes -- driven out of their homes by

9 Croatian aggression against Maslenica, so when such people, refugees, came

10 to Knin and in a desperate state expelled Croats from their homes, the

11 Prosecution accused Krajina Police for this, even though UN reports stated

12 that they found such Croats in Vrpolje, they found an accommodation there

13 in safe havens and that they were protected there by Serb policemen. Even

14 though the Prosecution has in their possession the UN reports stating that

15 the Serb authorities were powerless to stop this, which came as a result

16 of Croatian aggression, but that they promised that they would ensure that

17 everybody who was driven out of their homes would be enabled to return

18 back, the Prosecution simply put everything upside down, absolutely

19 everything.

20 Mr. Kirudja confirmed that on 6 September 1993, and also on the

21 7th of September, several days before Croatia attacked the area known as

22 Medak pocket, General Janko Bobetko, Chief of Staff of Croatian army, met

23 with Mr. Kirudja. And then Mr. Kirudja, the witness, told us that that

24 general with whom he had met earlier many times, the following words,

25 namely he said this: "Tell the Serbs that the long Croatian arm will get

Page 5855

1 them."

2 I'm reminding you, Your Honours, that this was a Croatian general

3 who held such views about Serbs, but who also had racist views about

4 UNPROFOR units. He demanded from Mr. Kirudja and UNPROFOR mission to

5 order all non-European forces to leave the territory of Croatia, all

6 non-European UNPROFOR forces. So if the armed Kenyan UNPROFOR soldiers

7 were threatened by this Croatian general, threatened as UN forces, then

8 just imagine, Your Honours, what fate awaited local Serbs. You don't even

9 have to consider this because Mr. Kirudja spelled it out for you. He

10 said, as did the OTP witness McElligott, namely that they said that

11 General Jean Cot, immediately after the Medak pocket operation, toured

12 three Serbian villages, Citluk, Pocitelj, and Divoselo, and then he said

13 that the destruction was systematic, complete, and deliberate. There was

14 no trace of life, be it human or animal life in those settlements. This

15 is the long Croatian arm chasing Serbs, Your Honours. This is what the

16 OTP witness, Mr. Kirudja, testified about.

17 Mr. Kirudja said against -- opposite of Mr. Milosevic many times;

18 he testified about that. He said that he also knew how Mr. Milosevic

19 acted during the Flash operation. He said that he knew that Mr. Milosevic

20 was opposed to these military operations put in place by Croatia.

21 Mr. Kirudja testified that there was also the fifths Croatian attack

22 operation called Storm. Other OTP witnesses, namely expert Grujic,

23 testified that in the Flash and Storm operations, between 250.000 and 300

24 [as interpreted] people were driven away from Krajina.

25 When we have in mind the testimony of Mr. Veljko Dzakula, who was

Page 5856

1 the first OTP witness, he stated that back in May 1993 the Security

2 Council was shown data that the Croatian authorities in the Croatian towns

3 and cities, outside the territory of Krajina, had expelled 251.000 Serbs,

4 even if we do some simple math, that out of --

5 THE INTERPRETER: The interpreter didn't catch the total number of

6 Serbs --

7 MR. MILOVANCEVIC: [Interpretation] -- back in 1991. But by August

8 1995, the figure that was left can be arrived at by removing 250.000

9 expelled later on and 251.000 expelled by -- from 1995.

10 Mr. Kirudja, as well as other OTP's witnesses, testified that the

11 Tudjman's political project and the HDZ project, to create Croatia as the

12 state of Croatian peoples with the Serbian portion of less than 7 per

13 cent, was exactly being put in place, and this was indirectly proven by

14 the OTP itself through their own witnesses.

15 Mr. Kirudja testified as to yet another important thing. After

16 the beginning of the crisis and UNPROFOR deployment in Yugoslavia, there

17 was an embargo on the import of weapons in the affected territories in

18 Slovenia and Croatia, but he confirmed that Croatia was heavily armed and

19 that they were continuously purchasing new weapons. And we all were

20 witnesses to the final outcome. Mr. Kirudja, as well as other OTP

21 witnesses, have shown that the biggest problem of the UNPROFOR mission,

22 once deployed in Krajina, was the presence of about 16.000 special police

23 troops, for which Mr. McElligott said that, apart from the 7.000 regular

24 police, the 16.000 carried automatic rifles but they did not go about

25 conducting police work. They controlled the territory and they patrolled

Page 5857

1 the area.

2 Even Mr. McElligott, as an OTP witness, confirmed that there is an

3 UNCIVPOL report from September 1991 in which the pressure on the Serbs in

4 Krajina was increasing greatly, that there were daily incursions by

5 Croatian forces, be it militarily or in terms of introducing groups of

6 civilians in the territory. Both witnesses confirmed that the basic

7 request of the civilian police of the UN was to disband the military

8 police units. Mr. Kirudja testified that General Djukic in October 1992

9 conveyed a decision to him by Mr. Martic, who was the then-minister of the

10 interior, to disband those units, because that was agreed with the

11 UNPROFOR force commander in Yugoslavia. Mr. Kirudja also testified that

12 such a decision by Milan Martic was met with astonishment and refusal by

13 the local Serb commanders, but nonetheless, the decision was implemented,

14 as evidenced by some written proof and confirmed by Mr. Kirudja.

15 If you have in mind all these facts relating to the act and

16 conduct of the accused, Martic, and other alleged perpetrators of the

17 criminal enterprise and if we have in mind the political developments in

18 Yugoslavia during that time - which is something you need to do, Your

19 Honours, because the OTP hypothesis on the joint criminal enterprise deals

20 with an alleged political plan elevated to the international level and

21 arena with some horrific consequences - then the only conclusion you can

22 arrive at, based on all the evidence presented here by the OTP, that it

23 caved in, it ran completely contrary to the situation on the ground.

24 The hypothesis of the joint criminal enterprise was brought down

25 by the OTP witnesses themselves. (redacted)

Page 5858

1 (redacted)

2 (redacted)

3 (redacted)

4 MR. WHITING: Excuse me, Your Honour, could we have a redaction at

5 line 18 -- sorry, line 21, page 18. And if Defence counsel could be asked

6 to take care with respect to protected witnesses. Thank you, Your Honour.

7 JUDGE MOLOTO: You hear that, Mr. Milovancevic?

8 May line 18, line 21, rather, on page 18, be redacted, that

9 reference to that witness.

10 MR. MILOVANCEVIC: [Interpretation] I will bear that in mind, and I

11 would like to thank my learned friend. I did mention the pseudonym, but I

12 also helped identify the witness.

13 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

14 MR. MILOVANCEVIC: [Interpretation] Mr. Kirudja's very testimony

15 shows that the hypothesis on the joint criminal enterprise, as presented

16 here, is completely fictional. Other Prosecutor's witnesses show that

17 further. Their military expert, Mr. Theunens, analysed all constitutional

18 and legal regulation pertaining to the functioning of the armed forces in

19 Yugoslavia, as well as the functioning of civilian and military

20 authorities in Yugoslavia. Mr. Theunens established beyond dispute - and

21 he mentioned that in his evidence when answering questions by the OTP and

22 the Defence - that the JNA was a regular armed force of Yugoslavia and

23 that back in 1990, 1991, and 1992, was deployed in the territory of its

24 own state. He also stated that the Yugoslav armed forces were unified

25 comprising the JNA and the TO, being the two components, and that both

Page 5859

1 components were part of the Yugoslav federal armed forces. He also

2 explained and confirmed what is stipulated in the Yugoslav constitution,

3 and that is that the armed forces were commanded over by the Presidency

4 which at wartime becomes the Supreme Command staff and including the

5 Federal Secretariat.

6 Furthermore, Mr. Theunens confirmed that republics, members to the

7 Yugoslav federation, played no role in commanding the armed forces. Mr.

8 Theunens, as an OTP expert, confirmed that after Croatia's independence

9 was declared - or should I call it secession? - which was done

10 unilaterally on the 25th of June, 1991, that Mr. Tudjman, as the HDZ and

11 Croatian president, invited the Croatian population to mutiny, and that

12 was stated by Mr. Theunens. He didn't declare himself on whether he

13 thought it was a military mutiny because he thought it fell outside the

14 scope of his investigation, but the next witness stated that it was a

15 classical armed rebellion or mutiny. Another witness also confirmed that

16 all the JNA troops and facilities in Croatia were blocked and put in

17 danger, put under attack.

18 Witness Theunens confirmed that there were 14 truces signed by the

19 JNA who was the then absolutely superior armed force, compared to the

20 illegal armed forces of Croatia at the time, that such truce was accepted

21 by them. Witness Theunens also confirmed that this worked to the benefit

22 of the Croatian side. Colonel Maksic, another OTP witness, stated that

23 the JNA initiated the operation to deblock the blocked facilities in

24 September 1991 and that it held such superiority that in very short time,

25 with the use of its artillery and rocket system, could have destroyed

Page 5860

1 completely the armed forces of the secessionist Croatia, but the military

2 and political leadership of Yugoslavia would not allow that. In September

3 or in early October, the JNA advancement towards Zadar was wrought to a

4 halt, as testified by Witness Maksic. That took place at the moment when

5 the Croatian paramilitary armed forces of the ZNG and the police were

6 fleeing Zadar on boats, sailing towards the Adriatic islands. After that,

7 we have the situation in Skabrnja.

8 Mr. Theunens' entire evidence, being the military expert; as well

9 as Colonel Maksic's evidence; as well as the testimony of another

10 important OTP witness, Mr. Dzakula; as well as from the testimonies of

11 many other ordinary people, witnesses here, some of whom were also

12 victims, it is clear beyond dispute that the JNA was the armed --

13 legitimate armed force of the then-Yugoslavia acting in its capacity and

14 within its territory at the time of Croatia's secession. The hypothesis

15 on the joint criminal enterprise makes no sense with the view of such

16 evidence of many of OTP's witnesses.

17 In their indictment, they allege crimes in 19 counts. All those

18 19 counts are directly linked, according to them, with the joint criminal

19 enterprise. They also state that the alleged facts in the 19 counts, that

20 they comprise acts committed in order to realise or to implement such a

21 joint criminal enterprise. In item 1 they mention expulsions; then they

22 mention murders, persecutions; then between counts 5 and 9 they mention

23 imprisonment, torture, inhumane acts, and cruel treatment; in counts 10 to

24 11 they mention deportation and forcible transfer; in counts 12 to 14,

25 they speak of wanton destruction, plunder of public or private property;

Page 5861

1 and to conclude, in counts 15 to 19, they mention unlawful attacks on

2 civilians, murder, inhumane acts, and cruel treatment.

3 What is most interesting is the hypothesis put forth by the OTP in

4 its pre-trial brief and the indictment, and that is that all these

5 individual acts were but pieces of puzzle -- of a puzzle, of the so-called

6 joint criminal enterprise; and this also runs contrary to their

7 hypothesis. They offered a footage of an intercepted meeting between

8 Mr. Spegelj and Minister Boljkovac, both were then-ministers in Croatia,

9 and that took place in October and November 1991. The OTP established

10 that the footage is authentic and was put at their disposal by the FBI or

11 the CIA; therefore, there was no meddling with it. It pertains to the

12 October/November 1991 and was shown for the first time in January 1992.

13 It was footage which shocked the Yugoslav as well as the European public,

14 in my view. You have seen the transcript from the footage, and you've

15 heard the witnesses confirm what took place there, including Mr. Dzakula.

16 They stated that General Spegelj, who was the then-Croatian defence

17 minister, stated that not a single JNA officer was to reach their barracks

18 alive; that was in 1991 -- 1990. And he also states that they have

19 assigned two persons for each officer who were to knock on his door and

20 kill him and then move on to the next. That is the contents of the

21 footage. The transcript and the witnesses confirmed it.

22 It was also confirmed that Spegelj planned for a merciless

23 show-down with the JNA. He literally states this is a civil war, there is

24 no mercy for women and children. We should fire shells at apartments.

25 And in November 1990, Mr. Boljkovac, the then-minister of the interior,

Page 5862

1 replies: We will butcher Knin. It will never be what it used to be

2 again.

3 It also proves massive purchases of weapons by Croatia and the

4 importation of those weapons from Hungary. These facts confirming the

5 arming of the HDZ and various Croatian villages were confirmed by various

6 (redacted)

7 (redacted)

8 JUDGE MOLOTO: Once again, Mr. Milovancevic, your learned friend

9 is on his feet about that identification.

10 MR. WHITING: Your Honour, again I would ask that greater care --

11 and here Mr. Milovancevic said himself that he is a protected witness.

12 I'd ask that there be a redaction line 25 of page 22, please.

13 JUDGE MOLOTO: May we please delete that line 25 of page 22.

14 And Mr. Milovancevic, you said yourself he's a protected witness.

15 Please be careful about identifying these people.

16 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

17 Therefore, this was Witness MM-80, who spoke about the fact that as a JNA

18 officer in March, April, and May of 1991, he was in the territory of

19 Krajina, inside the barracks and the garrison in Knin; that as a JNA

20 officer he was threatened by phone, solely because he was a Serb and a JNA

21 officer. He also testified that a male voice spoke on the phone to his

22 daughter and said that: We will butcher your parents, and then some

23 screams were heard, after which the child suffered a shock and began

24 stuttering, from which she took months to recover. This was

25 Witness MM-80, who confirmed that this was the regular climate in Croatia

Page 5863

1 at the time. Having in mind his position, he's a relevant witness because

2 he has data confirming what he had seen; and in his responses in the

3 questions put by the OTP and the Defence, he confirmed that the HDZ, as

4 the leading party in Croatia, was illegally arming Croatian population.

5 This was a party arming Croatian population with illegal weapons in

6 various local communes and municipalities.

7 There witness confirmed that in the village of Skabrnja there was

8 an independent Skabrnja battalion numbering 250 people approximately , and

9 his evidence is -- or rather, he heard this from a JNA officer who was a

10 member of the service informed about that. A lot of other witnesses,

11 Croats, also confirmed this, those who belonged to that unit; the

12 commander of the Saborsko battalion did, as did Luka Brkic, a member of

13 that unit.

14 Now we are turning to the portion of the indictment which speaks

15 of the events in a number of villages, Bruska, Skabrnja, Nadin, Saborsko,

16 Poljanak, Lipovaca, Bacin, Dubica, Cerovljani. The general thesis of the

17 Prosecution when it comes to events in these villages is within the thesis

18 on joint criminal enterprise. This is the general description they

19 provide. They say that the Serb forces, which belong within the JNA - I

20 don't know how this is possible, but according to the Prosecution it is

21 possible - but namely they claim that the Serb forces put under siege

22 undefended villages; start firing; and then when the population flees,

23 they enter villages and start torching everything. But through their

24 witnesses they painted a completely different picture. Not only did

25 Martin Spegelj, a minister of defence, and Minister Boljkovac, minister of

Page 5864

1 the interior of Croatia, through their conversation prove that Croatia

2 started arming itself back in 1990, seven to eight months before they

3 decided to secede. So it's not only them who testify about this, but it's

4 also the residents of Skabrnja itself who spoke directly of this.

5 Commander of the independent battalion in Skabrnja, Mr. Marko

6 Miljanic, said that he had under his command about 800 people, that the

7 Skabrnja battalion was assigned a territory of seven villages, that these

8 seven villages represented one-third of the Zadar municipality, that these

9 villages included Skabrnja, Nadin, Galovica, Gorica, Zemunik Donji, Prkos,

10 a total of 800 people. A member of the Independent Skabrnja Battalion who

11 testified in these proceedings, Luka Brkic, said that members of that

12 battalion had uniforms from eastern Germany with the eastern German

13 helmets, boots, belts, and automatic rifles.

14 As this was taking place in Skabrnja, east Germany no longer

15 existed for quite a long time. It was part of unified Germany, and at the

16 time it was the major force in the break-up of Yugoslavia. Germany was

17 the first country to recognise the independence of Croatia on the 15th of

18 January, 1992. And a little bit prior to that, they provided uniforms and

19 weapons to the rebel forces in Croatia. Was that purely accidental?

20 Mr. Brkic, as an OTP would be, also confirmed how the armed formations in

21 Skabrnja went into combat. They went -- automatic rifles. Based on the

22 diary of Lieutenant-Colonel Vukovic, we know that they had in addition to

23 automatic rifles, also mortars, that 37 hand grenades were seized, and

24 also a recoilless gun as well as a number of other weaponry and

25 ammunition.

Page 5865

1 According to another member of the Skabrnja Battalion, 14 to 15

2 defenders died in that operation. In order to understand the situation,

3 in order to see this in reality, just picture yourself a village in Texas

4 where 14, 15 defenders in a village die in fighting with federal forces.

5 So that is the situation that existed in the -- in Yugoslavia in 1991, the

6 identical one. What we know about members of the Skabrnja Battalion is

7 that they had uniforms on them. This is what they wore. And when they

8 clashed with the JNA, when it seemed as though they would be defeated,

9 then these members started taking off uniforms on the spot. Some of them

10 would still wear some pieces of a uniform, and they would enter basements

11 where civilian population were hiding. So in a basement where Luka Brkic

12 was, an armed member of the Skabrnja Battalion, the JNA found two

13 automatic rifles and a machine-gun.

14 This constitutes a direct threat to their own civilian

15 population. And in that situation, where a member of a warring faction

16 comes to testify here as one of the main Prosecution witnesses, naturally

17 such a witness will always be biased whenever necessary. However, such

18 witnesses portrayed to you the essence of what was taking place in

19 Skabrnja. Based on the notes of Lieutenant-Colonel Bogunovic, these notes

20 were admitted into evidence here; and based on them, we know that the

21 operation of cleansing of Skabrnja and Nadin - Nadin was not a village

22 with hunting rifles, which is what a witness from Zagreb told us,

23 testifying through videolink, this was not a village with just five to six

24 rifles, no. This was a place where according to Witness MM-80, there were

25 many attacks against the road leading to Zadar and Zadar airport. This

Page 5866

1 witness said that the fiercest operations were so strong that they

2 discontinued any traffic on that road, and those operations were launched

3 from Skabrnja and Nadin. This witness also confirmed that this operation

4 was aimed at cleansing out Croatian armed forces which, according to

5 Lieutenant-Colonel Bogunovic, were Ustashas; this is how he called them.

6 Witness MM-80 also testified about these roads leading to Zadar. He said

7 that they were not only disrupted and threatened, but that the JNA with

8 its vehicles and in columns had to travel through fruit orchards and

9 fields.

10 Witness Marko Miljanic, commander of the Skabrnja Battalion,

11 testified about how he set or, rather, placed two minefields, including

12 one behind Zemunik. Witness MM-80, the man who as an officer had such

13 information available to him, the man whose child was threatened - you

14 know who I have in mind - this witness testified upon seeing a document of

15 General Vukovic that four days before the 20th November, 1991 - and you

16 know that the operation in Skabrnja was on the 18th and 19th, so this

17 means from the 16th of November, 1991, onwards - they attacked incessantly

18 the JNA airport in Zemunik, in the background of which Skabrnja Battalion

19 was deployed with minefields. They damaged very valuable military

20 equipment. They put at risk the lives of people, animals, officers, and

21 property. Witness MM-80 confirmed a fact from that report, namely that in

22 Zadar 14 JNA barracks were blocked. This was the purpose for which units

23 in Skabrnja, in Nadin, and Kijevo were used, Your Honours. Once again, a

24 protected witness, MM-78, told us that an alleged police station in Kijevo

25 disrupted JNA communication with Drnis. This spoke of a normal, civilised

Page 5867

1 altitude that the JNA had toward the civilian population.

2 Now that we are dealing with Skabrnja and Nadin, this has to do

3 with the counts of indictment which also cover Bruska and Bacin, but these

4 are no military operations. (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted). And then the Prosecution asked

10 them whether somebody was charged with this, and that's an irrelevant

11 question because the investigative judge only has to investigate what

12 happened on the spot. And then it's up to the Prosecution and the Court

13 to see whether any charges need to be brought and how they are going to

14 act in relation to these charges.

15 I forgot to mention something when it comes to this event in

16 Bruska. We saw a lot of documents; a lot of documents were introduced

17 through Witness MM-80. This witness confirmed that this case was

18 investigated, that there were a lot of suspects, and that the names of

19 possible perpetrators are well-known. What's more, however, to claim that

20 somebody didn't want to resolve this is ridiculous, for a simple fact,

21 because Marinovici, the victims who appeared here, Ante, Jasna Marinovic,

22 and other people who testified here all said that they had been providing

23 information to Croatian authorities. If the Serbian authorities failed to

24 find perpetrators because, as the Prosecutor claimed, they were protected

25 by Serbs, then Croatian authorities would have found them if this were so

Page 5868

1 simple. I have to urge you to bear in mind that this was a war situation,

2 that these were very difficult times and a completely irregular

3 circumstances in which the civilian population and everybody else lived.

4 Your Honours, I don't know if this is a convenient time for our

5 break.

6 JUDGE MOLOTO: It is indeed. Shall we take the break now and

7 continue later.

8 Court adjourned. We will come back at 4.00.

9 --- Recess taken at 3.30 p.m.

10 --- On resuming at 4.05 p.m.

11 JUDGE MOLOTO: Before we proceed, Mr. Milovancevic, I think at

12 page 27, lines 23, to page 28, line 3, in your address before break, you

13 mentioned something that it is felt it might just be identifying the

14 witness, and we thought repeating what those lines say -- I just want to

15 mention that they have been deleted.

16 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours. I

17 fully agree with that. Sometimes it is quite difficult for me to describe

18 the testimony without indicating the profession or the rank or the

19 position held by the witness, and I think that I need to point out why I

20 find certain things in witnesses' testimony important, and this is why

21 extra information slips. Thank you for your intervention. I'm quite

22 grateful for it.

23 JUDGE MOLOTO: Thank you, Mr. Milovancevic. You may proceed with

24 your address.

25 MR. MILOVANCEVIC: [Interpretation] In my address so far, Your

Page 5869

1 Honours, I covered the first three locations, Skabrnja, Bruska, Nadin; and

2 when it comes to events in Bruska, we were able to see that this was a

3 horrific crime, a horrific crime. We were also able to see that this

4 horrific crime was investigated by the investigative authorities of

5 Serbian Krajina. There was an investigative judge and a criminal

6 technician and so on. In addition to them, military authorities also

7 investigated this. The victims, in addition to providing information to

8 them, also provided information to Croatian authorities investigating this

9 crime in Zadar, and there have been no results. Perhaps it may sound

10 cynical when we say that they did not wish to resolve this.

11 I told you earlier that the job of police is to conduct an

12 investigation and it needs to be done in accordance with the laws in

13 force. They need to carry out an investigation on the site and they need

14 to try and find perpetrators, but the circumstances at the time were

15 highly irregular, abnormal. I have to remind you of something. Several

16 decades ago, president of the United States was killed; also several

17 decades ago, Aldo Moro, president of Italy, was killed; as was Olof Palme,

18 Prime Minister of Sweden and their murderers have not been found to this

19 day, even though this was a highly investigated -- all of these events

20 were highly investigated. It is not always possible to find the

21 perpetrators.

22 Another event that the Prosecution claims is linked to the joint

23 criminal enterprise are in Saborsko and Poljaca and Poljanac. The

24 witnesses confirmed that in Saborsko, which is a Croatian village, in

25 terms of its residents, there was a police station which then, in April

Page 5870

1 1992, was established. In addition to them, there was also a unit called

2 Saborsko company. This Saborsko company received reinforcement numbering

3 120 to 150 armed people from Zagreb. They arrived in a convoy consisting

4 of several trucks carrying weapons, ammunition, people. And then they

5 received assistance on another occasion.

6 In Saborsko, there was a special unit of Croatian MUP from

7 Duga Resa. Following this, another special unit arrived to assist them.

8 Based on the war diary of tactical group 2 of the JNA under the command of

9 Cedomir Bulat, it was established that several days before the operation

10 against Saborsko began, very fierce fire was opened, launched from

11 Saborsko, against the JNA barracks. The combat that ensued was a fierce

12 one. That means that in Saborsko, as well as in Skabrnja, we had

13 irregular armed Croatian troops consisting of the HDZ and ZNG members.

14 They turned a peaceful village into military barracks and military

15 facility.

16 The witnesses from Saborsko told us about Tuk, about Alan, about

17 Brdine, and neighbouring settlements around Saborsko. There were seven to

18 eight positions with mortars, anti-aircraft machine-guns, machine-gun

19 nests, and so on. We heard that there was a very severe clash, following

20 which Croatian forces in that village were defeated. We also heard from

21 witnesses that Saborsko, as well as Poljanak and Lipovaca, had its own

22 units, that is to say that in Poljanak and Lipovaca there were also local

23 units. We heard this from local residents who said that they were members

24 of the village guard. When, in a state, forces are formed against that

25 state, then things become quite serious. It ceases to be a minor thing,

Page 5871

1 and those who undertake such action should bear full responsibility for

2 that conduct.

3 The operations that is were conducted in Saborsko, Lipovaca,

4 Poljanak, and other places certainly cannot be an excuse for any crimes

5 committed, but all of the witnesses heard here said that these were acts

6 taken by irresponsible individuals who were beyond anybody's control. It

7 was difficult to establish who these people were. In Skabrnja, in Nadin,

8 in Saborsko, in Poljanak, there were armed formations of Croatian

9 government, which were outside of control of the federal government, and

10 they acted against federal armed forces.

11 Once an armed conflict erupted, then naturally there had to be

12 victims and it's not something that I approve, no. This is not something

13 that I condone. It is just a fact that civilians always perish in armed

14 conflicts wherever they may take place throughout the world. The

15 Prosecutor once again tried to portray the situation as a situation in

16 which peaceful Croatian villages were attacked by this criminal army,

17 who -- which wanted to cleanse the entire territory from Croatian

18 population.

19 The next location mentioned by the OTP in the indictment, in a

20 separate count and in separate locations in which civilians were killed

21 according to the joint criminal enterprise recipe, are Dubica and

22 Cerovljani. Concerning such plight of civilians, which are beyond

23 dispute, as well as that those in Saborsko in terms of horrific suffering

24 of civilians, as well as in Bacin, Dubica, and Cerovljani, the situation

25 was repeated. Witness Josip Josipovic confirmed that the HDZ, led by the

Page 5872

1 Crisis Staff which was in Hrvatska Kostajnica, and the staff being headed

2 by Mr. Koljevica [as interpreted], was arming population in all three

3 locations. They were arming the local Croatian population by the leading

4 Croatian party the HDZ, which was then in power. In 1991, all this was

5 taking place within the territory of a sovereign European state called

6 Yugoslavia.

7 Witness Josipovic, as well as MM-025, confirmed that the civilian

8 population was armed by the HDZ and that the civilian population from

9 Bacin, Dubica, and Cerovljani, on orders of Croatian authorities were

10 evacuated on the 14th of September, 1991. The crime in Bacin took place

11 as late as the 20th of October, 1991. There were no -- there was no

12 military activity, and there was no logic or purpose.

13 (redacted)

14 (redacted)

15 (redacted)

16 JUDGE MOLOTO: Yes, Mr. Whiting?

17 MR. WHITING: Your Honour, the -- the second witness mentioned

18 at -- on page 33, line 2, is a protected witness and the name should be

19 redacted.

20 JUDGE MOLOTO: You see that, Mr. Milovancevic?

21 MR. MILOVANCEVIC: [Microphone not activated]

22 THE INTERPRETER: Microphone, please.

23 JUDGE MOLOTO: Microphone, microphone, microphone.

24 MR. MILOVANCEVIC: [Interpretation] Your Honour, it was a slip of

25 tongue, and we should do what my learned friend suggested. It wasn't

Page 5873

1 intentional. There are a lot of figures and names.

2 JUDGE MOLOTO: May that name -- that line be deleted from the

3 record, please, line 2 of page 33.

4 You may proceed, Mr. Milovancevic.

5 MR. MILOVANCEVIC: [Interpretation] Something common for the three

6 locations is the testimony of witness - as far as I know he was not a

7 protected witness - and his name is Josip Josipovic. I don't know whether

8 I should mention the name, but I don't think he enjoyed any protective

9 measures. I'm being overly cautious now. This witness confirmed a

10 document of the Croatian police of the 1st of April, 1992. It is an

11 official note of the Croatian police created, based on an interview with

12 this OTP witness. It was admitted into evidence here, and based on what

13 Witness Josip Josipovic told us, there are 45 names of possible

14 perpetrators of crimes in the territory of those three locations.

15 Therefore, it is a very precise and comprehensive document. It is

16 not a mere claim, but in this document we have the Croatian state on the

17 1st of April of 1992 that the control in the area of Bacin, Dubica, and

18 Cerovljani is in the hands of local Chetniks who are in conflict with the

19 "Martic's men." The local Chetniks, according to the Croatian police

20 report, are responsible for the crimes committed against civilians, for

21 arson, plunder, and so on and so forth, whereas the civilian police is

22 trying to impose some law and order. All the witnesses were testifying as

23 to the three locations, Dubica, Bacin, and Cerovljani, said that the

24 possible perpetrators were locals who changed uniforms as they wished.

25 Today they wore one uniform, the next day they wore another, and they were

Page 5874

1 the absolute -- they had the absolute power in that area. They were

2 beyond any military or any other control.

3 (redacted)

4 (redacted), stated that when the Serb police from Kostunica tried to

5 intervene in the area, that those locals killed a policeman at the bridge

6 or wounded him. I'm no longer certain. In any case, they prevented the

7 regular police to enter the area and intervene. This is the situation as

8 it was in -- on the ground.

9 MR. WHITING: Your Honour, I'm sorry to rise again. I think that

10 again we are going to have to seek a redaction. This is line 6 -- line 16

11 of page 34; it identifies a protected witness.


13 You see that, Mr. Milovancevic?

14 MR. MILOVANCEVIC: [Interpretation] Your Honour, I didn't identify

15 the witness. We can jog our memory and try to recollect, but if you wish,

16 we can redact all there is in the transcript.

17 JUDGE MOLOTO: No, we don't have to redact all there is in the

18 transcript; we will just redact that line, line 16 on page 34.

19 Mr. Milovancevic, let's rather be safe than sorry. Thank you.

20 MR. MILOVANCEVIC: [Interpretation] Thank you.

21 Then counts 15 to 19, these are linked directly with the joint

22 criminal enterprise, and they concern themselves with the attack on

23 Zagreb. In paragraph 50 of the indictment, the Prosecutor stated that on

24 the 1st of May, 1995, the Croatian army launched an attack against the SVK

25 in Western Slavonia. In paragraphs 51, 52, 53, and 54, the Prosecutor

Page 5875

1 describes the attack on Zagreb on the 2nd and 3rd of May. In that part of

2 the indictment, they claim that there was no military necessity for the

3 attacks, that they were illegal, and that their aim was retaliation. In

4 order to see the position of the Defence in a proper -- in the proper way,

5 we wanted to comment these paragraphs as well as the evidence concerning

6 these paragraphs.

7 At that moment, Croatia was already an internationally recognised

8 state. At that moment, in the territory of Croatia, there were UNPROFOR

9 troops. At that moment, it's been four years without any attack, military

10 attack, on Zagreb. At that moment, we have the Zagreb agreement in place

11 concerning the separation of the warring parties, which was implemented

12 only by the Serbian side. At that time, the economic agreement was also

13 put in place between the Croats and the Serbs; and as witnessed by

14 Mr. Kirudja as well as Mr. Galbraith, it was the time of political

15 negotiations to resolve the crisis. Therefore, without any real

16 justification, apart from a very distinct wish to complete his plan from

17 1991 and 1992, that is to have the independent Croatia without the Serbs,

18 the Tudjman group, the Tudjman -- Tudjman and people around him launch an

19 operation object the 1st of May. Mr. Grujic confirmed that he saw 168

20 excavated corpses, and 11 years later their names are still not known.

21 The autopsies have not been carried out in 11 years.

22 Witness Poje, who was an OTP expert, explained that the artillery

23 attack on Zagreb represented general artillery support to support the

24 Serbian Krajina units which were deployed in Western Slavonia. You saw

25 the footage, you read the transcript, and you heard Mr. Martic's speech on

Page 5876

1 the radio in which he explained that because of Tudjman -- the way Tudjman

2 behaved in Western Slavonia and because he attacked civilian population

3 there, they had to resort to launching attacks against settlements in

4 Croatia in order to bring the Croatian aggression to a halt, and indeed it

5 did. He also said that should it continue, the Republic of Serbian

6 Krajina will be forced to continue with their attacks. We saw that

7 several times during the OTP case. Although on several occasions in our

8 cross-examination we were not allowed to put questions to establish the

9 link between the two events, the cause and effect principle was not

10 allowed.

11 At that moment, the OTP case was still ongoing and our case was

12 not known. Therefore, this position of the Chamber raised doubts as to an

13 attitude or a view taken by the Chamber in this case. Nevertheless, we

14 had full faith in your judgement. And we have your instructions in mind,

15 and we were told that the fact that the people responsible for Western

16 Slavonia were not invited is something that falls within the scope of the

17 OTP, when nevertheless they will never have to face justice. We saw

18 documents mentioning 11 and a half thousand people who were expelled from

19 Okucani; they were Serbs. After the Flash operation, only 800 remained.

20 Those are UN civilian police data in -- from June and July 1995.

21 You saw a Defence document from the 4th of May, 1995; this is

22 Defence Exhibit 112 dated the 5th of May, mentioning an event of the 4th

23 of May, in which there were eye-witnesses of Croatian artillery attacks

24 against Serb villages instead of Serb military facilities.

25 Generals Al Rodan and Denaro, as well as General Natalon and other

Page 5877

1 Argentinian members of the UNPROFOR Battalion were witnesses to this. You

2 were also presented with evidence that the Croatian forces used water to

3 wash Serb blood from various villages. At the same time, another hundred

4 corpses were found, including women and children. In the village of

5 Trnovace, 50 civilians were massacred.

6 The Serb forces of Krajina could do nothing else but to try and

7 launch attacks against such targets that they could with the weapons they

8 had at their disposal. Mr. Poje, as an artillery expert, showed that the

9 rocket system used to attack Zagreb has only two types of rockets, one

10 which is a cluster one used to launch anti-tank mines, and a cluster

11 charge, which was the only one that could have been used, which is used to

12 pierce armour. Another witness of the OTP, Mr. Branko Lazarevic, a

13 policeman, showed us on the map that in the centre of town there was the

14 Ministry of Defence, which is 400 by 300 metres in the very heart of town

15 at the end of the Ilica; and then the Ministry of the Interior, the size

16 of 150 by 40 metres is also in the centre of town; that there are

17 Banski Dvori in the centre of town where the Croatian government sits.

18 The city MUP was also affected by the attack. The military airport of

19 Pleso was also hit; it has both civilian and military purpose. They also

20 managed to hit the business area where INA, the oil company's reservoirs

21 were located. This was a forced move, and still we have the fact that the

22 OTP never indicted anyone from these horrific crimes in Western Slavonia.

23 This also serves to indicate that the indictment will never be raised,

24 otherwise they would have to withdraw the indictment against Mr. Babic

25 because -- Mr. Martic because they haven't chosen to persecute those who

Page 5878

1 prompted Mr. Martic to such actions as occurred at a later stage when

2 Zagreb was attacked.

3 Another thing is very interested as to their hypothesis on the

4 joint criminal enterprise and the various counts of the indictment, and

5 that is when we talk about the method they use or they chose to apply.

6 They seem to try and use the perpetuum mobile principle. They don't want

7 to specify who, when, how, where, with whom, and in which way created this

8 plan on the joint criminal enterprise. The only thing they do is they

9 claim that it exists and that Martic and Milosevic, inter alia, tried to

10 see it through. Then in the continuation of the indictment, they

11 stipulate the locations we've mentioned, where there were individual

12 deaths of civilians and soldiers, and they call that the crime base. Then

13 they apply a technique in which they don't really want to discover the

14 true perpetrators of the crimes, even though they have a full list of

15 potential suspects. It is quite clear why they don't want that: Because,

16 by determining the true perpetrator, they should -- they would have to

17 establish the causal link and there goes their joint criminal enterprise

18 story. In such a situation, we only have the civilian victims identified,

19 and on the basis of that, the OTP tries to prove that this was the result

20 of the joint criminal enterprise. First they do nothing to prove the

21 existence of the enterprise, and then they mention a list of victims to

22 prove the first one. That is why I said they used this never-ending

23 principle of perpetuum mobile without any loss of energy.

24 As the potential perpetrators of everything stipulated in the

25 indictment, in particular in paragraph 16 --

Page 5879

1 THE INTERPRETER: Interpreter's correction: 6.

2 MR. MILOVANCEVIC: [Interpretation] -- they state that the Serb

3 police forces of the Krajina, which, as the OTP says, were called the

4 Martic's men, or SAO Krajina Militia, and from -- and thenceforth they use

5 the common term "Martic's Police"; such an identification of perpetrator

6 is not allowed in such a proceeding as this. Any unit, any formation, has

7 a name and it has to be identified. Not a single document of the

8 Prosecution pertaining to the Secretariat of the Interior of SAO Krajina,

9 Ministry of the Interior of SAO Krajina, not a single document - and

10 Ari Kerkkanen looked through all of them, as did Mr. Theunens - none of

11 these documents mentioned Martic's Police. This is a term coined by the

12 Prosecution, used by them in order to portray certain police forces as a

13 private police force under the command by the accused, Milan Martic, who

14 established them and used them. The fact that it is so is further

15 confirmed by paragraphs 11 and 13 of the indictment, where the Prosecutor

16 specifically states that the decisions of competent organs such as

17 Executive Council or the Assembly of SAO Krajina or the government,

18 cabinet of SAO Krajina, appointed Milan Martic as minister of defence, be

19 it of SAO Krajina or Serbian Krajina.

20 The Prosecutor, through witnesses, Kerkkanen and Theunens, showed

21 that there was a law on ministries within Serbian Krajina, that there was

22 a law on internal affairs, and that those employed in the Ministry of the

23 Interior were full-time employees of that entity. These people are

24 policemen by profession, with full-time employment. So this is a

25 professional organisation, numbering also reserve policemen, but they are

Page 5880

1 not Martic's Police, no. They are policemen of the Ministry of the

2 Interior.

3 Witness McElligott spoke of 7.000 professional policemen, people

4 who mostly worked for police stations in the former Yugoslavia. They were

5 trained and did their job properly. We saw here documents through which

6 witnesses of the Prosecution confirmed that the Ministry of the Interior

7 of Serbian Krajina, under Martic as minister, sent policemen for further

8 training in higher police schools in Banja Luka, in Belgrade, and so on.

9 So these are people who are police professionals and to call them Martic's

10 Police is to resort to personal terms. These are -- this is street

11 terminology.

12 Witness MM-046, when asked by Defence in cross-examination, as to

13 who these Martic's men were - now this is a witness who has a college

14 diploma - so when asked this he said that this was a street term, a

15 colloquialism they used in Serbian Krajina. And the next witness,

16 Krstic, Stanko, testified about being arrested by the paramilitary. When

17 asked who was the paramilitary, he said: Local Serbs. And then when

18 asked: Was it police or paramilitary? He said that he didn't

19 distinguish, that it was all the same to him; and then he added that those

20 were local shepherds wearing uniforms.

21 So Martic's Police, as a common term for participants in joint

22 criminal enterprise, is actually a street term, colloquialism, used in the

23 former Yugoslavia by certain warring factions to denote the opposing

24 force. In this instance, in this conflict, Croatia was one of the warring

25 factions, and they used this term, Martic's Police, to denote an opposing

Page 5881

1 force. This term cannot be used to denote a force that was established

2 under legal laws and constitution.

3 And in other portions of the indictment which speaks of the

4 responsibility of Mr. Martic, I think that's paragraph 3. The Prosecutor

5 says there that Mr. Martic was a minister of the interior or secretary of

6 the interior in the so-called Serbian Krajina, and also president of the

7 republic. So when they have to define what SAO Krajina was, the

8 Prosecutor calls it "so-called SAO Krajina," which means that they deny

9 its existence. So how can something that is so-called entitles Martic to

10 de jure authorities? How are we going to resolve this issue?

11 There is a simple explanation why the Prosecutor does not want to

12 state that SAO Krajina existed. It had its government, cabinet; it had

13 its Assembly; it had its laws and constitution. It had all legal

14 authorities and all of this existed, but it doesn't suit the Prosecution

15 because then we come to an issue that will challenge the joint criminal

16 enterprise thesis: How is it possible that Croatia was recognised as an

17 independent state in January of 1992 when it did not control one-third of

18 its territory? And who recognised Croatia within the international

19 community, despite the suggestion of the UN Secretary-General? Precisely

20 because the UN peacekeeping mission was deployed there. This opened

21 Pandora's box, and the Prosecutor is fully aware of this. This is why

22 they term SAO Krajina as a so-called and they claim that Martic had

23 de facto powers.

24 Now, this method that is used in order to phrase the indictment

25 was replicated in the use of witnesses. The Defence will show you that

Page 5882

1 our submissions now are not closing arguments. The joint criminal

2 enterprise has to be analysed through the prism of methodology used in

3 writing this indictment. Now, after seeing all this evidence, the

4 question becomes even more pertinent. The Prosecutor used many protected

5 witnesses, among them Witness MM-003, concerning whom another protected

6 witness, MM-078, said that he was violent-prone, a violent-prone person,

7 also prone to abuse and theft. Witness MM-003 tried to get legal

8 residence in a foreign country, that was denied, and then he said: "I had

9 an agreement with the Prosecution. They were to ensure that I get legal

10 residence in a foreign country, and I will testify about what they want me

11 to do." This is plain improper conduct, Your Honours. They are trading

12 here in order to obtain testimony that suits them.

13 (redacted)

14 (redacted), and three times during his evidence he asked that the

15 Prosecution act in accordance with their promises, namely to assist him in

16 resolving his status. So this similarity is shocking. Previous witness,

17 MM-003, claimed that he had fled Yugoslavia with a falsified passport;

18 that he provided incorrect information to immigration authorities; that he

19 provided incorrect information to the OTP in order to become a witness;

20 and in return for that, they were to help him solve his status. This is

21 the method that the Prosecution uses in order to prove their joint

22 criminal enterprise thesis. I'm not going to mention this witness's

23 position because that would reveal his identity.

24 Mr. Babic was a key witness of the Prosecution based on Parker's

25 commission. We were able to see that he resided in a private home.

Page 5883

1 MR. WHITING: I'm sorry, Your Honours, again out of an abundance

2 of caution if we could redact page 42, line 20. I think it describes

3 the -- well, I won't -- it describes the position of the witness.

4 JUDGE MOLOTO: May line 20 of page 42 please be deleted.

5 MR. MILOVANCEVIC: [Interpretation] That's fine, Your Honours.

6 Thank you.

7 JUDGE MOLOTO: And we can perhaps start from 19, according to

8 Judge Hoepfel. Thank you very much.

9 You may proceed, Mr. Milovancevic.

10 MR. MILOVANCEVIC: [Interpretation] The next Prosecution witness,

11 the key, their main insider, Mr. Milan Babic, according to the Parker

12 commission report was in a private home from 1st December 1993 until July

13 of 2004, when he reached a plea agreement with the Prosecution and had his

14 trial. In January 2003 he signed a plea agreement with the Prosecution.

15 Already in march, Parker's commission established that he complained of

16 psychiatric problems. In September of 2004, he already threatened to

17 commit suicide; his Defence council informed Mrs. Uertz-Retzlaff of this.

18 This witness, who is not emotionally balanced, was a protected witness in

19 other trials, despite his health status, and came here as the main witness

20 in Martic's trial.

21 Parker's commission stated that he believed himself to be

22 endangered. He believed that the Prosecution used him. His family

23 members said that it was precisely during his testimony that the status of

24 his family was solved, namely whether they were going to get a visa for

25 living in a third country. This situation was a huge burden, both for the

Page 5884

1 family of Mr. Babic and Mr. Babic himself. The conclusion of Parker's

2 commission that there were no signals that he would commit a suicide is a

3 surprising one, to say the least, but this is not the gist of what I'm

4 saying. The gist of what I'm saying is: How is it possible that a person

5 who is emotionally unbalanced, obviously, is brought here to testify in

6 this case before this Tribunal? And to end his life in the middle of

7 cross-examination by putting a nylon bag over his head and suffocating

8 himself with a belt? This is the kind of a witness that they brought

9 here.

10 Another witness, a protected witness of the Prosecution, I

11 hesitate to mention anything else in order not to reveal his identity,

12 Witness MM-078 said about him that he was an extremely ambitious man.

13 Mr. Kirudja said that Mr. Babic was the only politician in Krajina who

14 opposed the UN initiative for peace, and he was the only politician who

15 wanted to chase away UNPROFOR from Krajina in 1994. This is a man who is

16 emotionally unbalanced, an unfortunate man who ended his life in the way

17 he did and he -- his evidence was completely contrary to the evidence of

18 Mr. Kirudja.

19 Mr. Kirudja and some other witnesses spoke of Mr. Lazarevic, who

20 was planned to come to testify but did not come here. He testified in

21 many other trials. Mr. Kirudja says that he looked like the Great Gatsby,

22 a man who tried -- who portrayed himself falsely as an interpreter and

23 interpreted at various meetings, who falsely portrayed himself as a friend

24 of Mr. Bulat; according to Mr. Kirudja this man was a mercenary.

25 Colonel Raseta said that this man was introduced to him as a

Page 5885

1 lieutenant-colonel and as an official of the State Security Service,

2 although he was never on the list. This witness, until the last day,

3 remained on the list of witnesses as one of the most important witnesses

4 that they were going to call; we put in a lot of effort to prepare for

5 this witness. And let me point out one more thing to just show you the

6 kind of methodology that the Prosecution uses to prove their indictment.

7 Mr. Theunens came here to testify as a military expert; he is a

8 full-time employee of the OTP. He's their investigator. Together with

9 the OTP, he wrote the indictment against Mr. Martic and then came here to

10 support it through his testimony. This is the kind of a witness that the

11 OTP called here to testify. He's an employee of the OTP. When we

12 cross-examined him, we asked him whether -- or rather, while we

13 cross-examined him, he asked whether he could contact his colleagues in

14 the OTP in order to prepare for the testimony of the next witness. Your

15 Honours, this all speaks of the methodology that was used in order to

16 draft this indictment and the methodology that was used for the

17 Prosecution case. The Prosecution has no case, and if they were to look

18 at things realistically they would apologise to Mr. Martic and set him

19 free.

20 And instead of that, we got here something quite different, namely

21 the proposal of the OTP as to how Defence case should look, what our

22 timetable should be. The Prosecutor set forth, in advance, exactly how

23 much time we need for witnesses, for the conference, for our opening

24 arguments, and so on. Unfortunately, the Trial Chamber went along with

25 this, and this is how the Prosecution works.

Page 5886

1 Based on everything said so far, the Defence moves the Trial

2 Chamber to do the following: Given that the Prosecution, through their

3 evidence, showed that there is no evidence capable of supporting a

4 conviction of Mr. Martic, the Defence hereby proposes that all charges

5 against Mr. Martic be dropped. The Prosecution has to prove Mr. Martic's

6 guilt beyond a reasonable doubt in this stage of proceedings. This stage

7 of proceedings has terminated based on what we have seen so far. Instead

8 of proving the guilt of Mr. Martic, it is up to the Defence to show that

9 Mr. Martic is not guilty, that he is in fact innocent. And you will

10 agree, Your Honours, that this is completely upside down. Thank you.

11 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

12 Mr. Whiting?

13 MR. WHITING: Thank you, Your Honours.

14 I'm going to start with making a few general observations. I'll

15 then respond to some -- some but not all of the things that Defence

16 counsel has raised. I'll then -- consistent with the standard under 98

17 bis, I will go through, as briefly as I can, Your Honours, the evidence

18 that we believe supports the charges in the indictment.

19 My first general observation -- just in case Defence counsel is

20 holding his breath, the Prosecution will not apologise to Mr. Martic and

21 will not assent to his release. It's not in our power to

22 release him at this stage, but we will certainly not assent to it. My

23 second observation is that I think that, with respect, with all due

24 respect, Defence counsel has completely misunderstood what we are doing

25 here today and what the 98 bis standard is; that was evident from the

Page 5887

1 beginning and throughout the presentation. It became absolutely clear at

2 the end of the presentation, when he suggested that the Prosecution has to

3 prove Mr. Martic's guilt beyond a reasonable doubt at this stage of the

4 proceedings. That is not the standard. And I'm well aware that the

5 Chamber is no doubt aware what the proper standard is, but if I could just

6 very briefly touch on what we believe the proper standard is. We believe

7 the proper standard has been set down by the an Appeals Chamber in

8 Celebici and Jelisic, in those two appeals, and the test to be applied,

9 and this is citing, maybe even quoting directly, is: "Whether there is

10 evidence, if accepted, upon which a reasonable Tribunal of fact could be

11 satisfied beyond a reasonable doubt of the guilt of the accused on the

12 particular charge in question."

13 That is the standard that is set down by both Celebici and

14 Jelisic. I would also direct the Trial Chamber to the Trial Chamber

15 decision in Strugar - its date is 21st of June, 2004 - which goes through

16 in quite some detail what the standard is. And what is clear is that the

17 test at this stage is whether there is some evidence to support the

18 charges, and when that evidence -- when the Prosecution's evidence is

19 taken at its highest, that is if it is accepted. The Strugar Trial

20 Chamber, in its decision, makes it clear that it is not the task of the

21 Trial Chamber at this stage, it is premature -- it is not the task of the

22 Trial Chamber at this stage to try to weigh out all of the evidence, to

23 try to make judgements about credibility, to try to balance out -- resolve

24 conflicts in the evidence. That is just not the -- that is just not the

25 test and that's not what we are doing here.

Page 5888

1 The -- as long as there is some evidence to support each count,

2 that we submit is sufficient, unless - and this is discussed in the

3 Strugar decision - unless the evidence is so inherently incredible that

4 no -- that the Trial Chamber found that no reasonable Trial Chamber could

5 ever rely on that. And that, the Strugar Trial Chamber makes clear, is a

6 very rare situation, and, we would submit, does not apply to any of the

7 evidence in this case. There is no evidence in this case which is so

8 incredible that we rely on to support the counts that the Trial Chamber

9 could find -- would find or could find that it cannot be relied upon.

10 The third observation that I would make is that Defence counsel,

11 perhaps because of a misunderstanding of what we are doing here today,

12 spends a lot of time talking about crimes that he says occurred on the

13 other side, that were committed by Croats. That is not something I will

14 respond to, unless instructed by the Trial Chamber to do so. Because it's

15 our position that certainly at this stage, that kind of evidence is

16 irrelevant, and, most likely, even at the final stage all of that evidence

17 will be irrelevant.

18 Before I go on and make specific responses to a few of the points

19 raised by Defence counsel I do want to say this: We do -- we have

20 reviewed the evidence, and we have come to the conclusion that the -- we

21 believe that the -- that there is evidence under the proper 98 bis

22 standard which supports all of the counts in the indictment. There is no

23 need, no basis, to dismiss any of the counts in the indictment. Having

24 said that, there are two allegations, two specific allegations, contained

25 in the indictment which we do not believe are supported by the evidence,

Page 5889

1 and this is principally because a witness did not come and testify. And

2 that is paragraph 39, subsections (d) and (e), the detention at Bosanska

3 Kostajnica and Bosanski Novi police station; (f) we have previously

4 abandoned even before the trial began. Those two allegations, which we

5 had preserved during trial, we do not believe have been sufficiently

6 established at -- even under the 98 bis standard. We will not continue on

7 those two charges -- those two allegations. I had informed Defence

8 counsel about this earlier today.

9 JUDGE MOLOTO: Let's get your position quite clear. You would

10 support an acquittal on those two?

11 MR. WHITING: Well, Your Honour, it -- I don't think that's the --

12 I don't think that's sort of the proper result because the -- it's not an

13 acquittal on those two because that is part of a larger count. That goes

14 to several counts, and there are -- there is other bases for supporting

15 those counts. And if I may, because that's been raised by the Trial

16 Chamber - and this is something perhaps I should have addressed with

17 respect to the Rule 98 bis standard. In -- the Rule 98 bis previously

18 spoke about charges which were not supported by the evidence. And there

19 was some question about what that meant, whether that meant allegations,

20 specific allegations, or whether that meant counts.

21 In December 2004, the rule was amended, and the principal

22 amendment was to change this process from a written process to an oral

23 process. However, it did also change the word "charges" to "counts," and

24 it's our position that the -- as long as the Trial Chamber is satisfied

25 that there is evidence that -- under the standard that there is some

Page 5890

1 evidence to support a conviction on the count, it does not need to examine

2 in detail every single allegation, every single victim, every single

3 name. It does not need to go into that kind of detail.

4 JUDGE MOLOTO: Can I ask you a question?


6 JUDGE MOLOTO: I'm trying to get your position with respect to

7 paragraph 39(d) and (e). Is it the Prosecution's position that the

8 factual allegations made in 39(d) and (e) have not been supported by

9 evidence, and therefore the Chamber can take that those allegations have

10 been -- have not been proved?

11 MR. WHITING: Yes, Your Honour. That's the position of the

12 Prosecution.

13 JUDGE MOLOTO: Thank you.

14 MR. WHITING: I will also -- although we have taken the position

15 with respect to counts, I will address in some detail specific crime bases

16 and specific allegations because I think it will be of assistance to the

17 Trial Chamber and to the Defence. I will not take the position, for

18 example, that you could find sufficient basis of -- for murders in one

19 crime base and that would be sufficient. We are going to address all of

20 the crime bases, and we believe that there is sufficient evidence with

21 respect to all the crime bases.

22 I will say that in our view the Defence has raised what I would

23 describe, and respectfully describe, as a somewhat scattershot approach to

24 the indictment, raising various points, some of which we think are

25 completely inappropriate at this stage, most of which, frankly. If -- I

Page 5891

1 would -- as I've said, our view is that all the counts have been

2 supported. If the Trial Chamber has -- what we would ask that if the

3 Trial Chamber has any reservations about any specific count, that we be

4 given an opportunity to respond to that. We will respond to all the

5 Defence allegations, we will make our own points; however, there is a lot

6 to cover here and I don't want to miss anything. And so if there -- I

7 would ask if there is some specific concern with respect to any count,

8 from the Trial Chamber, that I do not address, that we be given an

9 opportunity to -- out of fairness to respond to that, because as I've

10 said, our review -- the result of our review is that we have satisfied the

11 standard with respect to all the counts in the indictment.

12 Let me briefly respond to some of the points raised by the

13 Defence.

14 The first is that the Defence -- the Defence allege that the

15 Prosecution did not state whether there was an oral or written plan

16 supporting the joint criminal enterprise; this misstates the law. As I

17 will discuss later, the -- under the jurisprudence of the Tribunal, a plan

18 is not required, and I refer the Trial Chamber to the Stakic appeal

19 judgement. All that is required is a common purpose, individuals acting

20 with a common purpose, but no plan is required and certainly no oral or

21 written plan.

22 The Defence allege that it was absurd that Martic is being charged

23 or indicted for commanding over JNA forces. He is not being charged with

24 that; he's being charged with being a member of a joint criminal

25 enterprise with JNA forces that committed crimes during the period charged

Page 5892

1 in the indictment.

2 The Defence raised a number of points which seem to be, frankly in

3 defence of -- more in defence of Mr. Milosevic than of Mr. Martic, but

4 they suggested that the joint criminal enterprise allegation was

5 undermined by the fact that Mr. Milosevic, they say, supported the Z-4

6 plan in 1994 and 1995. However, they are ignoring the evidence of Mr. --

7 of Ambassador Galbraith, who explained - and this is at 3752 and 3753 -

8 explained why Slobodan Milosevic took a different position later on with

9 respect to the Krajina in 1994 and 1995 than he had in 1990, 1991. And

10 this had to do with the fact that by then Croatia was a recognised country

11 and his hopes of breaking off the Krajina had disappeared, and so his

12 position therefore changed.

13 The Defence also suggested that the signing of the Vance Plan

14 in -- on the 23rd of November, 1991, somehow showed that Mr. Milosevic or

15 other members of the joint criminal enterprise were really striving for

16 peace, and that this somehow undermines the allegation of the joint

17 criminal enterprise. In our view, the opposite is true. The -- what is

18 striking about the Vance Plan and the fact that it's reached on the 23rd

19 of November, 1991, is that it is negotiated not by Serb representatives

20 from the Krajina, but that it's negotiated by Mr. Milosevic and it's

21 signed by Mr. Milosevic and Mr. Kadijevic and Mr. Tudjman, on the other

22 side, showing who is in control. It shows the influence and power of

23 Mr. Milosevic and Mr. Kadijevic at that time in November of 1991. They

24 are the ones calling the shots, and then they -- the evidence shows that

25 they then persuade Mr. Martic to support the Vance Plan and that they then

Page 5893

1 pushed through the Vance Plan.

2 It is also false to say, in our submission, that Mr. Babic was

3 opposed to the Vance Plan; the truth is more subtle. And in any event,

4 the issue here is not so resolve that; it's whether there is evidence

5 about it. There is evidence that Mr. Babic didn't oppose it. What he

6 wanted was a different version of the Vance Plan. He had a different

7 idea. He opposed it in its form, as it was presented to him, and -- but

8 he had a different view of how it should be -- what the Vance Plan should

9 look like.

10 The Vance Plan of course -- there is evidence on the record that

11 the Vance Plan was not in fact respected by this accused, Milan Martic,

12 that it was not in force, that the goal of demilitarisation that was

13 enshrined in the Vance Plan was not respected, that the forces in the SAO

14 Krajina continued to carry long-barrel weapons, and that the JNA left

15 behind weapons and personnel, and that the -- and that the equipment was

16 simply painted blue to disguise the fact that it had actually been JNA

17 equipment. The Vance Plan of course also allowed the Serbs to hang on to

18 the military gains that they had won during -- during 1991, and -- during

19 the conflict in 1991, and so for that reason, was something that of course

20 was supported. In addition, the goal of allowing refugees to come back

21 into the SAO Krajina was also not supported by Mr. Martic, and that

22 evidence has been provided by Mr. Babic but also by Mr. Dzakula. There is

23 evidence about that.

24 It also should be clear that the Vance Plan, while the Vance Plan

25 was in existence, the -- in 1992, in the spring of 1992, the corridor

Page 5894

1 operation, the Posavina corridor operation, was undertaken in Bosnia and

2 Herzegovina. There is evidence on the record that Mr. Martic personally

3 participated in that operation with forces under his command and that the

4 purpose of that operation - and I would refer to the 2211 of the

5 transcript - was precisely the purpose of the joint criminal enterprise,

6 just to join up Serb lands, to join up the SAO Krajina with Serbia, to

7 make -- to connect the corridor, to make a greater Serbia. So the notion

8 that the -- adopting the Vance Plan somehow shows that there wasn't a

9 joint criminal enterprise, that there wasn't this purpose, is not -- is

10 not supported by the record.

11 The Defence suggested at one point - and I believe that they were

12 talking about -- specifically about Bosnia and Herzegovina, but perhaps

13 suggesting that the same is true in Croatia - that there were bloody

14 circles of vendettas and counter-vendettas, that everybody was committing

15 crimes, and it was going back and forth in circles of history. I would

16 suggest that this approach and this defence is utterly cynical, and it's

17 not -- it's contradicted on the record by several witnesses who say, who

18 have told this Trial Chamber that war was not inevitable, that conflict

19 could have been avoided, that there was -- there were alternatives to

20 extremism. I would refer to witness Dzakula at 391, Witness MM-078 at

21 4424, and Witness MM-003 at 1981. Even if that -- even putting aside the

22 evidence from those witnesses, I suggest that it's -- again that it's

23 cynical to say that everybody was extremists and therefore that justifies

24 the crimes.

25 The Defence raised -- suggested that Slobodan Milosevic was

Page 5895

1 supporting Milan Martic in the presidential election in the RSK at the end

2 of 1993, beginning of 1994, merely to oppose Milan Babic and because of

3 his opposition to UNPROFOR. What's harder to understand, however, is why

4 Milan Martic was welcoming the support of Slobodan Milosevic, and that's

5 the issue, is that he was embracing Slobodan Milosevic. The issue is not

6 why Slobodan Milosevic supported Martic; it's why Milan Martic embraced

7 Slobodan Milosevic. And I would point the Trial Chamber to Exhibits 13

8 and 14, a speech given by Milan Martic during the presidential campaign,

9 where he described President Milosevic as "our all-Serbian leader" and

10 pledged that if he were to win, he would pass on the baton to our

11 all-Serbian leader, Slobodan Milosevic. Therefore, this connection

12 between Slobodan Milosevic and Milan Martic at that time, in fact,

13 supports the joint criminal enterprise allegations in the indictment.

14 The Defence alleged that Milan Martic supported agreements with

15 Croatia in March of 1994 and again -- this was a cease-fire agreement, and

16 again in November of 1994, an economic agreement. This is ignoring all

17 the other evidence in the trial. The evidence from Ambassador Galbraith

18 is that the Serb side dragged its feet before they reached any kinds of

19 agreements, in particular the November 1994 agreement. The evidence is

20 also that Milan Martic specifically rejected the Z-4 -- the final Z-4 plan

21 in January of 1995, and that evidence comes from Dzakula and also from

22 Ambassador Galbraith, Dzakula at 441. I don't have a specific cite for

23 Ambassador Galbraith, but I'm pretty sure I'm accurately recounting his

24 testimony.

25 The Defence has suggested that in fact Slobodan Milosevic

Page 5896

1 supported the Z-4 plan; however, one of the principal negotiators,

2 Ambassador Galbraith who testified, here suggested just the contrary. At

3 this stage again, it's whether there is some evidence. The Trial Chamber

4 doesn't need to resolve all of these disputes; it's just whether there is

5 some evidence. But the suggestion I'm making is that the Defence in

6 raising all these points has ignored all of the contrary evidence, all

7 that is on the record.

8 Again, there were a number of points raised about Croat

9 aggressions during the years 1993 and 1994, 1995; those points I will not

10 respond to.

11 The point was made, and this is a point that's been made

12 frequently through cross-examination, that the JNA was deployed on its own

13 state, that the JNA was the army of the former Yugoslavia operating within

14 the former Yugoslavia. Fine. But that does not really advance the ball

15 at all because there is really no dispute about that. The -- that does

16 not authorise the commission of war crimes. That does not authorise the

17 joining up in a joint criminal enterprise with the purpose of creating the

18 greater Serbia through the commission of crimes. So that point which has

19 been made repeatedly really, in our submission, is besides the point.

20 The point was also made that the -- all of the JNA troops and

21 facilities were blocked and put in danger. That is -- first of all that's

22 factually incorrect. MM-080 testified to the contrary. Secondly, there

23 is evidence on the record that this was done for defensive reasons, that

24 the Croats were merely trying to defend themselves from the JNA operating

25 on the ground and trying to predetermine the situation with respect to

Page 5897

1 Croatian independence, which was the -- one of the issues at the time and

2 that evidence is at -- comes from Milan Babic, it's at 1562, 1563. And

3 the third point to make about this, once again of course is that even to

4 the extent there were blockades of JNA barracks, those are military

5 actions that do not justify the commission of war crimes or crimes against

6 humanity in response.

7 The Defence did make some points with respect to some of the crime

8 sites which I will respond to though, again, the Defence ignored all of

9 the other evidence with respect to all of these crime sites. The first

10 point with respect to -- I've just gotten a little piece of paper that

11 says "break" on it. Maybe this would be a convenient time, since I'm just

12 about to start in on this new topic of talking about the specific crime

13 bases.

14 JUDGE MOLOTO: Thank you very much, Mr. Whiting.

15 We will take a break and come back at quarter to 6.00.

16 Court adjourned.

17 --- Recess taken at 5.16 p.m.

18 --- On resuming at 5.46 p.m.

19 JUDGE MOLOTO: Mr. Whiting, you may proceed.

20 MR. WHITING: Thank you, Your Honour.

21 Before the break, I was starting to address the -- some of the

22 points raised by Defence counsel with respect to specific crime bases, and

23 the first one was with respect to Skabrnja. Defence counsel made much of

24 the fact that there was some evidence about an independent battalion

25 within Skabrnja. There are several responses. The first is that there is

Page 5898

1 evidence that this was a -- that this was purely defensive. I'd refer the

2 Trial Chamber to 2863 of Marko Miljanic's testimony, which Defence counsel

3 I would note, relied on. The second is that the crimes -- the evidence is

4 that the crimes committed at Skabrnja were committed against civilians

5 while they were detained. So the -- whether there was an independent

6 battalion or any other kind of a battalion there was completely irrelevant

7 to those sorts of crimes. And there I would refer the Trial Chamber to

8 the evidence of Neven Segaric, among others.

9 The third point is that there is evidence on the record that the

10 plan for the attack on Skabrnja had been made the night before; that comes

11 from MM-080. And also, the Defence relied on MM-080 with regard to

12 whether there was a -- whether there was information about an independent

13 battalion being present in Skabrnja, but MM-080 of course also provided

14 evidence, which I will not go into detail about, about information about

15 crimes committed there, showing -- at Skabrnja, showing how the two are

16 entirely consistent. And it should be noted that the information about

17 crimes being committed at Skabrnja came, in part, from soldiers who were

18 there who were appalled by what they saw, shocked, and reported it.

19 However, the evidence is that nothing was ever done about them.

20 The second area that was addressed was Bruska, and there, there

21 is -- Defence counsel made a lot of the fact that this had been

22 investigated and that nobody could be found. And we can't figure out who

23 assassinated JFK, so how can we figure out this crime? The first point is

24 that there is very strong evidence that -- overwhelming I would say, that

25 these crimes, the crimes in Bruska, were committed by Martic's Police, men

Page 5899

1 who were directly under the command of the accused. So that before the

2 Trial Chamber even reaches the issue of punishment, it's why these men

3 were committing these crimes in the first place, these men who were under

4 his command, committing these crimes. The second is that Exhibit 404 is a

5 report from 1992 which indicates that -- which provides evidence that the

6 police knew who had committed the crimes and the suggestion in that report

7 of -- that there was an effort to hide it, hide that fact and hide that

8 information and cover it up.

9 The third point we would make, certainly at this stage and no

10 doubt ultimately, is that whatever investigation was done into the crimes

11 in Bruska was clearly inadequate, clearly no real effort to determine the

12 perpetrators and bring them to justice. These were -- these crimes were

13 committed by the police; should not be that hard to figure out who had

14 committed them. And the -- for the attitude of the accused towards

15 punishment of individuals who have committed crimes, we would refer the

16 Trial Chamber to the testimony of Mr. Van Lynden, the journalist who

17 witnessed Mr. Martic release men who had been charged or who had been

18 accused, let's say, not charged, but accused, by Captain Dragan in the

19 summer of 1991 of having committed crimes in Struga. So certainly we

20 think at this stage there is a sufficient basis to preserve the charges as

21 they relate to Bruska, particularly since they -- as I said, they were

22 committed by -- they were directly committed by Martic's Police, according

23 to the evidence.

24 The third area is Saborsko and Poljanak, and again the same claim

25 is made that there were forces in Saborsko. And Defence even claiming

Page 5900

1 that these -- the Croats who were defending themselves had turned their

2 peaceful village into military barracks. There is evidence that these --

3 that these -- I don't even know what to call them, that the men in

4 Saborsko were acting in a purely defensive manner, trying to protect

5 themselves from attacks by Serbs, and that's at transcript 2662. It's

6 corroborated by MM-037, who said that during the attack on Saborsko there

7 was very little resistance and, to his knowledge, the Serb side did not

8 suffer any casualties.

9 The third point is that we would refer the Trial Chamber to,

10 again, to the manner in which civilians were killed and the age of the

11 civilians. And I'd refer the Trial Chamber specifically on this point to

12 2676 and to 77.

13 Finally with respect to Poljanak and Lipovaca the same claim was

14 made about a village guard. The evidence is that whatever village guard

15 existed in those villages was purely defensive, and that's at 2413 to 14.

16 Again, the presence of -- the attempt by the civilians of these villages

17 to protect themselves, in some small way, does not justify in any way the

18 crimes that were committed in those villages.

19 The next point that the Defence makes is that these crimes were

20 done by irresponsible individuals and by locals. Well, there are several

21 points to make on this. The first is that the Martic's Police were of

22 course comprised of locals. The second point is that the evidence shows

23 with respect to all of the attacks on the villages named in the

24 indictment, that they were organised operations, planned beforehand, that

25 they included the participation of the TO, the JNA, Martic's Police.

Page 5901

1 These were not just crimes of opportunity or isolated, individual crimes;

2 these were crimes that were well-planned and committed in connection with

3 well-planned military operations. The third point is that the evidence

4 will show with respect to each crime base in the indictment, that the

5 police, under the command of Milan Martic, participated in the attack on

6 the village. And in our view, that is sufficient, certainly at this stage

7 and, we believe, ultimately to hold the accused responsible under the

8 joint criminal enterprise and other modes of liability.

9 And finally, the -- there is evidence that the goal of these

10 operations, both from statements made at the time and testimony from

11 witnesses, but also from what happened in those villages, that the goal

12 was plainly to wipe out those villages, to push out the Croat population,

13 to destroy the village, and make sure that they would never come back, and

14 to seize those villages as part of Serb territory. Most of the time to

15 connect up Serb villages. Most of the time these villages were in the

16 way, and so in order to connect up Serb villages that stood beyond them

17 and make them contiguous part of the SAO Krajina, these villages were

18 attacked.

19 The next area that was addressed by Defence counsel is Dubica and

20 Cerovljani. I had trouble getting clear on what the exact point of

21 Defence counsel was, but what is clear and I think was conceded by Defence

22 counsel is that in those areas all Croat forces, all Croat resistance, was

23 gone by September of 1991, and certainly by October 1991, when the

24 massacre occurred in Bacin.

25 And the -- as I will discuss later, when I address more directly

Page 5902

1 this area, the evidence is that the police, the SAO Krajina Police, was

2 present in Dubica and that area at the time and that they participated in

3 the operation that resulted in the massacre.

4 The Defence counsel next moved on to talk about Zagreb. I'm not

5 going to address everything that Defence counsel said; I will address a

6 few points. The first point was that Defence counsel asserted that the

7 Prosecution expert, Mr. Poje, said that the attack and Zagreb was general

8 artillery support for the troops in Western Slavonia, meaning the SAO

9 Krajina -- or the RSK troops in Western Slavonia. Perhaps true but still

10 illegal. It's illegal artillery support for those troops, which brings me

11 to the second that he raised which is -- he said: Well, this attack on

12 Zagreb brought the aggression in Western Slavonia to a halt. I'm not sure

13 that's true. I would dispute that. I think there were other reasons that

14 the Operation Flash finished, namely that it was successful and

15 completed. But even if true -- even if that were true, that is simply no

16 justification for the illegal nature of the attack. A terrorist action

17 which has results does not suddenly become lawful.

18 The third point Defence counsel made was to suggest that the only

19 weapons that the RSK had that would reach Zagreb, were these weapons, and

20 that in fact Mr. Martic chose the better of the two options that he had.

21 Again, this does not change whether that was a lawful action, and Mr. Poje

22 himself addressed this point and said: If you don't have the lawful

23 weapon to do the attack, then don't do the attack.

24 The final point is that Defence counsel asserted that there were

25 military targets in Zagreb. The evidence, in our view, shows - certainly

Page 5903

1 at this stage and we think it will show ultimately - that the -- that

2 this -- that the attack on Zagreb was never aimed at military targets.

3 That's a post-event justification for the attack. The evidence is, in our

4 view, clear that the -- that it was an attack aimed at civilians, at the

5 civilians in Zagreb, and civilians in other cities. Even if -- and there

6 is certainly evidence to support that on the record. Even if it were

7 found that it was aimed at military targets, the evidence is that it was a

8 wholly inappropriate and illegal weapon to choose with which to attack

9 those targets because of the certainty of collateral damage, of civilians

10 being murdered.

11 Defence counsel made a final -- some final points about

12 Martic's Police, for example, and whether we had invented that term. I

13 think the evidence is quite clear that that was a term -- many, many

14 witnesses testified that that was a term that was used by the police. I

15 would refer the Trial Chamber to 2743, 2939, and in particular to the

16 testimony of MM-078 at 4435, where he said that the members of

17 Martic's Police bragged about being Martic's Police. So it's not a term

18 that we came up with; it's a term that Martic's Police came up with.

19 Finally, Defence counsel ended with an attack on a number of

20 Prosecution witnesses. Those attacks -- I'm to the going to address them

21 because they are inappropriate at this stage. The Trial Chamber is not,

22 at this stage, supposed to weigh those sorts of issues, about credibility

23 and so forth. That will come at a later stage. The -- however, I will

24 say that many of -- much of what Defence counsel said about the witnesses

25 and why they cannot be relied on is completely false. And I would

Page 5904

1 particularly take a moment to say with respect to Mr. Babic that Defence

2 counsel has selected a few words from the Parker report to suggest that

3 Mr. Babic was -- first of all that it was clear that he would commit

4 suicide and that he was emotionally unbalanced. Ignoring the fact that

5 the Parker report, once it weighed out all the evidence and considered

6 everything, came to the opposite conclusion on both of those points.

7 Now, those are all my responses to the points raised by Defence

8 counsel. What I would propose to do now is to just go through and

9 indicate how we believe the -- there is evidence for all of the counts in

10 the indictment. I will not go element by element; I'll spare the Trial

11 Chamber that. However, if there is a particular element that, again,

12 causes any concern, I'm happy to address it because I think we can. But

13 I'll first talk about the joint criminal enterprise, and then I'd like to

14 go through the different crime bases in the indictment.

15 As I alluded to earlier, the elements of the joint criminal

16 enterprise have been recently articulated by the Appeals Chamber in the

17 Stakic appeals decision. And the elements are: Number 1, a plurality of

18 persons -- I said I wasn't going to talk about elements, but only on this

19 one I will. A common purpose which involves the commission of a crime and

20 the participation of the accused. What's notable is that it does not

21 require a plan, and the Stakic Appeals Chamber said with respect to common

22 purpose that there is no need for the common purpose to have been

23 previously arranged or formulated; rather, it may materialise

24 extemporaneously and it may be inferred from the facts. There are --

25 under jurisprudence of the Tribunal, there are three types of joint

Page 5905

1 criminal enterprise and the indictment in this case alleges, in the

2 alternative, two of those types. It alleges first the first option -- the

3 first option is that all of the crimes in the indictment were within the

4 purpose of the joint criminal enterprise, and that is what's referred to

5 in the jurisprudence as JCE 1. That there was a -- that all of the crimes

6 were within the purpose of the joint criminal enterprise. The second

7 option which is alleged, the alternative charge in the indictment, is that

8 counts 10 and 11, "... deportations or forcible transfers of Croat ... and

9 other non-Serb ... from the SAO Krajina," was the object or purpose,

10 common purpose, of the joint criminal enterprise. And that all of the

11 other crimes were the natural and foreseeable consequence of the execution

12 of that object of the JCE and that the accused was aware that such crimes

13 were the possible outcome. That's what is commonly referred to as JCE 3.

14 Now, what evidence is there of the common purpose of the joint

15 criminal enterprise, which in the indictment is alleged to be the forcible

16 removal of non-Serbs from the Serb areas of Croatia, the SAO Krajina, and

17 parts of Bosnia-Herzegovina, in order to make them part of a

18 Serb-dominated state through the commission of crimes. That's the

19 common -- that is the purpose of the joint criminal enterprise which is

20 alleged in the indictment. And what evidence is there of that? Well,

21 there are two parts to that. One is the greater -- the greater Serbia,

22 creating a greater Serbia, and the second part is to do so through -- is

23 to eliminate all non-Serbs from that greater Serbia through the commission

24 of crimes.

25 There are a number of ways that the evidence shows the purpose of

Page 5906

1 the joint criminal enterprise. The first is that -- the first is that

2 witnesses have testified about -- directly, about the purpose of the joint

3 criminal enterprise. And I would suggest, and the -- and I think that the

4 jurisprudence would suggest that this is actually kind of unusual to have

5 witnesses who directly say what this was the purpose of the joint criminal

6 enterprise. Of course, not using that word, "joint criminal enterprise,"

7 but this was the purpose of what Serb forces -- this is what the Serb

8 forces were doing. This was their purpose. Most of the time it's

9 inferred from the facts, and I think it can be in this case, but we do

10 have witnesses who directly testify about that. The first who does so of

11 course is Milan Babic, and he testified -- he testified that he himself,

12 at 1335, allowed himself to take part in persecutions of people simply

13 because they were Croats and that innocent people were persecuted, that

14 innocent people were forcibly evicted from their houses, and innocent

15 people were killed.

16 The -- his plea agreement and what he pled guilty to and what he

17 admitted to as a factual basis for his plea of guilty, which was accepted

18 by the Trial Chamber in his case is in evidence as Exhibit 174. And I

19 would refer the Trial Chamber specifically to paragraphs 28 to 34 of tab 1

20 of the factual statement -- of tab 1, which is the factual statement, the

21 factual basis for the guilty plea, where he takes responsibility for what

22 happened. And there he describes the existence of the joint criminal

23 enterprise, the purpose, and what it did.

24 I won't go through all of the evidence that Milan Babic talked

25 about, but he talked about in his testimony here, at 1384 and 1385, that

Page 5907

1 starting in the fall of 1990 the Council for National Resistance, which

2 the accused Milan Martic was in charge of - and that evidence is supported

3 by Babic and others - it furthered the policy of Milosevic and Jovic and

4 the policy he described as: "The policy of creation of a state to

5 encompass all of the Serbs in Croatia and Bosnia-Herzegovina as well by

6 taking over Serb territories and for the others to leave Yugoslavia if

7 they chose to." That was the essence of their policy.

8 In the testimony of Milan Babic, he explained, and I won't quote

9 from it, but he explained the -- what he described as the covert strategy

10 and the public strategy of the joint criminal enterprise of Milan -- of

11 Milosevic and others that was endorsed by the other members of the joint

12 criminal enterprise, which was to publicly act in a passive way. We are

13 protecting the former Yugoslavia, we are just trying to protect the system

14 that existed, but covertly, at 1416, Babic said: "The covert strategy,

15 however, was paramilitary forces, first in Croatia and then elsewhere,

16 then to provoke incidents and try to include the JNA into the events,

17 first to separate the warring parties and then to deploy the JNA in those

18 territories that were envisaged as the future Serb state until later on

19 retain the de facto situation that was supposed to have been recognised at

20 a later stage by the international community."

21 There is corroboration for this public -- this public/covert

22 strategy in some intercepts, and I would refer the Trial Chamber

23 specifically to Exhibit 200, 201, and 202, intercepts where the

24 participants are clearly talking about what should be said publicly about

25 the Serb strategy and what should be -- what in fact it was. There was

Page 5908

1 also corroboration in the -- in Exhibit 476, which is the book by

2 Borislav Jovic, one of the members of the joint criminal enterprise, and

3 I'd specifically refer the Trial Chamber to the entries for the 23rd of

4 June, 1989; the 27th of June, 1990; and the 11th of September 1990. Very

5 early entries which show what the public and covert strategy were.

6 This evidence about the purpose of the joint criminal enterprise

7 didn't just come from Milan Babic; it came from others as well.

8 Specifically, MM-003 testified that -- at 1981 to 1982, that in January

9 1991 the police were seeking a way as -- a way to the territories that

10 were outside the barricades. A way was sought through the police stations

11 that were closest to those places that did not belong to the SAO Krajina

12 yet or had -- rather, had not become part of the Serb Krajina, the Serb

13 territories yet.

14 And at 2022 to 2023, Witness MM-003 described the relationship

15 between the police and the JNA in this way -- and this is quite stark.

16 "As I saw it, and as far as I know, it was excellent, more than

17 excellent. In fact, they were on a joint assignment, I would say, it was

18 a joint cooperation and a joint task, joint assignment for joining up all

19 the Serb lands into one entity, one whole.

20 "What would happen to Croat villages that were in the way?

21 "Those, well, those villages were to be cleansed, quite simply,

22 because they were in the way, towards opening communications, towards Serb

23 territory. And as I understood it along certain axes, directions the

24 direction to Lika, for example, the entire line was to be moved towards

25 Gospic up to Gospic so you had pure villages."

Page 5909

1 That is a very clear statement about the purpose of the joint

2 criminal enterprise.

3 At 2023: "That meant that the Croatian population should either

4 leave under these actions or, just simply, that they should be there no

5 longer, to leave the territory, to leave those villages."

6 There is further corroboration for the purpose of the joint

7 criminal enterprise from Witness Dzakula at 404, where he said that:

8 "Martic believed that we were supposed to work for recognition and

9 joining the association of Serb lands, Republika Srpska and Serbia. Those

10 were his landmarks."

11 And MM-079 testified at 3069 to 70 that: "Martic said that the

12 Serb people had expressed their readiness and willingness not to live in

13 Croatia , and they were united in this demand that they wanted instead to

14 live within Yugoslavia, that the Serbs of Krajina wanted to live in one

15 single country with all the other Serbs from Yugoslavia, including

16 Serbia."

17 The -- those are explicit statements coming from witnesses about

18 the purpose of the joint criminal enterprise, but the purpose can also be

19 seen from the pattern of events that occurred starting really with the

20 barricades in August of 1990, but continuing through 1991 and through the

21 events that are charged in the indictment in the fall of 1991.

22 And the -- as I said the pattern begins with the barricades.

23 The -- Milan Babic testified at 1360 that the barricades on the -- that

24 were erected beginning 17 August 1990 were the first step, the first time

25 the Serbs -- the first use of force is what he said and -- by the Serb

Page 5910

1 side. And MM-078 described how the -- I believe it's at 4418, that: "The

2 barricades were not defensive. They had no other purpose than to

3 psychologically intimidate citizens of both ethnicities," and he explained

4 how they were directed against Croats. And MM-003 testified at 1968 to

5 1970 that the barricades cut off certain Croatian villages.

6 The general pattern was described both by Milan Babic and

7 Witness MM-078. Milan Babic described the pattern at 1418. He said

8 that: "Their activities began in April 1991. At first they promoted

9 discriminatory policies against Croats, only Croatian houses were searched

10 and only Croatians were searched for weapons; then they were provoking in

11 areas in contact with the Croatian settlements and areas, in particular

12 the settlements controlled by the Republic of Croatia. They tried to

13 provoke incidents and bring the JNA into the events."

14 And then MM-078 at 4461, says: "I have to tell you there was a

15 constant pressure on the Croatian citizens of Knin. This started in the

16 year 1990," and he describes the ways that this pressure occurred.

17 Now, the first -- or one of the first attacks on a village

18 occurred in Potkonje, both Milan Babic and Witness MM-078 and, less

19 directly, MM-079 testified about this. Babic testified at 1419.

20 Witness MM-078 described at 4452 how Potkonje was attacked sometime before

21 June of 1991 and it was done by the police under Martic's command. And

22 the witness testified that -- this is a Croatian village of course, and

23 that they wreaked havoc there and that the psychological effects were

24 devastating, that the civilians left, and that the witness supposed that

25 those who organised the attack had given careful thought to what the

Page 5911

1 effect would be in Potkonje. This was the beginning of a series of

2 attacks on villages with the same pattern, again and again and again.

3 MM-079 testified about how sometime in June of 1991, some -- at

4 least 600 refugees turned -- from the Knin area turned up in Sibenik,

5 Croat civilians who had been driven away from the Knin area - Potkonje, of

6 course, is very close to the Knin, it's part of the Knin area - and that

7 they recounted how they had been driven away by Martic's Police, torching

8 houses, beating people, telling them to leave. They were fleeing the

9 crimes of Martic's Police.

10 And the witness had a conversation with Milan Martic about these

11 events; that's at 3112 to 13. And Milan Martic acknowledged being aware

12 of them and defended what had occurred in various ways. And -- however,

13 suggesting that the people who had any evidence of beatings had no doubt

14 done it to themselves. But he did admit to torching of houses but

15 defended it as being proper and appropriate.

16 The next attack occurred at Lovinac, and this -- Babic testified

17 about this at 1432 and 1433. And there is also evidence from MM-003 about

18 this, which corroborates and in fact goes further, at 2010 and 2012 and

19 also 2019. And the attack occurred around the June of 1991, again a Croat

20 village. And MM-003 said the -- that: "Martic was in command of the

21 attack and that the effect and the object of the attack was to drive the

22 Croatian population out. They were -- they were in a panic. They wanted

23 to leave, to escape, and that was the object of the attack, in fact."

24 And then there was some further discussion about how he knew that,

25 and at 2019 he said that "Martic talked about it, not just then but on

Page 5912

1 other occasions." They did not -- they did talk about not only -- only

2 about that day about the object of the attack, they were speaking

3 generally. And they said they had to because of the large number of Serb

4 population, they had to solve it beyond Letka [phoen].

5 The next event is in Struga and Glina in July 1991. There

6 occurred -- Witness Van Lynden testified about that at 4995 to 5.000, and

7 he described this as a very -- as an early attempt at ethnic cleansing.

8 And as you'll recall, the attack on Struga is done by Territorial

9 Defence -- what he thinks are Territorial Defence forces. During the

10 attack on Struga, they murder some four to five women from Struga, ten

11 Serb men are held by Captain Dragan, and Milan Martic releases them.

12 Captain Dragan is also involved in the attack on Glina which is captured

13 from the Croats.

14 The next attack occurs in Kijevo; that is in August of 1991. And

15 there again, Martic -- Martic's Police, participates with -- along with

16 the TO and the JNA, and that's on the 26th of August, 1991. And there is

17 evidence from Babic, from MM-003, MM-078, about the effect and the purpose

18 of that attack, and the fact that the church was targeted and why it was

19 targeted, and why the houses were torched, to send a message to the Croats

20 living there that there was no reason to return. Kijevo is followed by

21 Vrljika, MM-078 talks about that; followed by Drnis, MM-078 talks about

22 that, again police involved. Again the same pattern of destroying the

23 villages, driving out the Croats, and looting and plundering, all with the

24 participation of the police.

25 And then we reach the crimes charged in the indictment, and I'll

Page 5913

1 go through those in a moment, but there is also evidence which comes just

2 still on the point of the joint criminal enterprise, that the -- which

3 shows that all during 1991, Martic's -- Martic and the forces under him,

4 Martic's Police and during a period also the Territorial Defence forces,

5 from mid-August to the end of September 1991, along with the TO and the

6 JNA, were all cooperating and working together. The -- Milan Babic

7 described this as a parallel structure, the cooperation between the forces

8 around Milan Martic in the SAO Krajina and the forces in Serbia that --

9 whether they be the JNA, the Ministry of the Defence, or the Minister of

10 the Interior, and he talked about that at 1567. This is corroborated by

11 MM-003 who talked about -- at 1994, about how Martic began receiving --

12 and in other places, how Martic very early on in -- beginning in 1990 and

13 continuing through 1991, how Martic began receiving support from Serbia,

14 from Milosevic, from Stanisic, from Simatovic. This -- it's also

15 corroborated by MM-079 and by Witness Maksic. This culminates, of course,

16 in the creation of the Golubic camp in April of 1991, where a camp which

17 is financed by Serbia, by Stanisic, by Simatovic, through the Ministry of

18 the Interior of Serbia, and where Martic's special units, his police, are

19 trained for the purpose of engaging in military action. And the evidence

20 about Golubic comes from Babic at 1397 and 1539, but from many other

21 witnesses as well: MM-003, MM-078, MM-079.

22 By the fall of 1991 -- by Kijevo -- the attack on Kijevo marks the

23 time when the JNA enters, gives up this role of acting as a buffer between

24 the parties and begins actively engaging in the conflict, and from the

25 attack on Kijevo thereafter, the evidence -- there is evidence,

Page 5914

1 substantial evidence, that the JNA, the TO, and the police worked together

2 during the fall of 1991, that they were fully coordinated. This comes

3 from Babic at 1438, and in particular at 1447 to 1448, where he said

4 that: "There was an essential change in fact, the JNA became an active

5 participant in the war, the JNA went to war, and under such conditions all

6 TO units automatically came under the command of the JNA."

7 It is corroborated by Exhibits 213 to 215, which are articles

8 where Milan Martic openly - openly - in many different newspapers talks

9 about the good cooperation and close coordination between the army and the

10 police, and it's corroborated also by Dzakula at page 424; by Exhibit 518,

11 a speech by Milan Martic in December of 1991, where he talks about the

12 police coordinating with the TO and the JNA; and it's also corroborated by

13 MM-078 at 4426; MM-078 at 4442. By the time of Kijevo and thereafter, all

14 of the Serb forces, the JNA, the TO, and the police, were working together

15 for the common purpose of the JCE that's alleged in the indictment.

16 So what was the result? The result was the crimes alleged in the

17 indictment, and I'll go through them now as briefly as I can, one by one.

18 We will start -- I'll do it chronologically. I'm going to leave -- I

19 won't -- I'm going to go through the different crime bases because they, I

20 think by the end, establish the facts for all of the different counts in

21 the indictment. The persecutions, murders, detentions, are a little bit

22 separate, that's kind of a separate one, and the forcible transfer, as

23 well as the destruction and plunder counts.

24 The evidence -- the pattern continues with all of the crime -- the

25 pattern that's established from Potkonje through all the different events

Page 5915

1 that occur, continues where -- it begins. There is shelling, barricades

2 set up, there is shelling of the village, followed by an attack on the

3 village - these are all Croat villages of course - attack on the village,

4 murders occur, the civilians are driven out, and the village is completely

5 destroyed and plundered and looted. And in each case, the police

6 participate in the attack on the village. And it's the same pattern again

7 and again and again in each case.

8 Start with Dubica. The evidence -- the massacre occurs on the

9 20th or 21st of October, 1991. The evidence, however, is that Dubica and

10 the villages around Dubica, Cerovljani and Bacin, were attacked by

11 shelling and by Serb forces in August and September of 1991, and that

12 already by September of 1991, the Serb forces - and in particular Martic's

13 Police - controlled these areas, controlled these villages. And the

14 evidence comes from Witness Kozarcanin and that's Exhibit 828, he's a 92

15 bis witness; Witness MM-022, Witness Ana Kesic; Witness Mijo Cipric. Ana

16 Kesic said that by September of 1991 most of the Croats living in the

17 village of Dubica had left, had been driven out, and only the elderly

18 people remained.

19 Witness Mijo Cipric testified that when the Serbs started shelling

20 the area in August of 1991, the Croats had no option but to leave their

21 villages.

22 The -- several witnesses talk about the events of October 20th and

23 21st that lead up to the massacre that occurred in Bacin and Cerovljani,

24 Dubica. The individuals being taken to the fire station, and in

25 particular Witness MM-022 was able to identify with great specificity a

Page 5916

1 list of individuals who were left in the fire station that day and who

2 later were exhumed from a mass grave in Bacin.

3 The evidence is -- there is evidence which shows that the SAO

4 Krajina Police participated in these events that led to the massacre.

5 First of all, as I said before, they were -- in October of 1991, they were

6 present and operating in Dubica and that comes from MM-022, at 2289; and

7 also from Witness Josip Josipovic at 3353.

8 The -- MM-022 talked about the involvement of a truck with the

9 inscription of the SAO Krajina Police on it in -- bringing people to the

10 fire station who were ultimately murdered.

11 This witness says that the police -- this witness who knew that

12 the Dubica -- and knew the situation there and who controlled Dubica, said

13 that the police, and that specifically Stevo Radunovic -- or sorry,

14 Veljo Radunovic, one of the commanders of the police, would have to know

15 why those people had been collected, and in fact, he tried to get in touch

16 with Veljo Radunovic at that time, and the reference there is 2314.

17 The witness Ana Kesic, who testified that Veljo Radunovic who has

18 been identified as one of the commanders of the SAO Krajina Police as one

19 of the people who took her and others to the fire station, and

20 Witness Kozarcanin, again Exhibit 828, said that someone by the name of

21 Stevo Radjun, which is a name that was used for Stevo Radunovic, one of

22 the commanders of the SAO Krajina Police, was guarding the fire station.

23 MM-022 talked about later encounters with the police which I will

24 not go into further detail on, so as not to identify him, but they further

25 suggest police involvement and police knowledge of the massacre in Bacin.

Page 5917

1 Of course, Josip Josipovic, who was arrested and detained prior to

2 the massacre and who suffered horrific conditions and treatment in Dubica,

3 testified that the police -- that it was -- he was detained at the hands

4 of the police and he identified a patch of the Milicija Krajina - it's

5 Exhibit 266 - which incidentally in some videos which have been admitted

6 into evidence we see the accused Milan Martic also wearing on his sleeve

7 in the fall of 1991.

8 When -- I'm -- Your Honour, I don't know if you have a question.

9 JUDGE MOLOTO: Go ahead. If I do, you will know.

10 MR. WHITING: Thank you, Your Honour.

11 The witnesses who all -- who have left these villages, Dubica,

12 Cerovljani, and Bacin, all testified that when they returned, the villages

13 were destroyed and churches in these villages had been destroyed.

14 Witness Anton Blazevic said that actually this -- the Serbs in -- came to

15 Cerovljani already in September of 1991 and burned down houses and that on

16 the 24th of September, they targeted the Catholic church in that village.

17 Kozarcanin testified -- or stated in his statement, that Serbs were

18 involved in looting and burning of houses in Dubica; that when he returned

19 in 1995, he found that many of the houses in Dubica were burnt down and

20 plundered.

21 Josip Josipovic testified that all of the Serbs forces, be it the

22 JNA or the TO or the police, were involved in looting.

23 This was further corroborated by Witness Mijo Cipric,

24 Witness MM-022, who specifically stated that the police engaged in

25 looting, and Witness Ana Kesic. It's also corroborated by

Page 5918

1 Witness Charles Kirudja, who confirmed that whenever they drove to

2 Sector North he saw that villages that had been previously occupied by

3 Croats had been destroyed. And this destruction included the churches

4 specifically; That comes from several witnesses.

5 These -- all of these witnesses: Blazevic, Kozarcanin, Josipovic,

6 Cipric, MM-025, another protected witness, testified that the -- that the

7 Croat civilians were driven out of the area by these attacks by Serbs and

8 of course by the massacre.

9 Milan Babic testified that when he was in Kostajnica -- he was in

10 Dubica in 1993, and he saw that many of the settlements where Croats had

11 lived were destroyed that there were no Croats left.

12 So that is Dubica, Cerovljani, Bacin, and it covers I think the

13 murder, forcible transfer counts, and the plunder and destruction counts.

14 Going to -- now to Saborsko, Poljanak, and Vukovici, and Lipovaca,

15 again, the evidence shows that Saborsko was shelled in the summer of 1991

16 as early as June or July of 1991, and certainly by August of 1991; and

17 that evidence comes from Marica Vukovic at 2412, and Marko and

18 Vlado Vukovic at 2574 to 2579 and 2658. Ana Bicanic, in her 92 bis

19 statement said that the shooting of by the Serbs at Saborsko was mainly at

20 the school and the church and that this shelling intensified after the 5th

21 of August, 1991. There was shelling nearly every day, and that many

22 buildings were damaged, including the church. That comes from

23 Vlado Vukovic at 2659.

24 The attack, the main attack on Saborsko, occurred on the 12th of

25 November, 1991, and the evidence from MM-037 and from other sources, which

Page 5919

1 I'll discuss in a moment, is that Martic's Police participated in the

2 attack, both the regular police and the special police participated in the

3 attack on Saborsko.

4 The evidence from Ana Bicanic and from Jure Vukovic is that during

5 the attack, houses were burned down and that civilians who had surrendered

6 were separated, the men from the women, and that the men were shot and

7 killed while the women and children were told to flee, and that some --

8 Jure Vukovic says that one person, Djakju [phoen] Vukovic was shot while

9 fleeing. Vlado Vukovic testified that the people who were killed in

10 Saborsko included women and very old people. I believe one man was 100

11 years old.

12 The result of the attack on Saborsko was complete destruction of

13 the village. The entire village was destroyed, according to Marko Vukovic

14 and Vlado Vukovic, including the church.

15 When Jure Vukovic returned to Saborsko after Operation Storm, the

16 entire village was destroyed. There were no houses, and the churches --

17 the main church was rubble while the smaller church was heavily damaged,

18 and this is corroborated by -- also by Ana Bicanic, who found the same

19 thing when she returned to Saborsko.

20 The same pattern occurred in Poljanak, Vukovici. In August of

21 1991, Poljanak started to be shelled, and civilians there started to leave

22 their houses and sometimes sleep in the woods. And just before the attack

23 on Saborsko, Vukovici and Poljanak were attacked. They were attacked on

24 the 7th of November which was three days before the planned attack on

25 Saborsko, which was supposed to occur on the 10th of November but which

Page 5920

1 did not occur until the 12th of November. And the evidence from Marija --

2 Marica Vukovic and MM-038 is about the murders and complete destruction

3 that occurred in Poljanak and Vukovici. And the evidence from witness

4 MM-037 is that these -- all of these villages were attacked at around the

5 same time with the purpose of linking up the Serb area of Plaski with the

6 SAO Krajina and that these villages stood in the way of that. The

7 evidence for the attack on Lipovaca comes from MM-036. Again, the JNA

8 started rocket attacks against Lipovaca in August of 1991, and in October

9 of 1991 the JNA entered Lipovaca and almost all the villagers fled with

10 only, again, elderly people staying behind. And according to the

11 evidence, in early -- in October, on the 28th of October, 1991, the

12 victims in Lipovaca were murdered, and that is according to Exhibit 323,

13 MM-036, and Ivan Marjanovic. When MM-036 returned to Lipovaca in 1995, it

14 was totally destroyed, looted, burned, completely destroyed.

15 As I said before, there is evidence from MM-037 about the

16 participation of Martic's Police in these operations, which in Saborsko --

17 he speaks specifically about Saborsko, and I would also refer the Trial

18 Chamber to Exhibit 607, Exhibit 603, and Exhibit 605, which also talk

19 about the participation of the -- of SAO Krajina Police in these -- in the

20 operation on Saborsko. And again, the evidence is that the other

21 village -- that all these villages were attacked really as part of one

22 operation.

23 I would also refer the Trial Chamber to Exhibit 507, which is a

24 statement taken by the Croatian MUP in April of 1994 from a witness who

25 said that a member of Martic's Police claimed to have shot eight people

Page 5921

1 during the attack on Saborsko because he hated all Ustashas, and that the

2 commander of the Martic's Police instructed him and others how to behave

3 during the attack, including that there should be a maximum of 30 people

4 killed, and that the police boasted about setting houses on fire, robbing

5 houses, stealing vehicles, tractors, and livestock.

6 Milan Babic also testified about the attack in this area and

7 the -- the area north of Plitvica in November of 1991 and the resulting

8 expulsion of Croat civilians from the area and the Serb takeover, which is

9 entirely consistent with all of the victims who testified about the

10 attacks on that area, and that's at 1582.

11 In -- with respect to all these villages, the victims have been

12 identified specifically by, in the testimony of Mr. Strinovic and

13 Mr. Grujic. There is also specific evidence about cause of death in many

14 of the cases, many cases of gun-shot wounds, many cases gun-shot wounds at

15 close range. That's particularly relevant for places like Saborsko. Many

16 of the victims were killed not by shelling or, you know, explosions but

17 were killed by gun-shot wounds, oftentimes at close range.

18 There is specific evidence about plunder, looting, with respect to

19 Saborsko that comes from MM-037, at page 3 of Exhibit 268.

20 Now, moving on to the attack on Skabrnja and Nadin -- well,

21 Skabrnja and Nadin I'll take together. The evidence again is that from

22 Marko Miljanic is that there was shelling of Skabrnja, and then

23 Marko Miljanic and in particular Neven Segaric provide evidence about the

24 crimes committed at Skabrnja. He testified that Josip Miljanic and

25 another neighbour, Stana Vikovic both -- one 60 years old and one 50 years

Page 5922

1 old, were forced to kneel down. And a soldier wearing a camouflage

2 uniform with an SAO Krajina, on his shoulder, patch then shot them both in

3 the head, killing them. There was no warning before -- there is evidence

4 that there was no warning before the attack and that there was no

5 provocation before the attack, and that is at 2835 and at 2868.

6 Again, Witnesses Grujic and Strinovic talk about the bodies of the

7 victims, with respect to the later -- the indictment charges, really two

8 attacks on Skabrnja. Paragraph 31 charges an attack on the 18th of

9 November with specific victims; paragraph 33 charges a continuing attack

10 between the 18th of November through February 1992, where additional

11 killings occurred. And that second allegation is supported by

12 Witness Bosko Brkic, by Witness Miljanic at 2877, and also by

13 Mr. Strinovic.

14 There is evidence that Martic's forces -- once again,

15 Martic's Police, participated in this attack. MM-003 testified about how

16 Martic spoke with pride about Skabrnja and that he talked specifically

17 about Goran Opacic, and this person provides one specific link to

18 Milan Martic. To MM-003's knowledge, Goran Opacic was under Martic's

19 command at this -- at the time the operation was carried out, that he was

20 a member of the Benkovac special police. Milan Babic testified that

21 Opacic was subordinated to and close to Martic, and that he learned from

22 another person Opacic was there at the outset of the fighting. That's

23 corroborated -- his being there during the fighting was corroborated -- is

24 corroborated by Exhibit 411, which also identifies him as being a member

25 of the police. There is contrary evidence that he was a member of the TO

Page 5923

1 at that time; however, I don't think that's an issue that the Trial

2 Chamber has to resolve at this point. There is evidence that he was a

3 member of the police. There is also evidence of close cooperation -- from

4 Exhibit 107, there is evidence of close cooperation between the TO and the

5 police in the attack on Skabrnja. There is even a reference to the TO

6 loaning a unit to the police just before the attack.

7 There is evidence from Exhibit 614 that Bosko Drazic, who was the

8 commander of the police in Benkovac, was present during the attack, and in

9 fact the evidence from that exhibit suggests that he failed to protect a

10 civilian who had been confronted by the TO, but it certainly establishes

11 that he's present. And Exhibit 107, which is the notes of the commander

12 of the attack, Lieutenant Bugunovic, also show that is with respect to

13 both Nadin and Skabrnja, which were a joint operation, and that's made

14 clear by the -- it's made clear by the dates of the attacks, they occur

15 within one day of each other, their proximity, and also by this exhibit,

16 Exhibit 107, which shows that they were planned together and executed

17 together. And that exhibit also show that is Bosko Drazic was present

18 during the attack, indicating that the police also took part in the attack

19 on Skabrnja.

20 As I noted before, there is evidence this attack had been planned,

21 at least by the day before. It was not a spontaneous event or defensive

22 action - the attack had been planned - and that comes from

23 Witness MM-080. And then Bosko Brkic provides evidence that from the end

24 of November 1991 until December 1992, Skabrnja was constantly looted and

25 burned and that in the end it was completely destroyed.

Page 5924

1 The evidence for the attack on Nadin of course comes from

2 Witness MM-083. I don't think I need to recount what occurred, what that

3 witness testified to; however, it's worth noting that again, that witness

4 testified that there had been shelling, again following the same pattern,

5 shelling, attack, murders, drive out the population, destroy the village,

6 and that the shelling had occurred in September, on the 16th of September,

7 and the 2nd of October of 1991, in advance of the attack which occurred on

8 the 18th and 19th of November of 1991. And with Nadin as well the victims

9 had been established by both Witnesses Grujic and Strinovic.

10 We come then to the events in Bruska which occurred in December of

11 1991, and Witnesses Jasna Denona, and Ante Marinovic testified about what

12 occurred in Bruska on the 21st of December, 1991, resulting in the murder

13 of nine Croats and one Serb who had friendly relations with the Croat

14 families. And the evidence shows that the perpetrators of that -- of

15 those murders, were Martic's Police. Again, I would refer -- and this

16 comes both from the way that the individuals identified themselves and

17 also from the patch that Ante Marinovic identified on the sleeve of their

18 uniforms.

19 I would again refer the Trial Chamber to Exhibit 404, which

20 indicates that the police knew who killed the people in Bruska, and that

21 one police officer who knew the most about it had been transferred

22 overnight to somewhere in Serbia, and that that had been done certainly

23 with -- by someone with a top position in the MUP.

24 Vaganac is -- it's alleged that Vaganac is one of the locations

25 that was attacked and Marica Vukovic testified that it had been attacked

Page 5925

1 and people were killed there and that there were no houses there --

2 JUDGE MOLOTO: Can I interrupt you? How much longer are you still

3 likely to be, Mr. Whiting?

4 MR. WHITING: I think I can finish tomorrow in the first session

5 easily. I won't be much longer, but I'm sorry to not be able to finish

6 today, but there is a lot to cover.

7 JUDGE MOLOTO: There are a couple of logistical problems. Can I

8 just ask a question? Does the Defence have a right of reply?

9 MR. WHITING: I don't think there is any rule about that.

10 JUDGE MOLOTO: Thank you. Okay. If you're going to be some time,

11 maybe it is better to then adjourn to tomorrow. We don't have an

12 allocation for tomorrow. We were not expected to be sitting tomorrow. I

13 don't know whether -- let's find out.

14 [Trial Chamber and registrar confer]

15 JUDGE MOLOTO: The Chamber is advised that this Court is available

16 tomorrow afternoon. We could probably sit in the afternoon. In any case,

17 we would not be available in the -- well, for a short while in the

18 morning, so we would have to sit in the afternoon maybe. Okay.

19 MR. WHITING: That's fine. And I really will be able to finish in

20 the first session. I apologise for being long.

21 JUDGE MOLOTO: Not a problem.

22 By the time your colleague took, you have not yet reached the same

23 time as he took. I have sort of been keeping you under tab, the both of

24 you.

25 Okay. We'll then -- court adjourned to tomorrow at quarter past

Page 5926

1 2.00, same court.

2 Court adjourned.

3 --- Whereupon the hearing adjourned at 7.03 p.m.,

4 to be reconvened on Tuesday, the 27th day of

5 June, 2006, at 2.15 p.m.