1 Tuesday, 27 June 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.13 p.m.

5 JUDGE MOLOTO: Mr. Whiting if my keeping you under tabs that I did

6 yesterday is anything to go by, you're left with something like 30 minutes

7 the outside to complete, and I think then we'll ask Mr. Milovancevic for

8 any reply that should be very focused.

9 MR. WHITING: Your Honour, I'll try to finish in 30 minutes. If I

10 need just a few minutes more, I hope the Court will indulge me. But I'll

11 try; there's a lot to cover.

12 When we finished yesterday I was just talking about Vaganac, that

13 is charged -- the destruction of Vaganac is charged in counts 12 to 14 of

14 the indictments, Marica Vukovic testified about this at page 2451. Moving

15 on to the detention sites that are charged in Knin in counts 5 through 9,

16 the two essential witnesses are Luka Brkic and Stanko Erstic, Luka Brkic

17 testified about being held in the barracks and this is at 3266 to 68 and

18 3437 to 38. He talked about -- in his testimony he talked about the

19 abuse, the humiliation, the beatings and the abhorrent conditions that

20 existed there. This is in particular at 3271 to 73. He testified that

21 Martic's men were at the barracks. And that is at 3407.

22 With respect to the prison at the old hospital in Knin, Stanko

23 Erstic testified that he was arrested and taken there with other

24 civilians. This is in Exhibit 392. And this -- and then he -- he

25 testified, or in his statement he says that people who were detainees were

1 beaten and mistreated, deprived of sleep, and forced to do manual labour.

2 Luka Brkic testified at 3279 to 82 about being savagely beaten for several

3 days there. There's corroboration for this evidence about the -- the Knin

4 detention facilities in Exhibits 286 and 287. The evidence is that the

5 old hospital was called Martic's prison; that came from Luka Brkic at

6 3408. And Stanko Erstic saw Milan Martic at the old hospital prison on

7 one occasion. That's at 3869 to 70. And there is additional evidence

8 from Stanko Erstic and Luka Brkic about the presence of Martic's police at

9 that prison and their participation in the beatings and abuse.

10 Moving to the Zagreb shelling counts, counts 15 to 19. As I

11 stated yesterday, it's the principal position of the Prosecution that the

12 evidence demonstrates and will demonstrate that civilians were

13 intentionally targeted in Zagreb. The evidence of -- there's overwhelming

14 evidence. Of course, I don't think it's really disputed that Zagreb was

15 shelled by the order of Milan Martic on May 2nd and May 3rd, and of course

16 the Trial Chamber has heard ample evidence about the effects of that

17 shelling, both on locations and on individuals.

18 Just to briefly summarise the evidence which shows the intent and

19 purpose of this attack, I would start first with the evidence from

20 Ambassador Galbraith, who testified that in October of 1994, many months

21 before the shelling, he specifically told Milan Martic that shelling,

22 rocket attack or shelling of Zagreb would be a crime, putting Milan Martic

23 specifically and directly on notice that this would be -- constitute a

24 crime.

25 I would refer the Court next to a -- Exhibit 91 which is a public

1 interview with Milan Celeketic the commander of the army of the SVK, who

2 was under -- directly under Milan Martic and the man who executed the

3 order to shell Zagreb. On March 24th, 1995, in a public interview, said

4 that, "In the case of the Ustasha aggression we will certainly not miss

5 the opportunity to hit them where it hurts the most. We know their weak

6 spots and where it hurts the most. Weak points are city squares, and we

7 know where, who goes there, civilians. I have already said this and was

8 criticised a little. Well, now they may ask which squares in which

9 cities. I shall reply that that's a military secret."

10 It goes on and talks about acknowledging that there are civilians

11 in these squares, innocent people. But then goes on to try to justify it.

12 Of course, when the shelling occurred of Zagreb, Milan Martic

13 immediately took credit for it. That's in Exhibit 389 and 388. 388 -- I

14 mean -- I'm sorry, 389, a speech that he gave is particularly

15 significant. He says, "We have shelled all their cities. Sisak several

16 times, Karlovac, Zagreb yesterday and today. Shelled their cities."

17 Witness MM-003 testified that Milan Martic personally said to him that he

18 had ordered Celeketic to attack Zagreb, and that he specifically said to

19 hit the Ilica and to hit Ban Jelacic square. Witnesses have told us the

20 significance of those locations. That is the main square. This is

21 completely consistent with what Milan Celeketic had threatened just months

22 before, hitting main squares of their cities, and that is exactly what

23 they did.

24 Finally on this point, at Exhibit 97 is a memo that Milan Martic

25 had with the USS -- UN SRSG Akasijon [phoen] on the 5th of May, 1995, just

1 days after these attacks. Milan Martic at that time began, it seems to

2 suggest that he had been aiming at military targets, nonetheless he

3 said -- he threatened to resume the attacks and he specifically spoke, and

4 I'm quoting, "He spoke of massive rocket attacks on Zagreb," and here's

5 the significant part: "Which would leave 100.000 people dead," leaving no

6 mystery at all as to the intent of the accused in this case in launching

7 those attacks on Zagreb. Those were aimed at civilians, at innocent

8 people. The evidence is also that even if they were aimed at military

9 targets, the weapons were inappropriate, because the proportionality

10 they -- it was clear and certain that they would leave civilians killed

11 and the expert Poje testified to this.

12 Moving on to the prison camp, or the detention facility, I should

13 say, at Titovo Korenica, evidence from that comes from Vlado Vukovic,

14 2670, and at -- from Marica Vukovic at 2421 and 2418.

15 Moving now to deportation and forcible transportation from

16 Bosanski Novi, the evidence for that comes primarily from trial -- witness

17 trials [sic] Kirudja. It's at 4847 to 63, and I would refer specifically

18 to Exhibit 752 through 755 on this issue. And Charles Kirudja confirmed

19 that the police from Davor helped to facilitate the movement of Muslims

20 from Bosanski Novi, and there's a reference -- I would refer on this point

21 to Exhibit 755.

22 The pattern that I spoke about yesterday that started before --

23 started really in August of 19 -- August 17th of 1990, continued through

24 1991, continued through the crimes charged in the indictment, didn't stop

25 at the end of the conflict in 1991. They continued through 1992 and into

1 1993. I would refer to the evidence on this point to show how this

2 pattern just kept continuing, and the aim of the joint criminal enterprise

3 continued to be pursued by the members of the JCE. I would refer to it

4 Bob -- Milan Babic's testimony at 1645, said that Milan Martic was against

5 the return of refugees. This was corroborated by Dzakula, who testified

6 at 405, that Martic did not have any understanding for the return of

7 refugees.

8 The continuation of the pursuit of the aims of the joint criminal

9 enterprise was also confirmed by witness McElligott, specifically would

10 refer to his testimony at 4595 to 96, and Exhibit 726 and 727, as well as

11 728 and 731. And his testimony at 4585 to 86, in -- in brief,

12 Mr. McElligott's testimony showed that the pressure on Croat civilians to

13 push them out of the -- what was then the RSK continued, was horrific, and

14 that Milan Martic's police participated in that and played a principal

15 role in that, as well as allowing it to happen.

16 It was further corroborated by the testimony of MM-078 who talked

17 about Martic's police being involved in organising and logistics and

18 escorting convoys of Croat civilians pushed out of the SAO and taken --

19 first taken to the Dom Kultura in Vrpolje before they were taken out and

20 essentially expelled.

21 The final effects of the execution of the purposes of the joint

22 criminal enterprise was testified to by Milan Babic, who testified about

23 the change in the ethnic composition of the area of the SAO Krajina

24 between 1990 and 1993. That's at 1343 to 56 and Exhibits 177 and 78. So

25 it was corroborated by MM-078, who testified at 4469 that by 1993 compared

1 to 1990, the number of Croats was insignificant.

2 I would note that during all this period, despite all the talk

3 about the role of the JNA and the function of the JNA and Milosevic, the

4 evidence is that Milan Martic exercised strong command over his police and

5 that he was a principal player in these events in the SAO Krajina. I

6 would refer to the testimony of Milan Babic who testified at 1390 that

7 Milan Martic was the most powerful man in the parallel structure within

8 the SAO Krajina. And I think it's fair to say that many witnesses have

9 testified that the two principal leaders of Serb forces within the SAO

10 Krajina were Milan Babic and Milan Martic. And their respective roles

11 were often identified as Milan Martic being in charge of the armed forces

12 of the Serbs in SAO Krajina, Milan Babic playing a more political role.

13 Witness MM-003 testified that Milan Martic ordered the police at

14 the beginning of operations, he asked the police to join the JNA in

15 certain directions and to help them along - that's at 2036 - and that he

16 would often speak about his plans, and how they were going into effect and

17 changing commanders and being in control. That was at 2021. Dzakula

18 testified at 398 that he heard that Martic "had absolute authority in the

19 police when it came to appointing policemen." And MM-079 testified at

20 3069 that Martic wanted to create the impression of being the man who has

21 everything under control, who has to approve everything, "A man who has to

22 be obeyed, in other words." He also said that when he went to Benkovac

23 and Obrovac the police there would refer everything back to Milan Martic,

24 any question that he had.

25 And Mr. Maksic testified at 1165 to 66 that before any operation

1 occurred in the fall of 1991 - and this is significant - all prospective

2 participants to an operation would meet beforehand and plan the operation

3 and everybody's role would be known explained and that at times - and this

4 is at 1168 - Milan Martic personally participated in the coordination

5 meetings.

6 Your Honours, this essentially completes my summary of -- of

7 evidence which we think is sufficient to support all of the elements of

8 all of the counts in the indictments and all of the various modes of

9 liability. In particular we think the evidence is sufficient, certainly

10 at this stage, to show that all of the crimes charged in the indictment

11 were committed in furtherance of the joint criminal enterprise, that the

12 accused was a member of the joint criminal enterprise, or in the

13 alternative, that the crimes aside from those charged in counts 10 and 11

14 were a natural and foreseeable consequence of the pursuit of the joint

15 criminal enterprise, and that the accused was aware of the possible

16 outcome.

17 I'll say finally that -- and this is a point I had intended to

18 raise earlier but I neglected it, that, of course, with respect to all of

19 these crimes the evidence is that these crimes were not anything that

20 were -- was secret or unknown, these were all well-known crimes, even when

21 they occurred. They were in many cases immediately publicised,

22 immediately became known. Or they became known to officials within the

23 SAO Krajina. There's no doubt that Milan Martic was aware of these crimes

24 before they occurred, while they occurred and after they occurred.

25 I would point just as one example to Skabrnja where witness MM-078

1 testified at 4457 that within days of the crimes in Skabrnja those events

2 became known to the public, and Exhibit 270 shows that the SAO Krajina MUP

3 had knowledge, almost immediately, of the crimes in Skabrnja. And of

4 course there are other reports from the JNA about those crimes and

5 knowledge of those crimes, within days of that occurring. I would suggest

6 that's true for all the other crimes.

7 That completes my submission. I'll just say one -- again,

8 finally, that in the event the Trial Chamber has any questions about any

9 particular count or any particular element, I'm pleased to -- be happy to

10 address it. Thank you, Your Honours.

11 [Trial Chamber confers]

12 JUDGE HOEPFEL: Well, Mr. Whiting, may I ask you some question

13 about what you said in the end. You were referring as to the modes of

14 liability within Article 7, paragraph 1, of the Statute. You were

15 referring especially to the joint criminal enterprise. But in the

16 indictment you, in addition, were referring to other modes of liability,

17 practically every possibility the Statute offers, which raises a question

18 if all these alternatives also are seen by the Prosecution as being

19 supported by evidence. Could you limit this in some way, clarify this for

20 the purpose of the Defence?

21 MR. WHITING: Yes. Your Honour, it's our view that with respect

22 to the counts 1 through 14, I anticipate that our primary argument will be

23 that liability flows from the joint criminal enterprise, which falls under

24 the committing mode of liability under 7(1). However, we submit that --

25 Your Honour is correct to point out that the other modes of liability

1 under 7(1), ordering, planning, and instigating have also been charged and

2 we submit that those, at this stage, have all been satisfied. That there

3 is sufficient evidence to proceed on all of those modes of liability. It

4 may be that in the end we -- and as well as aiding and abetting, that's a

5 particularly important one, in fact. It may be at the end of the day we

6 focus more on one, but at this stage we think there's -- and I can address

7 that further, if Your Honour wishes, why we think that the other modes are

8 satisfied. I don't know if that goes beyond what Your Honour is asking.

9 JUDGE HOEPFEL: That will be very helpful.

10 MR. WHITING: Okay.

11 JUDGE HOEPFEL: To see if this is parallels or alternatives in

12 your consideration, these other modes.

13 MR. WHITING: Well, I think the same evidence supports the various

14 modes. I'm not sure if they're parallels or alternatives and certainly

15 if -- if -- if -- if Your Honours were to find under 1, mode of liability

16 and 7(1), I'm not sure whether it would be necessary. Perhaps it would be

17 or I'm not sure it would be necessary to address the others. In any

18 event, as I indicated, and as I tried to show in the submissions, there is

19 evidence that Martic's subordinates, that Martic's police were involved in

20 all of the attacks on the villages that are listed in the indictment, in

21 counts 2 through 4, which then also support all the other counts, count 1,

22 persecutions, deportations, all the other counts, that Martic's police

23 were involved in those attacks. That would suggest at a minimum, that

24 there is sufficient evidence for -- that those forces aided and abetted

25 the crimes committed in those villages by their participation in their

1 attacks and their support in the attacks.

2 In some cases, for example in Bruska, there is evidence of direct

3 participation in the crimes by Martic's police. The same is true -- I

4 would suggest there is evidence of direct participation in Dubica. In

5 other places, for example in Skabrnja, Saborsko, the evidence is that they

6 participated in the attacks. And there is some evidence that they also

7 participated in crimes. That is particularly true in Saborsko from

8 MM-037.

9 Aiding and abetting, it could then be inferred, certainly at this

10 stage, given pattern, given Milan Martic's position and can certainly --

11 and given the evidence of how these attacks were organised and planned

12 beforehand, which I just addressed, coming from Mr. Maksic, for example,

13 it certainly could be inferred from all of that evidence. It's an

14 available inference and one that we would draw that Milan Martic ordered

15 his subordinates to participate in those attacks in which those crimes

16 occurred, and that he planned, he participated in the planning of those

17 attacks. So that would cover planning and ordering, those modes of

18 liability.

19 Instigation is a more difficult one. But we would suggest that

20 you could also find the inference, given the evidence about Milan Martic's

21 use of the term for example Ustasha, his references to Ustashas, his

22 attitude towards the crimes that were alleged to have been committed in

23 Struga in July of 1991, and the evidence from Mr. Van Lynden, that he

24 encouraged and instigated the crimes to occur, to take place, to be

25 committed by subordinates and others. So it's on that basis that we

1 believe that at this stage there is sufficient evidence to proceed on all

2 modes of liability within 7(1). There also, because these subordinates

3 participated in the attacks and provided support for the crimes that were

4 committed, and that there is no evidence that anybody was ever disciplined

5 or punished, there is sufficient evidence to proceed on 7(3) as a mode of

6 liability.

7 JUDGE HOEPFEL: Thank you very much.

8 MR. WHITING: Thank you, Your Honour.

9 JUDGE NOSWORTHY: One moment, please. Mr. Whiting, as to the

10 issue of military necessity raised by the Defence, I believe very early in

11 your submissions you responded by saying that it was irrelevant.

12 Notwithstanding, in the course of your submissions you appear to have been

13 treating the issue as having been raised by the Defence and properly

14 raised by the Defence. Now, in those circumstances I would like to hear

15 your submissions on what the duty of the OTP is in the event that that is

16 properly raised, and do you have to negative military necessity if it is

17 part and parcel of your case in the sense that witnesses of the OTP have

18 given evidence that could amount to a defence of military necessity. What

19 is your duty at this stage? And if you have a duty, what -- and to what

20 extent have you satisfied it?

21 MR. WHITING: Thank you, Your Honour. I would address that by

22 making two points. The first is that I would draw a distinction with

23 respect to military necessity, between -- the argument that has been put

24 forth by the Defence and was -- and that is the argument that I was

25 terming to be irrelevant, was that the attack on the shelling of Zagreb

1 was militarily justified as a way of stopping the attack on Western

2 Slavonia, Operation Flash. In other words, as a way of forcing as an

3 appropriate response. That, I think, is irrelevant. That is a defence

4 which is, under the law of the Tribunal, been rejected. And in this very

5 case has been rejected in the Rule 61 proceeding that was held in 1996.

6 As a matter of law, that is not a defence, and therefore I do not believe

7 that there is any issue about that either at this stage or at the final

8 stage.

9 The other military -- what might be called military necessity

10 defence or justification, whoever it's termed, which I did engage, which

11 was that the attack was aimed at legitimate military targets, that it was

12 a legitimate military attack at legitimate military targets in Zagreb.

13 There, to respond to Your Honour's question about what our duty is at this

14 stage, I do not believe that at this stage, at the 98 bis stage, it is --

15 that the OTP has an obligation to rebut a defence. I think that the

16 obligation, the Trial Chamber, its only duty is to look at the evidence at

17 its highest, the Prosecution's highest, that is to accept that the -- the

18 kind of best case for the Prosecution. And on that basis determine

19 whether there is a sufficient basis to continue. And so to break it down

20 into its component parts, as I said in my submissions, we allege that the

21 attack was intended to target civilians. Then the question, I think, for

22 the Trial Chamber is: Is there evidence of that? And I would submit yes,

23 there is evidence of that.

24 The second part, the fall-back position, if you will, for the

25 Prosecution, is that even if it was aimed at military targets, it was an

1 inappropriate weapon. Question: "Is there evidence for that?" Answer:

2 "Yes, there is evidence for that." That comes from the expert. And I

3 think that -- I think that is the process that is required by the 98 bis.

4 I don't think that there is any duty at this stage for the Trial Chamber

5 to try to weigh or balance the defence and try to compare it to the

6 Prosecution. That, I think, is premature at this stage and I think that's

7 something to be done later. I hope I've answered Your Honour's question.

8 But if I haven't, please, I ...

9 JUDGE NOSWORTHY: Thank you, Mr. Whiting.

10 JUDGE MOLOTO: Thank you very much, Mr. Whiting.

11 Mr. Milovancevic, very short, focused, concise and very succinct

12 response, if any.

13 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honours. Thank you.

14 I will follow your instructions. I will be quite brief and focused.

15 In the oral submissions of my learned friend from the Prosecution,

16 they proved what the Defence has been saying, namely that there is no

17 evidence to support joint criminal enterprise on the one hand, and that on

18 the other hand the suffering that did happen, the victims that did exist,

19 are all taken as evidence of this joint criminal enterprise. The

20 Prosecutor said that there was no need for a plan to exist to establish

21 JCE, either a plan in writing or any other plan, oral or any other, but

22 that based on the facts they could infer that the JCE did exist, and the

23 indictment is based on this theory, on JCE.

24 Analysing the specific events in a number of instances, the

25 Prosecutor has shown something else. Namely, that the first 14 counts of

1 the indictment include the plight of hundreds of civilians who were

2 killed, imprisoned, wounded, people had to flee, they were driven from

3 their homes. A lot of suffering was inflicted. These 14 counts of

4 indictment include numerous qualifications. The Defence can understand a

5 situation where the Prosecutor, in one or two counts, cannot establish who

6 the perpetrator is, however it is simply incredible that not for a single

7 crime or for a single victim does the Prosecutor know who the perpetrator

8 is. This is an indictment for crimes that have no perpetrators. In such

9 a situation where witnesses who were victims pointed out to possible

10 perpetrators, especially in Bacin, yesterday we pointed to a document of

11 the police administration of Sisak where there are names of 45 possible

12 perpetrators of these terrible crimes in Bacin and in another place in

13 October of 1991. The Prosecutor is simply not interested in these

14 perpetrators.

15 There is also the evidence of Josip Josipovic about direct

16 perpetrators with first and last name. Prosecutor is not interested in

17 these perpetrators either. Such similar data exist in relation to

18 Saborsko, to Skabrnja, and this information also stands from some military

19 documents, which is to say that both the police and the military gathered

20 data to the extent possible. I'm not going to comment on their work.

21 However, during these proceedings a lot of names of possible perpetrators

22 were uncovered, and none of them are included in this indictment, even

23 though their identity has been known to the Prosecutor for many, many

24 years.

25 Your Honours, at this stage of the proceedings we have to wonder

1 why is this so. I pointed to the answer yesterday by identifying the real

2 perpetrators it would become clear that the story about joint criminal

3 enterprise is a complete fiction. The Prosecutor claims that Mr. Martic

4 committed all of these crimes when they even have the names of individual

5 perpetrators. However, they're not prosecuting these perpetrators,

6 they're not establishing the cause and effect relationship, they're not

7 even listing the names of units to which these people belong. They're not

8 trying to establish who their immediate superiors were, so that within the

9 chain of command they're holding Mr. Martic responsible under Article 7(3)

10 of the Statute.

11 Therefore, it is simply incredible that we don't have perpetrators

12 for this very high number of victims when we actually know the names of

13 perpetrators. Yesterday the Prosecutor, depicting the status of affairs

14 in these proceedings, completely distorted the picture as established by

15 the witnesses and documents. They said that there was evidence that the

16 accused refused to implement the Vance Plan, that he kept the weaponry,

17 painted it blue and so on.

18 Your Honours, through witnesses, through witness Mr. Kirudja,

19 Mr. McElligott, Witness Dzakula, we introduced a document, document 1360

20 on the 65 ter list, which is the report of the Secretary-General of the UN

21 submitted to the Security Council under number 24600 dated 28th of

22 September, 1992, where in paragraph 4, page 2 of this report, it is

23 explicitly stated that the first two stages of the Vance Plan were

24 implemented properly, that the JNA had withdrawn from Croatia with some

25 minor problems around Dubrovnik, and that the TO of Krajina has placed all

1 of its weaponry under the double key of the UN in storages controlled by

2 the UN. This was confirmed by Mr. Kirudja, who also confirmed that it was

3 done voluntarily and without any problems because the side that actually

4 complied with this requirement wanted to do that. In this same document,

5 24.600, dated the 28th of September, 1992, we also pointed to paragraph 8,

6 where it is explicitly stated that Mr. Marek Goulding, Undersecretary of

7 the Secretary-General of the UN, on the 4th of September 1992 signed an

8 agreement with the Knin leadership, according to which the so-called

9 special police which had been creating problems until that time and which

10 in view of UNPROFOR was acting as a police outside of the Vance Plan, thus

11 he signed an agreement to demobilise and disarm that force in two stages.

12 One stage was to begin on the 20th of September, and the other one on the

13 15th of October.

14 This agreement was signed before the dead-line for that expired;

15 however, we heard from Mr. Kirudja, and he wrote this in his statement

16 which he signed, the statement given to the OTP, he repeated this here in

17 the courtroom. He said that Martic, in October, took the decision to

18 demobilise the special police, that he informed Mr. Kirudja of this via

19 General Dzukic [phoen], that this had been implemented even though local

20 commanders objected to this. The Prosecutor completely distorted this

21 fact and accused Mr. Martic of not complying with the Vance Plan.

22 The second important issue, very important issue, is that of the

23 corridor, and the plan for joint criminal enterprise, as an element in

24 creating Greater Serbia. Yesterday the Prosecutor confirmed that this was

25 a part of the plan to establish Greater Serbia, namely to have these

1 ethnically cleansed territories linked through the corridor with the

2 Serbian state in order to create one single Serbian state. Your Honours,

3 I have to point out to you that in the trial against the Accused

4 Milosevic, when answering the questions put to him by Judge Robinson, Mr.

5 Nice said that the Prosecution never upheld this thesis on Greater Serbia

6 and that that was during the time when Witness Seselj was testifying some

7 five to six months ago. When asked by the Trial Chamber, Mr. Nice said

8 that they joined three indictments against Mr. Milosevic because of the

9 thesis of Greater Serbia and Mr. Nice explicitly said that Mr. Milosevic

10 was never accused of that.

11 The learned friend from the Prosecution should speak to his other

12 colleagues from the OTP to see what thesis exactly other -- are they

13 putting forward in this trial.

14 We heard another shocking thing yesterday, Your Honours. The

15 Prosecutor confirmed that these armed formations which existed in Croatian

16 villages, in Skabrnja, Nadin, Saborsko, Lipovaca, Vukovici, Bacin, Dubica,

17 Cerovljani, Kostajnica, that those were defence formations for the purpose

18 of Croatian independence. This -- in an international court,

19 Your Honours, it was established by the Security Council. By saying so,

20 the Prosecutor put forward legal position that a violent armed secession

21 is possible. This goes contrary to the charter of the UN which guarantees

22 territorial integrity and sovereignty of each UN member state. The

23 Prosecutor referred to the period back in 1991 when the only international

24 law subject, the only state that existed in the territory of the former

25 Yugoslavia was Yugoslavia itself. By taking this position the Prosecutor

1 committed another shocking violation of the international law. Namely,

2 that the principle of Nuremberg judgement are not complied with, the

3 Nuremberg judgement took the position that aggressive operations aimed at

4 dismantling a sovereign state are impermissible, that this is one of the

5 gravest crimes in -- known in the international law. It's a crime against

6 peace.

7 Through the testimony of Mr. Kirudja, we saw that the 11 states,

8 including Germany, Austria, Great Britain, Vatican, France, Netherlands,

9 and so on, on the 15th of January, in the middle of secession and armed

10 conflict recognised the independence of Croatia. This represents

11 complicity in crime against peace. And this was a crime committed by the

12 leadership of Slovenia and Croatia. They committed an armed rebellion.

13 This is what Witness Maksic spoke about, as well as expert Theunens. So

14 we need to wonder whether a judgement, which is framed in these terms,

15 needs to serve as a seal that is put on this vicious circle aimed at

16 dismantling a sovereign state. This is an international court,

17 Your Honours, this is an international Prosecutor. So should such a

18 position be accepted where they're given validity to this crime against

19 peace, and should such a recognition of an armed secession be granted?

20 Yesterday the Prosecutor said, and that wasn't the first time,

21 that by speaking of five aggressions we basically tried to upheld the tu

22 quoque principle. No, Your Honours, that's not what we were doing. We

23 were simply pointing to the facts which become clear through evidence of

24 OTP witnesses, especially Mr. Kirudja, Mr. McElligott, all of whom

25 confirmed the five aggressions. This was the real, the actual political

1 and military situation on the ground. This situation on the ground needs

2 to be viewed in its entirety so that you, as a Trial Chamber, could draw

3 conclusions on what acts of certain parts to those events meant. And this

4 is a very serious issue, Your Honours. And such objections as the

5 Prosecutor advanced, that the Defence is using to quoque principle, should

6 not be used.

7 This is the only case that right now deals with JCE, and this is

8 the most complex case outside of the Milosevic case. We've been pointing

9 out to this fact for the last three years. The Prosecutor included the

10 entire year of 1990 through the statement witnesses trying to show the

11 alleged existence of JCE and yesterday he told us that the plan need not

12 be proved. But everything they have managed to prove through their

13 witnesses, especially through Witness Dzakula, actually is evidence of an

14 armed rebellion aimed at secession of Slovenia and Croatia at a point in

15 time when a sovereign state is being destroyed through an armed rebellion.

16 Another issue that the Trial Chamber should take into account is

17 this: Namely, that the largest number of facts which the Prosecutor

18 claims have been allegedly proven have been supported by witness MM-003

19 who was a dealer and was a person concerning whom witness MM-078 said that

20 he was crime prone, that he gave false statement in order to enable

21 himself to go and live abroad, to get legal residence there. This was the

22 key witness of the Prosecution.

23 The same applies to witness MM-079. It would be interesting,

24 Your Honours, to note this: Namely, how this witness came here to

25 testify. He came here saying that he agreed to testify in order to get

1 legal residence in another country, facilitated by the OTP. Three times

2 during his testimony this witness asked the Trial Chamber and the

3 Prosecution to ensure that his legal status is granted. It would be

4 interesting, Your Honours, to see whether this was done and whether this

5 witness would come to testify in another case as, Your Honours, we saw

6 this this was not resolved in the case of Mr. Babic. He was an

7 emotionally imbalanced person who back in 2004 announced that he would

8 commit a suicide and nevertheless was called here to testify. And then

9 during the testimony here he committed suicide. Witness 79 and witness

10 Babic were hostages, not witnesses.

11 The Prosecutor invoked witness Galbraith. He is an American

12 ambassador, was an American ambassador to Croatia. And for him, they

13 sought unheard of protective measures. It was impossible to cross-examine

14 him properly. The reason for these protective measures were protection of

15 interests of a third state. This witness came here and said that Martic

16 refused the Z-4 plan in 2004 -- rather, in 1994. Witness Galbraith said

17 that Martic refused to accept the plan because Tudjman at that time

18 refused to extend the UNPROFOR mandate. And the reason Martic did that

19 was that he requested that Croatia accept the extension of UNPROFOR

20 mandate before he agreed to discuss a peaceful resolution to the crisis.

21 This ambassador who had such protective measures is interesting from

22 another point of view. Namely, here before the Trial Chamber he

23 acknowledged that four ambassadors of the contact group on their

24 telegramme on the 2nd of August, 1995, the night between the 2nd and 3rd

25 of August, as the situation was becoming more tense and as the Croatian

1 Storm Operation became imminent, Ambassador Galbraith confessed that he

2 sent misinformation to other ambassadors who were in the process of

3 passing political decisions to other governments. He misinformed them by

4 saying to them that Milosevic had refused to accept the Z-4 plan. He

5 acknowledged that such an offer was not delivered to Milosevic at that

6 time, but that he expected it to be so. We were unable to cross-examine

7 the witness. Could the usher allow us to see a document here, just so

8 that we can illustrate to you what kind of a witness this was. May I,

9 Your Honours?

10 JUDGE MOLOTO: I'm not sure what document it is, Mr. Milovancevic.

11 Is it a document that is already in evidence?

12 MR. MILOVANCEVIC: [Interpretation] Your Honours, this is not a

13 document admitted into evidence. We're not going to tender it into

14 evidence right now, but given that you have to assess witnesses'

15 testimony, we think you should see it. We have a photograph portraying

16 Mr. Galbraith on a Croatian tank in 1995. This witness stated here under

17 oath that he was not in a tank, that he was in Chevrolet car, that this

18 photograph does not exist, and that it is not authentic. We can take a

19 look at this photograph. We can put it on the ELMO now or we can do it

20 when it's time for the Defence case to begin. All I wanted to do is show

21 what kind of witnesses the Prosecution brings here. This ambassador,

22 Your Honours -- I will withdraw this proposal, since we haven't used it

23 yet.

24 JUDGE MOLOTO: Thank you. At the moment we're dealing with the

25 evidence that is already on record by the Prosecution and whether or not

1 it can --

2 MR. MILOVANCEVIC: [Interpretation] I understand that, Your Honour.

3 JUDGE MOLOTO: Let me finish my sentence. Whether or not it can

4 withstand a 98 bis application. Thank you very much. You can proceed,

5 Mr. Milovancevic.

6 JUDGE NOSWORTHY: Mr. Milovancevic, did you not cross-examine on

7 that document when Mr. Galbraith was here and you had the opportunity to

8 put that document in and you elected not to do so, if I remember rightly.

9 I don't understand how, at this stage, you should be attempting to have

10 the Court look at it.

11 MR. MILOVANCEVIC: [Interpretation] Your Honour, at that point in

12 time when I was cross-examining Mr. Galbraith I did not have that

13 document. I would have shown it gladly. All I asked the ambassador as a

14 witness under oath was whether it was true that he was photographed on a

15 tank and whether the fact that he was on the tank had anything to do with

16 his regular daily duties. That was my idea, actually, but at the time I

17 didn't have that photograph. But it's a photograph that was published in

18 the newspaper, it's a public document, and we can use it later. I don't,

19 at this point in time, want to create any kind of problems, if the Trial

20 Chamber should find that this is a problem. Anyway, I don't want to be

21 misunderstood. At that time we did not have that photograph, but we have

22 known about it for years.

23 If you permit, Your Honours, I will continue.

24 JUDGE MOLOTO: You may.

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

1 independently of this photograph, which you are going to see on several

2 occasions from several angles, that witness, the so-called witness,

3 Galbraith, is a participant in the events here before the Trial Chamber he

4 testified that as the American ambassador he went to see President Tudjman

5 several times a day. This is unprecedented in diplomatic practice. That

6 witness came here and was a main witness of the Prosecution about how the

7 rocketing of Zagreb was unlawful act and it was retaliation; actually,

8 that witness disqualified himself by his own activities. He was a

9 participant in 1995 in the events on the Croatian side, and he was a

10 participant now by testifying and this will be clear when we present our

11 case.

12 As for the term Martic's police and Martic's men, this is

13 something that I discussed in enough detail yesterday, Your Honours,

14 because the Prosecutor also mentioned that in his oral arguments. I would

15 just like to point to one fact on this matter. Precisely not

16 establishing, and the refusal to establish direct perpetrators allows the

17 Prosecutor to speak about Martic's men, Martic's police, specials, and I

18 don't know what other names are used. And to use that in the indictment,

19 as one of the Prosecution witnesses said, it was a street term, a slang,

20 indicating one party to the conflict. Martic at the time was a synonym

21 for Serbian resistance and that's where this term "Martic's Men" comes

22 from.

23 As far as Martic's police and Martic's prison are concerned, the

24 Prosecution, through expert witnesses Kerkkanen and Theunens showed in

25 detail the positive legislation which, in 1991 governed the work of the

1 police. They also showed the law about the ministries of the Republika

2 Srpska Krajina, the law on ministries provided for the ministry for

3 internal affairs, the ministry of justice, ministry of finance, external

4 affairs, and other ministries whose ministers comprised the government of

5 the SAO Krajina. So the existence of laws is indisputable, according to

6 Yugoslav regulations, Your Honours, and Croatian regulations from 1991, as

7 well as according to Krajina regulations. From 1991, the ministry of

8 justice was charged with the functioning and operation of prisons and not

9 the MUP. The police did not manage the prisoners. This was the job of

10 the ministry of justice. The police officers were not guards in the

11 prison. The policemen were able to bring people to jail, but the guards

12 were staff employed by the ministry of justice, and this is something that

13 the Prosecution witnesses talked about.

14 JUDGE MOLOTO: The Prosecution witnesses talked about the police

15 guarding -- not guarding the prisons and being guarded by the justice

16 department? Is that what you are saying, Mr. Milovancevic?

17 MR. MILOVANCEVIC: [Interpretation] All I want to say, actually is

18 something else. Not what you have just said. No, no, no.

19 JUDGE MOLOTO: Understand what I'm trying to find out. You came

20 across as testifying and I want to be sure that I don't say that you are

21 testifying if you say you are not testifying. I want you to confirm

22 this: Are you saying what you have just been saying was what was said by

23 the Prosecution witnesses?

24 MR. MILOVANCEVIC: [Interpretation] Yes. Prosecution Witness

25 Theunens, a military expert, spoke about the ministry of internal affairs

1 and the law on ministries of the Republika Srpska Krajina. Witness Ari

2 Kerkkanen spoke about the internal structure of the ministry of internal

3 affairs and about those employed in the police. You cannot see from any

4 of those documents or conclude that it was in the jurisdiction of the

5 ministry of internal affairs to establish and to run prisons. This is in

6 the ambit of the ministry of justice. What I said was actually my

7 comment, Your Honours, about the jurisdiction of the ministry of justice.

8 But these witnesses confirmed the structure, the organisation of the

9 ministries in SAO Krajina, and in the Republika Srpska Krajina which was

10 identical to the organisation in the federal state and all the federal

11 units. That's what is indicated in their testimony.

12 JUDGE MOLOTO: Thank you. You may proceed.

13 MR. MILOVANCEVIC: [Interpretation] This fact specifically, that

14 the Prosecution is not establishing the perpetrator enables a kind of

15 method to be used in the presentation forming of the indictment and the

16 presentation of the evidence which is muddying things, looking at facts

17 out of context, giving them the wrong sense and meaning and then as

18 perpetrators cites Martic's men or Martic's police.

19 All that I have said in my response so far, I think, indicates

20 that at this point it is absolutely unclear who, why, how or where these

21 crimes were committed. The Prosecutor even cited Colonel Maksic, that

22 before operations responsible people met in order to agree on a plan of

23 operation. Colonel Maksic, as a witness, Prosecution, said that in the

24 strategy of armed conflict, the senior officer who is managing an

25 operation is responsible for the entire operation, and that the commander

1 of the biggest unit is in command of all the other units regardless of the

2 type of unit involved, because that principle actually embodies the

3 principle discussing by another expert witness by the Prosecution,

4 Theunens, who talked about the principles of command and control, and this

5 was presented wrongly by the learned friends in the Prosecution. And

6 again we are going to go back to what we said yesterday at the end.

7 The Prosecution has not proved this case. They're using general

8 concepts, general terms. Everything is unclear and foggy. Even the types

9 of responsibility or forms of responsibilities are unclear. I have to

10 draw your attention to the fact that Mr. Martic was indicted for the

11 shelling of Zagreb in 1995, that he surrendered in May 2002, that five

12 months after he surrendered there was an amendment made to the indictment.

13 This is difficult to associate with the principles of extradition. So

14 extradition cannot be an obstacle preventing a person coming to the

15 Tribunal, but principles of extradition in the civilised world do exist.

16 Seven years Mr. Martic did not know that besides four counts there are

17 another 14 or 15 counts of the indictment against him. Mr. Martic was

18 charged in the amended indictment with forms of responsibility that are

19 not provided for in the Statute. The Statute provides for individual and

20 command responsibility, Article 7(1) and 7(3) of the Statute. Joint

21 criminal enterprise, as a form of responsibility, is not provided for

22 under the Statute. And the Prosecutor here has told us that he doesn't

23 even have to prove such a plan. And at the end of everything, after five

24 months of presenting evidence, every day's work we are now in a position

25 where in six days we have to prepare 5.000 pages of transcripts and other

1 materials because this is what the Prosecutor suggested. This is his

2 schedule of work, and I'm asking myself whether that is also another way

3 of trying to thwart us in our duties. Why is this so? We're all

4 concerned about this. Thank you, Your Honours.

5 JUDGE MOLOTO: Thank you very much.

6 Any questions?

7 MR. MILOVANCEVIC: [Interpretation] Thank you.

8 JUDGE MOLOTO: Yes, Mr. Whiting.

9 MR. WHITING: Your Honour, if I may, I do not intend to respond to

10 Defence counsel, I don't want to keep this going, but while Defence

11 counsel was speaking I reflected a little further on the question from

12 Judge Nosworthy. I answered and understood the question to be related

13 just to Zagreb. But on reflection, it may have been related to all of the

14 counts, and I would just, if I may, just briefly address that.

15 The answer, I think, is essentially the same, but I want to be

16 clear about that. I think number one, there is evidence on the record

17 which supports the thesis of the Prosecution that the attacks on all these

18 villages were in furtherance of the joint criminal enterprise and were

19 with the purpose of creating a Serb entity within Croatia that would be

20 linked up with other Serb entities, and that they were -- the purpose of

21 attacking Croat village that were in the way, to expand the territory, to

22 connect up with other Serb villages. There is evidence on the record to

23 support that, both from witnesses who directly stated that, and also I

24 think it can be inferred from the nature of the attack itself, which was

25 always done in a way to ensure that the Croat population would be driven

1 out and never come back.

2 The second -- and so I think on that point, as long as there's

3 evidence of that on the record, that is sufficient at this stage of the 98

4 bis. The second point, and I think Your Honour was alluding to the fact

5 that I said that military necessity was irrelevant. With respect to

6 specific crimes committed during those attacks, we would submit that the

7 presence of any armed elements within the village as defensive or whatever

8 they were, is irrelevant and not a justification for the specific crimes

9 of murder and destruction and plunder that were committed during the

10 course of those attacks which could not -- those cannot be justified as a

11 legal matter by military necessity.

12 And finally on this point I would just again point the Court to

13 the Trial Chamber decision in -- in the Strugar case with respect to 98

14 bis and the standard. Again this is from the 21st of June, 2004. And

15 it's -- at one point, I can't give the exact page number, I'm afraid, but

16 it's somewhere between page 10 and page 20. It says, "A decision on the

17 motion pursuant to rule 98 bis involves no evaluation of the guilt of the

18 accused in light of all the evidence in the case to that stage, nor" --

19 and this is the important part. "Nor any evaluation of the respective

20 credit of witnesses or of the strengths and weaknesses of contradictory or

21 different evidence, whether oral or documentary, which is then before the

22 Chamber." And that, I think, addresses directly the point raised by Your

23 Honour with respect to a possible defence or alternative evidence of

24 military necessity for the attacks on these villages. I hope I've

25 provided further assistance. Thank you.

1 JUDGE NOSWORTHY: Thank you, Mr. Whiting.

2 JUDGE MOLOTO: Thank you very much, Mr. Whiting.

3 Thank you to you also, Mr. Milovancevic.

4 The matter will stand adjourned to the 3rd of July at 9.00 in the

5 morning for -- yes, Mr. Milovancevic. Shall I -- sorry, Mr. Milovancevic

6 rose on to his feet before I -- yes, Mr. Milovancevic.

7 MR. MILOVANCEVIC: [Interpretation] Your Honours, thank you. I am

8 in the position to inform you about a problem that we, as the Defence are

9 facing. I think that this would be the right time to address that. As

10 the Defence team we have implemented every instruction of the Court and we

11 have worked in the best possible way and we have tried to organise

12 ourselves in the best possible way. In the meantime we have received

13 written instructions from Mr. Martic, which was confirmed in a

14 conversation, whereby Mr. Martic is asking the Defence to address the

15 Trial Chamber in the following way: He would like the Trial Chamber to

16 set the 15th of September as the day for the continuation of the trial.

17 Mr. Martic believes that he was not given enough opportunity for his

18 Defence to prepare properly for the continuation of the trial, and as our

19 client who issues instructions and who engages on this case, so we have to

20 convey this to you, he tells that he has been waiting 44 months for the

21 trial to begin while the Prosecutor was preparing their case. He is in

22 detention. He is satisfied with the pace of the proceedings and he is

23 asking the Court to allow his Defence sufficient time to prepare for the

24 presentation of their case.

25 The Defence is obliged to convey this request from its client to

1 the Trial Chamber on the one hand. On the other hand, we would like to

2 point out the difficult position that we are in. We are now between your

3 decision to work on the case and on the other hand we are exposed or

4 subject to this explicit written request by Mr. Martic that the Defence

5 must not embark on the presentation of its case unless it is prepared.

6 This is a request by Mr. Martic. We believe as the Defence that this is

7 reasonable, justified and not excessive, and as such we would like to

8 inform you about this request by Mr. Martic and we believe that it would

9 be in the interests of justice to make it possible for the Defence to have

10 a short break from this extremely tiring work, we are all tired from this

11 pace. This is a very complex case, and we would like to wait until the

12 recess is over and the holidays are over. We would like to be able to get

13 in touch with all the witnesses who are on vacation right now, and it will

14 be very difficult for us to find witnesses by the 14th of August. Simply,

15 it is the holiday season and we will not be able to find these witnesses.

16 They are simply not in Belgrade. This is simply one of the technical

17 questions facing the Defence. The gist is that Mr. Martic believes that

18 his Defence does have the right to have enough time to prepare, and he has

19 asked us to inform the Trial Chamber about this instruction or request he

20 has sent to us. So we would like to use this opportunity to convey this

21 request to you and we would like to ask you for your understanding and

22 your help in dealing with this request that we have received from our

23 client.

24 JUDGE MOLOTO: Thank you, Mr. Milovancevic. The Chamber will give

25 you a response to that request in due course. In the meantime, the matter

1 stands adjourned to 9.00 in the morning on the 3rd of July for a decision

2 on the 98 bis application.

3 Court adjourned.

4 --- Whereupon the hearing adjourned at 3.24 p.m.,

5 to be reconvened on Monday, the 3rd day of July,

6 2006, at 9.00 a.m.

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