1 Tuesday, 11 July 2006

2 [Defence Opening Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE MOLOTO: Good morning, everybody.

7 Mr. Milovancevic?

8 MR. MILOVANCEVIC: [Interpretation] Good morning, Your Honours.

9 Before I begin with my opening statement, I wanted to briefly

10 raise an issue. The Defence has a deadline until tomorrow to submit the

11 expert report of the military expert. We hereby ask the Chamber to extend

12 that deadline because we have not had time quite physically to read this

13 expert report which is in the Serbian language now. It is very extensive,

14 voluminous, and because of our obligations leading up to today, and the

15 rest of this week, we have simply not had time to read the report, let

16 alone to have it translated and submitted to the other side. For this

17 reason, we move that the Chamber grant us leave to submit this report

18 after the summer recess, and then the rules can be applied further. Thank

19 you.

20 JUDGE MOLOTO: Any response to that, Mr. Whiting?

21 MR. WHITING: I have no objection to that, Your Honour. I do

22 maybe after the opening have a few other housekeeping matters to raise but

23 I'm happy to do it after the opening.

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

25 [Trial Chamber confers]

1 JUDGE MOLOTO: Thank you, Mr. Milovancevic. Your application is

2 granted. But just so that we are quite clear, by when after the summer

3 recess do you propose to submit the report? Can you give us a date?

4 MR. MILOVANCEVIC: [Interpretation] Your Honour, we are convinced

5 we can do this by the 14th of August, at the very beginning of our work

6 after the Court recess.

7 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. Then we'll

8 make it the 14th of August.

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

10 JUDGE MOLOTO: Thank you.

11 MR. MILOVANCEVIC: [Interpretation] The Defence will today present

12 its opening statement and put its case regarding the issues of fact and

13 law raised in the indictment against the accused, Mr. Milan Martic.

14 The Defence will draw attention to those fundamentals and the

15 Defence standpoints which will show that the charges in the indictments

16 are not well founded, that they constitute a view of highly complex

17 military multi-national state and other relations over a five-year period

18 on the territory of a former European country, Yugoslavia, and that the

19 Prosecution has taken a selective view of these facts and events,

20 extracted them from their context, and failed to establish causal links.

21 At the outset, the Defence wants to point out that the Prosecution

22 is mentioning a third of the territory of the former Socialist Republic of

23 Croatia, which at that time was inhabited by Serbs as the indigenous

24 population, and considerable parts of Bosnia-Herzegovina within the

25 context of the overall Yugoslav crisis, to which all documents of the

1 United Nations testify. However, the Prosecution sees this territory,

2 about one-third of Croatia, a considerable part of Bosnia, in a context

3 severed from the territory of the rest of Yugoslavia, the other events and

4 influences and attempts to construct their case concerning a so-called

5 joint criminal enterprise based on witness testimony and documents. The

6 Defence will begin with a chronological overview of the events that took

7 place in that period of time on that territory.

8 What is characteristic of this period of time relevant for the

9 indictment, and formally this is the period from 1991 to 1995, is the

10 emergence of certain political parties of the territory of the former

11 Yugoslavia and the then federal unit of Croatia. In early 1989, in

12 Croatia, the Croatian Democratic Union was established headed by

13 Mr. Franjo Tudjman. Until that time, this had not been a political party,

14 and could not have been registered under the regulations. It was

15 registered as a party only later and this was done pursuant to the

16 regulations in force. A year later, on the territory of the SAO Krajina

17 or Croatia the Serb Democratic Party was also registered. In 1990,

18 therefore, at the beginning of that year, new parties emerged on the

19 territory of the then Yugoslav Republic of Croatia in circumstances where

20 the Yugoslav crisis, as an issue of state and of international

21 significance, under international law, starts to culminate.

22 The Prosecution case is that the emergence of certain nationalist

23 parties led to all the evil mentioned in the indictment. However, the

24 emergence of these parties was only a very small part of the overall

25 mosaic of political events and tendencies and aspirations emerging in

1 Yugoslavia at the time. In 1990, just as had happened 50 years

2 previously, there was only one state, the Socialist Federal Republic of

3 Yugoslavia on that territory. I will refer to it as Yugoslavia further,

4 and by this I mean the entire territory of that state. In 1990, 1991 and

5 until mid-1992, under international law, there was no doubt that there was

6 only one legal entity, only one internationally recognised state, and that

7 was precisely Yugoslavia. Yugoslavia was one of the 45 founder members of

8 the United Nations. In 1990 and 1991, it was a member of the United

9 Nations and, in all respects, its behaviour and actions were in line with

10 the principles of the OSCE, and it was a well-respected member of the

11 international community; so neither in 1990 or in 1991 were any of the

12 federal units of Yugoslavia internationally recognised states. These were

13 administrative units within the Yugoslav federation and they were not

14 legal entities on the international level.

15 Why is the Defence raising these issues? Because the events that

16 were to take place and lead to war and disaster can briefly be described

17 in a single sentence. This was the attempt of certain Yugoslav federal

18 units, primarily Slovenia and Croatia to, in contravention of the

19 provisions of the Yugoslav constitution and international law, secede from

20 Yugoslavia. They wanted to do this and they carried this out at any cost.

21 This process of destroying the Yugoslav state started when these

22 separatist demands were put forward by Croatia and Slovenia as early as

23 1990. At the level of the Yugoslav state, and the federation,

24 negotiations were held at Presidency level to find a possible solution to

25 these problems. No one in the federal top leadership of Yugoslavia wanted

1 war or prepared for war. Otherwise there would have been no talks and no

2 negotiations.

3 In all this it is important to bear in mind one more fact. Until

4 1990 on the territory of Yugoslavia, there was total peace. All the

5 members of the Yugoslav federation were equal in status and in all their

6 rights. All the members of the Yugoslav federation, according to the

7 Yugoslav constitution and their own constitutions, participated on a

8 footing of full equality in the functioning of the Yugoslav federation.

9 Your Honours, you have heard many times of the Yugoslav

10 Presidency. This was the so-called collective head of state. I think it

11 is hard to find another such example in the federal practice of any

12 country in the world. Of course, this is a positive example. It's a

13 positive exception, because it was the result of endeavours in the

14 Yugoslav constitution and the constitutions of the federal member

15 republics of Yugoslavia to have each of them represented in the organ

16 referred to as the collective head of state. Therefore, under the

17 constitution, each republic provided one member so that the six republics

18 and two autonomous provinces within Serbia, under the Yugoslav

19 constitution provided eight representatives and these eight

20 representatives were the collective head of state. To secure full

21 equality, when decisions had to be made at state level, these members of

22 the collective Presidency were rotated every year so that one year the

23 Slovenian representative was the president of the Presidency, followed by

24 the one from Macedonia and so on. I won't mention each one of the federal

25 units.

1 The constitution of Yugoslavia also provided for the possibility

2 of individual federal units becoming independent and separating from

3 Yugoslavia. The status of the federal units was highly favourable for

4 them. This possibility, however, was dependent on compliance with the

5 constitutional procedure, which required the agreement of all the other

6 members. Of course, it's easy to say what the secessionist leaderships of

7 Croatia and Slovenia said, that this was simply an obstacle in their way,

8 but there can be no democratic order in a state if one of six members of a

9 federation can do whatever it wants. The Yugoslav constitution envisaged

10 the right to self-determination and even secession, but this had to be

11 done pursuant to a joint decision made by all the federal units. In 1990,

12 the leaderships of Croatia and Slovenia did not wish to acquire such

13 consent. They saw this as unacceptable. Those two leaderships, those of

14 Croatia and Slovenia, and those two Yugoslav federal units wanted

15 independence immediately and at any cost, even at the cost of war.

16 The most influential Croatian politician in that period,

17 Mr. Franjo Tudjman, the president of Croatia and the president of the HDZ,

18 which was the most influential party in Croatia, publicly and clearly

19 stated, as early as in May 1992, openly, at a rally before 100.000 people

20 in the centre of Zagreb, "our assessment was that independence can be won

21 only through war. There would have been no war had we not wanted it."

22 Mr. Tudjman went on to explain in March or rather, May, 1992, that they

23 had conducted political negotiations, these were negotiations among the

24 Yugoslav republics, about a possibility solution, but we were preparing

25 for war. And how were they preparing for war? That is a question which

1 the Defence is deeply convinced the Chamber will have to find an answer to

2 in order to reach a just verdict.

3 Some elements are already before the Chamber, based on the

4 evidence presented by the Prosecution. The Prosecution expert, Theunens,

5 during cross-examination, confirmed that the leadership of Croatia called

6 upon the population of Croatia to rebel and another Prosecution witness

7 confirmed that this was an armed rebellion. A great deal of evidence

8 presented during the Prosecution case points to armed activities and armed

9 rebellion. Protocol 2 of the Geneva Conventions envisages what a state

10 should do when there is an armed rebellion. The Federal Republic of

11 Yugoslavia, under international law, was duty bound to deal with this

12 armed rebellion and to deal with it as an internal issue. It was

13 duty-bound to suppress this rebellion. This was also provided for by the

14 Yugoslav constitution and all federal laws. The armed forces of any

15 country can be used for such a purpose, including the armed forces of

16 Yugoslavia. The Prosecutor claims that the activities of the armed forces

17 of Yugoslavia, the federal armed force, constituted aggression against the

18 federal units.

19 Of course, I do not believe that my learned friend is not familiar

20 with the elementary norms of international law and he must also be

21 familiar with the Yugoslav constitution. This is, however, an attempt to

22 construct a fictional account of a so-called joint criminal enterprise.

23 The essence of this fabrication is that the activity of the federal armed

24 force, following orders from the head of state to suppress an armed

25 rebellion, constituted an aggression on their own country, Croatia and

1 Slovenia. This is what the Prosecutor is claiming. How this happened I

2 will demonstrate later on during my opening statement. I will now go back

3 to year 1990.

4 At that point, when we know there was a political crisis in the

5 territory of Yugoslavia, as displayed in the political demands of certain

6 federal units that are mutually opposed, some of them wanted to leave

7 Yugoslavia and to become independent, such as Slovenia and Croatia, others

8 wanted to stay within Yugoslavia, such as Bosnia, Macedonia, Serbia and

9 Montenegro, wherefore in the political negotiations in that year 1990,

10 various political options were put on the table, there occurred the sudden

11 introduction of the multi-party system in Yugoslavia, national parties

12 emerged, nation-based parties whose main determinant is a membership that

13 belongs to one ethnic group. The very name Croatian Democratic Union

14 shows that it is a Croatian national party. The Serb Democratic Party

15 shows in its name that it is primarily a party of the Serbs. Of course,

16 it is envisaged in the charter that anybody can become a member but the

17 essence of those parties is that they are national by orientation, and

18 under the circumstances in 1990, the first multi-party elections are

19 organised in Croatia. Several parties were running in those elections and

20 examining and cross-examining witnesses before the trial Chamber we have

21 mentioned all of them and we will not repeat all of their names now. What

22 is important for the first half of 1990 is the emergence of the Croatian

23 Democratic Union, its rise as the most important Croatian party, and its

24 victory at the elections in April 1990. It won 41 per cent of the votes

25 and thanks to the majority election system, it won two-thirds of the seats

1 in the parliament called Sabor in Croatia. What is important in order to

2 gain a full picture of the events of that time is to understand the

3 political platform of that party. The Croatian Democratic Union, led by

4 Franjo Tudjman, had as its objective an independent Croatian state of the

5 Croatian people. Croatia as a state of the Croatian people.

6 The Serb Democratic Party also ran in those 1990 elections,

7 nationalist party, as the Prosecutor called it, led by Jovan Raskovic.

8 Although this party qualified to become a participant in the elections

9 meeting all the requirements for registration and other criteria. Would

10 it have been possible at that time to register a party in Croatia if it

11 expressed nationalism in any form, especially Serbian nationalism at that

12 time; this party, however, was registered. So under those circumstances,

13 in the beginning of 1990, when the first multi-party elections were being

14 held and when the Croatian Democratic Union won a landslide victory to

15 become the most important party in the parliament and in all of Croatia,

16 the participation of the Serb Democratic Party led by Jovan Raskovic is

17 treated in the Prosecution case as part of the joint criminal enterprise

18 or its preparation. So at that point, when those first multi-party

19 elections were taking place in Croatia, with the participation of the Serb

20 Democratic Party, the then federal unit of Croatia had around four and a

21 half million population, including 581.000 people who had declared

22 themselves as Serbs in the census. According to official data from the

23 census of that year, Serbs accounted for 12 per cent of Croatian

24 population. Out of 581.000 Serbs at the first elections in Croatia, a

25 very small number voted for the Serb Democratic Party. The Serb

1 Democratic Party won only in Knin plus another one or two municipalities

2 perhaps.

3 The greatest majority of the Croat Serb population voted for

4 another party, the party of Ivica Racan, the former Croat communist who

5 had transformed the Croatian Communist Party into a new party, Party of

6 Democratic Changes. Why am I mentioning this? All this would be

7 irrelevant if it had not been turned upside down by the Prosecution. And

8 how did the Prosecution do that? They were trying to represent --

9 misrepresent completely the then political situation in Croatia when those

10 first multi-party elections were held, there were two peoples, two

11 nations, in Croatia; according to the constitution itself, Croatia was

12 defined as the state of Croat and Serb people in Croatia, not Serb people

13 from Serbia but Serb people from Croatia. And that was the solution, the

14 constitutional arrangement, that had prevailed for the previous 50 years,

15 from the end of World War II. And the reason why Serbs had that status in

16 Croatia is that before World War II, that is until 1941, there had been a

17 million of them in Croatia. So on the territory of the then Independent

18 State of Croatia, a million Serbs were killed in a terrible genocide.

19 Those are the available data, 700.000 were killed a horrific concentration

20 camp called Jasenovac and the overall estimate of Serbs killed is one

21 million.

22 On the territory of Croatia, 50 years after the Second World War,

23 581.000 Serbs were resident, and that provision in the Croatian

24 institution was a reference to that people who was killed through genocide

25 in World War II. When the Prosecution explain in their case the political

1 events and political aspirations, they do admit to the horrible suffering

2 of World War II, but in a cynical way; cynical because that is a crime

3 with no statute of limitations. We saw the map of the Independent State

4 of Croatia and we saw that it was the only country in Hitler's Europe at

5 the time where there was a concentration camp outside Germany, a horrible

6 concentration camp. And the Prosecutor says, "But Serbian population did

7 suffer a genocide in the past but its fears in exaggerated so since its

8 fears were exaggerated, somebody instigated Serb nationalism and then out

9 of that Serb nationalism the Serbs moved on to create a greater Serbia,

10 kill Croats, et cetera." That is the Prosecution case.

11 The Prosecution, by the way, disclosed a great number of documents

12 to the Defence that testify to the prevailing political situation in that

13 year, 1990, in the territory of Yugoslavia. So we cannot really say that

14 the Prosecution does not know the situation well. The Prosecution has to

15 know that situation by virtue of their job, and the Prosecution disclosed

16 written evidence which shows the writing of Der Spiegel magazine of 16th

17 April 1990, referring to the elections in Croatia, and I quote, "The

18 greatest chances of success at these elections are in the hands of the

19 Croatian Democratic Union, an extremist group that openly dreams of a

20 Greater Croatia, has territorial claims on the neighbouring

21 Bosnia-Herzegovina," and I now come from the most important point, "And

22 spreads fanatical hatred of Serbs." So on the eve of the elections in

23 Croatia, where the Croatian Democratic Union was victorious, led by Franjo

24 Tudjman, this Croatian Democratic Union was a party which, according to

25 this German publication was spreading fanatical hatred for the Serbs. We

1 will show that this election campaign of the Croatian Democratic Union and

2 all the other Croatian parties which defined themselves as Croatian, were

3 based on hatred of Yugoslavia and intolerance of a part of the population

4 in their own republic. It was not hatred directed against Serbs in Serbia

5 or Serbs in the United States. It was hatred directed against 12 per cent

6 of their own population.

7 The Prosecution did touch upon this election campaign and we have

8 parts of Mr. Tudjman's speech recorded on paper and on video and audio

9 tape, a speech held before these elections in April 1990, namely on the

10 24th of February, in a big hall, congress hall, Vatroslav Lisinski, where

11 he says that the wartime Independent State of Croatia is not only a

12 quisling creature in the expression of -- but also the expression of

13 historic aspirations of the Croatian people. To call that fascist state

14 of Croatia, which was a Hitler satellite during the war and as such

15 declared war on Britain and the United States and continued in that war

16 until 1945, a state whose troops were on the eastern front near Stalingrad

17 and a state which, by the way, killed a million Serbs, to call that state

18 on the eve of 1990 elections in Croatia an expression of historic

19 aspirations of the Croatian people ...

20 However, Mr. Tudjman did precisely that, that sentence rang the

21 alarm bell in the ears of all Serbs. It sent shivers down their spines.

22 It froze their blood. Foreign press was writing about nationalist Croatia

23 at that time. However, that can be a matter of political struggle and

24 political moment. But the elections passed, the parties that vied for

25 political power won as many votes as they won, and it was important for

1 life to go on.

2 What happened then? The first enactments passed by the new

3 Croatian authorities were those amending the Croatian institution, to

4 stipulate that Croatia is a state of Croats only. Passing amendments that

5 deprived the Serbs of their status of people and reduced them to a

6 national minority. Their script is banned and the old wartime

7 chequerboard flag of Croatia is reintroduced, the notorious flag, in red

8 and white. We heard a number of Prosecution witnesses speak about that

9 flag. It is of course an indisputable right of the people in power in any

10 Yugoslav federal unit to decide what their flag would be. However, in

11 this case, it was the combination of choice of moment and choice of

12 method. At that moment, Serbs were very anxious, fearsome [as

13 interpreted], Yugoslavia was facing threat of break-up, Croatia was openly

14 threatening to separate from Yugoslavia and the Serbs started to react

15 through their political representatives, in a purely political way. A

16 party is formed, it takes part in elections, they won a limited number of

17 votes, and then Serbs, who until then were members of other parties, as a

18 result of violations of the rights of Serb people and Serb parties,

19 changed their affiliation and joined the Serb political party. The

20 objective of the victorious party, however, was to expel one-third of its

21 own population.

22 The Prosecution, however, claims that it was the other way round,

23 that the Serbs wanted to create a greater Serbia by expelling one-third of

24 Croats from their territory. That is absurd. Why would they do that?

25 The Prosecutor does not say so in so many words, but it is claimed that it

1 is purely because Serbs hate Croats. Let us expel all the Croats and

2 create an independent Krajina. When Serbs organised political parties in

3 the territory of Croatia, they, who were Croat citizens, found out about

4 amendments proposed by Tudjman, they wrote letters of protests and their

5 own counterproposals which were rejected. The Serb population was a

6 minority at that moment, a small minority, with a very small political

7 influence. Under those circumstances, when the Croatian parliament does

8 not wish to accept a single amendment proposed by the Serb side, political

9 rallies are organised in Croatia. For instance, the rally in a place

10 called Srb on the 25th of July 1990, attended by 20.000 Serbs from that

11 area. The Prosecution refers to this as the first step in what will

12 follow, but disregards the amendments that had been passed and the reason

13 why those changes were instilling fear in the Serb population, the fear of

14 evil repeating itself.

15 The Serbs responded to what was happening in the parliament of

16 Croatia with the rally of the 25th of July 1990 in Srb. At the same time

17 the chequerboard emblem was being introduced in the Croatian parliament.

18 The Serbs were active politically. They issued a declaration on the

19 sovereignty of the Serb people. According to the Prosecutor, this

20 declaration is also part of the joint criminal enterprise. However, they

21 are overlooking the fact that under the Croatian constitution valid until

22 that point, the Serb population did have the status of a constituent

23 nation. This document issued in Srb was of a declarative nature. The

24 Serbs had already been a nation for 50 years and at that rally, they

25 confirmed this. They say, "We are a nation and that's how we want to be

1 treated." The Serb National Council is therefore established at that time

2 and they organised a referendum to deal with these issues.

3 In conditions where the Croatian and Slovenian political

4 leaderships wanted to secede from Yugoslavia at any cost, this behaviour

5 of the frightened Serbs in Croatia was something that was perhaps even

6 grist to the mill of the Croatian leadership. A referendum as a form of

7 political expression was provided for in the constitutions of both Croatia

8 and Yugoslavia and still is today. The Serbs therefore held a referendum

9 starting on the 19th of August about their autonomy and their status as a

10 nation in Croatia. On the 17th of August, the Croatian authorities

11 prohibited this referendum and sent Croatian policemen to prevent the

12 holding of this referendum and to disarm the police stations on those

13 territories inhabited by a majority Serb population, in Knin, Benkovac,

14 Obrovac, and other places. Prosecution witnesses have testified to this.

15 All this has been established beyond dispute from Prosecution

16 witnesses. The decision of the Croatian government to ban the referendum

17 which was issued on the 17th of August and their sending policemen to

18 disarm those police stations caused total panic among the Serbs. An alarm

19 was sounded in Knin, a state of war was declared, and barricades were

20 erected.

21 JUDGE MOLOTO: Who declared the state of war?

22 MR. MILOVANCEVIC: [Interpretation] The president of the municipal

23 assembly of Knin, the late Mr. Babic. As the president of the Knin

24 municipal assembly, Mr. Babic issued a decision on the 17th of August 1990

25 to declare a state of war in Knin, and an air raid siren was sounded. The

1 population was warned over the radio of the possible arrival of Croatian

2 policemen and, of course, the response was quite logical and natural. The

3 Serb population set up log barricades on the roads. Barricades by their

4 very name are clearly used to prevent movement along a road, and in the

5 context in which they were erected, it's evident that they were intended

6 to prevent the arrival of armed Croatian policemen. This was an attempt

7 to erect a physical obstacle on the road and therefore to protect the

8 population and to make the people feel safer. The Prosecutor says these

9 barricades were used for purposes of attack, aggression, joint criminal

10 enterprise. Although he presented part of the book written by Mr. Jovic,

11 the president of the Presidency of Yugoslavia, saying that the planes of

12 the Yugoslav air force made helicopters of the Croatian MUP turn back.

13 They had set out from Lucko in Croatia to intervene with weapons in Knin.

14 It would have been a massacre, Your Honours. The Prosecutor brought

15 witnesses who we will not comment on, who explained that the barricades

16 erected on the roads were an obstacle only to the Croats. They were

17 erected in order to imperil the Croatian population. This would be

18 ridiculous. It would be humorous were it not so terrible, this total

19 inversion of the meaning of these barricades.

20 The Defence will show that object the 20th or 21st of August,

21 three days before the barricades were erected, or after they were erected,

22 at one of these barricades several buses were stopped travelling from

23 Drnis to Knin, and there were men with weapons inside going to take over

24 the police station in Knin and it was only the behaviour of the people on

25 the barricades that prevented the massacre which could have taken place

1 over the Croatian policemen who ran into an ambush.

2 JUDGE MOLOTO: I'm beginning to worry, Mr. Milovancevic, you sound

3 now like you are testifying. I'm not suggesting that what you have been

4 saying is strictly according to what I expect an opening statement should

5 be. You've been sounding all the time like you're making a closing

6 argument but now you seem to be testifying. Can I suggest that you try to

7 stick to opening statements?

8 MR. MILOVANCEVIC: [Interpretation] May I proceed, Your Honour?

9 The Defence has dwelt in detail on these facts because these are

10 key points on the basis of which the Prosecutor builds his case of a joint

11 criminal enterprise.

12 The chronology of events that followed goes to deny this case.

13 The Defence will show that the meaning, both in political and military

14 terms, of these events was quite different from the meaning ascribed to

15 them by the Prosecutor.

16 If anything were to be selected as the most significant fact in

17 that year, it was the setting up of barricades in Knin. The result of the

18 referendum at which the Serbs voted in favour of their autonomy and then

19 the decision of the 21st of December 1990 on the establishing of the SAO

20 Krajina. As the Defence will demonstrate through witnesses, the Serbs, in

21 holding a referendum like the previous rally at Srb, did what Mr. Raskovic

22 explained in great detail at the Srb rally. He said "the goal of our

23 political activity is not to create a greater Serbia. It's not to take up

24 weapons. It's not to enter into a conflict with the remaining population

25 in Croatia. We are simply responding to the claims made by the state

1 leadership of Croatia that what is happening on the territory of the

2 Krajina is being done only by a handful of bandits and that the majority

3 of the Serb population in these area does not share their opinions."

4 That's why the referendum was organised and carried out, to show

5 that the Serbs were in favour of autonomy. It was held from the 19th of

6 August to the 2nd of September and pursuant to that referendum, the Serb

7 Autonomous Province of Krajina was promulgated. We will show why it was

8 on the 21st of December 1990 that the SAO Krajina was promulgated. Its

9 very name, Serb Autonomous Province of Krajina, shows quite clearly that

10 this was a province within the Republic of Croatia. This was autonomy

11 within Croatia. Whereas the Prosecutor tries to portray this as an

12 attempt to have the Krajina secede from Croatia. There is no dispute that

13 in the Statute of the SAO Krajina, it was stated that the Krajina was part

14 of Croatia and that Croatian legislation applied on its territory.

15 The fact that this happened on the 21st of December 1994 [as

16 interpreted] is used by the Prosecutor to show that the joint criminal

17 enterprise started as early as that. He is overlooking the fact that on

18 the very next day, the 22nd of December, the new Croatian constitution was

19 enacted, under which the Serbs were no longer a constituent nation but a

20 national minority. I am mentioning all this, Your Honours, to show the

21 link between these events. The political actions of the Serbs in Croatia

22 were, as a rule, a response to the actions of the Croatian authorities,

23 which were about to happen. That's why a day before the constitution

24 under which the Serbs were no longer a constituent nation in Croatia, the

25 Serbs issued their own document of the 21st of December promulgating their

1 autonomous province.

2 The Defence will show that the political aspirations of the

3 Croatian leadership to secede from Yugoslavia were implemented on two

4 levels, through political activities seeking support abroad for such

5 demands, and internal activities, that is preparations for war. The

6 Croatian federal unit of Croatia was preparing for war with its own

7 country. The Defence will show that in September, October, and November

8 1990, there was illegal import of weapons into Croatia. The well-known

9 film about Martin Spegelj, the commander of the new Croatian army, shows

10 this. He is talking to Boljkovac, the Croatian Minister of the Interior

11 in that film. In any case, what happened in 1991 represents a huge

12 acceleration of the Yugoslav crisis with mounting secessionist demands on

13 the part of Croatia and Slovenia, the attempts of the Yugoslav leadership

14 to keep this crisis within a political framework rather than a military

15 one and the taking of a number of steps to avoid military conflicts. This

16 acceleration of political events is again represented by the Prosecutor as

17 alleged evidence of a joint criminal enterprise. The fact that the Serbs

18 established the SAO Krajina on the 21st of December 1990 is taken by the

19 Prosecutor as a prime piece of evidence testifying to such an enterprise,

20 whereas it was quite possible, under the Yugoslav and Croatian

21 constitutions, to declare autonomy pursuant to a referendum which is

22 precisely the way this happened. But the Prosecution construes it

23 differently.

24 In the SAO Krajina new government was elected, with Mr. Babic at

25 its head and on the 4th of January it appointed ministers and Mr. Martic

1 was then appointed a secretary of the interior and this again is seen by

2 the Prosecutor as evidence of a joint criminal enterprise. Your Honours,

3 in January, February and March, all the way until August 1991, on the

4 territory of Yugoslavia, there was no war. It was a state with all its

5 state organs. We can view them as regular or irregular but there were

6 police stations, chiefs of police, both in Croatia and in Slovenia and in

7 every Yugoslav republic in every town and village. The appointment of one

8 man, Mr. Martic, to be secretary of the police is not evidence that there

9 was a joint criminal enterprise. It's only evidence showing that the

10 political leadership of Krajina assessed Mr. Martic as being a person

11 suitable for the job. That's all it shows. And this was done in

12 accordance with the legislation in place at the time. However, events

13 took a completely different course, as we will demonstrate.

14 On the 9th of January 1991, the Presidency of Yugoslavia issued a

15 decision on the disarming of paramilitary formations, all paramilitary

16 formations in Yugoslavia, including Slovenia and Croatia. The leaderships

17 of Slovenia and Croatia refused to implement this decision.

18 On the 25th of January, in Belgrade, the Presidency of Yugoslavia,

19 after their order that paramilitary formations be disbanded was rejected,

20 issued a decision on the demobilisation of all reserve police units. That

21 is when the video footage of Martin Spegelj is broadcast on television,

22 causing the whole public to go into a state of shock.

23 Even that decision of the Presidency, to demobilise reserve police

24 forces is not enforced by the state of Croatia, and we will show that as

25 well. It was not an ordinary mobilisation of the reserve police forces.

1 That video footage had, by that time, shown that 54.000 automatic rifles

2 had been imported, smuggled in from Hungary and we will show that the

3 mobilisation of reserve police in Croatia was a way to create a new

4 Croatian army. At any rate, it is indubitable that the leadership of the

5 federal units of Croatia and Slovenia were refusing to implement the

6 decisions of the collective head of state, the Presidency of Yugoslavia.

7 On a parallel track with this conduct towards the federal state,

8 on the 21st of February 1991, Croatia passed a decision rendering null and

9 void all federal legislation in the territory of Croatia, thereby stepping

10 out and excluding itself from the constitutional order of the country. On

11 the 28th of February, the Serbian -- the Autonomous District of Krajina

12 responds with an enactment on disassociation from Croatia, and this again

13 is treated by the Prosecution as an element of joint criminal enterprise,

14 which is contrary to all logic.

15 Alongside with this failure to respect federal legislation, the

16 situation in Croatia is growing ever more tense, and on the 2nd of March

17 1991, the population of Pakrac clashed with the Croatian authorities and

18 police. That caused great anxiety among Croatian Serbs in general,

19 whereas the Prosecution is trying to convince us that this was an attempt

20 to encourage Croatian Serbs to armed insurgency. This is how the first

21 armed clash occurred, orchestrated and stage-managed by the new

22 authorities of Croatia. It was a crime against peace.

23 After this first clash, of the 2nd of March 1991 in Pakrac, the

24 Presidency of Yugoslavia, as the collective head of state, tried to decide

25 on the proposal of the Federal Secretariat for Defence to introduce a

1 state of emergency that would enable the federal army to mobilise people,

2 to mobilise men, in order to implement the decision of the Presidency, to

3 disarm paramilitary units. The Defence will show that that decision was

4 not passed because the Presidency voted four versus four. The

5 representatives of Slovenia, Croatian, Bosnia and Macedonia, those

6 republics that later seceded from Yugoslavia voted against authorising the

7 Yugoslav People's Army to disarm paramilitary units. And after that,

8 events begin to spiral. The next clash occurred on the 31st of March,

9 between local Serbs and the Croatian police in Plitvica. Two people were

10 killed, 20 wounded. The federal police were sent in to separate the

11 conflicting sides. And already on the 2nd May, in Borovo Selo a new clash

12 occurred again between armed Croatian police and the local population, in

13 which 17 members of the Croatian armed forces were killed -- sorry, 13,

14 not 17.

15 That is already a time in 1991 when events are getting out of

16 political control. Near Benkovac, the chief of the police station was

17 killed in Polaca near Benkovac which caused great indignation among the

18 Croats, and this indignation gave rise to mass vandalisation of Serb

19 property on the 3rd of May, and we will call witnesses to speak about

20 this. Whereas on the 5th of May in Trogir, Franjo Tudjman called the

21 Croat people to insurgency. That was confirmed by more than one witness,

22 and the Defence will show it. And after this call to armed insurgency,

23 already on the 6th of May 1991 in Split, huge disorders occurred in the

24 streets and one soldier was killed, another was wounded.

25 Were these accidents? No. They were an overture into the

1 referendum on the independence of Croatia that was scheduled for the 19th

2 of May 1991. At that referendum, the Croat population of Croatia voted en

3 masse for independence. The Serb citizens of Croatia did not vote.

4 This -- in response to this referendum, the leadership of SAO Krajina

5 scheduled its own referendum for the 12th of May 1991, where the Serb

6 population voted in favour of staying within Yugoslavia, remaining a part

7 of Yugoslavia, and the way this question was formulated is again treated

8 by the Prosecution as evidence of a joint criminal enterprise. However,

9 Your Honours, it is the right and even the duty of all populations to be

10 loyal to their federal state, and that was what the Serb population in

11 Croatia voted for on the 12th of May.

12 When the Croatian referendum passed and the majority of Croats

13 voted for secession of Croatia, already on the 28th of May 1991, Franjo

14 Tudjman inspected the new Croatian army at a stadium in Zagreb, the new

15 army was called ZNG, the Croatian home guard.

16 This is a fact that the Prosecution seems to disregard. On the

17 territory of a still-existing state, a new army is proclaimed that is

18 preparing to go to war with the regular army. The Prosecution treats the

19 proclamation of independence of Croatia as a perfectly regular act. He

20 does not see it as evidence of intention to break up the existing regular

21 state. Secession as such is seen in the international community, and

22 international law, as a festering wound on the body of the world.

23 However, it is precisely secession that Slovenia and Croatia were bent on

24 and they proclaimed it on the 15th of June in 1991. The Prosecution

25 treats the refusal of the Yugoslav state to accept this secession as proof

1 of aggression against its own constituent members. Unbelievable but true.

2 And before we go on our first break in one minute, at the time

3 when all this is happening in Slovenia and Croatia, the Presidency is

4 presided over by a Slovene, representative of the state which took such a

5 decision to secede. The next president was Stjepan Mesic, again a

6 representative of a republic that decided to secede. There was a

7 representative of Macedonia, a representative of Bosnia. So the

8 collective head of state was functioning in complete accordance with the

9 constitution at the time when these decisions on secession were adopted,

10 and the federal Prime Minister, a Croat, Ante Markovic, proclaimed that

11 these enactments, these proclamations of independence were

12 unconstitutional already the next day, the 26th of June 1991, and the

13 federal government sent 2000 troops to restore order at the Slovene

14 borders.

15 Your Honours, perhaps this would be a convenient moment for the

16 break.

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

18 We will then take the break and come back at quarter to 11.00.

19 --- Recess taken at 10.16 a.m.

20 --- On resuming at 10.46 a.m.

21 JUDGE MOLOTO: Yes, Mr. Milovancevic?

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

23 Before the break, we left off with the events of end June 1991.

24 Of course, all those were things of common knowledge and the Prosecutor

25 does note that in the indictment, that at that time two republics enacted

1 proclamations on secession and conflicts started. We also know what was

2 going on in Slovenia at the time. What is important to point out at this

3 moment is that the acts of Slovenia and Croatia were unlawful, violent,

4 illegal, and that the federal government of Yugoslavia, headed by a Croat,

5 Ante Markovic, which would not be important or relevant except that it is

6 in this case where the Prosecutor turns everything upside down, it is

7 important to say that the Prime Minister was a Croat, Ante Markovic, and

8 that federal government proclaimed these two acts of Slovenia and Croatia

9 unconstitutional on the 26th of June and sent troops of the JNA to

10 Slovenia to restore order on the international border of Yugoslavia, on

11 the low convene side the border of Yugoslavia with Austria and Italy and

12 Hungary. So it was not part of the joint criminal enterprise it was a

13 decision of the federal government and the assembly of the SFRY. Just

14 2.000 troops were sent to restore order on the international border of

15 Yugoslavia, its sections in Croatia and Slovenia.

16 Already on the next day, the 27th, the Republic of Slovenia

17 attacked units of the Yugoslav People's Army. In the last decade of the

18 20th century, in the territory of Yugoslavia, secessionist forces mounted

19 an attack against the federal armed forces of Yugoslavia. This resulted

20 in conflict which killed ten Yugoslav soldiers and ended in a cease-fire

21 on the 28th and 29th of June in Slovenia. However, already on the 29th of

22 June, members of the Slovene Territorial Defence continued to attack the

23 JNA, and a general massacre, a general conflict, all-out conflict occurred

24 because very few soldiers were sent to intervene according to the orders

25 of the federal government. The Slovene president, Kucan, appeared as a

1 witness before this Trial Chamber [as interpreted], the man who led this

2 secession, the man who gave the order to attack federal forces, who on the

3 29th of June declared Slovenia does not give up on its independence, and

4 that was grounds enough for him to attack the federal army. That was a

5 crime. And in that situation, thanks to the intervention of the European

6 Community, some decisions are made and most importantly the decision of

7 the Presidency of Yugoslavia of the 18th of July, in Belgrade, that troops

8 of the JNA would withdraw from the territory of Yugoslavia pending a

9 solution to the Yugoslav crisis. That happened on the 18th of July 1991.

10 And this decision on temporary withdrawal of the JNA is again

11 twisted by the Prosecutor. He says the Yugoslav federation no longer

12 exists, you see. However, on the 7th of July 1991, the European Community

13 intervened and that is when the European troika helped conclude the

14 well-known Brioni agreement that was part after peace plan that envisaged,

15 1, to cease all actions in Slovenia and, 2, that Slovenia and Croatia

16 should freeze their decisions on independence for a term of three months.

17 So at that moment, it was a demand that looked like an attempt to conduct

18 political negotiations and take a break in the enforcement of certain

19 decisions in order to find a solution to the crisis.

20 What is indicative for the further course of the crisis is that

21 the European Community, when it mediated on the 7th of July 1991,

22 expressed its intention of participating in the Yugoslav crisis but

23 already on the 7th of July demanded that the JNA withdraw to barracks.

24 Your Honours, we are now also dealing with international law, and the laws

25 governing armed conflict, as well as the right of federal authorities to

1 act on their own territories to suppress armed rebellion. As early as the

2 7th of July 1991, the European Union is asking the JNA to withdraw to

3 barracks where they will be sitting ducks. How else can one explain this

4 demand that they withdraw to barracks while they are being vehemently

5 attacked?

6 In any case, the state leadership of Yugoslavia, on the 18th of

7 July, performed an act of the greatest possible goodwill and withdrew the

8 troops from part of its territory in order to avoid a conflict.

9 General Kadijevic, as the then Minister of Defence, when explaining this

10 action, said the following, and the Defence will show this: "That the

11 military leadership of the federal state was facing a terrible dilemma.

12 In Slovenia, which has a small territory and a small number of

13 inhabitants, should they use brutal military force, use the air force and

14 tanks to suppress the rebellion at cost of enormous casualties, or simply

15 abandon this territory when the Slovene population with its leadership

16 such as it was, was expressing so much hatred toward the federal army?

17 The state leadership of Yugoslavia then decided that they would abandon

18 their own territory if this would be a basis for peace."

19 The Prosecution has submitted a document in which Dr. Wolfgang

20 Pohrt in the magazine Konkret which is published in Hamburg on the 9th of

21 September 1991, speaks of these events. I will quote Mr. Pohrt. On the

22 9th of September 1991, he wrote, "Instead of intervening decisively and

23 introducing a state of emergency, instead of assaulting the secessionist

24 governments, instead of putting the governments of Slovenia and Croatia on

25 trial for high treason, the federal government ordered its armed forces to

1 carry out a half hearted attack only on the armed forces of the Slovene

2 separatists. This is probably the first time in military history," Dr.

3 Pohrt writes, "that a regular army, that is the JNA, which found itself in

4 a difficult situation, preferred to accept its own losses rather than use

5 its heavy weapons in battle ruthlessly."

6 That's what Dr. Wolfgang Pohrt says, writing in Hamburg on the 9th

7 of September 1991, whereas the Prosecutor, in his indictment, says or

8 construes the sending of federal troops to Slovenia under the command of

9 the Presidency as part of the joint criminal enterprise.

10 One must also bear in mind the fact that the crises in Slovenia

11 and Croatia culminated simultaneously. On the 25th of June 1991, both

12 Slovenia and Croatia enacted decisions on secession. And what the

13 political situation and developments in Yugoslavia showed was that in

14 Yugoslavia, there were forces not seeking a political solution. These

15 were the leaderships of Croatia and Slovenia. They did not want a

16 political solution. They wanted to break up Yugoslavia. The Defence will

17 demonstrate this through the evidence it presents, both live testimony and

18 written documents.

19 However, to understand the behaviour of all the participants in

20 the crisis, one must bear in mind a dramatic fact. On the 1st of July

21 1991, four or five days after Croatia and Slovenia declared secession from

22 Yugoslavia, the European Community, which was allegedly mediating to

23 resolve the crisis, literally forced the Presidency of Yugoslavia to elect

24 Stjepan Mesic as the president of the Presidency of Yugoslavia. There is

25 written evidence of this. The European troika attended the Presidency

1 session of Yugoslavia and this is the first time in modern history that a

2 head of state was elected under the pressure of and in the presence of

3 representatives of foreign powers. The extent to which this was dramatic

4 is demonstrated by the fact that the newly elected president, Stjepan

5 Mesic, such had arrived from a republic which five days previously had

6 already seceded from Yugoslavia. The Croat Mesic from the Republic of

7 Croatia which is seceding is forcibly imposed on the Presidency of

8 Yugoslavia as the president of the Presidency, and this happened at this

9 crucial period in time.

10 The attempts of some political forces in Yugoslavia to oppose this

11 because politically this was completely unacceptable, it was logically

12 unacceptable, it was pragmatically unacceptable, but the Prosecutor

13 portrays this too as part of the joint criminal enterprise. Imagine.

14 Mesic was not elected in the regular way. On the 1st of July 1991, Mesic,

15 who is currently the president of Croatia, was elected to the head of the

16 Presidency and on the 5th of December 1991, when he left that office,

17 stated in the Croatian parliament, and I quote him, "I have carried out my

18 task. Yugoslavia no longer exists."

19 Your Honours, there was evidently another joint criminal

20 enterprise at work, an enterprise to break up a sovereign European state,

21 Yugoslavia.

22 After the Presidency of Yugoslavia issued the decision on

23 withdrawing the JNA from Slovenia on the 18th of July 1991, large JNA

24 convoys with heavy weapons and ammunition, left Slovenia and they had to

25 pass through the territory of Croatia on their way to Belgrade. The

1 Presidency of Yugoslavia was not therefore playing a trick. They were not

2 withdrawing weapons from Slovenia in order to keep them in Croatia, which

3 was already seceding, although they would have had a basis to do this, and

4 a full right to do this, as the federal authorities. No. They didn't do

5 that. But what did the leadership of Croatia do with Tudjman, Mesic and

6 others at its head? They looted the trains. In July and August, these

7 trains were ambushed and dozens of wagons full of weapons and ammunition

8 were looted from the JNA in order to arm paramilitary formations.

9 JUDGE MOLOTO: Sorry, Mr. Milovancevic, let me understand a little

10 point here. Do you say Mesic was the president of Croatia at the time?

11 What was he in Croatia?

12 MR. MILOVANCEVIC: [Interpretation] No, Your Honour. I simply

13 mentioned that Mr. Mesic was a high-ranking HDZ official and a

14 high-ranking official in Croatia at the time. He was the Croatian

15 representative in the Presidency of Yugoslavia. But today, now, he is the

16 president of Croatia. He has been for years. He followed Mr. Tudjman.

17 And I may have mentioned this, and that may have caused the confusion.

18 JUDGE MOLOTO: Thank you very much.

19 MR. MILOVANCEVIC: [Interpretation] Thank you.

20 To understand the situation in Yugoslavia, it's interesting to

21 note that the European Community, in that period while the JNA was

22 withdrawing from Croatia, condemned the JNA for its military actions in

23 Slovenia. The question arises whether this was official political support

24 to the secessionist aims of Croatia and Slovenia. In any case, the

25 situation on the ground deteriorated and we heard from Prosecution

1 witnesses that all JNA barracks on Croatian territory were besieged. Both

2 in Croatia and in Slovenia and in every other Yugoslav republic, the JNA,

3 as the federal armed force, was deployed and had been for 50 years, in

4 garrisons which had already existed for 50 years in all those places.

5 Your Honours, it was not JNA facilities -- those JNA facilities that were

6 besieged were not new facilities, recently built facilities. It was the

7 depots, warehouses and other facilities that had already been on the

8 territory of that federal unit in a regular way. Their water and

9 electricity were cut off, supplies were cut off, minefields were laid

10 around these barracks, as well as antitank hedgehogs, and there were armed

11 people around every military facility.

12 Armed conflicts broke out, such as the one in Mirkovci on the 22nd

13 of July 1991. This was a conflict between Croatian policemen and local

14 Serb forces, who were also Croatian citizens. There were 12 killed.

15 On the following day after Croatia declared secession, that is on

16 the 26th of June 1991, Croatian policemen took the police station in

17 Glina. From there, they were driven out, after a conflict with local Serb

18 forces, on the 27th of July 1991. On the 1st of August, Franjo Tudjman,

19 in Zagreb, called on the population of Croatia to be prepared for war. He

20 said, "We have to continue preparations for all-out war, if we cannot

21 avoid it."

22 On the 22nd of August 1991, Franjo Tudjman demanded from the

23 Presidency of the SFRY that the army withdraw to barracks. The federal

24 armed force on the territory of Croatia was under attack from all sides.

25 Tudjman was asking that they be closed in, that they become sitting ducks.

1 On the 26th of August 1991, armed conflicts broke out all over Croatia.

2 The fighting around Vukovar began. This was not aggression on Vukovar.

3 It was fighting around Vukovar, in which there were JNA barracks.

4 On the 31st of August 1991, JNA air force planes intercepted a

5 Ugandan airliner bearing 19 tonnes of weapons. They made it land on the

6 JNA military airport in Pleso near Zagreb. These were weapons which

7 Croatian emigres in Canada had bought with money collected among members

8 of the HDZ there. All this was happening during the Brioni moratorium,

9 that is the decision that the decision on secession not be implemented.

10 The European Community was the author of the Brioni document under which

11 Croatia and Slovenia were to suspend their decisions and not carry out

12 them. However, these two republics were active in military terms on their

13 own territories to carry out this decision. On the 3rd of September,

14 under such circumstances, 12 countries of the European Community agreed in

15 The Hague that Lord Carrington, the former British foreign minister, be

16 the coordinator of the peace conference on Yugoslavia on the 3rd of

17 September 1991. On the 3rd of September 1991, however, the German

18 Bundestag supported the thesis that the recognition of Croatia and

19 Slovenia was a road to a faster resolution of the Yugoslav crisis. This

20 was recognition of republics which were teetering on the verge of civil

21 war. On the 7th of September 1991, the international conference on

22 Yugoslavia began its work in The Hague. Under such circumstances of

23 general tension, and uncertainty, the 9th of September 1991 occurred,

24 where Mr. Martic was arrested, and this is again a prime piece of evidence

25 in the view of the Prosecution supporting the case for a joint criminal

1 enterprise, because Mr. Martic was released by other members of the same

2 enterprise, Kadijevic and others.

3 In the situation where the situation in Croatia was already

4 heated, the arrest

5 of Martic could only cause the conflict to spread. So it was quite

6 logical that the federal authorities should exert an effort to release

7 Martic in order to avoid greater damage. However, this is used by the

8 Prosecutor to support his case that there was a joint criminal

9 enterprise. Already on the 13th of September, armed units of Croatia

10 capturing Croatia General Aksentijevic of the JNA. On the 17th of

11 September 1991, Lord Carrington, as chairman of the conference on

12 Yugoslavia, agreed with the federal secretary of National Defence, General

13 Veljko Kadijevic and Croatia's President Tudjman, one of the first

14 cease-fires, the 17th of September 1991. On the 25th September 1991, the

15 UN Security Council adopted a resolution banning imports of arms into

16 Yugoslavia, whereas on the 1st of October 1991, the Federal Secretariat

17 for National Defence submits a report to the effect that from the

18 conclusion of the cease-fire on the 17th September until the 1st of

19 October, that is over a period of 13 days, 263 attacks on JNA

20 installations and units occurred on the territory of Croatia. We have

21 written evidence about this.

22 And since Lord Carrington was appointed chairman of the conference

23 on Yugoslavia, and since he had already been in communication with General

24 Kadijevic, federal minister for defence on the 17th of September, the

25 federal Ministry of Defence introduced the practice that had never existed

1 before or after in the whole world. The most secret documents, daily

2 operative reports received by the Ministry of Defence from the territory

3 of the entire country, were to be submitted every day in writing,

4 including all data, to Lord Carrington, to the Presidency of Yugoslavia,

5 to all presidents of all Yugoslav republics, to the federal executive

6 council, to Mr. Hue tonne, the European Community, that is foreign states,

7 from which assistance is expected in resolving the spiraling Yugoslav

8 crisis. The most confidential military information is provided day to

9 day, about activities, attacks, locations. We will present this evidence,

10 Your Honour, and the Prosecution has it too, and has disclosed copies.

11 These documents do not speak to joint criminal enterprise as the

12 Prosecutor claims, or criminal activities of the JNA or aggression on the

13 part of the JNA. These documents speak to the existence of an armed

14 insurgency on the territory of Croatia, every day and every minute, from

15 August 1991 until the arrival and deployment of UN troops and the final

16 withdrawal of the JNA from the territory of Croatia.

17 It was only on the 3rd of October 1991, while the Brioni

18 moratorium was still in effect and the situation was supposed to be calm,

19 it was only on the 3rd of October 1991 that the Presidency introduced the

20 state of emergency. Let me remind you of one fact that we, as the

21 Defence, will demonstrate. In September 1991, especially after

22 mid-September, in the territory of Croatia, huge JNA barracks were

23 captured, huge barracks, Varazdin, Bjelovar, Krizevci, and other locations

24 throughout Croatia. It is difficult to enumerate all of them now. An

25 enormous amount of weaponry was seized. In certain barracks in Slavonia,

1 200 tanks were seized in one go. And all this happened while Slovenia and

2 Croatia were bound by the agreement reached with the European Community to

3 freeze their decisions on independence. In that time, Croatia was

4 ruthlessly attacking the federal armed force, and Croatia was preparing in

5 this way to continue the war.

6 Concerning the Brioni moratorium, another thing is typical.

7 Deputy Prime Minister of Croatia, Dr. Zdravko Tomac spoke of the first

8 government of democratic unity in Croatia in August 1991, and he openly

9 writes, as the Deputy Prime Minister of Tudjman's government, saying

10 this: "Because of the Brioni moratorium, we could not form a wartime

11 government. However, we did turn the present government into a Crisis

12 Staff and established a series of other Crisis Staffs throughout Croatia,

13 and thus, on the sly, the Croatian government acted as a wartime

14 government contrary to Brioni agreement," writes Mr. Tomac. And we will

15 lead evidence about this. This activity of the Croatian government had,

16 as its objective, to crush the JNA as an armed force, which in the words

17 of the Deputy Prime Minister of Croatia was done by transferring 17.000

18 officers and NCOs of Croat ethnicity from the JNA into the new Croatian

19 armed forces. They transferred either voluntarily, of their own will, or,

20 as Dr. Tomac put it, those who did not want to transfer of their own will,

21 even if they did not participate in military actions against Croatia,

22 could not be certain that their lives and the lives of their families

23 would be safe. And Dr. Tomac boasts in his book, "We destroyed the

24 federal army. And we left in the JNA only those cadres through which we

25 could control the situation in the units in which they remained." Whereas

1 the Prosecutor claims that the split and break up of the federal army is

2 another proof of joint criminal enterprise. He says, "You see Croats and

3 Slovenes and Macedonians and Bosnians were all expelled from the JNA." We

4 will demonstrate the contrary, Your Honours, that those officers trampled

5 on their word of honour as officers and they abandoned their own army at a

6 time that was most difficult for it, at a moment when it was their duty to

7 defend the federal state with their lives, if necessary. At that moment,

8 they betrayed it. And the fact that they were no longer part of the JNA

9 seems to be proof in the eyes of the Prosecutor that the army was cleansed

10 on ethnic grounds, purged. Everything in this indictment is turned on its

11 head, Your Honours.

12 And what does the army do in this situation? The army, led by

13 General Kadijevic, was closely cooperating with Lord Carrington and all

14 the other representatives of the international community, and it was under

15 the pressure of the European community that the Yugoslav people's army, in

16 the course of its heavy struggles with Croatian armed formations,

17 concluded a cease-fire on the 2nd of January, the 13th and the 14th

18 cease-fires, the 14th was concluded on the 23rd of November in Geneva. It

19 was signed by General Kadijevic when it was agreed in the presence of

20 Milosevic and Tudjman that for the 14th time around, an attempt should be

21 made to lift the siege of JNA barracks and troops, to allow them to

22 withdraw from the territory of Croatia. That agreement concluded in

23 Geneva is a crown piece of evidence that the Yugoslav People's Army had no

24 ambitions to carry out an aggression, that it was not involved in a joint

25 criminal enterprise, because the army -- an army that agrees, for the sake

1 of peace, to withdraw even from Croatia so that the peace conference on

2 Yugoslavia could find a peaceful solution, an army like that was not part

3 of the joint criminal enterprise, as the Prosecutor claims; without any

4 grounds, in my submission.

5 By doing so, the army, on the contrary, demonstrated that it was

6 not capable, that it did not have the courage, to perform its duty under

7 the constitution to defend its territory, and the resulting gains from

8 those 14 cease-fires were all on the Croatian side, because the Yugoslav

9 army could have easily crushed a resistance had it had the will to do so

10 and we will present written evidence and show through our military expert

11 that the greatest number of JNA soldiers who were killed or wounded were

12 killed or wounded precisely during the cease-fires that were violated by

13 Croatian armed units.

14 Under those circumstances, on the 8th of October, a day after the

15 expiry of the Brioni agreement, the Brioni moratorium that envisaged a

16 pause for Croatia and Slovenia from the 7th of July onwards, the next day

17 after its expiry on the 18th of -- on the 8th of October, the parliament

18 of Croatia takes another step towards secession from Yugoslavia, passing a

19 decision to break away. On the 9th of October, the day after this

20 decision was passed, Mr. Mesic, who was still, let me remind you,

21 president of the Presidency of Yugoslavia, a day after Croatia proclaimed

22 its decision to break away and to separate, disassociate itself from

23 Yugoslavia, Stjepan Mesic declared his intention to continue as president

24 of the Presidency of Yugoslavia. And he indeed continued until that day

25 when he declared in the Croatian parliament that his mission is

1 accomplished, that Yugoslavia is no more.

2 At a session of the Croatian state council on the 12th of

3 November, Stjepan Mesic informed President Tudjman and the entire Croatian

4 leadership that as president of Yugoslavia through his own private

5 connections on the island of Korcula on the Adriatic Sea, he had been to

6 see Mr. Andreotti of Italy illegally and at that meeting of the Croatian

7 state council, and that is another document that had been disclosed to us

8 by the Prosecution, Mesic informs Tudjman and the Croatian leadership that

9 Andreotti had promised him that Italy, Austria and Germany would recognise

10 the Croatian and Slovenian independence even if the European community

11 fails to do so. At that meeting, Mesic also says, cynically, and just

12 imagine, I went there, allegedly, as head of the Yugoslav state.

13 That speaks volumes about the ethics of the man who gave a solemn

14 oath when he became president of the Presidency of the Yugoslav state.

15 These may be scandalous and tickling facts but on top of that,

16 Mesic says that Andreotti told him on that occasion, "Lord Carrington

17 informed me that president of Serbia Milosevic had told him that he

18 doesn't need a yard of land to create greater Serbia. He's only

19 interested in the rights of Serbs in Croatia. And after hearing this,

20 Mesic informs Tudjman, "I explained to him that Milosevic was not telling

21 the truth. He wants to preserve Yugoslavia for purposes of greater

22 Serbia."

23 Why am I explaining this, Your Honour? Those separatist forces

24 that broke up Yugoslavia were falsely accusing at the same time those

25 Yugoslav republics, like Serbia, who were trying to save that federal

1 state, who were loyal to the federal state, and to falsely accuse it, they

2 used the fiction of greater Serbia. The OTP had abandoned that fiction of

3 greater Serbia in another case, the case against Milosevic, saying that

4 they had never advocated that theory.

5 On the 8th of October 1991, thus, Croatia proclaimed its decision

6 to sever all links with Yugoslavia and on the 16th of October, Croatia

7 gave a deadline to the JNA to withdraw from the territory of Croatia.

8 Croatia demands from the Yugoslav People's Army, "Withdraw from our

9 territory." At that time, the conflicts are well under way and on the

10 17th of October 1991, in The Hague, Lord Carrington proposed a declaration

11 on independence of all Yugoslav republics that wish independence. It was

12 at an international conference, where all the principles of the OSCE and

13 international laws that hold the international identity of states as

14 something sacred, at an international conference, sovereignty and

15 independence is offered to all those who wish it. Imagine if something

16 like that would be done for Catalonia, the Basque country, anywhere in the

17 world. And still, that really happened for the territory of Yugoslavia.

18 When on the 17th of October, the federal authorities rejected this

19 document, another version was offered to them. Another version was

20 created by the European Community and then a third version of such a

21 document. On the 1st of November, 1991, the Presidency of Yugoslavia

22 pointed out that the document was unacceptable and that it was not the

23 solution.

24 On the 4th of November 1991, the council of ministers of the

25 European Community adopted a package of restrictive measures envisioning

1 punishing those Yugoslav republics who did not agree to the break-up of

2 the state. These were the political events that took place.

3 But they are linked to the Prosecution case about the so-called

4 joint criminal enterprise, and the possible intentions of some sides in

5 Yugoslavia. There are written documents according to which the European

6 Community, for reasons the Defence will demonstrate, supported the

7 secession of certain republics, and these are the facts.

8 From the very first document proposed by Lord Carrington on the

9 solution of the Yugoslav crisis, on the 17th of October 1991, until the

10 8th of November 1991, a very brief time elapsed, yet the Defence will show

11 what happened in that time period. On the 8th of November 1991, the

12 European Union decided to impose sanctions on those disobedient Yugoslav

13 republics which did not agree to the break-up of Yugoslavia. Instead of

14 imposing sanctions on the secessionist republics, Croatia and Slovenia, on

15 the 8th of November the European Union imposed sanctions on Serbia and

16 Montenegro because they opposed the document that was on offer. This was

17 the political environment in which certain events took place on the

18 territory of the former Yugoslavia. On very next day the 9th of November

19 1991, Yugoslavia appealed to the United Nations, that is the Presidency of

20 Yugoslavia, asking that the UN send troops to the territory of the former

21 Yugoslavia so that a peaceful solution could be found.

22 On the 9th of November 1991, the presidency of Yugoslavia sought

23 UN intervention to protect the integrity of Yugoslavia. As early as the

24 23rd of November 1991, Cyrus Vance, the special envoy of the

25 Secretary-General of the United Nations reached an agreement in Geneva

1 with Veljko Kadijevic, Tudjman and Milosevic on a cease-fire and the

2 lifting of the siege on all besieged JNA units on the territory of

3 Croatia, as well as the lifting of the siege on all the garrisons of the

4 JNA in Croatia, which would enable the JNA to withdraw from Croatian

5 territory. This agreement, reached in Geneva on the 23rd of November

6 1991, was the basis for the UN resolution on the peacekeeping operation of

7 the UN in Croatia and this was adopted in February and is known under the

8 name of the Vance Plan. Therefore, the military and political leadership

9 of Yugoslavia expressed its goodwill on the 23rd of November 1991 in

10 Geneva to do everything possible to prevent war, even withdraw their own

11 forces from part of its own territory. However, the Prosecution accuses

12 that military leadership in this indictment of participating in a joint

13 criminal enterprise with a view to expelling non-Serbs from one-third of

14 Croatian territory. This is truly incredible.

15 On the 27th of November 1991, only 15 days after the Yugoslav

16 government submitted a request to the UN to send the blue helmets to

17 Yugoslavia, resolution 721 was adopted by the Security Council on the

18 urgent deployment of UN troops in Yugoslavia.

19 On the 9th of December 1991, a month later, the Presidency of the

20 SFRY told Lord Carrington that the decisions of the arbitration commission

21 were unacceptable because they would mean the collapse of Yugoslavia as a

22 state, its being taken off the map. We will draw attention once again to

23 S23, 280, of the 11th of December 1991, a document issued by the

24 Secretary-General of the United Nations in which he tells the Security

25 Council and the European Community that under the conditions of the

1 planned arrival of UN troops in the former Yugoslavia, a premature

2 recognition of particular Yugoslav republics would be disastrous for the

3 region. Along with this document, S/23280, of the Security Council in

4 1991, there is a letter to Mr. Van den Broek, sent to him by the

5 Secretary-General, on the 10th of December 1991, in which he draws the

6 European community's attention to the fact that a premature recognition

7 would simply be pouring oil onto the flames and that the president of

8 Bosnia-Herzegovina and of Macedonia and other Yugoslav republics were

9 asking that this not be done, but it was done. It was done on the 23rd of

10 December 1991, when first Germany recognised Croatia and Slovenia. It was

11 done on the 13th of January 1992, when the Vatican recognised Croatia and

12 Slovenia, and on the 15th of January 1992 when other countries of the

13 European Union recognised Croatia and Slovenia in opposition to the

14 request by the Secretary-General. The Defence will show that before this

15 recognition, the president of the USA, George Bush, senior, in a

16 conversation with the secretary -- with Perez de Cuellar of the United

17 Nations, pointed out that it would be unacceptable to prematurely

18 recognise the independence of particular Yugoslav republics which were

19 seeking recognition.

20 Why is the Defence drawing attention to these events? Because

21 these facts have been neglected by the Prosecutor. The Prosecutor

22 overlooks them as if they didn't exist. Yet they show in what political

23 environment the Yugoslav crisis was taking place and the circumstances in

24 which the actions of all the participants in that crisis took place,

25 including Mr. Martic and other participants of the alleged joint criminal

1 enterprise.

2 On the 8th of December 1991, in Zagreb, under the auspices of the

3 European Community, this was about a fortnight after the Geneva agreement

4 of the 23rd of November 1991, under the auspices of Vance, an agreement

5 was reached between the Croatian government and the JNA on the withdrawal

6 of the JNA from the territory of Croatia, the entire territory of Croatia.

7 Whereas the Prosecutor states that the JNA, which was under attack on

8 Croatia, the fact that it was there is evidence of a joint criminal

9 enterprise. This agreement on the withdrawal of the JNA on the 8th of

10 December was the 15th agreement of this kind, Your Honours, mediated by

11 the European community and it was not respected because Croatian forces

12 continued fiercely attacking the JNA.

13 Logical evidence to support what I say, and this is also conceded

14 by the Prosecutor, is that on the 2nd of January 1992, a peace agreement

15 was signed in Sarajevo. On the 23rd of November in 1991, there was an

16 agreement in Geneva, under the auspices of Vance, that the JNA withdraw,

17 and then again on the 8th of December another agreement contravened by

18 Croatia, and finally on the 2nd of January 1992 in Sarajevo an agreement

19 was signed on withdrawal which would enable UN troops to arrive on the

20 territory of the former Yugoslavia.

21 In the meantime before the end of 1991, in these political

22 circumstances, another event transpired that is linked to the content of

23 the indictment: The republic of Serb Krajina was prom you will gated on

24 the 19th of December 1991, a constitution was adopted, and the Republic of

25 Serb Krajina was established as the state of the Serb people who had

1 previously lived on the territory of the Republic of Croatia which was now

2 seceding and abandoning Yugoslavia. The Croatian people were recognised

3 their right to secede. The Serb people in Croatia was only asking for the

4 same right. They were far smaller, far weaker, amounting to only 12 per

5 cent of the population, but they did not want to leave their state. They

6 wanted to remain within the Republic of Serb Krajina. In these political

7 circumstances, when many key players of the international order were

8 working on the break-up of Yugoslavia, is being used by the Prosecutor as

9 evidence to support the thesis of a joint criminal enterprise. Everyone

10 in Yugoslavia, the Macedonians, the Croats, the Slovenes, the Muslims,

11 they all had the right to self-determination. Only the Serbs did not have

12 that right. How generous the Prosecutor is!

13 In connection with this peace mission of the UN in Yugoslavia, a

14 prerequisite was that there be a cease-fire. We have already seen what

15 documents in January show that these conditions had not been met. There

16 was no cease-fire in place yet. We have seen Security Council documents

17 saying that the JNA is withdrawing from Croatia but there is no cease-fire

18 yet. The last cease-fire was signed in January 1992 and this was followed

19 by events closely linked to the indictment.

20 Mr. Babic, Mr. Milan Babic, the president of the RSK, and the

21 government of the RSK, adopted the position that UN troops could arrive on

22 the territory of the former Yugoslavia, that this was useful, but they

23 made two demands, that the troops be deployed on the demarcation line

24 between Serb and Croat forces. That is on the borders of the RSK facing

25 Croatia. Is this illogical? Is this unreasonable? That had been the

1 practice before in every peacekeeping mission, both in Cyprus and

2 everywhere else. UN troops were always deployed on the demarcation line

3 separating the two sides. That's what Mr. Babic was asking. He was

4 asking one other thing, that JNA troops not withdraw from territory of

5 the Krajina. Mr. Babic explained this to Mr. Marek Goulding and this was

6 a meeting held in Knin on the 27th of January and he did not desist from

7 his demands because according to the then standpoint of Mr. Babic, it was

8 up to international factors and Yugoslavia whether they would withdraw the

9 JNA from Croatia, but he was asking that they remain on the territory of

10 the RSK Krajina to protect the Serb population there.

11 On the 8th of January, because of Mr. Babic's standpoint on the

12 arrival of UNPROFOR which was contrary to the plan which envisioned the

13 deployment of these troops all over the territory of the Krajina and the

14 withdrawal of the JNA from the territory of the Krajina as well, on the

15 8th of January, the president of Serbia, Milosevic, wrote an open letter

16 publicly condemning Babic, and calling him to account. Mr. Babic replied

17 to that letter on the 12th of January. On the 30th of January, in

18 Belgrade, a meeting was held of the extended Presidency of Yugoslavia. In

19 addition to the members of the Presidency, representatives of the Serbs

20 from the Krajina and those in Bosnia who recognised the federal state

21 attended the session which lasted until the 31st of January and the 1st

22 and 2nd of February 1992. A communique was issued stating that the

23 Yugoslav side, the state of Yugoslavia, as the party requesting the

24 arrival of UN troops agreed to the deployment of those troops and

25 guaranteed that the troops would in fact be deployed as agreed. They also

1 promised that Yugoslavia would comply with its obligations. At that

2 meeting, the agreement of the Serbs from Croatia was also obtained. This

3 was done by Mr. Milan Paspalj; Mr. Babic did not attend that meeting.

4 In connection with this meeting, the Presidency of Yugoslavia

5 informed the Security Council that UN troops would be there to protect the

6 Krajina Serbs should, for any reason, or rather that the JNA would protect

7 the local Serbs should the UN fail to do so. This calmed the fears of the

8 local Serb population. This meeting was held in Belgrade which was their

9 capital town in their own country, but again, this is seen by the

10 Prosecutor as evidence of a joint criminal enterprise. They say, well,

11 look here, they went to Belgrade. What do the Serbs of Krajina, what

12 business have they to go to Belgrade? But, Your Honours, only the state

13 of Yugoslavia was legally in existence at the time, and at the invitation

14 of the president of their state, the Serbs went to Belgrade to accept the

15 Vance Plan.

16 And even regardless of that, let me not go into what the

17 Prosecutor believes is the end date of Yugoslavia, the motivation, the

18 reason for this meeting, was to accept the deployment of UN troops and the

19 UN plan. Even that is used by the Prosecution as evidence of the

20 existence of a joint criminal enterprise. That is absurd. The absurd is

21 complete.

22 And we had to point out one more thing about Mr. Babic. As to his

23 view that UN troops must be deployed along the demarcation lines and that

24 the JNA should stay in Krajina to protect the local population, Mr. Babic

25 explained why he believed that, why he insisted on that, even to

1 international representatives, and over this point, he clashed with the

2 most influential Serb politician at the time, Mr. Milosevic. We heard

3 that he may have been a very ambitious man, but it's important to know why

4 he took the risk of clashing with Milosevic. And as we saw later, he may

5 have been right. The Serbs were not protected by UN troops. There were

6 five aggressive operations against the Serbs from the Croatian side ending

7 with Operations Flash and Storm, in which 250 to 300.000 Serbs from

8 expelled from Croatia with only 50.000 remaining. Out of 581.000 that

9 were there in the census of 1991, after the military operations of the

10 Croatian army, only 50.000 remained. And under these circumstances the

11 Prosecutor speaks of a Serb joint criminal enterprise.

12 Mr. Babic had good reason to insist on his standpoint that he

13 presented in September as well. We put to him that letter in which he

14 wrote at the time that the JNA was acting in a decent, regular way, that

15 the Serbs in Krajina were only asking for the same rights as the Croat

16 population has, and that is to decide their own fates. And the reason for

17 all the trouble was the conduct of the neo-Nazi new Croatian authorities.

18 Everything that Mr. Babic did at the time was reasonable, logical

19 and was justified by later developments. Nothing can deny these facts.

20 On the 14th of -- sorry, on the 4th of February 1992, in New York,

21 after the Presidency of Yugoslavia declared on the 3rd of February that it

22 would accept the Vance Plan, Boutros Boutros-Ghali declared that Croatian

23 laws would not apply in UN safe areas in Yugoslavia, in Croatia. This was

24 stated by Mr. Marek Goulding on behalf of the United Nations Security

25 Council. On the 14th of May, the Presidency of Yugoslavia proclaimed an

1 edict whereby the legal system of Yugoslavia would apply to the parts of

2 Yugoslavia that are under special protection of the United Nations. So it

3 was also the standpoint the United Nations and the decision of the

4 Yugoslav federal state that the areas in which UN troops were deployed

5 were areas of Yugoslavia, where Yugoslav legislation applies. And that

6 legislation did apply, and it was enforced in all the decisions of the

7 Republic of Serb Krajina.

8 Since on the 3rd of February 1992, the Presidency of Yugoslavia

9 elicited the consent of the RSK, the assembly in Glina passed the

10 necessary decision to accept that plan and Mr. Borislav Jovic, as

11 president of the state committee for cooperation with the United Nations,

12 informed the United Nations thereof and this is another official document

13 of the Security Council. At that meeting in Glina, on the 9th of February

14 1992, Mr. Martic was present. He too supported the Vance Plan. There

15 were also the vice-president of the Presidency of Yugoslavia, Branko

16 Kostic, and Blagoje Adzic, acting Minister of Defence. Their presence in

17 Glina, in order to secure acceptance of the UN plan, is also used by the

18 OTP as evidence of joint criminal enterprise: "Look, people from the

19 state authorities came to visit those renegade Serbs."

20 Then the Security Council of the United Nations adopted resolution

21 743 concerning UN protected areas in Yugoslavia and Mr. Babic was replaced

22 as president of the RSK because he was -- he would not agree to the Vance

23 Plan. On the 26th of February 1992, a new president of the RSK was

24 elected. On the 29th of February 1992, in Bosnia, another Yugoslav

25 republic, a Croat-Muslim referendum was held concerning the independence

1 of this republic without a participation of Serbs. The indictment also

2 refers --

3 JUDGE MOLOTO: Before you go on to that one, can we perhaps take a

4 break, Mr. Milovancevic? Thank you very much. We will take a break and

5 come back at half past 12.00.

6 Court adjourned.

7 --- Recess taken at 12.01 p.m.

8 --- On resuming at 12.30 p.m.

9 JUDGE MOLOTO: Mr. Milovancevic, how much longer are you likely

10 still to be?

11 MR. MILOVANCEVIC: [Interpretation] Your Honour, it's difficult to

12 evaluate because I'm trying to speak moderately slowly for the benefit of

13 the interpreters. When I write it seems to me that it would be shorter

14 but I suppose that tomorrow, during the first session, I'll be done.

15 JUDGE MOLOTO: You may proceed, Mr. Milovancevic, just that --

16 sorry, yes, Mr. Whiting?

17 MR. WHITING: Your Honour, I would just ask if I could just have

18 five or ten minutes at the end of the session today, as I mentioned

19 earlier I had a few housekeeping matters to raise and I would like to

20 raise them today. I thought that the opening would be finished today so

21 if I could have five or ten minutes at the end of the day, I would

22 appreciate it.

23 JUDGE MOLOTO: Thank you, Mr. Whiting. Mr. Milovancevic, can you

24 spare Mr. Whiting some five to ten minutes at the end of the day, just to

25 do some housekeeping matters?

1 MR. MILOVANCEVIC: [Interpretation] Certainly, Your Honour. I'll

2 make sure.

3 Towards the end of the previous session we mentioned that the

4 process of acceptance of the Vance Plan by Yugoslav participants was

5 finalised with the decision of the Republic of Serbian Krajina in Borovo

6 Selo to replace the president of RSK, Mr. Babic, from his post precisely

7 because he was opposed to the Vance Plan.

8 As regards the allegations in the indictment related to

9 Bosnia-Herzegovina, we received some evidence during the Prosecution case

10 that emphasised the problems and the situation prevailing there, but the

11 Defence would like to point out once again that the approach of the

12 Prosecution is very lopsided and selective. Two or three locations, two

13 or three townships are chosen in a large territory and then, by viewing

14 certain events in isolation, conclusions are drawn about the situation in

15 the whole region and even worse, conclusions are made about the existence

16 of a joint criminal enterprise that encompassed Bosnia and Herzegovina as

17 well.

18 The Defence will lead evidence to show that in this period in

19 Bosnia-Herzegovina, including the period of the indictment, starting with

20 end February 1992, and I will remind Your Honours that one of the

21 Prosecution witnesses, Mr. Kirudja told us that in April, early April

22 1992, when he arrived in the former Yugoslavia, the situation was calm and

23 peaceful. Whether this was just an appearance or the truth, we will show

24 through the evidence we lead. As regards Bosnia and Herzegovina, in

25 December 1992, the leadership of Bosnia and Herzegovina addressed the

1 Secretary-General of the United Nations, and he speaks about that in his

2 document dated 11th December 1991, that premature recognition should not

3 be granted to certain Yugoslav republics. However, that premature

4 recognition was granted despite all the warnings, and it is important in

5 view of the Prosecution case to explain why and how this was done.

6 On the 29th of February 1992, a referendum was held of two ethnic

7 communities in Bosnia-Herzegovina, the Muslim and the Croat communities.

8 The Yugoslav republic, Bosnia-Herzegovina, was particularly well known as

9 a republic that had three constituent ethnic groups, Muslims, Croats and

10 Serbs. Those three nations were autochthonous and formed the population

11 of Bosnia and Herzegovina for many centuries back. The constitution of

12 Bosnia and Herzegovina defined this republic as a union of these three

13 constituent nations and it was defined in the same way in the constitution

14 of Yugoslavia. Only peoples had sovereignty, had sovereign status, as

15 opposed to national minorities. Considering that Bosnia and Herzegovina

16 was a republic where three communities divided by religion and ethnicity

17 were living together, it was very important to preserve that balance and

18 to give equal treatment to those three ethnic communities to avoid

19 conflict.

20 In order to understand the situation in Bosnia and Herzegovina as

21 a federal unit of Yugoslavia, I will just say briefly that during the

22 Second World War, Bosnia and Herzegovina was a part of the so-called

23 Independent State of Croatia, the Ustasha state of Croatia. On the

24 territory of Bosnia and Herzegovina as well, inhabitants of Serb ethnicity

25 suffered a horrific genocide, and now, on the 29th of February 1992, with

1 the crisis in Yugoslavia unfolding as it was, and after the Security

2 Council already passed a resolution to send UN troops to Yugoslavia to be

3 deployed in areas of Croatia where Serbs formed a significant majority of

4 the population, and where interethnic strife or rather tension had in the

5 past led to conflict, in that situation, in Bosnia and Herzegovina, a

6 referendum is suddenly organised for two ethnic communities, Croats and

7 Muslims, against the third ethnic community, the Serbs. The same question

8 arises as in Croatia and Slovenia: Will Bosnia and Herzegovina become

9 independent and will it continue as part of Yugoslavia? This referendum

10 on the 29th of February 1992 was held at a moment when the Security

11 Council of the United Nations had already decided in its resolution on the

12 Vance Plan and all Yugoslav parties had undertook to enable the JNA to

13 withdraw from Croatia, including the territory of Krajina, from areas that

14 would be protected by the United Nations.

15 So at the moment when the Security Council is making its decision

16 on this peacekeeping operation, and the Yugoslav People's Army accepts to

17 pull out from Croatia, Bosnia is a part of Yugoslav territory, which has a

18 long border with Croatia, and under those circumstances, the decision to

19 pull the JNA out of Croatia practically meant that they had to move to

20 Bosnia and Herzegovina, which borders Croatia. From its own territory,

21 from Yugoslav territory, of which Bosnia and Herzegovina was a part, it

22 was indeed easy to intervene militarily in case the Serb population in

23 Croatia is attacked.

24 However, political events at that point took a completely

25 different turn. On the 29th of February 1992, this referendum is held and

1 two nations in Bosnia-Herzegovina, Muslims and Croats, decided that Bosnia

2 would secede from Yugoslavia. Serbs hold their own referendum and

3 said, "We will stay in Yugoslavia." And then a political crisis breaks

4 out in Bosnia and Herzegovina, the international community intervenes, the

5 United Nations, and the European community intervene. The events in

6 Bosnia looked ominous. The referendum was on the 29th of February and

7 already in March that year, a terrible incident occurred in Sarajevo. It

8 is very important, if we want to understand the situation in Bosnia, to

9 note that this population was completely mixed. There were no purely

10 Croat areas, purely Serb areas or purely Muslim areas. No. The

11 population had lived together for many centuries and after their

12 experience of World War II, they still continued to live together. In old

13 Yugoslavia, the Yugoslavia that existed until then, it was very frequently

14 said that Bosnia was an example, a paragon of brotherhood and unity, three

15 nations and three religions together. However, at the time when the

16 situation in Croatia was still unresolved, the UN troops were still not

17 deployed and the JNA had not withdrawn, in the centre of Sarajevo Muslim

18 forces killed one Nikola Gardovic and warned a Serb Orthodox priest. This

19 Nikola Gardovic was the father of the groom in the wedding party. The

20 Serb flag carried by the wedding party was seized and burned. This is an

21 individual crime, Your Honours, and crimes happen. However, this

22 particular crime caused terrible unrest in all of Bosnia, and disorders

23 began in the streets of Sarajevo because of this.

24 On the 18th of March 1992, 19 days later, under the aegis of the

25 European Community negotiations on the fate and the future of Bosnia and

1 Herzegovina begin in Lisbon. Representatives of three main political

2 parties, the Muslim party, SDA, Party of Democratic Action led by Alija

3 Izetbegovic, the Serb Democratic Party led by Radovan Karadzic, and the

4 Croatian Democratic Union from Bosnia, meet in Lisbon under the

5 chairmanship of the president of the European Community, Mr. Cutileiro,

6 and arrive at what we know as the Cutileiro plan to resolve the crisis in

7 Bosnia-Herzegovina.

8 According to that plan, all these three parties, the Muslim, Serb

9 and Croat ones, and representatives of the three ethnic communities,

10 agreed that a future Bosnia would be organised along cantonal principles,

11 would have three constituent units and according to the maps that were

12 offered, Muslims would get 44 per cent of the territory, Croats 12 per

13 cent and the Serb population would get 44 per cent of the territory of

14 Bosnia and Herzegovina. That plan, sponsored by the European Community,

15 had as its objective to save Bosnia from war. The Defence will show that

16 only section days later, on the 25th of March 1992, spurred by the

17 American Ambassador in Belgrade, Warren Zimmermann, the leader of Bosnian

18 Muslims, Alija Izetbegovic, reneged on this plan and withdrew his

19 signature.

20 Already on the 26th of March, after this political turnabout,

21 Croat and Muslim forces, in village Sijekovac [phoen] near Bosanski Brod,

22 slaughtered 21 civilians of Serb ethnicity. Serbs in Bosnia-Herzegovina

23 reacted by holding their own assembly meeting and adopt the first

24 constitution of Serbs in Bosnia and Herzegovina. The political response

25 of the Muslim leadership in BH was the decision of the 4th of April

1 proclaiming mobilisation of the Territorial Defence in the entire

2 territory of Bosnia and Herzegovina as forces loyal to the new leadership

3 bent on secession. Just after that, on the 6th of April 1992, contrary to

4 the warnings of the Secretary-General of the United Nations, the European

5 Community recognised Bosnia and Herzegovina as an independent and

6 sovereign state, using as a basis the referendum held by two Bosnian

7 nations without the third one on the 29th of February 1992. The next day,

8 the 7th of April, the United States recognised Bosnia too. The Serb

9 population and Serb political parties in Bosnia-Herzegovina respond on the

10 7th of April by proclaiming Republika Srpska, at a meeting of the Assembly

11 of the Serbian people in Bosnia-Herzegovina.

12 We have now reached the 7th of April 1992. Your Honours, this is

13 a period when a high-ranking official of the UN, Mr. Kirudja, arrived on

14 the territory and said that the Bosnian situation was still peaceful.

15 After that, events spiraled into a disaster. As Bosnia was recognised on

16 the 6th and 7th of April by certain states, the status of the JNA was

17 suddenly at issue. Up to the 6th of April 1992, the JNA in Bosnia had

18 been on its own territory. The JNA status in Bosnia was characterised by

19 the fact that this was the central republic geographically speaking, and

20 it was a mountainous area. And for these strategic reasons, the chief

21 military facilities, the main weapons depots, the most important airports,

22 such as the one in Bihac, an underground airport in the mountains, the

23 most important military factories were all located in Bosnia and

24 Herzegovina. The withdrawal of the JNA from Bosnia-Herzegovina was a

25 disaster for that army because it was left without its military industry,

1 its most important depots and warehouses, but in spite of all that, on the

2 26th of April 1992, as the Defence will show, negotiations were held in

3 Skopje between General Blagoje Adzic, the chief of the General Staff of

4 the JNA, and the president of the Presidency of Bosnia-Herzegovina, Alija

5 Izetbegovic. This was on the 26th of April 1992, when Bosnia was already

6 recognised by some countries, which does not necessarily mean it was

7 already an independent state but the survival of the JNA was at stake. An

8 agreement was then reached between Alija Izetbegovic and the top of the

9 JNA, that the JNA should peacefully withdraw from the territory of

10 Bosnia-Herzegovina. The main problem had been solved.

11 According to that agreement, there was no reason for war. Only

12 three days later, however, in spite of this agreement, which he signed

13 with the JNA on the 26th of April, Alija Izetbegovic and his leadership

14 issued an order on the 29th of April 1992 on complete and large-scale

15 obstruction of all roads used by the JNA to withdraw from

16 Bosnia-Herzegovina. Secondly, to lay siege to all military facilities in

17 BH. Thirdly, to prevent JNA units from leaving the barracks from which

18 they were meant to withdraw. And fourthly, to urgently start military

19 operations against the JNA on the entire territory of Bosnia-Herzegovina.

20 Your Honours, somebody wanted war and disaster, and it happened,

21 but this was not a Serb joint criminal enterprise, as the Prosecutor

22 claims.

23 After this decision of the 29th of April 1992, there was

24 widespread armed conflict all over Bosnia-Herzegovina. The Defence will

25 present documents, operative reports, from the Federal Secretariat for

1 National Defence. These were documents such as those sent to the

2 Presidency of Yugoslavia, the presidents of the republics, The Hague

3 Conference, and other international bodies and they related to

4 Bosnia-Herzegovina. The JNA, however, continued withdrawing from

5 Bosnia-Herzegovina. On the 3rd of May 1992 with the mediation and

6 presence of UNPROFOR, that is in the presence of the Canadian General

7 Lewis MacKenzie and Carl [as interpreted] Doyle, an emissary of the

8 European Community the command of the 2nd JNA army in Sarajevo signed an

9 agreement with Alija Izetbegovic that it should peacefully withdraw from

10 Sarajevo. Armed conflicts had already begun, but according to this

11 agreement, mediated by Mr. MacKenzie and Mr. Doyle a peaceful evacuation

12 was agreed upon. General MacKenzie was in the JNA convoy which was then

13 suddenly attacked in the centre of Sarajevo and JNA soldiers were killed.

14 The UNPROFOR general was witness to a terrible crime by which the JNA was

15 betrayed on this occasion.

16 Responding to this event, this massacre in the centre of Sarajevo,

17 on the 4th of May 1992, the Presidency of Yugoslavia decided that all

18 members of the JNA in Bosnia and Herzegovina who were citizens of the

19 Federal Republic of Yugoslavia should return to the territory of

20 Yugoslavia within 15 days.

21 So this removes any dilemma as to whether the political top

22 leadership of Yugoslavia was in favour or not in favour of the withdrawal.

23 This was a public call to withdraw.

24 On the 15th of May 1992, the Security Council of the UN adopted

25 resolution 752 to cease fighting in Bosnia-Herzegovina, for there to be a

1 cessation of fighting, but on that same day in Tuzla in the north of

2 Bosnia a JNA convoy which was leaving Tuzla was attacked. More than 200

3 out of 600 soldiers were killed. This was done by paramilitary Muslim

4 units. This was a slaughterhouse.

5 In spite of this kind of behaviour, on the 22nd of May 1992,

6 Bosnia and Herzegovina, Croatia and Slovenia were received as members of

7 the United Nations as sovereign member states. In Bosnia, there was an

8 armed conflict ongoing. In Croatia, UNPROFOR was not yet deployed. And

9 there were still conflicts. The JNA had left Slovenia. But these three

10 states were received into the United Nations. All this was done at a time

11 when UN troops had not completed their deployment in Yugoslavia and the UN

12 resolution envisaged UN troops securing peace so that a peaceful solution

13 to the crisis in Yugoslavia could be found at an overall level. Now,

14 suddenly, the UN Security Council is receiving three member states from

15 the former Yugoslavia into the United Nations.

16 The manner of this receipt into membership is also interesting.

17 The cause and effect is very important. These three secessionist

18 republics were admitted following a strong media campaign at a session

19 chaired by Mr. Peter Hornfeller [phoen]. The proposal was unusually

20 brief, consisting of only one sentence, without entering into the actual

21 situation. The UN Charter in Article 2, paragraph 1, provides that

22 sovereign states may be members of the UN. So this was the assumption

23 when these three states were admitted by acclamation in a brief procedure.

24 So far the procedure had always been respected and 35 days had always

25 elapsed from the application to the admission. However, this was not

1 done. The president of Saudi Arabia, Samir Shihabi, in the United

2 Nations, referred to his brothers in faith, the Muslims in

3 Bosnia-Herzegovina, and demanded that the JNA swiftly withdraw, and these

4 are the circumstances in which these three republics were admitted. This

5 defined the future course of developments in Bosnia-Herzegovina, and there

6 is much evidence to support it.

7 A propaganda war, Your Honours, the disinformation, the way public

8 opinion is manipulated, all these are methods of warfare. The crisis in

9 Yugoslavia involved an incredible amount of deception and trickery. On

10 the 27th of May 1992 in the center of Sarajevo in a well-known street,

11 Vase Miskina street, a shell exploded in a street where there was a bread

12 line, and this was a reason for the Muslim delegation to interrupt

13 negotiations in Lisbon on the future status of Bosnia-Herzegovina. Bosnia

14 had already been admitted no the United Nations but the representatives of

15 the three constituent peoples were still discussing peaceful coexistence

16 in Bosnia-Herzegovina. This terrible explosion took place on the 27th of

17 May 1992.

18 On the 23rd of August 1992, only two months later, based on an

19 inspection of confidential UNPROFOR reports received by commander Satish

20 Nambiar, a reporter of the Independent paper from New York, revealed that

21 several of the most horrendous massacres in Sarajevo, including the murder

22 of 16 civilians in the bread line were perpetrated by Muslims in order to

23 win over public opinion for a military intervention and that this was not

24 done by the Serbs who were accused of these crimes. That's what the

25 independent published on the 23rd of August 1992. However, the political

1 consequences were already there. Negotiations on the future of

2 Bosnia-Herzegovina were interrupted and after this interruption, and the

3 massacre in Sarajevo the United Nations Security Council adopted

4 Resolution 757 imposing a strict and comprehensive regime of sanctions on

5 Yugoslavia.

6 On the 30th of May 1992, the Security Council felt it was

7 Yugoslavia that was responsible for what was happening on the territory of

8 Bosnia and Herzegovina. Only three days later, however, the international

9 press reported on a shock experienced in New York because the

10 Secretary-General of the UN, Boutros-Ghali, had prepared a report on the

11 30th of May 1992, the date when the resolution on the condemnation of

12 Yugoslavia was passed, but this report was concealed and published with a

13 two-day delay, only after one side in Yugoslavia, the federal state, had

14 sanctions imposed on it. It was only then that the report was published

15 although it was already in existence when sanctions were imposed, and

16 according to this report, the Serb forces in Bosnia-Herzegovina are

17 outside Belgrade's control. He reported that they were completely out of

18 Belgrade's control. Also, he reported that the reason the JNA had not

19 withdrawn from Bosnia-Herzegovina was actually the siege and the blockade

20 carried out by Alija Izetbegovic's forces. Thirdly, he mentions in the

21 report that there is Croatian aggression in Bosnia-Herzegovina. This is

22 very important to assess the so-called Corridor Operation with which

23 Mr. Martic is also being charged by the Prosecutor. The Secretary-General

24 reported that there were Croatian troops on the territory of

25 Bosnia-Herzegovina, whereas the Prosecutor claims that Operation Corridor

1 was an attempt to create a greater Serbia rather than cutting off the only

2 route that could possibly be used by the aggressors from another state,

3 from Croatia. On the 15th of June 1992, a new president of Yugoslavia,

4 Dobrica Cosic was elected. This is interesting only because after this

5 date, the Presidency of the SFRY no longer existed.

6 JUDGE NOSWORTHY: One moment, please, Mr. Milovancevic. Sorry to

7 interrupt you. I need to confer with the learned Presiding Judge.

8 [Trial Chamber confers]

9 JUDGE NOSWORTHY: Mr. Milovancevic, please, this interruption is

10 regretted but I feel compelled to speak at this point. The purpose of the

11 opening is very, very specific, as you might know. I myself have held

12 back because I had hoped at some point you would become more focused and

13 we would learn precisely what the case that you are relying on for the

14 Defence would be, and the evidence that you intend to lead before the

15 Trial Chamber. Up to this point, I regret to say I'm able to distinguish

16 between your commentary, your personal commentary, between your historical

17 background and I am able -- not able, rather, at this point, to ascertain

18 through your own words what is the evidence that you intend to lead. The

19 Trial Chamber -- and I believe I can speak on behalf of my learned

20 brothers because I took the liberty of consulting them before speaking --

21 the Trial Chamber should not be left in a mystery and state of confusion

22 as to what evidence you hope to lead.

23 So I know that my learned brother, the President, had sought to

24 redirect you and to get you to focus but you have to so articulate what

25 you have to say, that we understand what it commentary by you and what is

1 the evidence that you hope to lead in support of your case. I don't think

2 I can put it any clearer than that and I hope that this will guide you in

3 but please do get to what is the purpose of the opening statement, that

4 the Defence is entitled to make, with expedition.

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

6 JUDGE NOSWORTHY: You're welcome.

7 MR. MILOVANCEVIC: [Interpretation] Your Honours, the

8 methodological approach that the Defence has chosen is something I will

9 try to explain very briefly now. We have submitted a list of the evidence

10 we intend to call during the presentation of our case. These are all

11 United Nations documents, documents issued by the federal authorities, and

12 the 65 ter exhibits submitted to the Defence by the Prosecution. The

13 Defence has selected this approach in an attempt to deny the fundamental

14 case of the Prosecutor. That is that there is a joint criminal

15 enterprise. By presenting the chronology of events on the territory of

16 the former Yugoslavia, we hope to refute the conclusion by the Prosecutor

17 that on the territory that the indictment refers to, the events took the

18 course described by the Prosecution. We wish to present to the Chamber a

19 chronology of events. This is borne out by open-source documents. The

20 question is should the Defence point to particular documents at this

21 stage? The Defence has documents to support all this. At this point in

22 time, the Defence felt it important to provide a summary which would show

23 that events took quite a different course from that presented by the

24 Prosecution, that the Prosecution has presented only a twisted,

25 out-of-context representation of the events. The Defence is attempting to

1 show that one cannot skip over certain events and fail to create the

2 linkage, that one cannot reach conclusions on the basis of an isolated

3 segment of these events.

4 If the Chamber wishes my statement to be focused on the charges in

5 the indictment, I'm aware of the problem, Your Honours, but the problem is

6 in the indictment, because it is based on claims concerning a political

7 programme, which is not borne out by a single document. The Prosecutor

8 even goes to far as to say there is no need to prove this because events

9 on the ground can demonstrate that this alleged joint criminal enterprise

10 and its plan existed. This can be refuted by simply presenting a

11 chronology of the events as they took place and pointing to the relevant

12 documents which bear them out. Of course, I will comply with your

13 instructions, Your Honours, and thank you for drawing my attention to the

14 problem.

15 JUDGE NOSWORTHY: Mr. Milovancevic, I just wish to say further

16 that you know at this stage what the counts are in the indictment. I

17 would think also you know at this stage what the several issues that you

18 have to respond to in your defence are, and I really would have

19 anticipated that in relation to those two factors, your articulation of

20 the Defence case would have been more specifically related to those two

21 factors.

22 MR. MILOVANCEVIC: [Interpretation] I understand, Your Honour. Do

23 you require any further explanation or response from me.

24 JUDGE NOSWORTHY: Not unless you consider it absolutely essential

25 but I think I've put it to you with as much clarity as I can. I do wish

1 to be assisted by you and I honestly felt that I wasn't feeling

2 comfortable with the manner with which it was dealt with and if I could

3 assist you to put me in a greater level of comfort together with my

4 brothers then it would assist the business of this Tribunal very, very

5 greatly, Mr. Milovancevic, and please accept it in that spirit.

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

7 wish to provide some further explanation by your leave which will lead

8 into what I will present next.

9 The facts on the ground, the crime base, as it is called, is

10 something that the Defence will deal with in its specifics through witness

11 testimony. At this stage of the proceedings, the Defence only wished, and

12 I do take on board what Your Honour has told me, but I would like the

13 Chamber to understand what the Defence case is. In the view of the

14 Defence, what is most important now is to refute the thesis about a joint

15 criminal enterprise. In the indictment the Prosecutor gives a list of

16 participants. The entire political, military and police leadership of the

17 then Yugoslavia and particular republics over a five year period. Without

18 providing any explanation as to what, how and why they were doing, except

19 for what happened on the ground, and then they draw a conclusion from what

20 happened on the ground that there was a joint criminal enterprise. The

21 Prosecution case of joint criminal enterprise involves a political plan

22 which was implemented over a five year period. The Defence wishes to draw

23 the Chamber's attention to all the key political events in that five-year

24 period which go to show something quite different. These are the facts we

25 have been mentioning now, and through its witnesses, and expert witnesses,

1 the Defence will demonstrate this.

2 It should not be a big problem for the Defence to deal with the

3 crime base, but it's very important to establish whether the joint

4 criminal enterprise existed or not. This political programme at work in

5 the former Yugoslavia at the time. This is a political thesis. It's a

6 thesis about a political programme, and a political goal, which fails to

7 correspond to the real events on the ground. The Defence is not

8 attempting to defend improper behaviour on one side by pointing to

9 improper behaviour on the other side. That would certainly not be

10 acceptable. But we feel that we cannot establish what actually happened

11 unless we establish what the political events were. We have not received

12 a single document or piece of evidence from the Prosecution about how this

13 joint criminal enterprise was carried out except for perhaps what was done

14 by one company in Skabrnja or one battalion in Saborsko. There were only

15 several hundred men involved in those cases but that is not the entire

16 JNA. That is not the entire police or the state or Yugoslavia, whereas

17 the Prosecutor says it is. It is very difficult to refute this kind of

18 indictment in any other way.

19 JUDGE MOLOTO: I guess, Mr. Milovancevic, the point that is being

20 made is that we understand that the Defence position is to refute the

21 existence of the joint criminal enterprise but I think what is expected in

22 an opening is for you to say, "We, the Defence, submit that there was no

23 joint criminal enterprise, and we are going to lead evidence to establish

24 that." And not for you to take the whole day giving us evidence on how

25 the joint criminal enterprise does not exist. I said to you in the first

1 session, I'm getting the impression you are testifying. And in the second

2 and in this last session, this third session, I'm now convinced you are

3 testifying. All what you have been telling us, it would build up your

4 case better if you told us that through your witnesses.

5 You have put the thesis, your theory up front, "My theory of my

6 case is there was no joint criminal enterprise." That's the theory.

7 Having told us that you sit down and you call your witnesses to come and

8 testify and show us that there was no joint criminal enterprise. Not for

9 you to tell us this whole history. Let us get this history through your

10 witnesses, Mr. Milovancevic. I think this is really what we are asking

11 you to do. You are not a witness in this case. You are counsel.

12 Thank you, Mr. Milovancevic.

13 MR. MILOVANCEVIC: [Interpretation] I understand what you're

14 saying, Your Honour. Thank you very much.

15 What the Defence believed to be important is this and I'll try to

16 be very brief and of course I will follow your instructions. By pointing

17 out the chronology of events, we wanted to justify the leading of some

18 evidence through live witnesses and documents. Through the opening

19 statement, it was my idea to present the principal arguments of the

20 Defence rather than to testify. But in line with your instructions, allow

21 me to proceed.

22 Do I have your leave?

23 JUDGE MOLOTO: You have all the leave, Mr. Milovancevic.

24 MR. MILOVANCEVIC: [Interpretation] As you have just pointed out,

25 Your Honour, the Defence is going to try to show in its case that not a

1 single element of the charges in the indictment, legal or factual, stand.

2 There was no plan and no organised activity aimed at expelling population,

3 creating inhumane conditions, detaining people, killing people. There was

4 no plan to cause conflict with Croatian armed forces in order to

5 ultimately involve the JNA, to implement any kind of joint criminal

6 enterprise by fighting in villages and driving the population out. The

7 Defence will present documents to show that it was a conflict with armed

8 secession -- against armed secession, an attempt to deal with protracted

9 sieges laid to military barracks.

10 The Defence will show that the Republic of Croatia illegally

11 imported arms, illegally armed civilians, and formed illegal armed forces.

12 We will show that through documents, including the documents of the

13 Ministry of Defence. We will show that in villages and towns that were

14 peaceful until then, wartime units were created, including in Saborsko and

15 in Skabrnja and in seven villages surrounding Skabrnja and Bacin, Dubica.

16 The Defence will show that it was distribution of weapons to the

17 population led by the political party under the leadership of the

18 political leaders of Croatia, weapons were distributed to one ethnic group

19 only, the Croat population, whose illegal formations were active, and the

20 Defence will show that in all these three locations, Skabrnja, Saborsko,

21 and Kostajnica, as we will designate them, in all three locations, the

22 places concerned were extremely important to the JNA and its positions,

23 seven villages together with Skabrnja formed a large military airfield.

24 The Defence will show that illegal paramilitary formations were equipped

25 with uniforms imported from East Germany, with automatic rifles, that the

1 federal army clashed with these units by necessity, out of necessity.

2 The Defence will show through its military expert that the conduct

3 of these military operations had nothing to do with any joint criminal

4 enterprise, nor any objectives alleged in the indictment, that they were

5 aimed at lifting the siege of military barracks and opening up the

6 communications that were blocked in that area. The Defence will show that

7 all the units involved in combat activities acted in keeping with the

8 federal legislation, that the principle of singleness of command was being

9 implemented, that all units were united under the same command, the

10 command of the largest unit leading the operation, and such was the case

11 in both Skabrnja and Saborsko. The Defence will call witnesses to show

12 that the events in all these locations that formed the crime base have

13 nothing to do with the militia of Krajina or Martic's Police. We will

14 show through the documents of Krajina that there was in existence a

15 regular police force, the police of Krajina whose work was regulated by

16 law, that there were regular prisons under the control of the Ministry of

17 Justice, that people who administered these prisons were employees of the

18 Ministry of Justice. Under the then Yugoslav and Croatian legislation,

19 prison staff did not belong with the police force or the Ministry of the

20 Interior. The Defence will further show that the protracted pressure that

21 Serb people were subjected to in the territory of Krajina and the whole of

22 Croatia eventually led them to organise themselves.

23 The Defence will lead evidence about the conduct of the highest

24 authorities of Croatia, to show that the leadership of Croatia, led by

25 President Tudjman even back in 1991, operated with the fact that it needed

1 to get rid of Serbs in certain professions and areas. Only 6 per cent of

2 the personnel of the MUP who were Serbs were left in 1992, as opposed to a

3 much larger percentage before the HDZ started its activities.

4 It was an organised and massive dismissal of Serbs from various

5 positions. There was no plan on the Serb side. It was an attempt to use

6 armed force to discipline the Serb population of Croatia. People were

7 dismissed, killed, intimidated, their houses bombed.

8 And in all that, all these horrible tensions and conflicts led to

9 a complete breakdown of the system. The state was no longer able to

10 function. Interpersonal relations deteriorated. The basest instincts

11 took over, on all sides. Through the documents of the UN Security

12 Council, the Defence will show that all the principal elements of a civil

13 war were present in the region. We will show that all that the indictment

14 refers to was happening on the territory protected by the United Nations

15 in the presence of the United Nations under their control.

16 JUDGE MOLOTO: May I interrupt you? Mr. Whiting had asked for a

17 couple of minutes to do some housekeeping matters before we knock off

18 today. Would it be a convenient moment to take that time and you can

19 carry on with your opening tomorrow? Is that -- would that be okay?

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

21 Perfectly. All right.

22 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. Yes, Mr.

23 Whiting?

24 MR. WHITING: Thank you, Your Honour. I just wanted to raise a

25 few matters. The first is that pursuant to the Court's order of last week

1 we did receive yesterday copies of Defence exhibits that we had not had

2 previously. The ones without the ERNs, and we received two binders of

3 exhibits. Unfortunately none of them are translated. So we've received

4 two binders of exhibits in B/C/S or virtually all of them are in B/C/S. I

5 think -- I think a fair reading of the rules requires that -- certainly to

6 be admitted into court they would need to be translated and they are not

7 much use to us. I mean, we have to go through them with an interpreter

8 now. I think we should receive translations of them. I understand from

9 the Defence that they've requested them. I just would ask that that be

10 provided to us as soon as possible because I think that's part of the

11 rules.

12 The second point is the Prosecution's concern that there has been

13 reference to a number of documents, both today and earlier, that seem --

14 that are described as going to be part of the Defence case and yet do not

15 appear on the exhibit list. For example, during the 98 bis submission,

16 the Defence counsel suggested that he had a photograph of

17 Ambassador Galbraith which he wanted to tender during the argument but

18 certainly made clear that it would be tendered during the Defence case, I

19 think he said on several occasions, in fact. That photograph does not --

20 that article, that photograph, does not appear on the Defence Exhibit list

21 and we would like to have a copy of it. There have been a number of

22 articles and documents today that have been referred to, an article from

23 Der Spiegel from 1990, a statement or article from Dr. Wolfgang Pohrt from

24 the 9th of September 1991. A UN document from the 11th of December 1991.

25 A letter from the Secretary-General from the 10th of September 1991. UN

1 Resolution 752. And as far as I can tell, I mean, I was doing this while

2 listening but as far as I can tell none of those appear on the Defence

3 Exhibit list. It seems if they are in the Defence opening and they are

4 anticipating using them in the Defence case, they should appear on the

5 Defence exhibit list and I'm concerned about that.

6 The third point is we did receive yesterday two detailed 65 ter

7 summaries or I should say more detailed for the witness who is to start

8 tomorrow and the witness to start after the break. The witness after the

9 break is Momir Bulatovic, and it's listed in the 65 ter summary as being

10 ten hours which is approximately by my calculation three days, even a

11 little less than three days but now the Defence has indicated to us that

12 it will take most of the week and that it's the only witness they can tell

13 us about for that first week. So we are a little concerned about that.

14 We are also a little concerned or would --

15 JUDGE MOLOTO: Excuse me, what is the actual concern? I didn't

16 catch the nub of the concern on that point.

17 MR. WHITING: The nub of the concern is that originally the

18 Defence had indicated that that would be a witness who would take three

19 days and now they are indicating most of the week and it is the only

20 witness they have told us about for that week.

21 JUDGE MOLOTO: Which week is this.

22 MR. WHITING: The week after the break.

23 The only issue well one issue I should say with respect to the 65

24 ter summaries is that I note that with both of them, there is nothing said

25 about what the witness will say, if anything, about Milan Martic. Now,

1 perhaps the witnesses won't say anything about Milan Martic. That's

2 possible. But certainly, if the witness -- if it's expected that the

3 witness will say something about the accused, Milan Martic, that is

4 something that we would expect should fairly be in the 65 ter summary.

5 I note also that for the witness for this week, although the

6 witness is described as being the minister for foreign affairs of the RSK

7 from October 1992 on, from October 1992 on, virtually all of the testimony

8 that he's expected to give and that is described is from 1990 and 1991.

9 It's not clear to me, at least from the 65 ter summary what the basis is

10 for him to be able to give such testimony but perhaps that's something

11 that will become clear during the testimony itself.

12 The final point I wanted to raise, Your Honour, is that we had

13 expected to receive yesterday the exhibits that would be used certainly

14 with the witness who is to start tomorrow but also I think for the

15 witnesses who are to start after the break. We have not received those --

16 any indication about which exhibits will be used. We received an e-mail

17 saying that we would receive it first thing this morning, today. I think

18 we are well beyond first thing this morning and we have not received

19 anything. So those are the points, Your Honour, I wanted to raise.

20 JUDGE MOLOTO: Thank you, Mr. Whiting.

21 Mr. Milovancevic, I hope -- can you please respond to these

22 concerns? Let's take them one by one. Mr. Whiting, if I've miscaptured

23 your concerns, you will have to help me. I've got six concerns that I've

24 noted down. The first one, Mr. Milovancevic, let's deal with that one

25 first. Copies of exhibits that have been received are in B/C/S and they

1 need to be translated, both for the record and the -- they are useless to

2 the Prosecution without a translation. Would you like to respond to that

3 one?

4 MR. MILOVANCEVIC: [Interpretation] Your Honour, all that my

5 learned friend Mr. Whiting said is completely understandable, and I

6 understand his position. However, the problem of the Defence is that we

7 are very much pressed for time. We have an enormous problem with time.

8 We only started preparing the Defence case after the Prosecution case was

9 completed, and that's a problem that we tried to point out to the Trial

10 Chamber. I hope that you don't think that the Defence is trying to

11 obstruct the work of the Prosecution. Of course, it is our duty to have

12 this translated but, Your Honour --

13 JUDGE MOLOTO: It's not only your duty to have it translated,

14 Mr. Milovancevic, it's also your duty to have it translated timeously.

15 You keep going back to this point that you only started preparing the

16 Defence case after the closure of the Prosecution case. It cannot be

17 acceptable, Mr. Milovancevic. You come to court and you cross-examine

18 Prosecution witnesses, you see the case is going to an end, you

19 simultaneously with that, after hours, you prepare your case, ready to

20 start immediately after the Prosecution case, and part of that preparation

21 includes having translated documents that you intend to use in court when

22 you start your case. The official languages of the Court are English and

23 French and if those documents are not in either of those languages at

24 least you could have them translated. That does not have to be done by

25 you personally. You just assign that job to the translator, to somebody

1 else there, while you carry on with the cross-examination of Prosecution

2 witnesses and doing other professional things.

3 Now, I really cannot understand why you keep saying the Defence

4 case was only prepared after the close of the Prosecution case. I find it

5 very difficult to understand.

6 MR. MILOVANCEVIC: [Interpretation] Your Honour, the Defence is

7 trying to say actually to the Trial Chamber and to our friends from the

8 Prosecution is that we are facing mission impossible. You cannot ask the

9 impossible of the Defence. You were present at the 65 ter meeting in

10 November, last November, when we said that until that point we had been

11 without any resources for work for 20 months and that we had -- that we

12 were waiting for a decision on our submissions to the earlier trial

13 Chamber and the registry. You were surprised but you still scheduled the

14 beginning of trial for the 13th of December. And we were ready to prepare

15 for cross-examination as we go along. Of course, it's not possible not to

16 work for 20 months. But preparation for cross-examination is one thing.

17 It's easier. Preparing your own case is much more difficult and all that

18 is ahead of us, we know what we have to do and what the rules require and

19 still we are trying to say to the Trial Chamber that we are facing

20 impossible deadlines. And from the moment the trial was scheduled to

21 begin, we have been subject to impossible time pressures and now after

22 this break, we have really got an impossible mission. For each of these

23 stages, the Prosecution had lots more time. He had two months to prepare

24 his opening statement, two months to prepare their list of exhibits and

25 list of witnesses. We know all that. But the work itself is of such

1 volume that we are not coping. We have the reports from experts that have

2 been organised in time but we haven't been able to read it and we could

3 not start preparing our case before the Prosecutor completed his. And all

4 these lists that we had to submit according to 65 ter that we now have to

5 amend by Friday, that has not been done, not because we have no respect

6 for the OTP or because we are ignoring the orders of the court but we are

7 working in circumstances that are impossible. We physically cannot cope.

8 We are working 24 hours a day.

9 JUDGE MOLOTO: When can we expect translations of these copies of

10 exhibits that are in B/C/S?

11 MR. MILOVANCEVIC: [Interpretation] I have to consult with other

12 members of my team and then I will be able to tell you. I cannot answer

13 this question now. Why am I saying this? Because the witness whom we are

14 supposed to hear tomorrow arrived last night and we had no contact with

15 him. He just arrived last night. We couldn't see him today because we

16 have this morning's session.

17 JUDGE MOLOTO: Mr. Milovancevic, I don't see how the two connect.

18 Can you consult with your team and let us know first thing tomorrow

19 morning when you think you can give us translations of these exhibits?

20 The next -- I beg your pardon?

21 MR. MILOVANCEVIC: [Interpretation] I will do so, Your Honour.

22 Sorry, sorry to interrupt. I didn't mean to interrupt.

23 JUDGE MOLOTO: Okay. The next point that the Prosecution raised,

24 which is a concern to them, according to what I've noted down, is that

25 there are documents that have not been disclosed but are being mentioned

1 in the opening and thereby suggesting that these documents are going to be

2 used, and a whole list of examples was given. The one that I remember

3 immediately is the photograph of Mr. Galbraith. There are a few others

4 that were mentioned. I hope you do understand that for you to be able to

5 use those documents in evidence, you must have disclosed them.

6 Do you have any comment?

7 MR. MILOVANCEVIC: [Interpretation] We completely understand and we

8 accept that as our duty, as our responsibility. The photograph of

9 Mr. Galbraith that we did not include is just -- just shows to how much

10 pressure we are subject at this moment. We have thousands of pages of

11 documents, we don't know what to have translated first but we have been in

12 this situation --

13 JUDGE MOLOTO: Mr. Milovancevic, you don't translate a photograph.

14 A photograph is a photograph. It's in a photo language.

15 MR. MILOVANCEVIC: [Interpretation] That's not what I meant,

16 Your Honour. I meant to say that it was simply an omission. We omitted

17 to put it on the list because it is -- although it is one of the important

18 documents and it is in our interest to show it, of course we will. It

19 just goes to show under what circumstances we are working now.

20 I hope you can understand our position, after five and a half

21 months of work of the Prosecution, we were preparing for cross-examination

22 as we went along and now, when we could get some rest and go on holiday,

23 we are already tired, we have to use that holiday to work some more. We

24 are not happy to have submitted this list of exhibits the way it is. We

25 made the shortest summary possible, and the Prosecutor is completely right

1 but that's not because we do not respect the work of the OTP or the Trial

2 Chamber. It's because we are working under impossible conditions. The

3 Defence does not have enough time to do everything.

4 JUDGE MOLOTO: I have to interrupt you, Mr. Milovancevic. When do

5 you think we could have those documents that have not been disclosed and

6 the Defence intends to use in evidence? I think let's -- the idea is to

7 try and solve the problem. When do you think we can have those documents?

8 Or when the Prosecution can have those documents?

9 MR. MILOVANCEVIC: [Interpretation] Yes, my colleague Mr. Whiting

10 is completely right. He mentioned several times that I mentioned in my

11 opening statement. It's a fact they are not on the list and it's our

12 failure, our mistake, but until this moment we were not aware of that

13 failure because of the tempo in which we are working and because it would

14 have been necessary to find exactly what we need out of tens of thousands

15 of pages. Well, I don't know, Your Honour.

16 JUDGE MOLOTO: I have to interrupt you once again. Are you able

17 to tell us when you think you can disclose those documents?

18 MR. MILOVANCEVIC: [Interpretation] Your Honour, the Defence wishes

19 to fulfil its obligations fully, without any need for the Prosecutor to

20 raise any objections. We had no objections to the summary the Prosecutor

21 gave us. It included everything the Prosecutor felt was relevant. If

22 Your Honour can give us a deadline by the 14th of August, we will prepare

23 everything the way it should be done. We must do that. But these short

24 deadlines being given to us now do not assist us to solve this problem,

25 because we are simply at a loss as to what to do first. The Defence

1 strategy is to challenge the fundamental thesis of joint criminal

2 enterprise. This has to be done in the same time that the Prosecutor had.

3 JUDGE MOLOTO: Can we listen to one another? We are not dealing

4 with the strategy of the Defence at the moment. We are dealing with the

5 documents that are intended for use during the trial which have not been

6 disclosed. We are just trying to find out when the Defence thinks they

7 would be in a position to disclose those documents. Let's stay focused on

8 the issue at hand and try to resolve that issue. You indicated that if

9 the Chamber give you a deadline of the 14th of August you will have done

10 everything that needs to be done and you will have done it properly.

11 Before I revert to Mr. Whiting to find out what he says about your

12 suggested deadline of the 14th of August, let me find out this: In that

13 deadline, you do not include any documents that you intend using this week

14 because the documents that you intend using this week should be with the

15 Prosecution by now, at least.

16 MR. MILOVANCEVIC: [Interpretation] Certainly, Your Honour,

17 certainly.

18 JUDGE MOLOTO: Thank you. Mr. Whiting?

19 MR. WHITING: Your Honour, what I would propose is that if the

20 Defence -- it's fine for the Defence to have till the 14th of August to

21 come up with a kind of final definitive, as best they can, list by then.

22 However, having said that, it seems to me that the items that I mentioned

23 or any other documents which are present to them that they know now,

24 having prepared the opening and starting to prepare the case they are

25 going to use, they could provide to us this week. In other words I'm

1 proposing a kind of rolling disclosure or submission by the Defence. I

2 would be interested in getting at least those documents and then, if they

3 want to add, to -- add further documents and provide it on the 14th of

4 August, that would be fine.

5 JUDGE MOLOTO: Are you able to give a rolling disclosure,

6 Mr. Milovancevic? At lease those documents you have been mentioning now

7 during your opening, are you able to give them sometime this week? And

8 then during the recess, you can make sure that the remaining documents are

9 processed and are disclosed.

10 MR. MILOVANCEVIC: [Interpretation] Your Honours, what I said today

11 we of course should be able to do this by the end of this week. Today,

12 yes, the documents can be disclosed successively until the end of the

13 week, those documents.

14 JUDGE MOLOTO: Thank you, thank you very much. It's so ordered,

15 then.

16 Mr. Whiting, the one -- the next point that I made a note of, you

17 said that you received yesterday more detailed 65 ter summaries but I

18 didn't pick up what the problem was there.

19 MR. WHITING: There were just two concerns. The first is that the

20 Chamber had ordered the Defence to disclose detailed 65 ter summaries for

21 all of the witnesses who would be called during the first week after the

22 recess and we received only one for that week, one witness, who was only

23 supposed to take three days according to the Defence estimation. And then

24 the second point with respect to the summaries is that there is no mention

25 in the summaries of anything that the witnesses, these two witnesses, will

1 say about the accused and as I said perhaps there will be nothing but it

2 just is something I wanted to flag up that in our view the summaries, if

3 the witness is going to say something about the accused, that should be

4 included in the summary.

5 JUDGE MOLOTO: Those are the two issues that Mr. Whiting raises

6 about the 65 ter summaries received, Mr. Milovancevic. Do you have any

7 response?

8 MR. MILOVANCEVIC: [Interpretation] Your Honour, as we have done

9 these summaries, I know exactly what Mr. Whiting is saying and I know what

10 his problem is. I understand it completely. With respect to these

11 summaries, the problem of the Defence is very clear. There is a large

12 number of witnesses. We have reduced the list considerably but this again

13 has to do with the trial schedule. The summaries we are redoing now we

14 are again doing under time pressure which causes us to miss things, to

15 have a text that is incomplete or too brief. We know what a witness

16 summary statement should contain, but our physical capabilities are

17 limited. We were very much concerned to hand over this list, the

18 statements are quite extensive. We have been doing that over the past few

19 days but we had many other obligations in parallel, the 98 bis and

20 everything else that followed. What I'm trying to say is that we are

21 working under enormous pressure of time and we simply do not have time to

22 prepare the case in the way we would wish. Our aim is both for the

23 Prosecutor and for ourselves to be able to do our jobs properly.

24 JUDGE MOLOTO: Mr. Milovancevic, can I interrupt you again? We

25 are all working under enormous pressure here. You're not the only one; if

1 you have only realised that, then welcome to the club. Let me say this:

2 The issue that -- if I understand it well that Mr. Whiting is raising is

3 this: That you have given one witness to testify in the first week after

4 recess. That witness, according to your own estimation, which still is

5 subject to review by the Chamber, is supposed to testify for three days.

6 Now, it doesn't -- that doesn't seem clear whether now, the witness you

7 have given, is he going to occupy the entire week after the term or is he

8 only going to be three days? And if it's going to be three days only,

9 then you've got to give a summary of the other witness who is going to

10 occupy the remainder of that week before we go on recess, if I understand

11 the problem from the Prosecution. And the next point is, none of the

12 summaries that you have given of the witnesses that are about to testify

13 says anything about the accused and he says he understands there may very

14 he will be nothing to say about the accused by these witnesses. However,

15 he's just saying if indeed something is going to be said by these

16 witnesses about the accused, then the Prosecution is entitled to know what

17 that is. Have I captured your concerns correctly?

18 MR. WHITING: Yes.

19 JUDGE MOLOTO: Thank you. So just address those issues and tell

20 us how to get over them. We understand you are working under pressure and

21 we have sympathy for that but just tell us how we should deal with those

22 two issues.

23 MR. MILOVANCEVIC: [Interpretation] Your Honour, we have considered

24 the testimony of this witness, Mr. Bulatovic, who will come after the

25 recess, and in our estimation, his examination-in-chief should last three

1 to three and a half days, due to the number of documents we wish to tender

2 through him. Therefore, with cross-examination and questions by the

3 Chamber, the witness might take up the entire week. That's why his is the

4 only statement we submitted. Our estimation of course places an

5 obligation on us, Your Honours.

6 JUDGE MOLOTO: Already, he's likely to take even more than the

7 time you've estimated for him? Do I understand you to be saying that?

8 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour, because our

9 assessment of his testimony, the first one, was based on his statement but

10 now when we revisited it and looked at the documents to be tendered, we

11 see that this is substantial testimony. He was the president of

12 Montenegro. He was the Yugoslav Prime Minister. He was an active

13 participant in these conferences and he will also testify to the acts and

14 conduct of the accused.

15 JUDGE MOLOTO: I have a difficulty. Judge Nosworthy is supposed

16 to sit at quarter past 2.

17 MR. WHITING: Your Honour, I appreciate that. Maybe we can

18 bracket this one and finish discussing this one tomorrow. The -- if I

19 could just get an indication of when we are going to get the list of

20 exhibits that are going to be used with the witness who is starting

21 tomorrow, a list that we were supposed to get yesterday, then I would be

22 satisfied --

23 JUDGE MOLOTO: Okay. Can you help with that, Mr. Milovancevic,

24 quickly, before we knock off?

25 MR. MILOVANCEVIC: [Interpretation] Your Honour, we will do this

1 urgently by e-mail because of course we cannot begin the direction -- the

2 direct examination unless the materials are disclosed. We shall do that.

3 JUDGE MOLOTO: What is as soon as possible? How soon is as soon

4 as possible, sir?

5 MR. MILOVANCEVIC: [Interpretation] I have to consult the Defence

6 team assistant, Your Honour. I cannot give you the precise time now.

7 JUDGE MOLOTO: Are you happy with that? Okay.

8 Can I put you on terms? Can I say that you deliver that before

9 4.00 this afternoon, Mr. Milovancevic?

10 MR. MILOVANCEVIC: [Interpretation] Your Honour, please don't give

11 us a time limit. If we can, we will do it even before that time.

12 JUDGE MOLOTO: Thank you very much. Court adjourned.

13 --- Whereupon the hearing adjourned at 2.07 p.m., to

14 be reconvened on Wednesday, the 12th day of June,

15 2006, at 9.00 a.m.

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