Tribunal Criminal Tribunal for the Former Yugoslavia

Page 137

1 Wednesday, 28 February 2007

2 [Motion Hearing]

3 [Open session]

4 [The accused Gotovina entered court]

5 --- Upon commencing at 2.19 p.m.

6 JUDGE MOLOTO: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case

8 IT-06-90-PT, the Prosecutor versus Ante Gotovina et al.

9 JUDGE MOLOTO: Thank you very much.

10 This session this afternoon, let me explain that I am presiding

11 today simply because I am Pre-Trial Judge. Today's session is at the

12 instance of General Gotovina's Defence team, who asked to be given an

13 opportunity to give oral argument in addition to or to supplement their

14 written motion on the question of jurisdiction.

15 May we hear the team, please -- before that, can we get the

16 appearances.

17 MR. KEHOE: Yes, Your Honour, good afternoon. On behalf of

18 General Gotovina, Greg Kehoe, Luka Misetic, and Professor Payam Akhavan,

19 and assisting behind Professor Akhavan is Jelena Madunic.

20 JUDGE MOLOTO: Thank you very much.

21 Prosecution.

22 MR. TIEGER: Good afternoon, Mr. President, Your Honours. Alan

23 Tieger, Laurel Baig, Michelle Jarvis for the Prosecution, assisted by case

24 manager, Donnica Henry-Frijlink.

25 JUDGE MOLOTO: Thank you very much.

Page 138

1 Any appearances for Mr. Cermak?

2 Any appearances for Mr. Markac?

3 MR. SEPAROVIC: [Interpretation] Your Honour, good day. I am

4 Miroslav Separovic, Attorney-at-law, and together with us is Goran

5 Mikulicic and our case manager.

6 JUDGE MOLOTO: Thank you very much.

7 I see there is an accused in the court. Is that Mr. Gotovina?

8 MR. KEHOE: It is, Your Honour.

9 JUDGE MOLOTO: General Gotovina, can you hear me in the language

10 you understand?

11 THE ACCUSED GOTOVINA: [Interpretation] Yes, I can, Your Honour.

12 Thank you.

13 JUDGE MOLOTO: Thank you very much.

14 Yes, Mr. Kehoe.

15 MR. KEHOE: Your Honour, at this time, if we ought to -- I assume

16 Your Honour wants to commence discussion on this matter.


18 MR. KEHOE: And I would like to turn it over to Professor Akhavan

19 for the presentation of on the behalf of General Gotovina.

20 JUDGE MOLOTO: Professor Akhavan.

21 MR. AKHAVAN: Mr. President -- Mr. President, distinguished

22 members of the Tribunal. It is an honour and privilege to appear before

23 you today on behalf of General Gotovina. The essential argument of our

24 motion is very simple. The Prosecution cannot accuse General Gotovina of

25 crimes against humanity while disregarding the laws of war.

Page 139

1 The Prosecution cannot ask the Tribunal to re-write customary law,

2 to compensate for the inadequacies of its case. Having initially argued

3 that the laws of war are inapplicable, the Prosecution's second response

4 now argues that humanitarian law is applicable but only to a limited

5 extent. But the Prosecution, once again, completely disregards contrary

6 ICTY jurisprudence and its own contrary legal position prior to this case.

7 The Prosecution's core theory in the indictment is that General

8 Gotovina was part of a joint criminal enterprise to ethnically cleanse

9 Krajina Serbs through mass deportation. This deportation campaign was

10 allegedly executed in two phases, before and after the restoration of

11 Croatian state authority over the Krajina.

12 It is alleged that during Operation Storm psychological warfare

13 and the shelling of civilians resulted in the mass exodus of Serbian

14 civilians. It is further alleged that upon successful conclusion of

15 Operation Storm and the collapse of the Republika Srpska Krajina, the

16 return of civilians was discouraged through Croatian colonisation and the

17 destruction or pillage of Serbian property. It is also asserted that

18 General Gotovina is liable for murder and cruel treatment merely because

19 such crimes were a possible consequence of the joint criminal enterprise,

20 even if they were not subjectively predictable to him.

21 The fundamental flaw of this theory is that the Prosecution

22 unilaterally eliminates an essential element of deportation as defined by

23 Article 49 of the 4th Geneva Convention. The indictment does not state

24 anywhere that the alleged victims of deportation were in the hands of

25 Croatian forces in territory under Croatian control.

Page 140

1 The Prosecution's second response openly argues that this argument

2 of Article 49 is inapplicable to crime against humanity and that alleged

3 shelling of civilian areas was a modality of deportation. If the

4 Prosecution is correct, the Tribunal has jurisdiction over the

5 indictments; but if the Prosecution is not correct, its entire ethnic

6 cleansing case falls apart because there can be no joint criminal

7 enterprise if the alleged acts simply do not constitute the crime of

8 deportation.

9 The Prosecution's submissions completely disregard ICTY

10 jurisprudence, humanitarian law, and the Prosecution's own earlier

11 position on this issue. The Stakic appeal's judgement recognise that

12 Article 49 is "the underlying instrument prohibiting deportation."

13 THE INTERPRETER: Could counsel please show down when reading.

14 JUDGE MOLOTO: Counsel, you are asked to please slow down.

15 Apparently, you are little too fast for the interpreters.

16 MR. AKHAVAN: I understand. Apologies.

17 JUDGE MOLOTO: May I ask you to please stick to what is not

18 already in the papers, because so far you have told us what you have

19 already told us in writing.

20 MR. AKHAVAN: Of course, Mr. President. I will be elaborating on

21 what we have already included in our written pleadings and will not burden

22 you by repeating what is already there.

23 I've indicated earlier that the Stakic appeals judgement clearly

24 indicates that there is a requirement of occupied territory. I would wish

25 to add that in the more recent Naletilic appeals judgement, Judge

Page 141

1 Schomburg expressly stated, and this is at page 225, paragraph 22, that

2 under Article 5 deportation must be "from an area under the actual control

3 of one village or party to an area under the actual control of another."

4 If the alleged victims of deportation were never in the hands of

5 Croatian forces, the crime of deportation was simply never committed. The

6 argument that the occupation requirement of Article 49 does not apply to

7 deportation does not find support in any of the authorities cited by the

8 Prosecution, but what is most remarkable is that prior to this case the

9 Prosecution itself has consistently and repeatedly maintained that this

10 element of Article 49 does apply to the crime against humanity of

11 deportation.

12 To give one example in the Simic pre-trial brief at paragraph 97,

13 relying on the Krnojelac trial judgement, the Prosecution categorically

14 stated that: "The content of the underlying offence of deportation does

15 not differ whether perpetrated as a war crime or as a crime against

16 humanity."

17 THE INTERPRETER: Please slow down, please.

18 MR. AKHAVAN: "The crime against humanity" --

19 JUDGE MOLOTO: Please slow down.

20 [Microphone not activated]

21 MR. AKHAVAN: My Apologies. Yes, I will.

22 JUDGE ORIE: May I ask one thing in addition. You are quoting a

23 lot of cases. Could you please always indicate when you're talking about

24 deportation or forcible removal, whether you're quoting from a crimes

25 against humanity case or a war crimes case so that we can clearly

Page 142

1 distinguish between the two types of crimes charged in the cases you're

2 referring to.

3 MR. AKHAVAN: Certainly. Certainly, Judge Orie. Many apologies.

4 It's been some years since I stood in this Chamber, and I'm not yet

5 advanced enough with the technology. Apologies.

6 Judge Orie, just to re-affirm that the quotation from the Simic

7 pre-trial brief specifically speaks about crimes against humanity under

8 Article 5(D), and as I mentioned the Prosecution categorically states in

9 their pre-trial brief: "As a crime against humanity, deportation requires

10 proof of the same elements as that required under Article 49 for war

11 crimes."

12 Another example is the Kovacevic pre-trial brief at page 32 where

13 the Prosecutor stated that: "Deportation under Article 5 reflects the

14 same actions as those in Article 49 of Geneva Convention 4."

15 The Prosecutor recognises that certain requirements of

16 nationality, for instance, under Article 4 of the Geneva Conventions may

17 not apply, but that is totally irrelevant with the issue that is before us

18 today. So we have to ask, Mr. President, why is the Prosecutor suddenly

19 disavowing its own earlier position. Why is the Prosecution seeking an

20 exception specifically in the case of General Gotovina?

21 We submit respectfully that the Gotovina exception is an attempt

22 by the Prosecution to criminalise Operation Storm without proof that it

23 constituted unlawful combat, if alleged that the purpose of Operation

24 Storm was terrorisation and mass expulsion of civilians because there was

25 no legitimate military objective. But the Prosecution does not explain

Page 143

1 why five and a half years after the initial indictment against General

2 Gotovina, the defendant has not been properly charged with unlawful

3 attacks or spreading terror, which are the appropriate crimes. Now that

4 the indictment's profound legal flaw has been exposed, the Prosecution

5 tells us in its recent response that it is prepared to add further counts

6 of Hague law violations; this with just two months before the trial

7 begins.

8 The Prosecution's theory on post-combat second phase of ethnic

9 cleansing is equally problematic. The allegation is that Croatian

10 colonisation and destruction or pillage of property after the conclusion

11 of Operation Storm amounts to deportation because it discouraged the

12 return of Serbs. This is a highly imaginative theory but the Prosecution

13 cannot retroactively consummate the crime of deportation when Croatian

14 forces never deported protected persons from occupied territory in the

15 first place.

16 The mere impact of the alleged wanton destruction or plunder

17 cannot transform those crimes into the substantively different crime of

18 deportation. Another fundamental flaw is the allegation of

19 post-debellatio war crimes. The only armed conflict alleged in the

20 indictment is "in the Krajina region of the Republic of Croatia," which is

21 defined elsewhere in the indictment as UN protected area sectors north and

22 south. It's further admitted in the indictment that by 7 August 1995

23 minimal or non-existent Serbian resistance was completely overcome. The

24 Prosecution's latest response --

25 THE INTERPRETER: Counsel, please slow down.

Page 144

1 JUDGE MOLOTO: Counsel, please slow down.

2 MR. AKHAVAN: It is further admitted that by 7 August non-existent

3 or minimal Serbian resistance was completely overcome.

4 THE INTERPRETER: Could the counsel also speak into the

5 microphone, please, and slow down. Thank you.

6 JUDGE MOLOTO: Counsel, you will remember that you've got ten

7 minutes to speak from the time you started in terms of the decision that

8 granted the permission. You're very close to that.

9 MR. AKHAVAN: Yes, sir. I planned on ten minutes not including

10 the interruptions, if --

11 JUDGE MOLOTO: You may proceed.

12 MR. AKHAVAN: I crave your indulgence.

13 The Prosecution's latest response now alleges for the first time

14 ever that an armed conflict continued to exist post-debellatio simply

15 because the Dayton and Erdut peace agreements were not yet concluded. But

16 debellatio does not depend on formal agreements, whether an armistice or

17 capitulation. The Prosecution's new argument is legally irrelevant and

18 effectively concedes that there was no armed conflict in the Krajina. It

19 is also an attempt to effectively amend the indictment by introducing a

20 wholly new legal theory, again with just two months before the trial

21 begins.

22 If the proper law of deportation and debellatio is applied nothing

23 is left of the case against General Gotovina. Rarely, if ever, has an

24 indictment been so deeply flawed, so manifestly inconsistent with

25 customary law, and we respectfully submit that under the circumstances

Page 145

1 subjecting General Gotovina to a trial would be a miscarriage of justice.

2 Mr. President, we must also consider the far-reaching implications

3 of this motion on the Tribunal's legacy as it enters its final months.

4 There comes a point at which expansion of humanitarian law begins to

5 resemble a legal utopia, rather than realistic rules that can be followed

6 by military commanders acting in good faith.

7 Mr. President, distinguished members of the Tribunal, in

8 concluding, I note that we've come a long way since the historic Tadic

9 jurisdiction motion when seminal issues of humanitarian law remained to be

10 elucidated. But 14 years after the Tribunal's establishment, we're once

11 again faced with fundamental questions of jurisdiction reminiscent of the

12 early days of Tadic.

13 Today's proceeding may well be the historic response to Tadic. A

14 final opportunity for this Tribunal to send a message that just as it once

15 expanded humanitarian law, it will now draw the line and not allow

16 military commanders to be subjected to prosecution, unless it is properly

17 alleged that they have violated humanitarian law.

18 That concludes, Mr. President, our brief submission. I thank the

19 Chamber for its patience and remain at your disposal for questions.

20 JUDGE MOLOTO: Thank you very much.

21 [Trial Chamber confers]

22 JUDGE MOLOTO: Mr. Separovic.

23 THE INTERPRETER: Could counsel please switch off his microphone,

24 please.

25 MR. SEPAROVIC: [Interpretation] Your Honours, on behalf of the

Page 146

1 Defence of General Markac, my co-counsel, Mr. Goran Mikulicic will address

2 the Chamber.

3 MR. MIKULICIC: [Interpretation] Your Honours, it is a pleasure to

4 point out some arguments which accompany our written submissions,

5 challenging the jurisdiction of this Tribunal in relation to the

6 indictment as it was legally formulated by the Prosecution in this case.

7 In order to avoid any repetition, either in relation to what was stated in

8 our written submissions or in relation to what was just said by my friend

9 of from the Defence of General Gotovina, please allow me to say that the

10 Defence of General Markac fully supports and accepts the arguments of

11 General Gotovina in relation to the existence of an armed conflict and

12 deportation of the population.

13 In addition to that I would like to point out the well-known legal

14 principle beneficium cohesiones, which is a legal principle stating that

15 what is in favour of one accused should be applied to other accused in the

16 same proceedings as well. What is stated or what is the position of

17 General Markac's Defence is that in the relevant period of time and in any

18 case in the time before the beginning of the Operation Storm and

19 immediately after its conclusion, in the theatre of alleged crimes in the

20 territory of the so-called Sector South of the self-proclaimed Republic of

21 Krajina, there was no armed conflict.

22 This position of the Defence is based on the arguments which we

23 articulated in writing. Now, we would just like to add a couple of words

24 to that. In their response, my learned friends from the Prosecution point

25 out that in our motion challenging the jurisdiction, we are actually

Page 147

1 dealing with a so-called factual issue; namely, that the existence of an

2 armed conflict is a quaestio facti, a factual question that needs to be

3 litigated. This claim is only partially correct because the issue of

4 whether an armed conflict existed or not is also a legal issue, which is

5 very important for these proceedings, or rather, it is so important that

6 it actually defines the jurisdiction ratione materiae or subject matter

7 jurisdiction of this Tribunal.

8 The factual issue can be analysed only on the basis of a criterium

9 which was used by Pre-Trial Judges who confirmed the indictment, or

10 rather, in this situation when the indictment is expanded and this

11 criterium is a so-called prima facie criterium. It is our position that

12 by applying prima facie criterium, given the documentation supporting the

13 indictment and provided by the Prosecution, a conclusion cannot be drawn

14 that during the relevant period of time there was a conflict between

15 regular forces of the Republic of Croatia and armed forces of the

16 self-proclaimed Republic of Serbian Krajina.

17 We base this conclusion, first and foremost, on the document which

18 accompanied our written submissions which is a report of Secretary-General

19 of the UN about the events in Sector South on the date of -- or during the

20 period leading up to the 20th of August, 1995. In that report it is

21 explicitly stated that following the launch of the military and police

22 Operation Storm in which military and police forces of the Republic of

23 Croatia participated, there followed an exodus and fleeing of the

24 political and other leadership of the self-proclaimed Serbian Republic of

25 Krajina.

Page 148

1 Another document from the supporting material indicates that the

2 entire 21st Corps of the army of the self-proclaimed Serbian Republic of

3 Krajina surrendered. This leads us to the following conclusion. First,

4 that any further armed activity in that area transpired in the

5 circumstances where there was no organisation and no intensity. No

6 organisation because, based on the documents, it is clear that political

7 and military leadership had left the area, so there was nobody else there

8 to organise the armed rebellion. And as for the lack of intensity, it is

9 based on the fact that a very large number of the soldiers of the

10 self-proclaimed army actually surrendered to the Croatian forces.

11 I insist on these two terms; namely, organisation and intensity,

12 because on the basis of the humanitarian law as it exists so far, these

13 two are the elements which are included in the legal qualification of an

14 armed conflict, and they are also very important in the distinction

15 between the qualification of an armed conflict and the so-called internal

16 tensions and unrest.

17 In addition to this we pointed out to many portions of the case

18 law, both of this Tribunal and that of Rwanda, and we also highlighted

19 comments of the International Red Cross which accompany the Geneva

20 Conventions and which altogether form customary international law.

21 Distinction between the existence of an armed conflict and internal

22 tensions and unrest lies precisely in these two key terms, which are the

23 organisation of unrest and the question of intensity of activities.

24 In both cases, these two criteria coincide based on the supporting

25 material. It is our position that by applying a prima facie test, one can

Page 149

1 only come to the conclusion that the Prosecution failed to prove their

2 allegation that throughout the entire time, to which the indictment

3 refers, there existed a state of armed conflict in the Serbian Republic of

4 Krajina. And if there was no state of armed conflict under -- during

5 which crimes were committed, then this Chamber has no jurisdiction to

6 decide in this case. We pointed this out and supported this with case

7 law, saying that the application of Article 3 and 5 of this Tribunal can

8 only be valid when there is a state of an armed conflict, be it an

9 international one or an internal one.

10 And to conclude, we remain firm in the arguments presented in our

11 written submissions, stating that the supporting material contains such

12 documents that greatly challenge the formulation of the indictment when it

13 comes to the state of armed conflict. Based on that, we believe that such

14 an indictment containing such legal qualifications should not have been

15 confirmed and that in that respect, this Honourable Chamber should reject

16 such an indictment.

17 I am at your disposal for any questions, Your Honours.

18 JUDGE MOLOTO: Thank you very much.

19 Mr. Tieger.

20 MR. TIEGER: Your Honour, although any of the three of us may be

21 available for questions should the Bench have some of the Prosecution,

22 Ms. Baig will be presenting the submissions on behalf of the Prosecution,

23 and I yield the floor to her.

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

25 MS. BAIG: Your Honours, the only issue before this Trial Chamber

Page 150

1 is whether the Tribunal has jurisdiction over the crimes charged in the

2 indictment. Jurisdiction means that the Tribunal has the power to

3 prosecute the crimes charged. Factual disputes and the precise contours

4 of the legal definitions of the crimes are not matters that go to

5 jurisdiction and should be addressed on the basis of the arguments and the

6 evidence at trial.

7 The indictment charges persons covered by the statute with

8 violations of Articles 3 and 5 within the time and region set out in the

9 Statute. Thus, the Defence arguments fall outside of the narrow

10 definition of jurisdiction set out in Article 72(D).

11 For example, disputes about the existence, duration, intensity of

12 the armed conflict are purely questions of fact. These must be determined

13 on the basis of the evidence adduced at the trial. Likewise, the

14 erroneous assumption that the attacks on civilians were lawful rests on a

15 factual dispute. The Prosecution alleges that the accused unlawfully

16 attacked civilians, civilian areas, and civilian convoys in order to drive

17 the civilians from the RSK.

18 This is prohibited under international humanitarian law. It also

19 constitutes a crime against humanity. The fact that the Prosecutor has

20 not charged the shelling, for example, as a separate war crime does not

21 mean that the acts were legal. Whether or not the shelling caused

22 deportation, forcible transfer, or formed part of a persecutory campaign

23 is a matter of fact which must be determined at the trial on the basis of

24 the evidence presented. It is not a question of jurisdiction.

25 The Defence attempt to characterise the shelling of civilians as

Page 151

1 "legal," according to the laws or customs of war, allows it to set up a

2 false conflict between international humanitarian law and crimes against

3 humanity which does not actually exist in this case. IHL and crimes

4 against humanity operate harmoniously. The definition of the crimes

5 against humanity adopted in the case law already incorporates the

6 realities of war and accepts that there may be attacks which are not

7 directed at the civilian population and that there may be military reasons

8 justifying deportation which exclude criminal responsibility for crimes

9 against humanity.

10 The Defence arguments do not raise jurisdictional issues and this

11 should dispose of the matter.

12 Moreover, the Appeals Chamber's jurisprudence has already defined

13 the elements of the crimes of deportation, forcible transfer, and

14 crimes -- and persecution as crimes against humanity. The definition does

15 not include any of the new elements advanced by the Defence. In Stakic,

16 for example, the Appeals Chamber defined the actus reus of deportation as:

17 "The forced displacement of persons by expulsion or other forms of

18 coercion from the area in which they are lawfully present, across a de

19 jure state border, or, in certain circumstances, a de facto border,

20 without grounds permitted under international law."

21 That's the crimes against humanity deportation definition.

22 It is incorrect to say that crimes against humanity of deportation

23 and forcible transfer can only be committed through the ordering mode of

24 liability in internal conflicts. The Appeals Chamber convicted Stakic of

25 JCE liability and not for ordering the crime of deportation. At least

Page 152

1 five other cases of this Tribunal have convicted for deportation as a

2 crime against humanity for modes of liability other than ordering: Simic,

3 Krnojelac, Kupreskic, Brdjanin, and Blagojevic.

4 Second, it is incorrect that deportation and other crimes against

5 humanity cannot be committed through any of the modalities of war. In

6 this case, that the shelling cannot form part of the actus reus of the

7 crime against humanity. In Stakic, Blagojevic, Brdjanin, the deportation

8 was conducted, at least in part, through fear instilled by shelling.

9 Employing the Defence terminology, the accused committed a Geneva law

10 violation through a Hague law violation.

11 Thirdly, crimes against humanity are not limited to situations

12 akin to occupation. No ICTY case has ever required this novel element for

13 crimes against humanity. Even in international humanitarian law,

14 occupation or its equivalent is not required for the crime of forced

15 displacement in internal armed conflict. The Defence's attempting to

16 import the special requirements of Article 49 of Geneva Convention 4 into

17 Article 17 of Additional Protocol II. This is contrary to the express

18 statement in Article 2 of Additional Protocol II that the scope of the

19 Protocol extends to "all persons affected by the armed conflict."

20 The logic of the Defence's new elements - that Article 5 must be

21 determined and defined wholly by reference to IHL - rests on an incomplete

22 and inaccurate understanding of the principle of lex specialis. Lex

23 specialis does not mean that anything not specifically prohibited by IHL

24 is specifically allowed during war. The principle means that other bodies

25 of law should not be interpreted in a way that undermines IHL during armed

Page 153

1 conflict. But this does not exclude the concurrent application of other

2 bodies of law. Where there are silences in IHL, where IHL does not

3 specifically provide for the situation, then other law can fill these gaps

4 to ensure the protection of victims to the conflict.

5 The argument that international humanitarian law applies to the

6 exclusion of every other law in armed conflict is simply wrong.

7 International humanitarian law is full of reminders that other

8 principles continue to apply to supplement its protection. The Martens

9 Clause in the Preamble of The Hague Regulations of 1907 is an excellent

10 example of IHL recognising the importance of the laws of humanity. This

11 is also picked up in the Preamble to Additional Protocol II.

12 The co-existence of the two bodies of law was expressly recognised

13 in the Nuremberg Charter which introduces crimes against humanity in

14 connection with the armed conflict. The importance of this was recognised

15 in the Justice case, where the Chamber acknowledged that the similar

16 provision in of Control Counsel Law 10 were not surplusage. They

17 supplemented the preceding sections on war crimes and prohibited

18 atrocities "against any civilian population."

19 The ICTY Statute itself is clear that crimes against humanity can

20 be committed during armed conflict. The definition of deportation itself

21 takes into account the military realities that govern the law -- that are

22 governed by the law of armed conflict. In deportation the only thing

23 that's prohibited by the crime against humanity definition is forced

24 displacement without grounds permitted under international law.

25 The reality of war is built into that definition. Lex specialis

Page 154

1 does not mean that the operation of crimes -- that the operation of crimes

2 against humanity is excluded in armed conflict. It does not mean that the

3 elements of crimes against humanity must match the elements of war crimes.

4 Limiting Article 5, Crimes of Deportation and Forcible Transfer, to the

5 same subset of situations that's already covered by international

6 humanitarian law would undermine the rationale for the development of

7 crimes against humanity, to extend the reach of international criminal law

8 beyond the restricted category of persons protected by international

9 humanitarian law, and, in particular at the time of the Second World War,

10 to cover crimes committed by a party to the conflict against its own

11 nationals.

12 The Defence argument seeks to reverse this development. What the

13 principle of lex specialis demands and what the Tribunal has already

14 delivered is that crimes against humanity have to be interpreted in a

15 manner that respects the lex specialis of international humanitarian law.

16 Accepting the argument that the two sets of crimes must necessarily be

17 identical would render crimes against humanity redundant in armed

18 conflict.

19 Thank you, subject to any questions that you might have.

20 JUDGE MOLOTO: Thank you very much.

21 JUDGE ORIE: I would have a -- one or more questions.

22 Mr. Akhavan, you said it's further alleged that upon successful

23 conclusion of Operation Storm, the collapse of the Republika Srpska

24 Krajina, the return of civilians was discouraged through Croatian

25 colonisation and the destruction or pillage of property.

Page 155

1 From what I remember, the Prosecution strongly disagrees that this

2 is alleged. Of course, the Prosecution has drafted the indictment. Could

3 you tell me exactly, in order to better understand your disagreement,

4 where I find this.

5 MR. AKHAVAN: Yes, Judge Orie.


7 MR. AKHAVAN: I draw your attention to paragraph 36 of the

8 indictment. The Prosecution there asserts: "A demographic policy was

9 also implemented." So they're arguing on the one hand that the shelling

10 caused the mass exodus of civilians; and then after Croatia captures the

11 territory, there's a demographic policy whereby much of the Serb Krajina

12 was to be colonized with Croats, whereby Croatian forces and other Croats

13 were moved into many of these abandoned Serb houses that survived. Homes

14 belonging to Serbs were expropriated. While rights to return to the area

15 or reclaimed property may have formerly existed, the destruction of Serb

16 property and their papers under the circumstances of mass flight made such

17 relief largely artificial and unavailable and intentionally so."

18 We have argued that the crime under Article 49, paragraph 6 of the

19 4th Geneva Convention of transferring by a state of its own population

20 into territory occupied by another state clearly does not apply to

21 internal armed conflict. This is reflected in Rule 130 of the ICRC study

22 on customary law. Now, the Prosecution's response concedes that they are

23 not charging this crime. They are not charging the crime of colonisation;

24 that is an admission by the Prosecution in its latest response.

25 JUDGE ORIE: Well --

Page 156

1 MR. AKHAVAN: But what they are saying is that they will use this

2 action as a means of inferring a persecutory intent and the intent to

3 deport by making the displacement of the Serbian population permanent.

4 What we would respectfully submit that if you're not charging this conduct

5 as a crime, if indeed it is not a crime under humanitarian law, then one

6 cannot even begin to draw adverse circumstances, adverse inferences of

7 intention. And we've pointed in our submission that we have no intention

8 to dispute questions of fact, and our colleague is entirely correct. We

9 are only concerned with the Tribunal's jurisdiction.

10 But we need to note that in the Martic case in the other cases

11 dealing with this, the Prosecution itself has acknowledged that almost

12 100.000 Croats were ethnically cleansed from the Krajina. So to turn

13 around now and say that the return or the re-settlement of those people is

14 either a crime under humanitarian law formally or if it's not charged as a

15 crime will now be a basis for making an allegation of Croatian

16 colonisation, which is a very serious allegation, we respectfully say

17 would be beyond the Tribunal's jurisdiction because it does not conform

18 with the customary law and it constitutes retroactive criminalisation of

19 otherwise lawful conduct.

20 JUDGE ORIE: Please forgive me. I understood the indictment to

21 say that, and I'm looking, for example, at paragraph 50, that what the

22 accused are charged with is "the execution of the forcible transfer and/or

23 deportation of members of the Krajina Serb population from the southern

24 portion of the Krajina region;" and then a few other areas are mentioned

25 "by the threat and/or commission of a violent and intimidating acts."

Page 157

1 That's the crime charged if I understand well; whereas, in

2 paragraph 36, but please correct me when I read this wrong, that as one of

3 the factual circumstances it is set out that Croats were then moved into

4 abandoned Serb houses, which is dramatically enough that they may have

5 been removed from the houses at an earlier stage. But let's just for

6 argument's sake, let's assume that you're right, that Serbs are moved and

7 Croatians were removed from a certain area.

8 Now, if that territory is re-gained by Croatian forces, and let's

9 just assume - and that's what I read in the indictment - that then the

10 Serbs who earlier moved in -- when this territory is re-gained are -- is

11 it allowed in your view or is it a crime that you remove then the civilian

12 population, because you say something about the return of civilians was

13 discouraged through Croatian colonisation; whereas, I read that they were

14 just removed from that territory. Would that change anything in your

15 view?

16 MR. AKHAVAN: Perhaps I should clarify our position. Our position

17 is that the crime of -- under Article 49, paragraph 6 of the 4th Geneva

18 Convention is that of colonisation or imposition of settlements --

19 JUDGE ORIE: But that's not charged, is it.

20 MR. AKHAVAN: No, it's not. The Prosecution has now clarified

21 that that was not charged. It was not clear from the initial indictment,

22 because the word "to colonize" has a certain meaning in humanitarian law.

23 If you're accusing -- if you're accusing Croatia of colonizing its own

24 territory, there is a problem. We would submit there is a problem.

25 Now, the point we are making is that on the one hand the

Page 158

1 Prosecution alleges that the mass expulsion of Serbs was achieved

2 primarily through the conduct of hostilities, through shelling of

3 civilians; then the Croatian forces arrived. The vast majority of Serbs

4 have already left; then the allegation is that because of wanton

5 destruction and pillage, there is a policy to prevent the return of those

6 who already left --

7 JUDGE ORIE: How could we then read, if you allow me to interrupt,

8 whether true or not, that's of course a matter of evidence, that's not

9 what Article 50 says, isn't it? It doesn't say that those who were

10 already -- had already left, but it's about the forcible transfer and

11 deportation of members of the Krajina Serbs. It doesn't say anything

12 about discouraging return. So I wonder --

13 MR. AKHAVAN: Those paragraphs are incorporated by reference in

14 Article -- in paragraph 50. Paragraph 50 says that: "Acts alleged in

15 paragraphs 12 to 21 and 28 to 47 are included." So they are including in

16 their deportation count the alleged colonisation of the Krajina as a

17 factor establishing deportation.

18 Now, we submit that, first, you must consummate the crime of

19 deportation. If Article 49 of the conventions, if this Tribunal's case

20 law, if the Prosecution's own submissions in its own pre-trial briefs

21 expressly recognises a requirement that the victims being the hands of a

22 party to the conflict, then they have not satisfied that element. There

23 is no crime of deportation. You cannot retroactively consummate the crime

24 of deportation when an essential element never existed.

25 And to suggest also, in addition to that fact, that colonisation

Page 159

1 is a basis for arriving at that conclusion, we would say is problematic

2 because that is not a crime under humanitarian law. They've said that

3 they're not charging that as a crime, but they're still going to use it as

4 a means of inferring a relative intent. And that we think is also

5 problematic, in addition to the legal issue, which we raised in our

6 earlier submission.

7 JUDGE ORIE: I now better understand the way you interpret the

8 indictment, which certainly assists me in better understanding your

9 argument. One of the arguments that has been raised is by charging crimes

10 against humanity under Article 5, you deprive the accused from the defence

11 that what actually was done was lawful warfare. Is that well understood?

12 MR. AKHAVAN: No, I would clarify that, and with due respect, I

13 think that was a mischaracterisation for argument. We are not suggesting

14 that you cannot charge unlawful attacks as crimes against humanity. This

15 is very clearly possible under the jurisprudence of the Tribunal. The

16 Galic case is a perfect example where conduct of hostilities was charged

17 against crimes against humanity, and we think that it would be totally

18 unacceptable to create such a gap in humanitarian law; whereby, people

19 could be victimised through indiscriminate shelling, for example, and you

20 could not charge it. That's not what we're saying.

21 What we're saying is very simple. We are saying you have to

22 satisfy the elements of the crime; that's all we're saying. And the crime

23 of deportation is not the proper charge in this case. Now, why would the

24 Prosecution charge shelling -- alleged shelling of civilians as

25 deportation as opposed to other crimes which are equally possible within

Page 160

1 crimes against humanity. You have the crime of murder which was charged

2 in Galic, and in Galic they said that the underlying offence of murder is

3 the same for Article 5 as it is for Article 3.

4 And the Prosecution says that if we don't apply the laws of war to

5 charging crimes against humanity lawful combat would be impossible. That

6 is in the submission of the Prosecution. So all we're saying is you

7 cannot charge shelling as Article 5 and avoid proof of the elements of the

8 crime of deportation, and also avoid proof that these acts were actually

9 unlawful.

10 And if I may --

11 JUDGE ORIE: But let me try to understand you. If you charge a

12 crime against humanity, you'll have to prove whether the Prosecution is in

13 a position to do so, yes or no, I don't know. But you have to prove that

14 the crime was committed in a widespread and/or systematic attack against

15 civilians. What -- how could the laws of war provide for a justification

16 or an excuse for a widespread and/or systematic attack against civilians?

17 I'm trying to understand what I at least thought your argument was.

18 MR. AKHAVAN: No. It certainly -- most certainly is not, and I

19 regret if I've given that impression. We categorically would not make

20 such an argument. Crimes against humanity has mens rea requirement,

21 knowledge of broader context of widespread and systematic attack, and it

22 has an actus reus requirement, in this case deportation. There are two

23 levels of analysis.

24 One is what is the crime of deportation, which needs to be proved

25 in order then to link it with the mens rea of knowledge of a widespread or

Page 161

1 systematic attack. The crime of deportation involves the forcible

2 expulsion of those who are in the hands of a party to the conflict. We

3 would submit there's no doubt about that.

4 If you do not prove the underlying crime of deportation, then the

5 mens rea of crimes against humanity is not consummated. There is no

6 crime. Now, even with respect to knowledge of the context, you cannot use

7 an otherwise lawful act to infer criminal intent if you say --

8 JUDGE ORIE: Lawful act. Which lawful act do you have in mind?

9 MR. AKHAVAN: Well, for instance, if it is the case that there are

10 lawful military targets in Knin and there is a lawful attack in order to

11 take out those military targets, in the course of shelling, civilians flee

12 as they always do in situations of combat in every warfare that one can --

13 act of warfare that one can think about, the mere fact that civilians have

14 fled is not a war crime or a crime against humanity, nor can it be a basis

15 for inferring criminal intent on the part of the accused.

16 You must establish that the attacks either deliberately targeted

17 civilians or that they were indiscriminate attacks or disproportionate

18 attacks.

19 JUDGE ORIE: May I stop you there, because that's exactly what I

20 would like to clarify with you. What you say is if you target a military

21 attack, civilians might flee, they might be, if they are killed, could be

22 collateral damage of this. You say if there is a lawful military target,

23 I think you say it's wrong to charge under Article 5 because that could be

24 the case. Could you explain to me, how could you possibly prove that the

25 act was part of a widespread and systematic attack against civilians,

Page 162

1 where at the same time later in your argument you say: Well, it could

2 well be that it was a military target, a justified military target, and it

3 was collateral damage. Attacking a military target and having collateral

4 damage among civilians, how is that to be reconciled with, let's just

5 assume, a proven widespread or systematic attack against civilian

6 population?

7 MR. AKHAVAN: Indeed. In order to prove a widespread or

8 systematic attack, you have to establish that there were criminal acts.

9 If you establish merely that there were unfortunate circumstances of

10 wartime, war is brutal, it is tragic, it is unfortunate in the sense that

11 every war has victims when civilians flee, when there is collateral

12 damage, it doesn't change anything whether we're talking about the NATO

13 bombardment of Kosovo or if we're talking about Operation Storm. But the

14 mere fact that there was civilian casualties or in this case civilians who

15 flee does not establish a widespread and systematic attack.

16 JUDGE ORIE: That would mean that if in the situation you are

17 depicting, the situation being something that there is collateral damage

18 when a military target is attacked; that if that's the case, and that's of

19 course a matter of facts that happened, then there would be an acquittal

20 almost automatically under Article 5 because the widespread and systematic

21 attack could not be proven.

22 MR. AKHAVAN: As a matter of fact yes, but we are raising here a

23 point of law. The point of law is that the circumstances where there's

24 occupation under the Geneva law is a totally different body of law

25 compared to The Hague law where there is no occupation. The main

Page 163

1 difference is when someone is in your hands, there's an absolute

2 prohibition against inhumane treatment. If someone is a prisoner of war

3 or civilian occupied territory, they cannot be harmed in any way. But in

4 the conduct of hostilities, as we know from the Prosecutor's own NATO

5 report, 500 civilians were killed in NATO's bombardment of Kosovo --

6 JUDGE ORIE: That's all facts. I don't know yet --

7 MR. AKHAVAN: This is what we've submitted. It's in the report of

8 the Prosecution. The Prosecution establishes 500 people were killed, a

9 thousand were injured, but decides not to charge anyone with war crimes or

10 crimes against humanity. Why? Because there is no widespread or

11 systematic attack within the meaning of crimes against humanity, even

12 though 500 people are killed and a thousand are injured. We submit here

13 you cannot simply say there was shelling of civilians, a lot of people

14 left, that is a crime against humanity of deportation, but we're not going

15 to prove the elements of The Hague law, which prove this was either

16 deliberate or indiscriminate, and we're not going to charge the actual

17 violences, which could very easily be incorporated under crimes against

18 humanity.

19 We're not saying you either charge war crimes or crimes against

20 humanity. All we're saying in a state of armed conflict in order to

21 determine whether there have been crimes committed, whether the mens rea

22 of crimes against humanity doesn't matter, but the underlying offense has

23 to be within in the framework of the laws of war. And the fact that the

24 Prosecution now two months before the trial says, Oh, okay. If you want

25 us to charge Hague violations, we will. With due respect, this is

Page 164

1 unconscionable. This indictment is five and a half years old.

2 Surely, the Prosecution knows the difference between Hague law and

3 Geneva law of violation. In every other case, the Prosecution has

4 respected that distinction; in Galic, in Milosevic, in every case. And we

5 now hear for the first time the argument, which is a categorical legal

6 assertion: We don't need to prove occupation because it is not an element

7 of the crime. What about the Prosecution's own pre-trial briefs which

8 categorically state the requirements of Article 49 apply. So this is why

9 we are left trying to understand how we can possibly go to trial with this

10 indictment.

11 Now, if I may just add, one of the issues is if the Prosecution

12 had charged Hague law violations, you can be sure that we would be

13 bringing both sides many expert witnesses, many direct witnesses, who are

14 going to speak about what was the military intention on the ground, were

15 Serbian forces using civilian buildings in order to launch attacks against

16 Croatia, these type of questions, what was the technology available to

17 General Gotovina, what --

18 THE INTERPRETER: Could the counsel please slow down, thank you.

19 MR. AKHAVAN: So --

20 JUDGE MOLOTO: You heard that?

21 MR. AKHAVAN: Yes. Yes, my apologies.

22 JUDGE MOLOTO: Thank you.

23 MR. AKHAVAN: So this is a totally different case. This is one

24 thing to say people were forcibly expelled. So that's why we cannot go to

25 trial, if it is the case that we are -- that General Gotovina is going to

Page 165

1 be prosecuted for Hague law violations without being charged with those

2 cases. There is no gap in the protection of humanitarian law. The crime

3 of spreading terror against civilians is more than adequate for the job.

4 The Hague law has more than enough provisions to protect civilians.

5 The issue here is not that we're leaving victims without

6 protection. The issue here is the accused has to be properly charged in

7 accordance with customary law. The customary law cannot be re-written at

8 the 11th hour. And that is why it is beyond the jurisdiction of this

9 Tribunal to totally disregard Article 49 of the Geneva Convention, Article

10 86 of Protocol I, Rule 29 of the ICRC study, the Stakic judgement, and

11 every other judgement.

12 And one final point, if I may, the three cases cited by the

13 Prosecution -- excuse me, Blagojevic, Stakic, and Brdjanin, this is my

14 final remark, if you look at those cases the Prosecution has not charged

15 shelling as an element of deportation in any of those cases. The

16 Prosecution has charged that once Republika Srpska authorities controlled

17 the territory in question, they, in an orderly and systematic fashion,

18 deported people. That is the charge.

19 The judgement itself only discusses shelling in the section on

20 factual background. It is by way of factual background to establish a

21 coercive context. If that is the theory that you create a coercive

22 context through shelling, then you occupy territory and you deport people,

23 then it may be factually relevant. But that is not what the Prosecution

24 is doing in this case. They are saying the shelling itself was a modality

25 of deportation, and that is why all of the precedents cited by the

Page 166

1 Prosecution are not in any way on point.

2 JUDGE ORIE: Thank you for those answers. I see that I -- at

3 least I understand that Prosecutorial policy and the limits to

4 Prosecutorial policy are to be considered perhaps as well. We'll consider

5 the matter.

6 [Trial Chamber confers]

7 JUDGE MOLOTO: Do you have anything to say to what Mr. Akhavan

8 said?

9 MR. MIKULICIC: I'm sorry. I didn't hear you correctly.

10 JUDGE MOLOTO: I just wanted to find out if you had anything to

11 add to what has been said by Mr. Akhavan, just briefly.

12 MR. MIKULICIC: [Interpretation] No, I have nothing to add. I

13 fully agree with what Mr. Akhavan has said. I only wish to reply very

14 briefly to the thesis put forward by my learned friend from the

15 Prosecution when addressing the Tribunal. In my view, the Prosecutor has

16 entered these proceedings with an erroneous thesis, and that is that if we

17 were to say that this court was not -- did not have jurisdiction to try

18 the perpetrators of the crimes which occurred after the end of Operation

19 Storm, because we assert there was no armed conflict, in my view the

20 Prosecutor then draws the erroneous conclusion that that would make those

21 actions lawful.

22 I wish to state quite clearly that the Prosecution does not by any

23 means consider that the events which occurred at the end of Operation

24 Storm, and we do know that there was burning of houses, that there was

25 looting, that there were robberies, that there were murders, and in no way

Page 167

1 do we wish to deny that such unlawful acts occurred, but what we are

2 trying to say, however, is that this Tribunal does not have jurisdiction

3 to try those crimes because they occurred beyond the scope of an armed

4 conflict; rather, it is the judiciary authorities of the Republic of

5 Croatia which would have the authority to try those crimes. That is our

6 argument.

7 JUDGE MOLOTO: Any reply?

8 MS. JARVIS: Thank you, Your Honours. Just a few points very

9 briefly in response to the additional submissions that we've heard from

10 the Defence. First of all, the distinction that they seek to draw between

11 Hague law violations and Geneva law violations, it is our position that

12 that is an artificial and invalid distinction to make. Our position in

13 this case is that the unlawful shelling was carried out as a means through

14 which the deportation forcible transfer was effected in this case, and

15 there is absolutely no limitation on the Prosecution's ability to proceed

16 in this case on that basis.

17 The definition of deportation which has been accepted by the

18 Appeals Chamber in this case -- in -- before this Tribunal, itself

19 recognises that deportation can be carried out through either expulsion or

20 any other coercive act. Our case is in this particular factual scenario

21 shelling was such a coercive action, which then facilitated the

22 deportation.

23 We point out also that there is one very clear example of Hague

24 law violations under the Defence terminology being accepted as the basis

25 on which a crimes against humanity charge was founded and that is of

Page 168

1 course the Galic case, where convictions based on inhumane acts as crimes

2 against humanity were founded upon the shelling and sniping that was

3 carried out in Sarajevo. And there's no reason in the case law of this

4 Tribunal to limit such an approach in this particular case.

5 In terms of the Defence point that -- on the colonisation

6 argument, I think it's been clarified that obviously the Prosecution is

7 not bringing a separate charge of colonisation under Article 49 of the

8 Geneva Convention. The Defence now seek to say that if that is not the

9 case, then the Prosecution is prohibited from using the evidence in

10 relation to that matter in any way.

11 We say that it's a perfectly valid approach that factual matters

12 that in and of themselves are not charged as separate crimes can be

13 considered as relevant evidentiary factors for assessing whether the

14 elements of crimes have been met. There are many examples of that, Your

15 Honours. For example, with the crime of genocide, it may be that

16 particular acts like cultural genocide, burning of libraries, that kind of

17 thing, would not in and of themselves amount to a crime, but that's

18 nevertheless no barrier for not taking that into account as part of

19 assessing the mens rea of the accused in that particular case for the

20 crime of genocide.

21 And there is no difference between that kind of a process and the

22 way in which the indictment has been drafted in this case.

23 [Prosecution counsel confer]

24 MS. JARVIS: Just one final point, Your Honours. We want to make

25 it very clear that we reject the Defence contention that there is any kind

Page 169

1 of requirement of control over a territory or that the victims be in the

2 hands of the opposite party to the conflict for displacement crimes under

3 internal conflicts. We reject the Defence characterisation that the

4 relevant IHL provisions themselves import such requirement. We have

5 pointed out that Protocol II and Article 17 by its own terms are as broad

6 as it could possibly be. It refers to anybody in the territory in which

7 the armed conflict is taking place. And if -- Your Honours, if you look

8 at the terms of the provision and the commentary as a whole, it's

9 absolutely clear that there were not intended to be any limitations

10 imported into that protection along the lines that the Defence have

11 argued.

12 Unless I can be of any further assistance, Your Honours, I will

13 leave the matter with you.

14 [Trial Chamber confers]

15 JUDGE MOLOTO: Thank you very much.

16 MR. AKHAVAN: Mr. President, I apologise. Would it be possible

17 for me to briefly clarify a certain point at this stage?

18 JUDGE MOLOTO: Is it anything that you haven't clarified already,

19 Mr. Akhavan?

20 MR. AKHAVAN: Well, yes it is. It's a new argument which the

21 Prosecution has raised in relation to Article 17 that I thought I should

22 briefly address.

23 JUDGE MOLOTO: How long do you need to do it?

24 MR. AKHAVAN: It will take me just a few minutes, sir.

25 JUDGE MOLOTO: How few is few?

Page 170

1 MR. AKHAVAN: Just two minutes, sorry.

2 JUDGE MOLOTO: Thank you very much, two minutes.

3 MR. AKHAVAN: Well, it's very intriguing that the Prosecution now

4 argues for the application of the Article 17 of Protocol II, when in its

5 written submissions it argues that it is not applicable. It argues that

6 the restriction of the crime of forcible displacement to ordering, which

7 is what Protocol II provides in Article 17, does not apply. Now, for the

8 first time, we hear that Article 17 should apply.

9 JUDGE MOLOTO: Slow down.

10 MR. AKHAVAN: Now, we just returned briefly to Judge Schomburg's

11 statement. We hear that the Appeals Chamber does not require occupation.

12 Here's what Judge Schomburg says: "Article 5 deportation must be

13 "from an area under the actual control of one belligerent party to an

14 area under the actual control of another."

15 JUDGE MOLOTO: You quoted that a little earlier in your argument.

16 MR. AKHAVAN: What I would like to end on is the question of

17 whether the Prosecution has discretion to charge a crime where it clearly

18 fails to satisfy established jurisprudence, and I just want to end by

19 quoting from the Tadic jurisdiction decision, which sets forth the

20 standard for when the Prosecution should not have jurisdiction -- should

21 not have discretion to make such charges. And this statement of the Tadic

22 Appeals Chamber says that Rule 72 recognises that a matter as fundamental

23 as jurisdiction "should not be kept for a decision at the end of the

24 potentially lengthy, emotional, and expensive trial." And that "the

25 higher interests of justice would not be served by a decision in favour of

Page 171

1 the accused after the latter would have undergone what would have to be

2 branded as an unwarranted trial."

3 Our submission is that the Prosecution has considerable

4 discretion, but where the Prosecution, against the clear jurisprudence of

5 this Tribunal, against its own settled practice, charges a crime that is

6 manifestly at variance with customary law. It is violating the nullum

7 crimen sine lege principle, and we respectfully submit that it would be

8 unthinkable to go to trial on such a basis, especially at a time when the

9 scarce resources of this Tribunal should certainly not be squandered on a

10 charge that manifestly fails to satisfy customary law. I apologise, but

11 thank you for that.

12 JUDGE MOLOTO: Thank you very much.

13 The Trial Chamber is grateful to the parties for their

14 submissions. We will take into account what has been said by both sides.

15 Can we move on to the next point. By a decision rendered

16 yesterday, the Trial Chamber invited Mr. Separovic to answer. I see you

17 nodding, Mr. Separovic. You have, I guess, seen the decision. Are you in

18 a position to respond?

19 MR. SEPAROVIC: [Interpretation] Yes, Your Honour. I saw it

20 yesterday.

21 JUDGE MOLOTO: The decision does indicate that you will be invited

22 and be given an opportunity at this hearing to show a cause why the Trial

23 Chamber should not act in terms of Rule 46.

24 MR. KEHOE: If I may, Judge, may I ask the Court a question before

25 my colleague Mr. Separovic addresses the court.

Page 172

1 JUDGE MOLOTO: Yes, you may, Mr. Kehoe.

2 MR. KEHOE: I, of course, saw the Court's decision yesterday that

3 was published, and my question to the Chamber is at this point would alter

4 the Chamber's decision if General Gotovina decides not to call

5 Mr. Separovic as a witness.

6 JUDGE MOLOTO: I'm sorry. Your question is a little late,

7 Mr. Kehoe. You have told us that you are likely to call him.

8 MR. KEHOE: And given -- I also argue and discussed during our

9 last hearing, Judge Moloto, the invaluable necessity that we -- that

10 General Gotovina saw that Mr. Separovic continue to represent Mr. Markac.

11 And I also addressed, Your Honour, to say that should we explore the

12 possibility of some type of stipulated facts that we could agree to in

13 some fashion concerning Mr. Separovic's testimony --

14 JUDGE MOLOTO: Mr. Kehoe --

15 MR. KEHOE: Yes, sir.

16 JUDGE MOLOTO: This Trial Chamber is concerned that the trial

17 starts and starts as soon as possible. Okay. I think what you are

18 telling me should have been done a long time ago. It has not been done.

19 Can we give Mr. Separovic to answer the decision.

20 MR. KEHOE: Yes, Your Honour, I was simply putting it on the

21 table --

22 JUDGE MOLOTO: We take --

23 MR. KEHOE: -- as a possibility to alleviate these concerns.

24 JUDGE MOLOTO: We take note of what you're said. Thank you very

25 much.

Page 173

1 Mr. Separovic.

2 MR. SEPAROVIC: [Interpretation] Thank you, Your Honour. I

3 received a decision yesterday, and I wish to thank you for allowing me to

4 set out my reasons, if I understood you correctly, why I believe that my

5 conduct to date has not been contrary to the interests of my client and

6 has not been inappropriate. I wish to assure you that no further measures

7 against me should be taken by Your Honours.

8 You found that I had a conflict of interest and that I had

9 personal interest and personal knowledge in this case. I wish to explain

10 to Your Honours why I continued to assert that there is no conflict of

11 interest, that I did not behave inappropriately in advocating my

12 standpoint, and that I did not violate the rights of my client or fail to

13 respect this Court. I have not been in contempt.

14 In the Appeals Chamber decision, it is clearly stated that

15 Separovic, as a necessary witness, is expected to withdraw from the case

16 unless he can prove that General Markac will suffer as a result. And

17 pursuant to Article 26 of the Code of Conduct, I stated that my client

18 would suffer hardship were his counsel to withdraw at this stage of the

19 proceedings. That is the first reason why I feel my behaviour has not

20 been inappropriate.

21 The second reason is my client's interest. He asked me, in spite

22 of any potential conflict of interest, to remain his Defence counsel,

23 because he knows very well that I was Minister of Justice. He knows what

24 my role was in all of this; and in spite of all this, he asked me to stay

25 on as his Defence counsel. In yesterday's decision by the Trial Chamber,

Page 174

1 there is a new element I may have misunderstood, but Article 14 of the

2 code is mentioned and personal interests are mentioned.

3 It would appear, based on this, that I have some kind of personal

4 interest for wishing to remain in this case. I wish to assure you that I

5 have no personal interest whatsoever, that the only interest is the

6 interest of my client, unless I understand you to be saying that every

7 member of the then-government is a potential member of the joint criminal

8 enterprise. Were this the case, that every member of the government would

9 be -- or of the cabinet would be a member of the joint criminal

10 enterprise, this would then discredit me as Defence counsel.

11 However, at this stage of the proceedings, it is premature to say

12 that there even was a JCE, let alone that all the members of the cabinet

13 were members of the JCE. My starting point is that there is a presumption

14 of innocence and that I am presumed innocent until proved guilty, that I

15 have never been under investigation. I have never been interviewed by the

16 OTP, and so there is no personal interest and no inappropriate behaviour.

17 The right to choose one's own counsel, according to Article 21, paragraph

18 4 of the Statute, overrides any theoretical possibility that I might be

19 called as a witness in these proceedings.

20 The third reason, I feel that my behaviour has not been

21 inappropriate and that it has been in the interests of may client are the

22 legal standards and precedents of this Tribunal, studying the legal

23 standards, and I have put forward my arguments in this respect. I feel

24 that there should be a balance between the interests of justice and the

25 right to selection of counsel and that my withdrawal would create an

Page 175

1 imbalance at the expense of my client and that there should be a correct

2 assessment of whether I really am a necessary witness.

3 I am not a necessary witness. I do not have specific knowledge.

4 I am not -- I was not an American Minister of Justice who can try people;

5 mine was simply an administrative position in relation to the judicial

6 system.

7 Furthermore, there are the precedents of this Tribunal. I refer

8 to IT-95-09-PT versus the accused Simic, where the late Judge May

9 presided, and I do not notice any reference to this in the decision.

10 Mr. Pisarevic, the lawyer, was a direct eye-witness of the events in the

11 camp for which his client was charged. He was recognised in the courtroom

12 by witnesses. Judge May concluded that Pisarevic was a necessary witness,

13 that there was a conflict of interest, but the accused Simic made a

14 statement which removed that in the light of Article 14 of the Code of

15 Professional Conduct for Counsel.

16 Your Honours, if Article 21 of the Statute states that all persons

17 are equal before the ICTY, why would the accused Simic be more equal than

18 my client, Mr. Markac? Why should counsel Pisarevic, in whose case a

19 conflict of interest was established and who was recognised by witnesses

20 as a necessary witness, was allowed to stay and his co-counsel was allowed

21 to cross-examine those particular witnesses? That's reason number 4 why I

22 believe my behaviour has not been inappropriate. I was simply putting

23 forward the arguments I feel justify my position.

24 The fourth and final argument is something that was conveyed to me

25 from General Gotovina and published in the Croatian press, that they have

Page 176

1 decided I am not, after all, a necessary witness, and that this issue will

2 not be raised again, that I will not be called. So I do not understand to

3 this day the standpoint of the Defence counsel for General Gotovina,

4 whether they feel that I should or should not be a necessary witness, and

5 I appeal to Your Honours to put that question to them.

6 I have acted honourably to the best of my knowledge in defending

7 the interests of my client. I believe that my behaviour has not been

8 inappropriate and contrary to the interests of my client. I am awaiting

9 the decision of the Court. I will use my right to appeal, of course; but

10 in line with Rule 46 of the Rules of Procedure and Evidence, I ask Your

11 Honours to issue a decision and General Markac's stating that General

12 Markac's statement cannot have the same effect that Mr. Simic's statement

13 had, and I will then withdraw but I will use my right to appeal.

14 Thank you, Your Honours, for allowing me to speak.

15 JUDGE MOLOTO: Thank you.

16 [Trial Chamber confers]

17 JUDGE MOLOTO: Thank you.

18 Judge.

19 JUDGE ORIE: Mr. Separovic, the Appeals Chamber has explained that

20 one of the issues in the case against the three accused would be whether

21 it would be the Minister of Defence or the Minister of Justice, which

22 would be in charge -- would be responsible for the functioning of the

23 military system. Would it be in the interest of your client or from the

24 other accused where the accused were mainly related to the Ministry of

25 Defence, to -- well, to blame another ministry rather than their own

Page 177

1 ministry for not functioning or -- well, whatever, for their involvement

2 in the events or their involvement in not responding to the events?

3 MR. SEPAROVIC: [Interpretation] Your Honours, I don't think I

4 understood you well I'm afraid, but let me nevertheless reply. The

5 Ministry of Justice did not have any ability to affect the events the way

6 that it is attributed to it --

7 JUDGE ORIE: Mr. Separovic --

8 MR. SEPAROVIC: [Interpretation] In that case I did not understand

9 your question well.

10 JUDGE ORIE: I take it you did not. And apart from that we not in

11 a position here to introduce all kinds of facts that have been established

12 either positively or negatively. My question is where it clearly appears

13 from the indictment that the three accused in this case were functioning,

14 I would say in the context, whether direct responsibility or not, but

15 they're all people in military functions, and we all know that the

16 military usually directly linked to the Ministry of Defence.

17 Now, one of the core issues in this case -- or at least one of the

18 issues would be whether it was the Ministry of Defence or the Ministry of

19 Justice that would be responsible for the functioning of the military

20 justice. My question was whether you would agree with me that the three

21 accused, all linked to the Minister of Defence, that it could have an

22 exculpatory effect if the blame could be shifted to another ministry; to

23 say it was not we who were responsible, not the Ministry of Defence, not

24 the military, rather, other people were responsible. Would you agree that

25 it might assist them in their defence if they were heading for an

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1 acquittal?

2 MR. SEPAROVIC: [Interpretation] Your Honours, yes, certainly that

3 it might. However, what I'm saying that the facts that need to be

4 established are not the facts that I have exclusive knowledge of. I'm

5 saying that my testimony would not greatly contribute to the interests of

6 justice. This theoretical possibility that you are considering cannot

7 have primacy over the interests of the accused.

8 JUDGE ORIE: You're moving to Article 26 of the code, which says

9 if you are a necessary witness you should not act unless certain

10 circumstances. I'm focusing on Article 14, because if it might be in the

11 interests of the accused to shift the blame to -- well, let's say not the

12 Ministry of Defence, and if the Appeals Chamber has stated that one of the

13 issues would be Ministry of Defence or Ministry of Justice, that you would

14 not, by blaming others, that there would be an objective risk that you

15 might blame one of the other ministries, perhaps even the one which is

16 mentioned as a competitor and who is responsible.

17 MR. SEPAROVIC: [Interpretation] But forgive me, why me? Forgive

18 me, why me? Do you think that I am a potential suspect in the

19 proceedings? I don't understand. I don't see why you think that I need

20 to reply. Am I a member of a joint criminal enterprise? Am I seen as

21 one? I don't see why I need to answer that question, why am I the

22 necessary person who needs to say that. Your Honours, despite great

23 efforts, I cannot understand that, except if you think that by mere fact

24 that I was a Minister of Justice, I was a potential member of the JCE,

25 which automatically then disqualifies me. It is only in this light that I

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1 can accept what you're saying; otherwise, I fully disagree with you

2 because I do not think there was a joint criminal enterprise.

3 JUDGE ORIE: No, of course, I understand that. That's another

4 matter. No. The issue is your freedom to shift any blame as charged by

5 the Prosecution from military defence circles to other circles where you

6 played a prominent role in one of these other circles. That's the issue.

7 Do you understand that?

8 MR. SEPAROVIC: [Interpretation] Forgive me… I do understand, but

9 no, not me… Nobody's going to shift blame; you saw that General Markac

10 had already given a statement and had not shifted blame. And, second,

11 your Honours, it would not be me but General Markac. Why do you think I

12 would be the one to shift blame? I mean… I would, as far as his interest

13 is concerned, but this has not been done, nor has anyone ever mentioned

14 it. He made a statement, and it never occurred to him to say something

15 to that effect. But if it did, he would be the one saying it, not me.

16 That is why I don’t see why I, as his counsel, would need to testify about

17 that or affect it in any way. I simply don’t understand.

18 JUDGE ORIE: I have no further questions.

19 JUDGE MOLOTO: Thank you very much.

20 There being no further questions, I think that brings us to the

21 end of today's session. Court adjourned.

22 --- Whereupon the Motion Hearing

23 adjourned at 3.51 p.m.