Tribunal Criminal Tribunal for the Former Yugoslavia

Page 414

1 Tuesday, 11 March 2008

2 [Opening Statement - Prosecution]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.03 a.m.

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

7 courtroom. Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good morning, Your Honour. This is case number

9 IT-06-90-T, the Prosecutor versus Gotovina, Cermak, and Markac.

10 JUDGE ORIE: Thank you, Madam Registrar.

11 I see that the appearances are the same as yesterday. That means

12 Mr. Tieger and Mr. Waespi as the core team for the Prosecution.

13 Mr. Misetic and Mr. Kehoe for Mr. Gotovina. I also see Mr. Akhavan.

14 Mr. Akhavan, has the Chamber well understood that you might not be here

15 on a daily basis as a member of the Defence team of Mr. Gotovina?

16 MR. AKHAVAN: That remains to be clarified, Mr. President.

17 JUDGE ORIE: Yes. Thank you, Mr. Akhavan.

18 Then we have Mr. Kay, Mr. Cayley for Mr. Cermak, and we have

19 Mr. Mikulicic, Mr. Kuzmanovic for Mr. Markac.

20 MR. KAY: For Mr. Cermak, Your Honour, we have additional counsel

21 today, Ms. Higgins who is joining the Defence team who wasn't here

22 yesterday.

23 JUDGE ORIE: Yes. The Chamber was informed that Ms. Higgins

24 joined the Defence team.

25 MR. KAY: Thank you.

Page 415

1 JUDGE ORIE: I suggest we now have on the record who is here that

2 for the days to come and there will be many days to come, that if nothing

3 is said about the appearances, that the Chamber expects Mr. Tieger,

4 Mr. Waespi as being at least the core team, Mr. Misetic and Mr. Kehoe as

5 the core team for Mr. Gotovina, Mr. Kay and Mr. Cayley to be present as

6 the core Defence team of Mr. Cermak, and Mr. Mikulicic and Mr. Kuzmanovic

7 for Mr. Markac, that if any of these counsel is not present, that that

8 will be put on the record at the beginning of each session. This is not

9 to say that other members of Defence teams are not present, but if they

10 speak, we'll see that on the record anyhow.

11 Then we are about to start the trial against the three accused.

12 In this case it is Mr. Gotovina, Mr. Cermak, and Mr. Markac. It is a

13 case in which the parties will present their cases, at least the

14 Prosecution to start, and if need be a Defence case, dealing with war

15 crimes and crimes against humanity as charged in the indictment that

16 allegedly have been committed during and in the aftermath of

17 Operation Storm in the summer of 1995.

18 Nine counts are brought against the accused. They are charged

19 with individual responsibility, also in the form of a joint criminal

20 enterprise in which they allegedly have participated together with

21 others, and they're also held responsible by the Prosecution for command

22 responsibility or superior responsibility depending on the positions.

23 We'll be in court for this case for quite a long period of time.

24 The Chamber expects and is confident that counsel will act as efficiently

25 and professionally as possible, that we will not waste time on matters

Page 416

1 which are not really of importance for this case so that we can focus on

2 what this Chamber wants to do during the month to come, that is to hear

3 the evidence, the Prosecution evidence, whether Defence evidence, on this

4 case, and the Chamber is confident that the parties will be able and

5 they'll do their utmost best to assist the Chamber in the difficult

6 determinations this Chamber will have to make in this case.

7 Mr. Tieger, are you ready to give your opening statement in the

8 case? I do understand that you'll be the one to start and that

9 approximately at the natural time of a break Mr. Waespi will take over.

10 That's then most likely after that break, and that you'll then after

11 Mr. Waespi has given his portion of the opening statement.

12 MR. TIEGER: That is correct, Your Honour.

13 JUDGE ORIE: Please proceed.

14 MR. TIEGER: Thank you.

15 Mr. President, Your Honours, learned colleagues for the Defence,

16 this trial arises from the forcible elimination of Krajina Serbs from

17 Croatia and the destruction of their community in August of 1995 and the

18 roles and responsibilities of three men, generals in the Croatian army in

19 that process.

20 I'd like to show you first a map depicting Croatia and the

21 territory of Croatia that was claimed by the Serbs and declared by them

22 to be the Republic of Serbian Krajina or RSK.

23 Your Honours, as you can see, it comprised essentially three

24 parts, the first consisting of the large area at the left that you can

25 see roughly from Knin in the south and up to the area of Vrgin Most,

Page 417

1 Petrinja in the north, the second part known as Western Slavonia which

2 you see in the middle, and the third at the far --

3 JUDGE ORIE: Mr. Tieger, at this moment whether I choose video,

4 ELMO, or e-court, it's -- it now appears in e-court, but you started --

5 could you please restart.

6 MR. TIEGER: I'd be happy too. Your Honour, I had intended to

7 show you initially this map which you now have on your screen. This map

8 depicts Croatia and superimposed on it the boundaries of the area that

9 was claimed by Croatian Serbs and declared by them to be the Republic of

10 Serbian Krajina or RSK. And as I mentioned, it consists of three parts,

11 the first to the left that I described a bit earlier, the portion in the

12 middle known as Western Slavonia. That's that closest to a circular

13 area. And then the portion at the far eastern end known as

14 Eastern Slavonia.

15 Now, I'll refer to the portion at the left for simplicity's sake

16 as quite a number of witnesses will, as the Krajina generally, although

17 that is not precisely a geographically accurate term.

18 Your Honours, on the early morning of August 4th, 1995, Croatian

19 soldiers began an attack to retake much of the Krajina, the portion to

20 the left, back from the Krajina Serbs who had claimed it in 1991 and

21 brutally cleansed it of virtually all Croats. Many among the Croatian

22 soldiers had lost their homes and members of their families or friends as

23 a result, and after years of failed negotiations were now coming back to

24 reclaim their homes by force. This massive military operation which

25 succeeded in retaking the area within a matter of days was known as

Page 418

1 Oluja, or Storm, Operation Storm. And although Operation Storm did not

2 spell the end of the armed conflict between Serbs and Croats, it would

3 mean the end for many Serbs of their lives on their ancestral lands.

4 Your Honours, Croatia's right to reintegrate the Krajina into its

5 internationally recognised borders is not in dispute here, but

6 Operation Storm encompassed another objective as well, to drive out the

7 Serb civilian population and ensure their permanent removal.

8 By the time Operation Storm and its accompanying mop-up

9 operations were over, almost the entire Serb population had been driven

10 out and the Serb community was a scarred wasteland of destroyed villages

11 and homes. By the end of the first day of the operation the vast

12 majority of Krajina Serbs were in panic-stricken flight, not by accident

13 but by design, through a successfully implemented plan to achieve just

14 that through the shelling of civilian towns and villages. For the few

15 who remained, largely the elderly and infirm, life became a nightmare

16 during which their homes and villages were plundered and destroyed on a

17 massive scale as they were arrested and harassed and as many were

18 murdered. As one international observer wrote in anguish, "This is

19 criminal. Is there nothing that can be done?"

20 This case is about three men who were instrumental in those

21 crimes, General Ante Gotovina was the commander of the Split Military

22 District, and I'll show you that on the screen. That's the portion of

23 this map that appears in red and in the chequered part of the red area.

24 And he commanded approximately 30.000 troops in the area.

25 General Gotovina planned and ordered the artillery operation that was

Page 419

1 intended to drive the Serb civilians out, and his troops engaged in

2 widespread crimes against those Serbs who remained.

3 General Mladen Markac was the commander of the special police,

4 the military arm of the Ministry of Interior which worked in tandem with

5 General Gotovina's forces and were also responsible for a portion of the

6 artillery operation and responsible for the destruction that followed.

7 And General Ivan Cermak who was sent personally by

8 President Tudjman to assume the position of garrison commander and

9 effectively the military governor of the area and who deflected

10 international concerns about the crimes while failing to address them and

11 facilitating their commission.

12 These three men were not alone. Foremost among their

13 co-participants in this joint effort to force Serbs from the Krajina was

14 President Franjo Tudjman, the president of the Republic of Croatia and

15 the Supreme Commander of it's armed forces, as well as other high-ranking

16 officials. The contribution of the three accused to this joint effort,

17 however, will be the focus of this trial.

18 Your Honours, although this case is about the crimes that

19 occurred from the beginning of August to the end of September 1995, it

20 may be helpful to put them briefly in context and recognising in so doing

21 that no summary can capture the many complexities and many tragedies of

22 ethnic conflict.

23 The Serbs of the Krajina had lived there for centuries. The name

24 Krajina itself refers back to the military empire established by the

25 Habsburg Empire in the 16th Century to resist Ottoman incursions during

Page 420

1 which time many Serbs came to the region. While there are some who may

2 trace the roots of the conflict between Serbs and Croats back through the

3 centuries, you will hear relatively little dating back that far. You

4 will, however, hear about the conflict's links to the events of the more

5 recent past and particularly to events during World War II. During that

6 time, the violently nationalist Ustasha regime murdered Serbs on a

7 massive scale. The precise numbers to this day remain a subject of

8 controversy in the region but even the most conservative estimates

9 capture the appalling and systematic nature of the crimes committed

10 against Serbs during that time.

11 At the same time, the Serbian Chetnik forces garnered a

12 reputation among Croats for brutality, and in the conflict that followed

13 the disintegration of Yugoslavia in the 1990s, Serbs and Croats routinely

14 referred to each other pejoratively and often themselves proudly as

15 Ustashas or Chetniks.

16 As the dissolution of Yugoslavia began to become a reality in the

17 early '90s, nationalist parties emerged to represent and promote the

18 perceived interests of each group. In Croatia where Serbs constituted 12

19 to 13 per cent of the population at the time, the Croatian nationalist

20 party HDZ, standing for Croatian Democratic Union, won the 1990 elections

21 under the leadership of Franjo Tudjman. The HDZ sought an independent

22 Croatia, the realisation of a long-held dream to restore a fully

23 independent Croatian nation.

24 Although the Serbian nationalist party SDS, standing for Serbian

25 Democratic Party, was not a particularly successful party in those

Page 421

1 elections, it began to gather greater support among Serbs in the face of

2 evolving events, which included a new draft constitution that removed the

3 status of Serbs as a constituent nation in Croatia and imposed reduction

4 of Serbs from the police and generally increasing inter-ethnic tensions

5 and violence.

6 Now, this is not to suggest that the actions of the SDS were

7 simply reactive or justified, but it does, however, reflect the synergy

8 of nationalism at the time as Serbs became more nationalistic and

9 Croatian nationalists gathered further support in the face of growing

10 Serb nationalism in a vicious and tragic spiral.

11 The SDS under the leadership of first Milan Babic and then

12 Milan Martic took the position that if Croatia could leave Yugoslavia in

13 which Serbs were a constituent nation, then the Serbs in Croatia could

14 leave Croatia with the land they considered to be theirs. Working

15 closely with Slobodan Milosevic they initiated steps to separate and

16 control areas they deemed Serbian in anticipation of linking those areas

17 to Serbia and to territories in Bosnia claimed by the Bosnian Serbs. The

18 Croatian Serb leaders first declared autonomous regions, the outlines of

19 which you saw on the screen earlier, and then a state, the RSK.

20 The RSK encompassed areas such as those around Knin, which will

21 be the subject of discussion during the course of this case where Serbs

22 were the majority, and it also encompassed areas such as Eastern Slavonia

23 where the population was more mixed or where Croats were the majority.

24 In the course of or after taking these territories, RSK forces often

25 assisted by the Yugoslav Army or other forces from Belgrade, forcibly

Page 422

1 expelled Croats through murder, inhumane acts and other crimes. These

2 crimes formed the basis for the prosecutions and convictions before this

3 very Tribunal of Serbian leaders Babic and Martic.

4 By the beginning of 1992, after the Serbs had taken approximately

5 one-third of Croatian territory, the international community brokered a

6 cease-fire and the introduction of UN troops to monitor and maintain the

7 peace. Four United Nations Protected Areas or UNPAs were declared and

8 created, and you see those on the screen, and UN peacekeeping forces were

9 introduced. This area on screen now is the area covered by this

10 indictment and was part of one of those protected areas known as

11 Sector South.

12 Between January 1992 when the UNPAs were created and the

13 beginning of August 1995, the international community attempted to

14 resolve of the crisis through various peace proposals or peace plans.

15 These efforts attempted to balance Croatia's insistence on the integrity

16 of its internationally recognised borders, an objective shared by the

17 international community, with the Serbian insistence on an independent

18 state within the territory you've seen. The best known of those efforts

19 the Z-4 plan, offered the Krajina Serb leadership substantial autonomy

20 within Croatia but the RSK leadership and particularly Milan Martic

21 rebuffed these efforts. For Croats this enhanced the risk of a long-term

22 stalemate that could eventually make the RSK a fait accompli.

23 And as these ultimately fruitless negotiations went on, Croatia

24 was in the process of transforming its initially modest fighting forces

25 into a formidable and well-equipped army. Between 1992 and 1995, it

Page 423

1 tested its capabilities in several military operations into the Serb-held

2 territory. These included Miljevacki plateau, Maslenica bridge,

3 Medak Pocket, and Operation Flash, about which you'll hear.

4 Now, Your Honours, while the conduct of these operations is not

5 directly in dispute in this case or at issue in this case, you will hear

6 evidence that they gave rise to international concern over the treatment

7 of Serb civilians and that Serbs in the Krajina understood that civilians

8 had not always faired well at the hands of the Croatian army.

9 In July 1995, a combination of factors converged - most memorably

10 the Srebrenica massacre and the threat to Bihac by Serbian forces -

11 factors that persuaded President Tudjman that Croatia would have

12 sufficient international support or at least would not suffer any

13 political repercussions for retaking the Krajina through military force.

14 The first step toward this objective was known as Operation

15 Summer during which General Gotovina's forces took Glamoc and Grahovo in

16 Bosnia and you see them depicted here on the map. In so doing they

17 captured the high ground above Knin, which was the capital of the RSK,

18 thus bringing it within direct observation and within artillery range and

19 simultaneously cutting Knin off from its lifeline to Belgrade with its

20 value as a supply centre for Serb forces. Meanwhile, Croatian forces

21 under General Gotovina's command regularly shelled Serb villages and

22 farms in the Krajina increasing Serb fears and triggering a flow of Serb

23 refugees into Knin.

24 On July 31, 1995, in a meeting that was captured on tape as were

25 many others, President Tudjman met with his key military and political

Page 424

1 advisors, including General Gotovina and General Markac, to plan the

2 attack on Krajina Serbs for which Operation Summer had set the stage.

3 President Tudjman expressed the goal in this way: "In which way

4 do we resolve it? That is the subject of our discussion today. We have

5 to inflict such blows that the Serbs will to all practical purposes

6 disappear, that is to say, the areas we do not take at once must

7 capitulate within a few days. Therefore, our main task is not Bihac but

8 to inflict such blows in several directions that the Serbian forces will

9 no longer be able to recover but will have to capitulate."

10 To strike such blows that the Serbs will to all practical

11 purposes disappear, to inflict such blows that the Serbian forces will no

12 longer be able to recover. These words may appear somewhat ambiguous

13 initially but as the discussion continues, it becomes clear what

14 President Tudjman has in mind.

15 After hearing the operational recommendations of his top military

16 figures and insisting that the Serb forces not be encircled but given a

17 way out so that last-ditch stand which would cost Croatian casualties

18 could be averted, President Tudjman observed that something was missing.

19 It was time, he said, to hit Knin, which had remained untouched while

20 Croatian towns and villages had been destroyed.

21 "Gentlemen, I accept your views in principle. There is still

22 something missing, and that is the fact that in such a situation when we

23 undertake a general offensive in the entire area, even greater panic will

24 break out in Knin than has to date. Accordingly, we should provide for

25 certain forces which will be directly engaged in the direction of Knin.

Page 425

1 And, particularly, gentlemen, please remember how many Croatian villages

2 and towns have been destroyed, but that's still not the situation in Knin

3 today ..." He goes on: "But their counter-attack from Knin and so

4 forth, it would provide a very good justification for this action and

5 accordingly, we have the pretext to strike if we can with artillery you

6 can ... for complete demoralisation."

7 General Gotovina immediately assured President Tudjman that this

8 represented no problem. "Mr. President, at this time we completely

9 control Knin with our hardware. That's not a problem. If there is an

10 order to strike at Knin, we will destroy it in its entirety in a few

11 hours. With armoured forces, and medium and long-range missile systems."

12 President Tudjman emphasised again that the time to pay back the

13 Serbs had arrived.

14 "Therefore, we need to be bold. That means not just having

15 things under control but taking it back as quickly as possible so he gets

16 a taste of it and we pay him back."

17 JUDGE ORIE: Mr. Tieger, you included the word "back" which I do

18 not find on my screen, the first "back." Take it back.

19 MR. TIEGER: Thank you, Your Honour.

20 JUDGE ORIE: Please proceed.

21 MR. TIEGER: And then President Tudjman made crystal clear what

22 was to happen when they strike Knin with artillery for complete

23 demoralisation: "We've said it here, that they should be given a way out

24 here ... because it is important that those civilians set out, and then

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

Page 426

1 psychological impact on each other."

2 General Gotovina immediately underscored President Tudjman's

3 point. He noted that civilians were already leaving Knin and said:

4 "That means that if we continue this pressure, probably for some time to

5 come there won't be so many civilians, just those who have to stay who

6 have no possibility of leaving."

7 President Tudjman was concerned about one problem that could have

8 international ramifications. Was the attack on Knin possible without

9 hitting the UNCRO camp which was located on the southern edge of Knin?

10 General Gotovina assured him that there was no reason for concern.

11 And first I'd like to show Your Honour the map of Knin, and this

12 depicts here at the southern portion the UNCRO facility that

13 President Tudjman was speaking about when he expressed his concern about

14 whether that would be hit.

15 And if we could return to the large picture. Just so you can

16 place it in the context of Knin.

17 As I said, Your Honour, after President Tudjman posed this

18 question, General Gotovina responded assuring him at that there was no

19 reason for concern.

20 "At this moment, we can engage in extremely precise operations at

21 Knin, systematically, without aiming at the barracks in which UNCRO is

22 located. (We have all the photographs and know exactly ...)."

23 And he said a moment later: "This moment all of our weapons are

24 guided, directly guided."

25 The intention to get Serb civilians to flee was also reflected in

Page 427

1 efforts to broadcast false radio messages and drop fake leaflets that

2 pretended to be from Serb authorities, leaflets and broadcasts

3 instructing civilians to flee. Here's one of them instructing the entire

4 civilian population to withdraw from the area and providing a route

5 because of the expected attack by the "Ustasha army."

6 This was not perfectly done as you'll see from the stamp at the

7 bottom. The first four letters are in Latin script instead of Cyrillic.

8 But that's not the only reason you know about these efforts. The

9 minister of defence later bragged about them and General Gotovina himself

10 later wrote in his book, which was entitled "Offences and operations of

11 the Croatian army and the Croatian Defence Council," which was published

12 in 1996, in referring to leaflets for the population to leave he wrote

13 that: "It is true that such leaflets were dropped from aircraft prior to

14 Operation Oluja and that this action had an effect."

15 Indeed General Gotovina was sufficiently impressed that he used

16 it in his next operation, that time in Bosnia and that time purporting to

17 be from the Bosnian Serb army, again directing the Serb civilian

18 population to leave.

19 These efforts were also accompanied by a broadcast from

20 President Tudjman ostensibly urging Serbs to stay. I'd like to read out

21 President Tudjman's -- well, I think you'll actually see it in Sanction,

22 but I'd like you to be to able to hear the actual language spoken by --

23 or words spoken by President Tudjman, and particularly the end of his

24 words and the little chuckle at the end which reflect, we submit, his

25 characterisation of this effort.

Page 428

1 If that could be played.

2 [Audiotape played]

3 JUDGE ORIE: Mr. Tieger, this is not in evidence at this moment.

4 Therefore, it might not be a major problem. There's no translation. But

5 just for guidance to the parties if any video or audio is played,

6 sufficient time should be given even if we see the English text on our

7 screens it should be on the official transcript as well. Therefore, I

8 will work out at a later stage a procedure by which we have both the

9 words spoken on the English and on the French transcripts.

10 MR. TIEGER: Your Honour, I'll be happy to read it out at this

11 point if that would be helpful and put it on the record.

12 JUDGE ORIE: Perhaps if you could read it out briefly so that it

13 then also will appear on the French transcript which is produced a couple

14 of days later. Please proceed first by reading.

15 MR. TIEGER: What President Tudjman said is this: "A leaflet of

16 this sort, general chaos, the victory of the Croatian army supported by

17 the international community and so forth, Serbs, you are already

18 withdrawing and so forth and we are appealing to you not to withdraw. We

19 guarantee. This means giving them a way out while pretending to

20 guarantee civil rights, et cetera."

21 "While pretending to guarantee civil rights, et cetera," with the

22 knowing chuckle at the end.

23 These broadcasts complemented the effort through shelling,

24 leaflets, and fake broadcasts to get the civilians to flee while

25 simultaneously providing a fig leaf for Croatian efforts and intentions.

Page 429

1 Your Honours, the departure of the Serbs realised a long-term

2 political ambition of President Tudjman who had long believed, like other

3 nationalist leaders in the region, that multi-ethnic states were

4 unsustainable, that relatively large numbers of people of another

5 ethnicity threatened the stability of the state. This was a position he

6 openly expressed to international diplomats or to other nationalist

7 leaders in the region.

8 Put more starkly as one of President Tudjman's aides said to the

9 UN ambassador, Serbs in the Krajina were viewed as a cancer on the

10 stomach of Croatia. And the solution to this problem was reconfiguring

11 the demographics of Croatia.

12 In 1992 he discussed the division in Bosnia between its Serb,

13 Croat and Muslim ethnic groups through population transfers with Bosnian

14 Serb leader Nikola Koljevic, another proponent resolving the crisis in

15 Yugoslavia through largely homogenous states built along ethnic lines.

16 As Koljevic said: "The term 'homogeneity' was, as you know, vilified in

17 Yugoslavia. Why should it be something terrible for people to live with

18 people who are closest to them?" And President Tudjman agreed:

19 "Wherever national problems so conceived emerged as they did with us,

20 that was resolved from World War I and World War II. That was brought to

21 a conclusion by exchanges."

22 As one of President Tudjman's advisors related in August 1995

23 about a conversation he had with Slobodan Milosevic: "If there are fewer

24 Serbs in Croatia and Croats in Serbia, I have to tell you the better our

25 future relations are going to be." Referring to Eastern Slavonia, the

Page 430

1 sole remaining territory under the control of the Croatian Serbs, he

2 noted: "An autonomous region within the Republic of Croatia would be a

3 potential Trojan horse for Serbian politics."

4 Indeed, Your Honours, as the evidence will show, the

5 preoccupation with the risk of a continuing Serb presence in Croatia was

6 even reflected in President Tudjman's rejection of peace -- of possible

7 peace agreements that would provide the land to Croatia but which ran the

8 risk that in so doing large numbers of Serbs would return to Croatia.

9 Instead of accepting an agreement that would give land back to Croatia,

10 he preferred to put Croats from those rejected areas into areas such as

11 Western Slavonia that no longer contained Serbs, thereby keeping a

12 largely homogenous state and Western Slavonia was now available for such

13 a purpose. As one of President Tudjman's advisors said to him after

14 Operation Flash during which the Croatian army retook Western Slavonia:

15 "The Serb problem in Western Slavonia has been solved. There's no more

16 than a thousand of them including old women and the elderly, and there

17 are no more than 300 to 400 people who are political factors."

18 And after Serbs had been driven from the Krajina, the same goal

19 of a reduced Serb presence meant keeping them out. I'll quote from a

20 conversation about one part of Krajina where Serbs had lived.

21 "If you ask me the first, I define five priorities according to

22 the urgency of colonising these places with Croats. If you ask me, this

23 thing right here is the first and second priority. We should bring

24 Croats back here urgently and this area should be urgently colonised with

25 Croats and we should by no means let more than 10 per cent of Serbs be

Page 431

1 here ever again. Because, that's where we were cut off."

2 President Tudjman was more emphatic: "Not even 10 per cent."

3 Now, this reference to colonisation of Croats reflected a related

4 preoccupation of President Tudjman to ensure that areas emptied of Serbs

5 were quickly refilled with Croats. In the context of Knin and other

6 cities that had been overwhelmingly Serb before the war but had long ago

7 been Croat, that meant, as he said on the 23rd of August, we should make

8 Knin Croatian as fast as possible.

9 This was achieved in two ways, through the destruction of their

10 community which sent an unmistakable signal to Serbs that they shouldn't

11 or couldn't come back and through bureaucratic obstacles to keep them

12 out. First President Tudjman imposed laws to restrict the time within

13 which Serbs could reclaim their property, the property they had abandoned

14 when they were driven out of the Krajina. Quoting President Tudjman: "I

15 am with the more radical, if someone has left the country and does not

16 appear there, I don't know, a month or three months, et cetera, that

17 shall be considered, think of the wording, state property, et cetera. We

18 have come out of a war, et cetera, define it like that."

19 And then the comment: "Not three months. Three months is too

20 long because we ..."

21 And President Tudjman again: "Okay. A month then."

22 This initially imposed period of 30 days was expanded to a

23 largely symbolic 90 days under international pressure, although even that

24 period was also recognised by the international community as

25 accomplishing what Croatian authorities had in mind, and that is an

Page 432

1 effective barrier to Serb return. At the same time that

2 President Tudjman and Croatian authorities imposed these purposefully

3 restricted time limits, they also intentionally created obstacles to

4 ensure that Serbs could not return in time. Thus in response to

5 questions about entry visas for Serbs who wanted to come back,

6 President Tudjman said in August 1995: "I would not give anything. You

7 have to give instructions to the customs that they should not let people

8 with papers to cross the border."

9 JUDGE ORIE: I heard you say "with papers" but it reads "without

10 papers."

11 MR. TIEGER: Sorry, Your Honour. Thanks for the correction.

12 JUDGE ORIE: Please proceed.

13 MR. TIEGER: And then the comment: "President, let us get

14 inspired the way it is in Western Slavonia." And that's a quote and let

15 me mention that that was the area that was the subject of Operation Flash

16 that we mentioned earlier and the subject of the earlier reference to the

17 problem being solved because there were few Serbs left.

18 "It was very positive for us because no one came back." Adding

19 then: "We should not let them come back -- we should not let them come

20 here. No way."

21 And as President Tudjman further explained later in the same

22 discussion: "If we let 204 persons come here, tomorrow you would have

23 1.204, and in 10 days 12.000. Nothing for now."

24 The combination of these purposefully restricted time periods and

25 the obstacles to return was quite effective as stated in a Security

Page 433

1 Council report on the 31st of December, 1995, given the various barriers

2 in crossing the border, requiring the Serbs to return within that time

3 frame to reclaim their property constitutes -- "Constitutes a virtually

4 insurmountable obstacle."

5 Following the successful effort to drive Serbs out,

6 President Tudjman spoke with great satisfaction with the new

7 circumstances. In a speech on the 26th of August, 1995, to cheering

8 crowds he stressed Knin's importance as a "royal Croatian town," which

9 never again will anyone be able to endanger."

10 [Videotape played]

11 MR. TIEGER: And Your Honour if the Court would prefer we can

12 play that again and I can read it out for the benefit of the transcript.

13 JUDGE ORIE: Perhaps we could already try to do it in the way in

14 which I intend to do it during trial, that is that especially if the

15 words are spoken very quickly, which seems not to be very much the case

16 here, but that if then -- but if there are any other suggestions by the

17 interpreters, I'd like to hear that one the interpreters reads whether

18 the English text as it appears on the screen reflects what is --

19 correctly reflects what is said in the original language and that the

20 other interpreter then reads this text aloud so that it appears on the

21 English channel and that it also appears on the transcript.

22 For the French interpreters, then one of the interpreters, and I

23 know it's teamwork but it works out well usually, that the one

24 interpreter reads whether the English, as we see it on the screen,

25 correctly reflects what is said in the original language, and that the

Page 434

1 other interpreter who might not be able to follow the speed of speech

2 then translates -- translates it into French so that we have it on the

3 French audio, which will finally result in a French transcript.

4 That is my suggestion. I know it's a problem. Could we give

5 that a test at this very moment and see whether it works? If there's any

6 comment from the -- either the English or the French booth. I'd like to

7 hear it. I'm at this moment listening to Channel 4, the English channel.

8 THE INTERPRETER: From the English booth we will do that,

9 Your Honour.

10 JUDGE ORIE: [No interpretation] [In English] Thank you.

11 Then could you please replay it, Mr. Tieger, and we'll check

12 whether it appears on both the English and the French audio channel.

13 [Videotape played]

14 THE INTERPRETER: "[Voiceover] But today it is Croatian Knin and

15 never again will it go back to what was before, when they spread cancer

16 which has been destroying the Croatian national being in the middle of

17 Croatia and didn't allow the Croatian people to be truly alone on its

18 own, that Croatia becomes capable of being independent -- an independent

19 and sovereign state, a part of the world community of sovereign states

20 under the heaven."

21 JUDGE ORIE: I would like to thank the interpreters. I wished

22 that all audios and videos would contain speech at such a slow speed,

23 which would certainly help us, but it seems to work well. Thank you for

24 your cooperation.

25 Please proceed, Mr. Tieger.

Page 435

1 MR. TIEGER: Thank you, Your Honour.

2 As President Tudjman said a year later in a speech on the first

3 anniversary of taking Knin and referring to an ancient king: "We have

4 returned Zvonimir's city, the Croatian city of Knin, to the lap of the

5 Croatian motherland clean as it was in Zvonimir's time."

6 All of these factors, Your Honours, reflect the intent behind the

7 discussion of the 31st of July about taking the opportunity, the pretext

8 to strike with artillery for complete demoralisation. And in accordance

9 with the discussion between President Tudjman and Generals Gotovina and

10 Markac, here is the order given by General Gotovina to do precisely what

11 President Tudjman had stated. To shell Knin and other relatively large

12 towns of the Krajina and one across the border.

13 "These are the tasks of the artillery-rocket groups."

14 As you can see the order instructs them to engage in a number of

15 conventional uses of artillery, provide support to main forces by

16 launching a powerful assault on the enemy's first line, hit the enemy's

17 command posts, his communication centres, his artillery positions, and,

18 Your Honours, in addition to that, by targeting the towns of Drvar, Knin,

19 Benkovac, Obrovac, and Gracac with artillery fire.

20 This specific identification of whole towns as a target alongside

21 of military targets was echoed in the orders of his subordinates. I'd

22 like to show you the order from his artillery commander.

23 As you can see toward the bottom of the screen, that order

24 provides: "Neutralise the artillery positions of enemy batteries,

25 destroy the enemy's communications centres and command post. During the

Page 436

1 attack, secure the flanks with units from the 1st echelon."

2 And then: "Shell the towns of Drvar, Knin, Benkovac, Obrovac,

3 and Gracac."

4 And as that flow continued here's an artillery attachment for one

5 of the four operational groups, that is Operational Group Zadar and the

6 task for an artillery rocket group.

7 We'll go to the next page. Again a number of conventional uses

8 of artillery. Neutralise the enemy artillery battery positions and

9 destroy their communications centres, command post. Secure the 1st

10 echelon, combat echelon unit, flanks in attack. And again, alongside of

11 these military or conventional military objectives, "Put the following

12 towns under artillery fire: Benkovac, Obrovac and Gracac."

13 Thus beyond a legitimate effort to reintegrate the Krajina

14 through military means, these orders reflect the plan discussed on July

15 31st to drive Serb civilians out by shelling and thereby realising the

16 ambition of a mainly homogenous state that was largely free of Serbs.

17 Now, Your Honours, you will hear evidence of the shelling of

18 other towns and villages in the Krajina, indeed more than a hundred were

19 targeted where there was no meaningful military function or purpose, but

20 as General Gotovina stated in his book, Knin was the most important

21 target.

22 Your Honours, there are a few photographs of Knin on the screen.

23 Although Knin was not a large city by many standards, perhaps

24 15.000 people, it was nevertheless as you've heard a place of

25 significance to both Serbs and Croats. To the Croats it was the ancient

Page 437

1 capital and town of Croatian kings and now the centre and symbol of

2 Serbian separatism. For Serbs in the Krajina, it was their capital and

3 principal city, but for those who lived there, it was their home where

4 their families had lived for generations, where families lived, children

5 went to school, where there were playgrounds, bakeries, shops.

6 In addition to the Serbian population in Knin there was a

7 considerable number of members of the international community. As you've

8 heard already, UNCRO was there. That's the United Nations Confidence

9 Restoration Operation which succeeded UNPROFOR. As well as

10 representatives of the European Community Monitoring Mission, ECMM,

11 United Nations Civilian Police, UNCIVPOL; United Nations Military

12 Observers, UNMOs; and others, many of whom you will be hearing from

13 during the course of this case.

14 These internationals represented the peace forces assembled by

15 the international community to monitor and maintain the increasingly

16 precarious cease-fire back in July and the beginning of August 1995.

17 Many of them not surprisingly had military experience and a number of

18 them from whom you'll hear had an artillery background.

19 Although people in Knin were aware of Croatian military moves and

20 the risk of conflict and some people had left, the vast majority had

21 remained. Indeed, in the days preceding Storm, Knin's population had

22 swelled and increased from the arrival of Serb refugees who had fled from

23 the areas being shelled by Croatian forces under General Gotovina's

24 control.

25 Knin was hardly a military stronghold as you'll hear and the

Page 438

1 Croatian army, which had impressive intelligence capabilities was well

2 aware of the lack of defence and military capability within Knin and the

3 single unsupported line of defence along the zone of separation. In Knin

4 there were no trenches dug, no fortifications constructed, no anti-mines

5 laid, no troop positions, and not a single air-raid or defence drill.

6 There were almost no troops in the town since virtually all the

7 troops were at the front lines in preparation for the imminent attack.

8 As I mentioned, the entire Serbian army defence consisted of a single

9 perimeter that lacked second and third lines, in case the front line was

10 penetrated.

11 Now you'll see on screen an aerial photo of Knin, Your Honours,

12 and as you can see although it's very small, Knin held a number of sites

13 with varying degrees of military significance. The military

14 headquarters, the parliament, the police headquarters, the barracks, the

15 petroleum and oil depot, the railway yard, a factory that made screws.

16 But in any event, General Gotovina's interest was not in the military

17 advantage to be gained by destroying, capturing, or neutralising any of

18 these specific sites but in doing what had been planned, demoralising the

19 civilians and getting them to flee. And as you will hear, the shelling

20 of Knin was achieved in a manner to achieve precisely that purpose and

21 virtually everyone who experienced it recognised it as an attack on the

22 town as a whole and its civilian inhabitants.

23 At precisely 5.00 a.m. on the 4th of August, 1995, the attack

24 began with a massive rocket and artillery barrage which stunned the

25 population, most of whom were settled in their homes. Indeed, some

Page 439

1 observers from whom you'll hear were reminded of World War II documentary

2 footage or of the shelling of Sarajevo. In any event, all were stunned

3 by its ferocity. Shells fell in all parts of the town, in areas where

4 there was a mix of military sites and civilian structures and in purely

5 residential areas. The one place shells didn't fall as General Gotovina

6 had assured President Tudjman was on the UNCRO headquarters, underscoring

7 the capacity to control and direct fire.

8 As this went on, many people huddled in basements in terror

9 awaiting a letup in shelling so that they could figure out what to do and

10 where to go. At UNCRO headquarters, UNCRO officials observed the

11 shelling quickly realising that although the shells were landing all over

12 the city, their headquarters were being purposefully spared. When UNCRO

13 members left the compound to rescue some of their personnel and civilian

14 employees who were outside, they found themselves under fire even when in

15 purely residential areas and observed residential areas being shelled.

16 And UNCRO received reports from outposts around the Krajina that

17 civilian population centres were being indiscriminately shelled.

18 THE INTERPRETER: The counsel is kindly asked to slow down for

19 interpretation.

20 MR. TIEGER: The UNCRO commander General Forand, attempted to

21 stop the shelling of civilians and civilian areas by sending the

22 following protest now on your screen to General Gotovina. This is to

23 protest in the most vigorous manner the unprovoked artillery attack on

24 Knin on the towns of Drnis, Medak, Bunic, Benkovac, and Kistanje.

25 Numerous civilian casualties have been caused as well as extensive

Page 440

1 material damage. "I demand the cessation of these attacks

2 immediately --"

3 JUDGE ORIE: Mr. Tieger, when you read it's well known that --

4 MR. TIEGER: You speed up.

5 JUDGE ORIE: -- you speed up, and since you have been asked to

6 speak -- to slow down, could you please resume reading.

7 MR. TIEGER: "In my opinion, this aggression against unarmed

8 civilians is completely contrary to international humanitarian law and I

9 will document all attacks fully for investigation by international

10 authorities."

11 The message was given to a military observer to deliver to the

12 Croatian army liaison officer who reported -- and the UNMO reported back

13 to General Forand that had been delivered.

14 The intense barrage continued for approximately two hours or so.

15 JUDGE ORIE: I think that the French translation -- please

16 proceed, Mr. Tieger.

17 MR. TIEGER: The intense barrage which had commenced at 5.00 a.m.

18 continued for approximately two hours or so until subsiding into sporadic

19 harassment fire which lasted for the remainder of the 4th, indeed until

20 well into the late hours. While estimates of the precise number of

21 shells that fell during the bombardment vary, there is no dispute among

22 the witnesses that during the initial barrage and the subsequent sporadic

23 shelling hundreds and hundreds and hundreds of shells and rockets, up to

24 much larger estimates, were fired into Knin.

25 By the night of the 4th a panicky flight from Knin was underway.

Page 441

1 This excerpt from the operational diary of the Split military district

2 shows that the army and General Gotovina were well aware of this: "Panic

3 in Knin, evacuation of civilians and Krajina Corps command, that is KK

4 command, expected. ED will follow up on that as well as observation

5 posts. Their in-depth communications are broken. They have no

6 reserves."

7 Your Honours, this panic-stricken flight that I referred to and

8 it's referred to in this document was visible that evening and on the

9 morning of the 5th. Yet despite the awareness that the military was in

10 flight, the following morning the pattern was repeated. At approximately

11 05.20 that morning on August 5th, another massive artillery barrage was

12 unleashed on Knin, followed again by sporadic shelling. Again the

13 shelling spanned the city, landing in areas all around. By 10.00 the

14 Croatian army entered, not in anticipation of a street battle but convoy

15 style, in triumph to a largely deserted city.

16 Although we will never know the precise number of people who were

17 killed by the shelling or injured which by the shelling in Knin or

18 Benkovac, Obrovac, Gracac, and the other towns and villages that were

19 shelled. Witnesses on the spot contemporaneously observed bodies of

20 those killed by shelling in the streets of Knin and in the Knin hospital.

21 Estimating from those observations some 20 to 30 or more.

22 This is quite consistent with the report from head of UN

23 peacekeeping operations Akashi to then under-secretary General Kofi Annan

24 on the 23rd of August when he reported seeing four large mounds that gave

25 the impression of a mass grave and where Croatian officials noted that

Page 442

1 the bodies had been placed in bags ten centimetres apart. A Croatian

2 Civil Defence official present at the site told Akashi that most of the

3 deceased were civilians from Knin who had been killed during the Croatian

4 shelling of the city on the 4th and 5th of August. There were 96 crosses

5 at that time marking the mass grave site.

6 Your Honours, there are several principles that govern the

7 lawfulness of shelling. Foremost among them are the principles of

8 distinction and proportionality. Thus with respect to distinction,

9 targeting of civilians or civilian objects is impermissible, and in

10 keeping with that principle of distinction between military and civilian

11 targets, shelling that does not discriminate between civilian and

12 military targets is impermissible whether it results from shelling that

13 is not directed at a specific military target or shelling that uses a

14 method of a nature to strike military objects or civilians without

15 distinction. And assuming compliance with these principles of

16 distinction, proportionality requires the expected civilian death, injury

17 or damage not to be excessive in relation to the concrete and direct

18 military advantage anticipated.

19 As I mentioned earlier, virtually all of those who experienced

20 the shelling understood that it was directed toward the civilian

21 population. Some understood it because the shells landed on their houses

22 or in their neighbourhoods. Others because they saw from a safer vantage

23 that shells were falling in purely residential areas or were being fired

24 randomly around the town. Some with a military background or knowledge

25 of artillery recognised some of the weapon systems used including rockets

Page 443

1 used for area use rather than pinpointing particular targets or

2 recognised targeting procedures being employed including adjusting fire

3 to hit more precisely within residential areas.

4 At other times there were no such adjustments. Shells were

5 lobbed in individually so that they would fall relatively randomly

6 without honing in on a particular target and with little likelihood of

7 destroying a specific target.

8 All observed on the second morning the intense shelling of the

9 city from which the military had fled. The manner in which the shelling

10 was conducted, Your Honours, reflects both its departure from the

11 permissible uses of artillery as well as the intention behind it. To

12 shell towns as a whole, to frighten civilians into flight.

13 Croatian officials downplayed the attack reflecting their

14 awareness of its purpose and illegality. On the 7th of August, the

15 minister of defence said in a press conference: "We have tried

16 everything to treat civilians according to the international law. When

17 we began the action on the first day we tried to avoid all large

18 settlements thugs giving the Serbs another chance to surrender. However,

19 when they began shelling Croatian cities on the free territory instead,

20 we decided to carry out the operation of capturing all these settlements

21 to and end." General Gotovina's lengthy account of the operation in his

22 book omits the artillery attack on the 4th entirely.

23 Rather than avoiding attacks on large settlements on humanitarian

24 grounds as suggested by the minister of defence, the shelling of Knin and

25 other towns was at the core of the plan to drive Serbs out. Here are two

Page 444

1 additional documents, reports from an artillery unit commander on the 4th

2 of August reflecting in part its execution.

3 On the 1st we see highlighted at 6.30 hours five projectiles from

4 a T-130-millimetre at the hospital in Knin. And at 8.00, six projectiles

5 from a T-130-millimetre at a residential area in Knin. And in the second

6 report we see at 13.30 hours, firing with eight projectiles from a

7 T-130-millimetre at Knin. And at 15.00 hours in irregular intervals, a

8 total of 18 projectiles fired from a T-130-millimetre at the general area

9 of Knin.

10 Despite the bombardment, Your Honour, the Court should not get

11 the wrong impression. This was not Stalingrad or Vukovar where weeks of

12 shelling reduced the city to rubble. It was not the most destructive

13 shelling of the war. But that is precisely the point. The intention was

14 not to destroy Knin, the city of Zvonimir into which President Tudjman

15 intended to resettle Croats but to drive out Serbs.

16 You will hear evidence during the course of this case of a

17 provisional assessment of damage in Knin that was undertaken by UNMOs on

18 the 17th of August which found that 44 buildings were damaged, 21

19 severely and 23 slightly, and that they were in the close vicinity of

20 military targets. And you'll also learn that those who actually

21 conducted this provisional assessment at the time emphasised its cursory

22 nature and later conducted patrols that identified further damage and

23 shell craters in purely residential areas where there were no possible

24 military targets.

25 The subsequent findings are consistent with the amount of

Page 445

1 destruction noted by other witnesses and also with a final document on

2 destruction entitled "Data on population left and destroyed houses,"

3 which indicates hundreds of houses destroyed or partially destroyed in

4 Knin.

5 THE INTERPRETER: Could counsel please slow down for the benefit

6 of the record. Thank you.

7 MR. TIEGER: Other witnesses, Your Honour, also observed that as

8 time went on they were able to identify additional evidence of shelling

9 in purely residential areas.

10 Indeed even taking the provisional assessment on its face which

11 reflects more than 40 civilian buildings, including large apartment

12 buildings in which many people resided had been damaged by the shelling,

13 when buildings such as the military headquarters, clearly a military

14 target, was struck by one or two shells and left basically intact,

15 these -- these factors indicate damage to civilian buildings at a level

16 in comparison to the damage to significant military targets, which

17 indicates the indiscriminate nature of the shelling.

18 Your Honours, the Court will also hear evidence of an order to

19 evacuate by Milan Martic, the president of the RSK and also of a

20 pre-existing evacuation plan. Now, here is that plan which as you can

21 see was issued approximately 12 hours after the shelling of Knin and

22 other towns and villages had commenced. The facts of the evacuation plan

23 in the evacuation order are these: The evacuation plan represented the

24 customary efforts of civilian bodies, civilian protection bodies, common

25 to most states. There was a civilian defence section of the RSK

Page 446

1 government that had prepared an evacuation plan in the event of various

2 forms of emergency, including not only shelling of civilian areas but

3 also other emergencies such as natural disasters. It contemplated the

4 temporary removal of people at risk to safer areas, generally into larger

5 towns, but with the larger towns under fire, they had to move farther as

6 the Martic order itself reflects. Martic issued the order after a full

7 day of shelling and after people were already starting to fleeing in

8 panic. Their panic was reflected in the conditions of their homes after

9 they were gone, with food left on the table and personal effects left

10 behind, and by a meeting that UNCRO officials had with RSK officials who

11 had sought their help and during which it became clear that nothing had

12 been prepared.

13 As President Tudjman would say to a crowd a few weeks later:

14 "They didn't have time to collect neither their dirty money, foreign

15 currency, or their underwear."

16 Most importantly, Your Honours, President Tudjman,

17 General Gotovina, and General Markac were not content to rely on Serbian

18 fears or an official evacuation order to rid Knin and the Krajina of

19 Serbs. They shelled and dropped fake leaflets and broadcast false

20 messages in order to get the civilian population to flee many hours

21 before the evacuation order was issued in response.

22 The order certainly did not affect the purpose and nature of

23 shelling which was intended to drive the civilians out and executed well

24 before he issued the order. Thus as reported by the HV head of

25 intelligence about the events of the 4th: "The majority of towns, (Knin,

Page 447

1 Drnis, Gracac, Plaski, Petrinja, Dubica) were directly threatened, which

2 caused a large-scale (organised or spontaneous) moving out of civilians

3 and also an organised moving out of the highest state organs (moving out

4 of the government to the area of BiH, most probably to the area between

5 Drvar and Sipovo) and the abandonment of military facilities ..."

6 As President Tudjman said on the 26th of August during a

7 triumphal trip through the Krajina: "Owing to the strength of the

8 Croatian army, the wisdom of our decisions and our leadership, they

9 disappeared in two to three days." It was indeed the decisions that the

10 political and military leadership had taken and their execution by the

11 army that led to the disappearance of most of the Serbian community from

12 the Krajina.

13 Your Honours, you previously foreshadowed the bifurcation in the

14 opening address. This would be the point at which Mr. Waespi would

15 commence, so it may be an appropriate time for a break.

16 JUDGE ORIE: Yes. We'll have a break. We will have a break --

17 how much time would Mr. Waespi need approximately?

18 MR. TIEGER: I think approximately 50 minutes to an hour, if I

19 have that --

20 JUDGE ORIE: Fifty minutes to an hour. Then we will have a break

21 for half an hour and we will resume at 10 minutes to 11.00.

22 --- Recess taken at 10.18 a.m.

23 --- On resuming at 10.55 a.m.

24 JUDGE ORIE: Before we continue, I'd like to make two remarks on

25 the matter we dealt with before the break, that is how to get the text of

Page 448

1 video and audio clips correctly on the transcript.

2 First of all, I would like to emphasise that although the

3 assistance of the interpreters to see whether the written text reflects

4 what is in the original is highly appreciated, at the same time it's not

5 their task, and it's not their responsibility that this is a correct

6 interpretation. So therefore, we do appreciate if the interpreters would

7 inform us about any striking difference between -- they notice between

8 the text originally spoken and they see on the written text.

9 Therefore, again it is assisting us in achieving the best result,

10 but it's something extra and not within their task and not within their

11 responsibility. Nevertheless, if they find anything that makes clear

12 that the translation does not reflect, I'm not talking about half a word

13 but really important differences, that's highly appreciated if they will

14 draw our attention to that.

15 Second is that working on the basis of the written text on the

16 bottom of the screen is not very easy to do. Therefore, the parties

17 should provide, and I see that the first steps may have been taken

18 already, that they should provide the booth with hard copies of at least

19 the English text but preferably also the original text so that the

20 interpreters, if they're doing this extra work, that they don't have to

21 work from just four, five or six lines on the bottom of their screens

22 which is very difficult to do. So therefore the parties should provide

23 the booth with hard copies of transcripts, preferably in two languages;

24 if that's not possible, at least in the original language.

25 Then apart from that what further is reflected on the transcript,

Page 449

1 what appears in the transcript is a matter the Chamber would like to be

2 in charge of in every respect. That means even where we encourage a good

3 and informal [Realtime transcript read in error "formal"] relationship

4 with all those who are assisting us and the parties, that finally

5 anything that should be verified on whether something appears or will

6 appear is primarily the responsibility of registry and the Chamber; and

7 therefore any such contacts which would have any impact on what we

8 finally find in the transcript, it's appreciated if the Chamber, as was

9 done today, is informed about such contacts.

10 Mr. Waespi, are you ready to proceed?

11 MR. WAESPI: Yes, Mr. President. Good morning. Good morning,

12 Your Honours.

13 As my colleague Alan Tieger announced, let me address in more

14 detail the crimes which the Prosecution says the accused are responsible.

15 Before I do that I would like to give you a brief snapshot of the main

16 aspect of the military offensive Operation Storm and I will use a couple

17 of the maps from this court binder which we have given to Your Honours,

18 members of the Defence, the registry a couple of days earlier, but we

19 will use these maps on the screen as well.

20 Your Honours, the breadth of Operation Oluja or Storm extends

21 beyond the scope of the indictment. Whilst the indictment focuses on the

22 areas of responsibility of the three accused, Operation Storm was

23 conducted over territory extending beyond the geographical limits

24 relative to the indictment and involved the participation of an overall

25 force of 127.000 members of the Croatian forces including military police

Page 450

1 and approximately 2.500 members of the Ministry of Interior, the MUP.

2 Map 15, Your Honours, in your court binder is a map that depicts

3 the whole spectrum of Operation Storm. The focus of the indictment is

4 the southern portion of the Krajina where the forces subordinated to the

5 three accused were deployed, predominantly the area of responsibility of

6 the Split Military District.

7 The manpower of the Split Military District for Operation Storm,

8 as Mr. Tieger already said, amounted to approximately 30.000, including

9 10.000 newly mobilised troops. On map 15, if we can focus now on the

10 southern part of map 15, you see the line-up of the Croatian forces

11 involved in Operation Storm. Grouped clockwise, shown in yellow,

12 starting with the 4th Guards Brigade and ending at the other side of the

13 spectrum with the Special Police commanded by the Accused Markac.

14 These are all the units, Your Honours, listed in annex A of the

15 indictment.

16 On the same map you can see the defending forces, the RSK forces,

17 shown in red, mainly consisting of units of the 7th Dalmatian Corps

18 organised mainly in brigades. Already in looking at this map,

19 Your Honours, you can see how SVK, the army of the RSK was already in a

20 pocket with the Croatian forces surrounding them at the beginning of

21 Operation Storm.

22 You heard a number of times, Your Honours, that Operation Storm

23 commenced on the 4th of August, 1995, in the early morning hours with air

24 and artillery support. The majority of towns including Knin, you know

25 where it is, Drnis, Benkovac, and Gracac were directly attacked with

Page 451

1 artillery.

2 In his book the Accused Gotovina, the book has been cited before,

3 "Offensive Battles and Operations of the HV and HVO," wrote and I quote:

4 "Towns of Knin and Drvar were shelled from the firing positions in the

5 Bosansko Grahovo area." The arrow to the right. "With 430-millimetre

6 calibre cannons. Knin was also targeted from the Miljevci area," second

7 arrow, "with the same calibre cannons. Gracac was shelled from the

8 firing positions in the Rovanjska area. And lastly, Benkovac was

9 targeted from the firing positions in the area of Mount Debeljak."

10 By nightfall of the 4th of August, the SVK and RSK leadership

11 were in disarray. Panic reigned in Knin and inhabitants left in masses.

12 Thus the stage was set for the HV to enter Knin the following day. Next

13 day, already by the 5th of August, SVK had ceased to function following

14 the break-up of its command and communication systems. On the 5th of

15 August, as you already heard, HV units mainly the 7th Guards Brigade and

16 other units of the 4th Guards Brigade entered Knin, seized the town, and

17 around by midday the Croatian state flag was hoisted at the fortress in

18 Knin.

19 In addition, Your Honours, to the seizure of Knin by the end of

20 5th August, 1995, the Split Military District controlled, according to

21 General Gotovina's own assessment, 70 per cent of the northern Dalmatia

22 area which had until then been under ASK control.

23 The next couple of days, Your Honours, Croatian forces including

24 the Special Police took control over towns such as, and I will do it

25 step-by-step so you can familiarise yourselves with these locations which

Page 452

1 will play a role throughout this trial, Gracac, Obrovac, Benkovac,

2 Kistanje, Otric, two towns completely destroyed. We'll talk about that

3 later today. Donji Lapac. And finally Srb, close to the Bosnian border.

4 These areas' mop-up operations were conducted searching the

5 captured areas and small populated villages.

6 Your Honours, turning to map 14, this is an important map. It's

7 an HV military map signed by General Gotovina. It's map 14 in your court

8 booklet. It displays the daily advancement of the Croatian forces from

9 the 4th to the 8th of August. Note the legend in the bottom left-hand

10 corner which shows the original map marking colours. Although the

11 colours, Your Honours, in the legend have faded, it is clear from the

12 coloured arrows that the colour blue, the outer rim, represents the

13 advancing HV forces as of 4th of August. Purple, 5th of August. Green,

14 6th of August. Orange, 7th of August. And finally yellow, 8th of

15 August.

16 The blue line across the top of the map denotes the northern

17 border of the area of responsibility of the Split Military District

18 during Operation Storm. In the initial phases of the operation, the

19 Special Police commanded by the Accused Markac operated predominantly in

20 the area above that blue line. As the operation progressed, some of the

21 Special Police forces were also deployed below that line and within the

22 area of responsibility of the Split Military District. And I'll show you

23 these locations a little bit later today.

24 The blue dotted line depicts the HV front line, and next to it

25 the red dotted line is the SVK front line, SVK, defending forces.

Page 453

1 Both together represent the zone of separation. The blue

2 flag-like marks positioned along the HV front line with the dark blue

3 letters depict the HV units at their start positions on 4th August, 1995.

4 And finally on this map at this point, Your Honours, note how the

5 advancing troops, blue, purple, green, orange, yellow, encircle and

6 reduce in size the Serb territory, leaving open an exit for the Serb

7 civilians to flee towards north, their border of Bosnia and Herzegovina.

8 And note that the captured territory, as of 8th of August, which includes

9 all of the areas covered by the coloured arrows.

10 Your Honours, on the 8th of August, General Gotovina reported

11 that the liberation of the whole area within Split Military District

12 so-and-so of responsibility and the tasks assigned to the MD were

13 concluded.

14 Mr. President, Your Honours, as you already heard, by the time

15 Operation Storm was over, the Krajina was in ruins. Hundreds of Serb

16 civilians killed, the remaining Serb population almost entirely gone.

17 Homes, villages, towns looted, destroyed on a massive scale, livestock

18 killed and fields burned.

19 Let me be clear, Your Honours. The loss of life, the killings,

20 the devastation, the harassment of civilians, these crimes were not

21 merely unavoidable, regrettable isolated consequences of warfare, of the

22 operation I have you've just outlined. We will present evidence about

23 the circumstances during which these actions occurred. The evidence will

24 show that these attacks on civilians, their lives, their property,

25 occurred outside the military framework, were not committed in the heat

Page 454

1 of battle.

2 There was little, if any, defence in the Krajina villages and

3 towns which were devastated by the Croatian forces. There were few, if

4 any, military targets in the civilian populated areas, and the

5 overwhelming majority of people killed were civilians or soldiers hors de

6 combat. In short, there was absolutely no military justification in what

7 the Croatian forces did to the Serb civilians and their property in the

8 Krajina in August 1995.

9 Also, not only are the acts not justified by military necessity,

10 these crimes were not isolated, random acts committed by individual

11 soldiers. You will hear evidence that suggests that the volume, the

12 widespread and systematic nature in which the crimes were committed and

13 indeed the manner in which they were committed openly, with impunity,

14 over a relatively small period of time indicates that the crimes formed

15 part of a campaign.

16 Your Honours, the three accused are charged with nine counts that

17 consists of both crimes against humanity and violations of the laws and

18 customs of war. Charges of persecutions, deportation and forcible

19 transfer, plunder of public and private property, wanton destruction,

20 murder, and finally, inhumane acts and cruel treatment.

21 Your Honours, Mr. Tieger already discussed details of the

22 shelling operation that commenced in the early hours of 4th August, 1995,

23 and that was aimed at and indeed resulted in the expulsion of the Krajina

24 Serbs.

25 Let me focus on what occurred in the heel of the shelling.

Page 455

1 Immediately after the fall in the afternoon of the 4th of August in Knin,

2 Croatian soldiers began ravaging the town by breaking into homes, shops,

3 and cafes to feast on the bounty of liquor and food left for the taking.

4 At the same time they began looting all of the choice pickings in the

5 town such as abandoned vehicles, televisions, VCRs and even furniture.

6 Not only did they do this all over town of Knin but right in

7 front of the UN compound where they set up a makeshift staging area for

8 the collection of looted items. The UN personnel and Serb refugees who

9 were confined to the UN compound watched helplessly as the Croatian

10 soldiers shot out the locks of vehicles of -- the Serb refugees were

11 forced to leave behind in order to grab whatever might be inside.

12 As the day progressed, 5 August, some Serbs were brought to the

13 UN compound by Croatian soldiers who took photographs and ID cards from

14 the Serbs before taking the keys to their vehicles and driving off with

15 them.

16 When night fell on the 5th of August, small-arms fire could be

17 heard in quick, short bursts as the Croatian soldiers "cleaned the town."

18 They also made sure to continually fire their machine-guns over the UN

19 compound to keep the Serb refugees in a constant state of panic and to

20 intimidate the members of the UN and their local staff. And when I say

21 "cleaned the town," it's inverted commas, of course.

22 A witness will tell Your Honours about a young Serb female who

23 exacted from him a promise to shoot her if the Croats entered the camp

24 because she was afraid of being raped or worse. Such was the fear

25 inspired by the first night of Croat rule in Knin.

Page 456

1 By the very next day, the burning had already begun. Even with

2 the near total lockdown of all international observers, the Croats could

3 not hide the plumes of smoke rising from towns and villages all over

4 Sector South.

5 Returning to the events in and around Knin on the 5th August. UN

6 military observers, the UNMOs, reported seeing houses burning in Knin.

7 Large plumes of smoke, and we can go back to -- go to map number 31.

8 This is the last map in your booklet, Your Honours. The UNMOs saw plumes

9 of smoke rising from Benkovac. This is approximately 50 kilometres west

10 of Knin. And the entire -- and also the village of Vrbnik, and you can

11 see that about four kilometres south of Knin, marked red with number 6.

12 The entire village of Vrbnik was looted and set on fire.

13 On the said map, 31, in Gracac, this is at the top left marked in

14 green, an UNMO team that made it back into the town observed HV soldiers

15 looting and almost all of the houses partially destroyed. The UNMOs also

16 found five houses as well as their own former accommodation burned to the

17 ground.

18 In Knin, a small number of international personnel managed to

19 make their way into the town where they all witnessed HV soldiers

20 continuing to damage the city in broad daylight in front of and sometimes

21 alongside the military and civilian police.

22 The main street of Knin was being cleansed of the dead bodies and

23 debris which had littered it after the shelling attack and clearing

24 operation the night before. One witness, Your Honours, will describe the

25 two large cattle trucks he saw parked outside the Knin cemetery on this

Page 457

1 day, and others will describe what appeared to be mass graves being dug

2 in the same area. New windows were being installed on most buildings

3 along the main street, even as others in the town were burning. Fresh

4 paint was being splashed where needed, and shell craters filled in. By

5 the next day all would appear quite undamaged in time for

6 President Tudjman's arrival to the city which would be followed by the

7 international media.

8 In this context, Your Honours, at trial you'll see a video of the

9 Accused Gotovina representing his subordinate commanders for allowing the

10 troops to ravage the town in the face of the imminent arrival of the

11 president. The irony of this situation is inescapable since the very

12 conduct which General Gotovina appears to be complaining about is not

13 only going on right outside the building in which that meeting is taking

14 place but the same conduct continued for weeks and months thereafter.

15 And the Accused Gotovina did little to stop it much less discipline his

16 subordinate commanders who, too, failed to do so.

17 The ingenuity of the Accused Gotovina's apparent fury at the Knin

18 town is reflected in the fact that in the depths of Knin the real

19 aftermath continued to be seen quite clearly. Heaps of debris from

20 shelling and looting damage were piled high and hidden from view of the

21 main street. HV soldiers and police continued to loot the empty houses

22 in Knin with the exception of those marked as Croat houses, which were

23 conspicuously preserved.

24 The Accused Markac also appears on the video. He did equally

25 little to prevent or punish this conduct in the weeks and months that

Page 458

1 followed. The transcript should reflect the Accused Cermak. I might

2 have misspoken. The Accused Cermak who also appears on the video did

3 equally little to prevent or punish this conduct. And even on the day

4 the video was made, President Tudjman appointed him the military governor

5 for the former Sector South. Nevertheless, despite these pronouncements

6 and orchestrated media events, the realities that the military

7 authorities, members of the HV including military and Special Police not

8 only continued to exercise authority in the southern part of the Krajina

9 but continued to plunder, burn, and murder their way across the

10 countryside ensuring that no Serb would return.

11 Your Honours, one international witness will give you insight

12 into the motives of the perpetrators on the ground. The HV soldiers

13 complained to him that the looting was their reward for participating in

14 the operation as they were lowly paid and it was considered as part of

15 their wages. They said that their senior commanders had specifically

16 authorised them to help themselves to the goods. When asked about the

17 destruction, the killing of livestock and the poisoning of the wells,

18 they explained that this was to prevent the Serbs from returning.

19 The witness will tell you that you understood exactly what they

20 were saying because he comes from a farming background and to destroy the

21 infrastructure and to destroy the means of a villager's livelihood would

22 ensure that no one could return and live in that particular region.

23 Your Honours, on the 7th of August, Mr. Akashi, the UN special

24 representative of the Secretary-General arrived for a tour of Knin and to

25 discuss with Military Governor Cermak the implementation of the 6th

Page 459

1 August agreement between the UN and the Croatian government regarding the

2 role of UN authorities in the former Sector South under Croatian rule.

3 A major component of this agreement was the guarantee of total

4 freedom of movement for all UN agencies in order to monitor the human

5 rights situation of the remaining Serbs in the region and to provide

6 humanitarian assistance where needed. Ironically, this discussion was

7 being had while -- held while almost the entire population of

8 international observers and Serb refugees remained confined to the UN

9 camp and other various collection centres throughout Sector South.

10 When Mr. Akashi arrived, he was permitted to have a UN security

11 escort. Some UN personnel used this opportunity to conduct

12 reconnaissance in Knin while others accompanied Mr. Akashi.

13 The looting of the town had been so thorough that when Mr. Akashi

14 asked to see an example of a looted house, one of the UN escorts from

15 whom you will hear told him, pick any house. At this Mr. Akashi simply

16 pointed to a house at random and when they entered to inspect it, true

17 enough it had been totally ransacked and looted.

18 On the 8th of August, the UN and other international personnel

19 were finally allowed outside the UN compound. These were members of

20 UNMO, UNCRO, ECMM, and the newly created human rights action teams or

21 HRATs. They had been charged with observing the conduct of the warring

22 factions on behalf of the international community but were suspiciously

23 prevented from doing so by the Croatian authorities during the crucial

24 days when their watchful eyes were most needed.

25 Your Honours, on most of these occasions such restrictions

Page 460

1 occurred when plumes of smoke could be seen rising from the areas where

2 the Croatian authorities would not permit the internationals to

3 investigate. Nevertheless, through dogged perseverance and circuitous

4 travels of the main roads, many of these internationals were able to

5 observe and document the campaign of burning, looting and killings which

6 occurred in the aftermath of Operation Storm.

7 The members of the joint criminal enterprise, and particularly

8 the three accused, condoned the above conduct, encouraging the Croatian

9 forces to continue. For example, the accused Mladen Markac and minister

10 of interior at that time Ivan Jarnjak arrived in Donji Lapac. If you

11 look at map number 15, it's approximately 80 kilometres north of Knin.

12 Donji Lapac was completely destroyed by members of the MUP

13 Special Police forces and the accused and Mr. Jarnjak commended the

14 personnel for "a job well done." However, in response to the protests

15 from the international community to cease the conduct, lukewarm attempts

16 were made such as issuing orders prohibiting the conduct. However,

17 absent any concrete steps to enforce the orders or punish the breaches,

18 they merely amounted to window dressings for the benefit of the

19 international community.

20 Regarding the widespread burning and looting which occurred, the

21 most comprehensive documented observations of these crimes comes from the

22 UNMOs who conducted systematic service to record the damage done to

23 villages throughout Sector South as well as to locate, record, and

24 provide humanitarian assistance to the remaining Serb civilian

25 population. The reports generated by these UNMOs, and many of them will

Page 461

1 be witnesses, during the months after Operation Storm establish that by

2 the 27th of August, at least 1.730 houses in Sector South were found to

3 have been totally destroyed and at least 2.600 were partially destroyed.

4 As the Court will hear from the UNMOs who actually conducted this

5 service, there was a standard criteria for determining whether a house

6 was totally or partially destroyed. Specifically, if the roof or

7 construct of a house had been damaged, it was considered totally

8 destroyed; and if it was looted with broken windows or doors, it was

9 considered partially destroyed.

10 As the UNMOs gained access, further access, in Sector South, the

11 figures continued to climb. And, Your Honours, by 13 September, out of

12 18.232 houses in 240 villages surveyed, more than 13.600, which is 73 per

13 cent, were destroyed after Operation Storm. Only about 650, this is 5

14 per cent, had been destroyed prior to Operation Storm.

15 The vast majority, Your Honours, of this destruction was done by

16 that time, mid-September. Nevertheless, there are further UN reports

17 that establish that by 4th of October, the number of totally and

18 partially destroyed houses rose to 16.857 out of 21.744, rising even

19 further to a last accounting in 4th November when 17.270 houses out of

20 22.213 houses had been totally or partially destroyed.

21 As one of the UN observers from whom you will hear very shortly

22 wrote and I will quote: "As the daily situation reports showed every

23 day, the looting and harassing of the remaining population has not

24 stopped even though the presence of the Croatian police has increased in

25 some areas. The looting has decreased, but not mainly because of the

Page 462

1 increased Croatian police presence. The reason is simpler. There is

2 nothing left to loot."

3 Your Honours, by way of example, I would like to briefly address

4 the situation in three of the towns which were devastated by the Croatian

5 forces without any justification. The first map using again map 31, the

6 last map in your binder, is the town of Kistanje located about 20

7 kilometres south-west of Knin. The map -- on your map it's marked in

8 green.

9 Before Operation Storm, Kistanje was an almost exclusively Serb

10 town with hardly any Croat civilians living there. Your Honours, you

11 will hear evidence about how this town was completely torched, destroyed,

12 and looted. The 15th Home Guard Regiment entered the town on 6th August,

13 1995. One witness who defied the restriction of movement will tell you

14 that the looting and burning started as early as 6th of August.

15 International observers, Your Honours, confirm Kistanje was completely

16 destroyed. By the 14th of August, an UNMO patrol observed that about 90

17 per cent of Kistanje town had been burned down. ECMM observers reported

18 identical observations. UNCIVPOL report of 14th August said 90 per cent

19 of houses burned down, smoke still rising.

20 To finish on Kistanje as one international wrote and I quote him:

21 "We went through Kistanje. Totally destroyed. Still burning. Nothing

22 there. No people, just soldiers. No animals, nothing, but I've got here

23 a lot of smell, strong smell of bodies."

24 Second map, Your Honours, you have heard of this city before,

25 Gracac. On your map 31 it's about 40 kilometres north-west, marked in

Page 463

1 green here as well.

2 In Gracac, 85 per cent of the buildings were destroyed, either

3 completely or in part. One witness noticed that Gracac was not only

4 destroyed by burning but also had signs that it was shelled. I quote

5 from his witness statement: "This is the first time that it was obvious

6 that they were a target, because there were artillery holes in the ground

7 leading to Gracac, a lot of them. So it was obviously shelled. We

8 didn't see that because we didn't see that, for example, in Kistanje. So

9 they used artillery on it. And if they were like the rest of them, you'd

10 also see rockets. To my knowledge, there was nothing in Gracac of

11 military value. It's just a town, another town with the same houses with

12 red roofs. They got it basically destroyed, just like Kistanje

13 destroyed."

14 Here are a few pictures taken by a journalist who will appear

15 before you, Your Honours, on the 8th of August at around the time that

16 the Special Police were moving in the area.

17 First one shows a house burning on the road leading to Gracac.

18 Your Honours, when internationals would note that houses were burned to

19 the ground or completely torched or destroyed, the next photo will show

20 what they meant. This is also taken along the same road as the previous

21 picture.

22 On the same day, members of the Special Police were also seen

23 looting. Here's a Special Police member hot-wiring what appears to be a

24 civilian vehicle and then proudly driving off with it, as you can see on

25 the next picture.

Page 464

1 And the last photo is a member of a Special Police loading a TV

2 into a truck.

3 Gracac, Your Honours, was also the place of one of the cemeteries

4 where Serbs were buried, although access was refused to internationals

5 for a long time, noting fresh graves on a regular basis.

6 At one point the internationals counted up to 81 crosses with

7 only 10 of them bearing any names. A number of victims that are relevant

8 to this case, Your Honours, were exhumed from this cemetery in Gracac.

9 Last city -- or, rather, village, town, Otric, Your Honours.

10 You'll hear a lot about Otric in this case.

11 On map 13 again, you can see it. It's located about 27

12 kilometres north-west of Knin. It's located on the way, on the route

13 from Knin to Srb, which was the road taken by most of the civilians when

14 they fled the area. Otric, Your Honours, was completely destroyed.

15 Again, it was a town predominantly inhabited by Serbs.

16 Internationals stated that -- stated the following about Otric in

17 the weeks following the attack: 11th of August ECMM reports: "Every

18 house in Otric had been destroyed by fire."

19 A few days later, 13th August, one of these HRAT teams, human

20 rights group, reported that Otric, among other towns, had been made

21 "virtually unlivable by actions which occurred after the fighting and

22 that the authorities continue to take no actions."

23 You will hear from a witness who will testify that when she went

24 to Otric on the 16th of August "it had been completely burned down." And

25 that "not a single house was left undamaged."

Page 465

1 I would like to add, Mr. President, Your Honours, that there are

2 a number of HV military documents, HV Croatian forces, military forces

3 documents which make reference to these crimes to illustrate with only

4 two. First one, a report by the Split military command organ for

5 political affairs on the 6th of August. He describes -- the author

6 describes the treatment of property by the Split military personnel,

7 Split Military District personnel immediately upon entering Knin as

8 catastrophic, or the operational diary of the Split Military District

9 notes that on the 11th of August that in relation to Otric, we just

10 talked about that, a quote: "Everything in Otric is burnt down."

11 Killings. Your Honours, let me turn to the civilians who were

12 killed during Operation Storm. The Croatian forces entering the towns

13 and villages on the heels of the shelling anticipated that most civilians

14 to have left by then. As such, when civilians who had still remained

15 there were discovered, they were captured and intimidated, forcing them

16 to leave. Some were threatened with physical force, weapons, and

17 firearms and ordered to leave, while others were fired at, wounded or

18 killed.

19 Croatian soldiers entering the civilian habitat moved from house

20 to house and ordered the frightened civilians out and marched them or

21 forcibly transported them out of these hamlets or villages. Those

22 captured were transferred to collection centres or detained with the

23 objective of preventing them from returning to their settlements. Some

24 who had taken shelter elsewhere and attempted to return to their houses

25 were assaulted and intimidated.

Page 466

1 Civilians who refused to leave were killed by members of the HV

2 and Special Police forces while relatives and neighbours watched. The

3 perpetrators sometimes publicly announced their crimes for the remaining

4 civilians to hear, knowing that that would influence them to leave -- to

5 flee, induce them to flee.

6 HV soldiers and members of the Special Police forces entering

7 towns fired at civilians and set fire to civilian property, at times

8 burning the inhabitants alive. They entered dwellings of old people who

9 had stayed due to their inability to leave and harassed them, stealing

10 their food and livestock, destroying any possibility for them to remain.

11 Your Honours, the Prosecution will show that over 350 civilians

12 were killed from 4th August to 30th September, 1995, in the relevant

13 Sector South area. From these killings the Prosecution has, as you know,

14 selected eight killings. We call them scheduled killings, where the

15 Prosecution will show that 29 Serb civilians were killed unlawfully.

16 In your court binder, Your Honours, again you will find the

17 locations of these eight scheduled killings on the last map, map number

18 31. Let me discuss three of these scheduled killings in a little bit

19 more detail.

20 The first example, Mr. President, Your Honours, is killing number

21 2, which took place in the Plavno valley, a valley that was particularly

22 hard hit by Operation Storm.

23 The location of this incident is marked number 2. The Plavno

24 village essentially consists of a number of hamlets. One of these

25 hamlets is Djurici. The evidence will show that in the morning of the

Page 467

1 5th or 6th August, a few shells fell into this isolated hamlet and

2 damaged houses. Seven or eight civilians sought refuge in the cellar of

3 the house of Sava Djuric. Sava Djuric, who was 53 years old at the time

4 and physically disabled, stayed upstairs in the house with his mother.

5 In the afternoon, a Croatian tank entered this hamlet. The Croatian

6 soldiers were wearing camouflage uniforms and black masks. They started

7 burning the houses. A resident from whom you will hear in due course

8 asked a soldier why they were burning her house. The soldier responded

9 that the Serbs had burned Kijevo in the past, so now they were burning

10 this Serb hamlet.

11 Your Honours, Kijevo is about 25 kilometres away from Djurici.

12 But the soldiers did not stop at burning Djurici. They went into the

13 house of Sava Djuric and forced him and his mother out of it. One of the

14 soldiers took the 82-year-old mother down the road while the others threw

15 the invalid, Savo Djuric, in a burning workshop behind the house in the

16 yard. The remains of the house and the workshop can still be seen today.

17 This picture is the location where the workshop was and where the

18 remains of Sava Djuric were found.

19 The next scheduled killing, Your Honours, is the one of Grubori.

20 It indicates that these killings were not only committed by soldiers of

21 the Croatian army but also the Special Police. Again it occurred in the

22 Plavno valley and you see the red number 4 next to it.

23 Members of the Special Police carried out what is now known as

24 the Grubori massacre. One of the civilians, victim to this massacre, was

25 90 years old. In total, five people were killed. A UN camera,

Page 468

1 Mr. President and Your Honours, was in the area that day so let me just

2 play a very short clip, it's less than two minutes, about what happened.

3 JUDGE ORIE: Before you do so, you used several times an

4 adjective related to killing, you said the next and I didn't understand

5 the word not being a native English speaker, but even on the transcript I

6 did not -- scheduled. Yes, then I understand it. So you were talking

7 about scheduled killings. Please proceed and play the video. You have

8 provided the booth with the hard copy of the transcript.

9 MR. WAESPI: Yes, we did.

10 JUDGE ORIE: Yes. Then please proceed.

11 [Videotape played]

12 THE INTERPRETER: [Voiceover]

13 "EJF: We visited the Plavno valley yesterday to meet with the

14 group of residents in one town there and we observed that across the

15 valley another town was apparently on fire, there was a huge plume of

16 smoke. So we visited that town in the afternoon and we found that in

17 fact almost every structure in this hillside village was in flames.

18 "RH: The villagers said they had been called away to a meeting

19 in a nearby village. That meeting never took place.

20 "DG: We waited at the school and no one came. When we looked up

21 here we saw that everything was on fire. We rushed back. There is no

22 one here now. There's no sign of those who stayed behind. Whether they

23 burned or ran away, we don't know. My husband's missing. He may have

24 been burnt. Granny's missing. She may have been burned? She's very old

25 and couldn't run away.

Page 469

1 "RH: When the fire finally died down, Dusanka and her neighbour

2 were able to search the houses. Later, she showed the UN Human Rights

3 Team where they have found their husbands.

4 "DG: Here, let me show you. That woman was not here. Her

5 husband was ill. He was lying in bed over there. When we came we found

6 him dead. That's all I can tell you. He couldn't hear anything. He was

7 deaf. Look, you see? He's been shot, shot in the head."

8 MR. WAESPI: Your Honours. Your Honours, you will hear detailed

9 evidence about this killing. We also show you the numerous attempts to

10 cover up what happened in Grubori, including by the Accused Cermak and

11 Markac.

12 The third example of a scheduled killing is killing number 7.

13 It's again shown on your map. It has the number 7 attached to it south

14 of Knin. Let me just show you a few pictures so you can get the sense of

15 the place.

16 This one shows you the road on the right side, the main road to

17 Knin leading to the background of the photo. On the right side, parts of

18 it is the gips or plaster factory of Knin. On the left side, you see the

19 Sare hamlet. That is part of the wider Uzdolje settlement. Uzdolje

20 gives its name to the scheduled incident.

21 Now, bearing in mind, Your Honours, this picture was taken last

22 year, so most of these houses you see have been rebuilt in the meantime.

23 We will show you during the course of the trial video footage taken in

24 1997, which shows most of the houses destroyed.

25 Elements of the 142nd Home Guards Regiment entered this area on

Page 470

1 the 6th of August as they advanced to meet up with elements of the 7th

2 Guards Brigade coming from south of Knin. If we can go to the next

3 picture, Your Honours.

4 When the Croatian soldiers entered the Sare hamlet which you can

5 see now on the right side, on the morning the 6th of August there were

6 approximately 10 civilians in the hamlet. The soldiers gathered the

7 civilians with the exception of one civilian who was able to run away and

8 hide in the woods, and one elderly and immobile woman was left in her

9 house.

10 These eight civilians, Mr. President, Your Honours, were lined up

11 and summarily executed by one of these soldiers who described himself as

12 an Ustasha to them. This happened just by these large trees to the right

13 of the orange house in the middle of the photo. Seven of the civilians

14 died while the survivor, who sustained injuries to the head and thigh,

15 was able to escape. The houses in the village were burned, including the

16 house with the old invalid woman still inside. Her family later came and

17 gathered her bones.

18 Mr. President, Your Honours, to finish I would like to illustrate

19 the numbers and facts given using four maps. For the purpose of this

20 presentation, we have marked the location and the extent of the crimes

21 perpetrated across the territory on sequential maps.

22 Prior to presenting these maps to you, I would like to first

23 explain the source of the map we will use in this presentation.

24 The first map before you, Mr. President, Your Honours, is a map

25 we have compiled from four different source maps. The basic map covering

Page 471

1 most of the area is the map you have seen earlier. It's number 14 in

2 your booklet, the map signed by the accused General Gotovina. This map

3 did not extend far enough north to include the area of operation of the

4 Special Police under the command of Mladen Markac, so we have overlaid

5 two maps depicting Special Police movements in the northern area of the

6 map.

7 In order to complete the map, we have incorporated a portion of

8 an UNPROFOR map in the north-eastern corner and the north-western area to

9 ensure that the entire area is depicted.

10 We have produced this compilation map for the reason that the two

11 fundamental maps show the areas that the Croatian army and the Special

12 Police had taken over and controlled at the time the crimes were

13 perpetrated.

14 The second map, Your Honours, includes the incidents of killings,

15 wanton destruction, and plunder for the period 4th of August to 30th of

16 September, 1995. The legend in the top left corner explains the symbols.

17 Yellow for killing incidents, black/orange for wanton destruction, and

18 red/black for plunder. In addition, we have marked with black dots,

19 small black dots, evidence of the presence of the Special Police.

20 As I explained before, Your Honours, as the operation went ahead,

21 the Special Police moved into the area of responsibility of the Split

22 Military District from up north. They moved south.

23 The third map, Your Honours, covers the same information, but in

24 addition we have now overlaid it with the area of responsibility of the

25 Split Military District. Your Honours, there is no better way for you to

Page 472

1 show and see the widespread and systematic nature of these crimes that

2 were committed by the Croatian forces in the course and in the aftermath

3 of Operation Storm within a relatively small area and during a short

4 period of time.

5 Please be aware, Your Honours, each of these symbols represents

6 atrocious crimes, the loss of lives, and the loss of homes. In short,

7 they represent the shattering of a community and a people.

8 The fourth and last map, Your Honours, represents only the

9 killings, but we added the number of victims killed in each of these

10 locations. Perhaps it can be enlarged a little bit.

11 And I repeat, and by this I end, Mr. President, Your Honours,

12 that we counted only civilian victims.

13 Thank you.

14 JUDGE ORIE: Thank you, Mr. Waespi.

15 Before we continue, may I inquire into some of the maps we find

16 in the bundle. I noticed that, for example, map 9 and a lot of maps from

17 16 onwards are apparently projected maps but not under a 90 degree angle

18 but another angle, which if you compare map 2 and map 4 with these maps,

19 you'll see that the shape of the municipalities is quite different on the

20 one map compared to the other one. And since maps are often very useful

21 to calculate distances or make all kind of assessments, of course the

22 scale by this projection also causes a not real proportion. What from

23 the left to the right might appear on the basis of the scale to be 20

24 kilometres will not be 20 kilometres from north to south. So therefore

25 it seems to me to be, let me say it friendly, a bit of a bad habit of the

Page 473

1 Prosecution to present these distorted maps, whereas I myself, and I take

2 it my colleagues as well, would rather have maps which allow for

3 calculations, for measuring distances, rather than the kind of

4 impressionistic, nice-looking, distorted projected map.

5 MR. WAESPI: Thank you for your observations, Mr. President. We

6 were aware of your concerns because you had uttered them in different

7 trials.


9 MR. WAESPI: And that's why we have included a number of maps.

10 Some of them are maps which are accurate enough for you to measure them.

11 For instance, the last one is one which accurately reflects the

12 proportions and indeed --

13 JUDGE ORIE: Yes, but doesn't cover the whole of the terrain.

14 MR. WAESPI: No, but there are more maps which we can --

15 JUDGE ORIE: We don't have to resolve it now but I just draw your

16 attention to it, that measuring needs a 90 degrees projection and nothing

17 else.

18 MR. MISETIC: I just wanted to clarify Mr. Waespi referred to the

19 second map, the third map and the fourth map, but I don't believe I can

20 find them in this binder and I believe we might go over and use these

21 maps --

22 JUDGE ORIE: I understood this to be maps still to be produced

23 which are the products of further working on that one map together with

24 the other maps. Is that well understood?

25 MR. WAESPI: This is correct. That's just for demonstrative

Page 474

1 purposes.

2 MR. MISETIC: Will we be able to use them tomorrow, Your Honour?

3 JUDGE ORIE: I take it that if you ask Mr. Waespi I'm quite

4 confident that he would agree that he would be at your disposal.

5 Mr. Waespi?

6 MR. WAESPI: Certainly.

7 MR. MISETIC: Thank you, Your Honour.

8 JUDGE ORIE: Then we resolve this matter of maps at a later

9 stage.

10 Mr. Tieger, could you give us already an indication on how much

11 time you'd need after the break we'll have soon?

12 MR. TIEGER: Your Honour, I will be -- I'll need the rest of the

13 time available for the day to complete. I'll be moving quickly as I do.

14 JUDGE ORIE: Yes. Then we'll have a break until 20 minutes past

15 12, which means, Mr. Tieger, that you have one hour and 25 minutes then

16 remaining.

17 MR. TIEGER: Thank you, Your Honour.

18 --- Recess taken at 11.55 a.m.

19 --- On resuming at 12.22 p.m.

20 JUDGE ORIE: Where I said before the break page 35, line 13, that

21 I appreciate that, as it appears on the transcript, "formal relationships

22 between those who are assisting us and Defence counsel," of course I

23 meant "informal relationships," that is good working relationships.

24 Mr. Tieger, please proceed.

25 MR. TIEGER: Thank you, Your Honour.

Page 475

1 Your Honours, you've now heard that the destruction of the Serb

2 community began with the arrival of the Croatian army and Special Police

3 in the area and continued for weeks. Earlier I cited the anguished

4 comment of an international, "This is criminal. Is there nothing that

5 can be done?" There was much that could have been done but was not,

6 because those in a position of responsibility, indeed those required by

7 law to do so, did not despite their awareness that both the risks that

8 the crimes would occur and the knowledge that they were ongoing and would

9 continue.

10 I know the Court is well aware of the responsibilities incumbent

11 upon superiors, so I don't wish to dwell on that except to briefly touch

12 on a few points. Of course the law requires a commander to take

13 reasonable and necessary measures to prevent and punish over those for

14 whom he has effective control, that is the material ability to prevent

15 and punish. And these are two distinct duties. They are not discharged

16 just in the face of generalised orders or cautioning subordinates to act

17 in a lawful manner when particular circumstances arise that render that

18 general responsibility insufficient.

19 The duty to act for a commander exists when he knows or has

20 reason to know that crimes are about to occur, but that does not mean he

21 has to have specific details about a crime which is about to unfold or

22 about which has happened. A commander is required to act when he has

23 general information about unlawful acts that are about to occur or have

24 occurred and the need for measures to be taken.

25 For example, this Tribunal has stated that a commander who has

Page 476

1 received information that some of his subordinates have a violent or

2 unstable character or have been drinking prior to a mission is considered

3 to have the requisite knowledge and must act. And furthermore, a

4 commander cannot refrain from using the means to obtain such information

5 and then later uses an excuse the fact that he didn't possess it.

6 As the Court will hear, Your Honours, the three accused had ample

7 reason to know both before the operation of the substantial risk that

8 crimes would occur and after the operation that they were occurring, and

9 they failed to act or simply reiterated generalised reminders, the same

10 reminders that had already been proven to be inadequate. And having

11 failed to prevent, they also failed to discipline or punish, thereby

12 progressively undercutting the potential deterrent impact of any

13 sanctions, again in a cycle.

14 With a considerable array of enforcement mechanisms at their

15 disposal, none were meaningfully used, and the results can be seen in a

16 number of ways. The activity reports of the military police, criminal

17 police, for August 1995 reflects a level of activity for the military

18 police covering the Split Military District basically comparable to the

19 month before and basically comparable to the August of the year before.

20 In other words, as if the vast wide-spread crimes of August 1995 simply

21 hadn't happened. You will see similar figures for the military and

22 criminal justice systems with almost no investigations initiated in

23 August and early September. And the disciplinary figures for the Split

24 Military District reveal roughly the same thing, no military disciplinary

25 proceedings of any statistical significance and certainly not for the

Page 477

1 substantial crimes that occurred, recognising that the disciplinary

2 system is not the primary means of enforcement, but the picture is clear.

3 Little was happening, and to understand the gap between that little that

4 was happening, it's useful to turn now to what the accused knew at the

5 time and what they were doing.

6 Some of this discussion will overlap and be interwoven between

7 accused, but I'll try to take them quickly one at a time.

8 General Gotovina, as you've heard, was the commander of the Split

9 Military District throughout the indictment period. That was the

10 district that clearly functioned on a strict command and control system,

11 a command and control system that General Gotovina himself praised in the

12 book you've already heard about. He had both de jure and de facto

13 control over his troops and the ability to issue orders to the military

14 police. He had constant access to information on the ground, ample

15 mechanisms to ensure that his orders, at least the orders he was

16 interested in were enforced. And although he embarked on other offensive

17 operations during the indictment period, he did not relinquish his

18 command and responsibilities and continued to issue orders even when

19 physically outside the area and remained responsible for the conduct of

20 his troops.

21 Shortly after the operation on August 9th, he ordered the

22 reorganisation of his four operational groups into three operational

23 groups and units from those formations were required to ensure the

24 security and conduct clean-up operations throughout the territory as well

25 as protecting the border and preparing for operations in the east. And

Page 478

1 you'll also hear testimony that many, many, many troops remained in the

2 Split Military District engaged in the crimes about which you've heard.

3 Moreover, the evidence will show that General Gotovina was often

4 physically present in the indictment area during the months of August and

5 September, spending considerable time in Knin but also in Zadar. It

6 would have been impossible not to observe for himself the crimes that

7 were occurring around him.

8 Now, General Gotovina, like others, knew of the risk of

9 retribution by his troops before it began and indeed, as you'll hear in a

10 moment, he knew of the propensity of those troops for engaging in crimes.

11 As was mentioned before, there were troops. Many of the troops were from

12 the area returning to the place and perceived source of their suffering

13 and their attitude toward Serbs or Chetniks was all too predictable.

14 Indeed General Gotovina told President Tudjman on 31 July: "The forces

15 heading towards Knin are 400 good infantrymen from the 3rd Battalion, the

16 126th Regiment who are all from this area and they know the area through

17 and through. They have reason to fight here and at this moment it is

18 difficult to keep them on a leash."

19 Indeed General Gotovina would later explain to one of the

20 internationals that this human feeling to hate an enemy who has burned,

21 looted and expelled one's family was in fact an explanation for why the

22 crimes occurred. It was no secret to General Gotovina or to the other

23 commanders in Storm that they were sending in aggrieved men to a place

24 that they saw as the cause of the harm to them and their families. That

25 information alone would have been more than sufficient to trigger some --

Page 479

1 something more than boilerplate or customary standard admonitions to

2 abide by the Geneva Conventions or international humanitarian law, but

3 there's more than that, because just a few days before in the prior

4 operation, General Gotovina's troops had committed the same crimes they

5 were to go on to commit during Operation Storm.

6 Let me show you -- I'll read from an excerpt of a report on 13

7 August from the military police: "On the following day, members of the

8 Croatian army 4th Guards Brigade and the 7th Guards Brigade as well as

9 certain groups ... that came into the broad area of Grahovo from

10 surrounding areas began setting fire to houses in Grahovo and the

11 surrounding villages in an organised fashion."

12 Now, this activity was also reflected in the Split Military

13 District diary which mentioned on July 29th that the entire Grahovo was

14 on fire.

15 So knowing that he was sending in armed men to a place in which

16 they would be quite prone and predisposed to revenge and knowing further

17 of the propensity for committing crimes against Serbs, the measures, both

18 reasonable and necessary, for General Gotovina to have taken extended

19 well-beyond customary instructions concerning compliance. Strong and

20 very specific measures were required such as immediate investigations,

21 detention, dismissal, arrest. It was not only sensible but clearly

22 needed, yet General Gotovina took none of these measures, limiting

23 himself repeatedly as these crimes went on to standard reminders such as

24 instructing units on their obligations or generalised admonitions to

25 prevent looting and burning.

Page 480

1 And of course what happened after he sent in those troops was all

2 too predictable. You've already heard that the looting and burning

3 commenced right away and you've already heard that General Gotovina knew

4 about it as evidenced by the meeting on August 6th and the video during

5 which he complained about the fact that dignitaries and the media were

6 about to arrive and things were a mess and during the course of which he

7 characterised his troops alternately as barbarians or spoiled children

8 but no orders to deal with those "barbarians" were issued.

9 And again predictably under those circumstances the crimes

10 continued and again General Gotovina had ample reason to know and did in

11 fact know that this was taking place.

12 First of all as Mr. Waespi indicated, these crimes were happening

13 routinely, and the evidence of what was happening was available for

14 everybody. An interesting quote from a witness who wrote: "The ferocity

15 and thoroughness of this senseless destruction is reminiscent of a

16 medieval exorcism of Serbian spirits from the timbers of every building

17 and barn. No village was spared."

18 And as you'll hear from the witnesses, the knowledge about what

19 was happening was available for anyone who cared to look.

20 There are ample excerpts from the Split Military District

21 operational diary indicating those crimes on a chronological and ongoing

22 basis. You heard one from Mr. Waespi. Let me cite just a couple of

23 more.

24 On the 10th: "Everything is looted. The looting is the

25 problem." On the 14th: "The burning of houses and the killing of cattle

Page 481

1 is being continued." On the 19th: "The problem is the 6th Home Guard

2 Regiment that is burning down the houses in Rasanovci." And then you

3 extend beyond the Split Military District diary operations. Here's an

4 example from a report by the political administration coordinator for the

5 Split Military District on August 13th: "It should be noted that the

6 largest number of fires occurred a day or two following the entry of HV

7 units, that is Croatian army units, into newly liberated villages. Cases

8 of arson were most often carried out by members of Home Guard regiments

9 who were displaced persons from the areas recently liberated. It should

10 be assumed that their motive is revenge."

11 Your Honours, the -- apart from the obvious evidence visible to

12 everyone in the area, it was equally clear that everyone in the military

13 structure knew that these crimes were taking place and were ongoing.

14 And again as I said, as those crimes continued General Gotovina

15 took no steps beyond the generalised prohibitions that I mentioned.

16 On the 10th of August he issued an order to two of the four

17 operational groups to implement military discipline and order, prevent

18 arson and illegal acts and to take resolute measures against those who

19 conduct themselves in an undisciplined manner. That's essentially a

20 reiteration of the duties that were obviously incumbent upon those

21 commanders and upon those troops since before the operation began and had

22 been persistently ignored on an ongoing basis.

23 But perhaps General Gotovina's most telling reaction to the

24 crimes occurred about a week later.

25 Aware again of the ongoing crimes and the inadequacy of his

Page 482

1 previous responses to it, he noted once more that burning buildings was

2 forbidden and the issue should be resolved. And as for concrete steps,

3 he said this: "The units that are burning down the houses will stay

4 during the winter in the houses they are burning down now." In short,

5 they'll just have to live with the mess they made.

6 A commander has the obligation to take steps to ensure that his

7 orders are carried out or they mean nothing. Indeed if they are not

8 carried out, they mean less than nothing. They become quickly sanctioned

9 and they become a signal to the troops that such behaviour that is

10 supposed to be prohibited is tolerated. And the duty to act is

11 particularly significant when an entire community is being destroyed

12 virtually systematically and over a protracted period of time.

13 Now, Mr. Waespi spoke about killings and the number of Serbian

14 civilians who were killed during the course of the destruction of their

15 community, but it would not be until international pressures mounted

16 weeks later that these later -- that inquiries started to be made for

17 these later victims. The notice began much earlier. Of course it begins

18 with the knowledge of the troops who were going in and the area they're

19 going into. As General Cermak said to President Tudjman, explaining what

20 happened: "You had fighters on the front line for three, four years.

21 They lost their houses, ancestors, land, et cetera. They were already a

22 bid damaged by the Vietnam syndrome and in that state they were killing."

23 It took no stretch of imagination to realise the considerable

24 risk of retribution of that type in the absence of concrete measures to

25 suppress it. And after the operation began there was information from

Page 483

1 observations of internationals and complaints of internationals, both

2 direct and through the media, that killings were taking place.

3 One interesting one is the report by a UN press officer named

4 Alun Roberts on September 1st when he said, "We basically got a body

5 count of people since the 4th and 5th of August. There's now --"

6 THE INTERPRETER: Would you mind slowing down. Thank you.

7 MR. TIEGER: "There's now somewhere near 100 or more."

8 Now, apart from the evidence that you'll hear of the intense

9 interest on the part of Croatian military and political authorities about

10 the possibility of media exposure and their awareness of what the media

11 was saying, the accused were particularly interested in -- and attuned to

12 Mr. Roberts' reports. So as you'll hear, in early September

13 General Gotovina, in a meeting with the UNCRO sector commander threatened

14 to have Roberts executed as a spy and provocateur and General Cermak

15 similarly singled Roberts out in a newspaper article as one who had been

16 writing about Croatia negatively from the very start.

17 But Generals Gotovina and Cermak and General Markac did not need

18 the media to know that Serb civilians were being killed on a large scale.

19 On the 19th of August, General Cermak met with a fact-finding team from

20 the International Helsinki Federation for Human Rights and they

21 confronted him with information about summary executions and his response

22 was: "That there are probably --" and I'm quoting from the report.

23 "That there are probably 200 to 300 bodies in the hills with bullet holes

24 in their heads."

25 When they pressed him for more information, nothing was

Page 484

1 forthcoming.

2 But these accused did not need the media to know that Serb

3 civilians were being killed. Those bodies weren't secreted away only to

4 be discovered years later to everyone's surprise. They were officially

5 collected and counted on a daily basis, and Generals Gotovina and Cermak

6 and Markac knew that because they used or established the very sanitation

7 groups that were out there collecting the bodies. General Cermak did

8 that immediately when he arrived in Knin, and General Gotovina did that

9 on August 11th.

10 Now, General Gotovina's order for attack had anticipated that

11 such a detachment would work with the civilian police and they did. So

12 as the sanitation units prepared reports daily, the -- they provided them

13 to -- they provided that information to the police and the chief of the

14 Zadar crime police, who was -- that was one of the police administrations

15 involved in General Gotovina' order, reported on the progress of

16 sanitation operations. And General Cermak was regularly apprised about

17 the bodies collected.

18 Let me show you an example of one of the reports by the chief of

19 the Zadar crime police setting out the details of the corpses collected

20 by the 9th of August.

21 This is the type of information that was available about the

22 number of civilians being killed. And you've heard the final statistics.

23 Over 350, and I believe the evidence will show even more were killed, and

24 that is civilians, during August and September, during the indictment

25 period.

Page 485

1 Now, the Defence in its pre-trial brief has asserted that

2 General Gotovina essentially relied upon, was informed that the civilian

3 and military police and authorities were taking effective action and were

4 restoring order and discipline in the liberated areas. Well, first, a

5 commander cannot evade his fundamental responsibility to control his

6 troops by pointing at others who may have been in a position to do so

7 after they committed crimes. The responsibility to control those troops

8 lies first and foremost with the commander, and the reason is, as you'll

9 hear, that if he fails to do so, there is little that can be done in

10 response.

11 In any event, General Gotovina knew full well that the civilian

12 and military authorities were not -- military police authorities were not

13 coping with the crimes. The evidence of that failure and the evidence of

14 what his troops were doing was before his eyes at any given moment. But

15 let me address the activities of the civilian military police authorities

16 quickly, perhaps too quickly, in any event.

17 First of all, everybody knew that the civilian authorities would

18 take time to get established and functional. As President Tudjman said,

19 the military may not be able to do all the things civilian authorities

20 ultimately can, but "they can maintain order in these transitional

21 periods."

22 General Gotovina knew this. He told internationals in a meeting

23 on August 8th that the military governor would remain in Knin until

24 civilian authority was established. General Cermak was there until

25 November.

Page 486

1 It was also clear that the civilian authorities were not going to

2 be able to cope with the extensive crimes committed by soldiers at that

3 time. There was never a genuine prospect of that happening. They

4 weren't really set up to do that. They didn't have the real clout and

5 authority to. Indeed the civilian police in the area answered to

6 General Cermak and were implementing his orders.

7 Furthermore, the Serb commanders in the area, and there were Serb

8 commanders there pursuant to a constitutional provision regarding the old

9 ethnic demographics weren't really in charge. They answered to people

10 in -- who actually wielded power in Zadar and Zagreb, and as I said, to

11 General Cermak.

12 The -- but perhaps more importantly and understandably, the

13 civilian police, vastly outnumbered by the military, were extremely wary

14 of interfering with armed and marauding soldiers. And you'll see a

15 number of reports indicating that and I'll quote quickly from two.

16 After reporting that members of the HV had been torching houses

17 and killing livestock, the chief of the Lika Sinj police administration

18 writes: "In conversations with individual officers, they have stated

19 that they are powerless with regard to this problem."

20 And similarly, the assistant minister for the police wrote: "It

21 is apparent that houses are being burned down and other people's property

22 is being stolen on a daily basis." He writes: "The perpetrators of

23 those acts in most cases are formally and in effect members of the

24 Croatian army, although there are some persons who are not and are

25 abusing the HV uniform. I hope you will understand that the civilian

Page 487

1 police faces -- the problem the civilian police faces 'the fact that the

2 perpetrators wear HV uniforms completely blocks the work of the civilian

3 police.'"

4 Now, that would have rendered the civilian police and their

5 efforts inadequate enough, but in fact the limited resources they had

6 were not devoted to protecting Serbs but, in fact, to collecting and

7 interrogating them. That was pursuant to something called

8 Operation Povartak or Return, the priorities of which were to collect

9 suspected prisoners of war, basically meaning anyone of military age, any

10 male of military age, collect civilians in reception centres purportedly

11 for their protection, and sanitize bodies killed during the operations

12 and afterwards, in the aftermath.

13 The diversion of police resources to this task was not a secret

14 and no surprise. It was anticipated before the operation was launched

15 and can be found in General Gotovina's order for attack.

16 In short, the efforts or the lack of efforts by the civilian

17 police contributed to the reign of impunity that existed for perpetrators

18 of crimes against Serbs during this period and that de facto impunity

19 actually became official on August 18th for those who had committed

20 crimes up to that point. And I'm going to read from an encoded order

21 from the assistant minister of the interior to the police

22 administrations. First he recounts the houses that are torched and

23 burned, again indicates that these individuals -- that most of those acts

24 are perpetrated by Croatian army members, notes that the destruction is

25 assuming such proportions that it is inflicting political damage to the

Page 488

1 Republic of Croatia, and then notes that the local police administration

2 chiefs must immediately convene a meeting with the commanders of military

3 police battalions to inform them of the problem. And so now that damage

4 to Croatia is happening, something should be done. And then: "The

5 meeting must be informed of the decision that cases of torching of houses

6 and illegal taking away of people's movable property that have hitherto

7 occurred will not be operatively investigated, but a stop must be put to

8 cases of this type as of today."

9 Thus the civilian and military police were instructed not to

10 investigate or operatively process the crimes that had taken place. Now,

11 by that time much of the Krajina was in flames. A huge amount of Serb

12 property had been looted and stolen and many had been killed. The

13 impunity bestowed by this order is not only a further reflection of the

14 negligible impact of the police but sent a continuing signal along with

15 the absence of any meaningful measures from the military commanders that

16 crimes against Serbs were tolerated. The commanders didn't act. The

17 civilian police didn't act, and I'll turn to the military police in a

18 moment. Nobody acted to stop the crimes.

19 Now, General Gotovina does point to the military police, as I

20 mentioned, and cites his reliance on the military police. There are

21 three reasons why no commander can reasonably fail to act on that basis.

22 First of all, as I mentioned, a commander has the responsibility to

23 command and control his troops. That responsibility ultimately rests

24 with him, not with others.

25 Second, he knew that the military police were not investigating

Page 489

1 crimes. And third, in any event, the military police was a body under

2 his daily operational control.

3 With respect to the first that a commander is the principal

4 figure responsible for his troops and that if he fails to control them

5 there is no realistic prospect that the back-up mechanisms to respond to

6 their crimes will cope, I'll quote as an illustration a report from a

7 high-ranking military police official making precisely that point on

8 August 3rd. After stating the tasks of the military and civilian police

9 he said referring to a meeting the previous day with high-level

10 officials, including General Gotovina: "It had been pointed out to the

11 commanders of the HV units that they were personally responsible for the

12 discipline of their subordinates as without that even a much greater

13 number of military police members could not maintain discipline."

14 As for awareness that the military police were not coping with

15 the problem and that a commander needed to do something, apart from the

16 visible extent of crimes before him General Gotovina was specifically

17 informed that that was the case. He was -- this is a portion of a report

18 addressed to commanders of military districts including General Gotovina

19 on August 17th, again reporting that houses are being torched, property

20 is being looted and other unlawful actions by Croatian army soldiers and

21 civilians wearing HV uniforms are occurring on a daily basis. The

22 communication also says that cooperation between the military police and

23 civilian police on liberated territory thus far has not yielded results.

24 And finally, the third element of any suggestion that

25 General Gotovina could excuse his inaction by pointing to the military

Page 490

1 police, in fact by pointing to the military police General Gotovina is

2 inadvertently pointing to himself because the military police were

3 subordinated to him for the -- and he had daily operational control. I

4 won't go into details about this, but essentially the rules governing the

5 structure and operation of the military police provide that the military

6 police administration has a -- their own hierarchy and supervisory

7 control over the military police. That's a kind of vertical control.

8 But it specifically provides in Article 9 of those rules that military

9 district commanders have daily operational control, and that's a kind of

10 vertical control, to ensure that the people on the ground are in a

11 position to direct the military police to the very place they're needed

12 at the very time. And you'll see an order in connection with Storm

13 issued by the head of the military police which relates that in the

14 command of daily operations military police battalion commanders shall be

15 subordinated to the Croatian army military district commanders.

16 In short, Your Honours, having brought in the very same troops

17 who had just committed crimes into an area where they were even more

18 likely to do it, General Gotovina did nothing more than issue perfunctory

19 orders to his subordinates reminding them of their obligations, the very

20 obligations they had ignored before and they were ignoring over and over

21 again. Under those circumstances in the climate of ongoing daily

22 widespread crimes, his failure to take those measures not only was a

23 failure to discharge his responsibility but sent a message of toleration

24 and acquiescence to his troops making the continuation of those crimes

25 inevitable and leading to those troops who told the international that

Page 491

1 Mr. Waespi referred to that their commanders thought it was just fine.

2 But, Your Honours, General Gotovina was not the only General, not

3 the only Colonel-General, indeed, in the area. General Markac was also

4 there, an associate of President Tudjman who was a long-standing member

5 of the HDZ and both a political and military figure. General Cermak did

6 not participate in the planning of Operation Storm or its commencement,

7 but on August 5th he was formally appointed directly and personally by

8 President Tudjman as the Knin Garrison commander and sent there in

9 President Tudjman's own words for the purpose of keeping order.

10 Now, beyond General Cermak's de jure powers as garrison commander

11 which is a position in the military that exists for the purpose of

12 discipline, he was also vested with his authority of his high rank,

13 colonel-general, and the considerable authority emanating from being a

14 personal emissary of President Tudjman for the very purpose of taking

15 charge. Indeed General Cermak was understood by internationals to be the

16 military governor of the area and that was a term used by them throughout

17 in their dealings with them that appears in correspondence and that was

18 not corrected by him. Everyone accepted the appellation of military

19 governor in connection with General Cermak's duties.

20 He was not an operational commander and his presence there didn't

21 interfere with General Gotovina's control over his troops, but by virtue

22 of his position as garrison commander and his even broader de facto

23 authority arising from the factors I've just described, General Cermak

24 possessed effective control and the material ability to discipline and

25 punish Croatian army soldiers within the garrison area. Indeed in the

Page 492

1 course of his military governor tasks, he used -- he issued orders for

2 activity or coordinated in operations that extended beyond the garrison

3 area.

4 He was able to direct the military and civilian police, as you'll

5 hear, and he had the responsibility and power to punish and, by so doing,

6 prevent crimes against Serbs. Instead, as you'll hear, he exercised his

7 power principally to ensure that Croatia's public image was not damaged

8 with the international community, even when that meant ignoring,

9 excusing, or even covering up crimes against Serbs.

10 Now, General Cermak has asserted that he did not function in a

11 military role. He has characterised himself instead as something like

12 the Red Cross. A man with no authority who was garrison commander only

13 so he could take advantage of logistics and was in Knin to restore

14 electricity and open the water and liaise with the international

15 community. And he's further said that while he was appalled at the

16 crimes that were taking place and repeatedly pleaded with others to do

17 something about it, because he wasn't really a military figure he was not

18 the person responsible in any way for addressing them.

19 In that sense, like General Gotovina, he points to others as

20 failing to do a job for which he was responsible.

21 But the evidence will show, Your Honour, that General Cermak was

22 a military figure, as I've said, with the authority to order the military

23 police and the power as -- as the effective military governor to order

24 the civilian police. He knew that crimes against the Serbian community

25 were being committed by the army. He knew that nothing effective was

Page 493

1 being done about it, and instead he used his role as described to deflect

2 international pressure and cover up crimes.

3 Let me address those in order.

4 First, General Cermak was unmistakably a military figure. He was

5 mobilised from the reserves. He had the rank of colonel-general. He

6 wore a uniform. He himself acknowledged in the course of recorded

7 interviews with the OTP that he was responsible under military discipline

8 had he done something wrong.

9 Now, his military position was also reflected in other ways. For

10 example, his involvement in mopping up operations. And this series of

11 correspondence that you'll see during the course of the case will reflect

12 that. First on August 21st, the Croatian army chief of staff issued an

13 order for mop-up operations which said responsible for the realisation of

14 this order are the commanders of the military districts as well as the

15 commander of the Knin Garrison. And when General Markac reported to the

16 chief of staff the next day he noted that: "At 1200 hours there was a

17 short meeting with Generals Gotovina and Cermak."

18 And on the 25th, General Cermak responded to the order of the

19 21st noting that in respect to part of the order that called for an

20 intelligence assessment: "The Split Military District command and Knin

21 Garrison are in constant coordination. The intelligence assessment

22 regarding this order was made by the chief of the intelligence department

23 of Split Military District command. If we were to submit the same, I

24 would consider it a repetition of work."

25 He was clearly a military figure and the evidence will further

Page 494

1 show that he had the power to issue orders as colonel general to the

2 military police and the power as the effective military governor,

3 emissary from President Tudjman to issue orders to the civilian police

4 who understood they were to implement those records.

5 First I'd like to show you an order to the commander of the Knin

6 military police and the commander of the Knin police station to form

7 teams to find material and return property misappropriated from UNCRO and

8 report back to him. "This order enters into force immediately," as the

9 order says. And here's one on August 8th. Also to the military and

10 civilian police, also effective immediately.

11 You'll also hear witness testimony that General Cermak held daily

12 meetings with the military and civilian police who, as I mentioned

13 before, understood that the conclusions from those meetings were to be

14 implemented. And as he has acknowledged himself in the course of the

15 interviews I mentioned: "I got reports from the military police."

16 He also acknowledged this power contemporaneously at the time,

17 telling members of the international community that he would order or

18 that he had ordered investigations of the crimes they reported.

19 On August 24th, when internationals again raised the issue of

20 continuing crimes, he said he had already issued strict orders to the

21 civilian and military personnel to stop such acts. And again on

22 September 3rd, he responded to UNCRO Commander Forand concerning

23 restriction of movement, telling him that he, General Cermak, had issued

24 a "strict order that it be investigated."

25 Similarly he described in one of his interviews his reaction when

Page 495

1 he learned that humanitarian aid that he had delivered had been stolen.

2 He was furious he said, immediately called the police commander and told

3 him "do whatever you want. I want the culprits found." And indeed they

4 were.

5 Now, I said that General Cermak was a military figure who had the

6 power to do something about these crimes and he knew about these crimes

7 and knew that crimes were being committed by the army. First he knew

8 about it from the internationals who repeatedly brought it to his

9 attention. You will hear from those internationals and you'll see

10 contemporaneous reports, but as General Cermak himself told OTP

11 representatives about the complaints: "This was a daily problem. It was

12 a constant problem. It was a problem that just went on."

13 Now, beyond his awareness from the reports and protests of the

14 international community, General Cermak himself has repeatedly

15 acknowledged during the course of those interviews with the OTP that he

16 knew that soldiers were committing crimes during that period.

17 "Most of the military wasn't -- wasn't conducting themselves the

18 way they should have." "So when we talk about torching and destruction

19 that was in the first week of the Croatian military going through. So

20 that was one period. And then after that this also happened but to

21 lesser degree; so we have two periods." Here's another quote: "You know

22 that there were some killings, there was looting and burning also after

23 the operation of the Croatian military, and that went on."

24 General Cermak also recounted a telephone conversation with the

25 head of the political affairs administration of the Ministry of Defence.

Page 496

1 Now, this happened after General Cermak read a newspaper interview in

2 which the head of the political affairs administration had denied that

3 the Croatian army was committing crimes and attributed those crimes to

4 civilians dressed in military uniform, which General Cermak knew was not

5 true so he, according to him, called the head of political affairs on the

6 phone and said: "You idiot. What are you saying? You think these

7 people have no eyes to see what was going on? You're sitting there in

8 Zagreb. You don't even know what the situation is, and the truth is what

9 I'm telling you now."

10 Interestingly, according to General Cermak, the head of political

11 affairs said: "Well, don't be upset with me. You know I don't think

12 like that. There are people higher up."

13 Knowing that these crimes were taking place, General Cermak also

14 knew that insufficient measures were being taken. Indeed that virtually

15 nothing was being done. Here's what he said about that: "From

16 day-to-day I told them: Do your work. Start doing something. Look

17 what's going on in Knin." He stated: "They were there to do their jobs

18 and they were just hanging around, not knowing what to do with

19 themselves." Those are references to the military and the civilian

20 police.

21 According to General Cermak, he was constantly telling others of

22 the criminality that was occurring in the Krajina and beseeching them to

23 do something. He was in touch, he stated with the Minister of the

24 Interior Ivan Jarnjak and with President Tudjman: "Because I didn't

25 understand that this was happening and we couldn't stop this and I was

Page 497

1 embarrassed this was happening."

2 THE INTERPRETER: Could counsel please slow down for the benefit

3 of the interpreters. Thank you.

4 MR. TIEGER: General Cermak said that he made repeated appeals

5 for the crimes by the army to be dealt with. "I made appeals to the

6 civilian police, the military police. I went to the office of the

7 president. I even called Mr. Jarnjak. I talked to Mr. Gotovina." And

8 then later he said: "I told him clearly, Ante, the military is doing

9 nasty things. We have to stop that." "All the way to the president

10 because I didn't understand that this was happening and we couldn't stop

11 this and I was embarrassed this was happening."

12 So according to General Cermak, he knew that insufficient

13 measures were being taken to address the crimes that, as he told the

14 political affairs head, any idiot could see. He thus admits that he did

15 not take the measures necessary to stop the crimes because he claims he

16 lacked the power to do so. Instead, he beseeched those who had the

17 power, Jarnjak, Tudjman, Gotovina, to do something.

18 Now, these claims acknowledge the ongoing crimes by the army

19 about which everyone knew but then seek to deny his own power and

20 responsibility to act. But apart from failing to use the power and

21 responsibility he had, General Cermak also worked to ensure that

22 international pressures to stop the crimes were deflected. He repeatedly

23 assured the internationals that all necessary steps were being taken or

24 attempted to mislead them into believing that it was not the army that

25 was committing the crimes.

Page 498

1 I'll quote from a letter that he sent to the ICRC in response to

2 their complaints about the crimes echoing the very claims that he says he

3 told the head of political affairs were untrue.

4 "Crimes that you are referring to were committed by individuals

5 who want to take advantage of a brilliant military operation to gain

6 property in an illegal manner and fulfil sick murderous instincts. Such

7 individuals are criminals who by putting on camouflage uniforms shed

8 suspicions on the honesty of the Croatian soldier and the correct

9 policies of the Republic of Croatia. The government of the Republic of

10 Croatia has shown firm views and determination that all such criminals be

11 brought to justice."

12 Similarly on the 31st of August, the head of UNCRO Sector South

13 wrote him about the smoke coming from the areas where UNCRO had been

14 restricted and posed the question that these unexplained burnings leave

15 many unanswered questions: How is it that almost after a month so many

16 houses continue to be burned, driving poor and destitute persons homeless

17 from their land?

18 And on September 3rd, General Cermak wrote back: "I am surprised

19 that you mentioned the expulsion of the poor and needy from their land

20 and I consider these to be serious allegations and baseless accusations.

21 Please provide documentation to prove at least one case of expelling

22 people and torching their houses."

23 As General Cermak told President Tudjman in 1999: "He had to

24 oppose incessantly to the Helsinki Watch, the international community,

25 arsons, killings, et cetera."

Page 499

1 Now, in doing that he was just one part of the effort to ensure

2 that crimes were not inadvertently revealed to the international

3 community. You'll see repeated documents during the course of this case,

4 I've cited a couple before, reflecting concern over international

5 repercussions or the fear of damage to Croatia's image, but the objective

6 to ensure that the international community did not receive information

7 that might hurt Croatia's image was pursued in various ways rather than

8 stopping the crimes themselves.

9 For example, Mr. Waespi told you that the UNCRO personnel was

10 locked down and when they were finally released they observed the efforts

11 that had been made to eliminate evidence of what had happened. There was

12 a similar effort to control journalistic access for fear that the media

13 would expose the ongoing crimes.

14 Now, this began before Storm --

15 THE INTERPRETER: Kindly slow down. Thank you.

16 MR. TIEGER: At a meeting on August 2nd, the political department

17 of the Split Military District reported that journalists were asking to

18 come to Grahovo which had been burned down by HV troops. The quote was

19 in the diary: "Journalists requesting to come to Grahovo. Do not allow

20 journalists to come to Grahovo. Cameras to be controlled."

21 And then General Gotovina, who knew precisely how the damage to

22 Grahovo had occurred then suggested they disseminate an alternative

23 explanation. "Report through a messenger that Glamoc and Grahovo were

24 shelled by phosphoric shells."

25 After Storm that same concern continued, in fact was amplified

Page 500

1 and you will see various references to that during the course of the

2 case. I will quote again from the Split Military District war diary.

3 "Burning down of houses is a huge problem. The journalists and others

4 who come to visit the area could prove that it was the arson."

5 And then a later reference to different foreign TV agencies

6 coming and the insufficient number of check-points to control journalists

7 from getting in.

8 General Cermak's efforts, however, to cloak the crimes and

9 prevent their exposure to the international community went beyond the

10 measures already discussed, however. Now, I mentioned earlier the

11 collection of bodies in the absence of investigation, bodies that were

12 simply picked up, tagged, photographed, and buried along with the

13 forensic evidence with them. Civilian bodies, animal carcasses were

14 collected as quickly as possible and basically treated with the same

15 investigative interest. Despite the fact that these civilian deaths

16 mounted, these were considered collateral damage, Storm damage. But it's

17 possible to understand more clearly the attitude toward these deaths by

18 pulling the curtain behind which some of these incidents are cloaked and

19 looking at one in particular. Mr. Waespi mentioned Grubori, and I'd like

20 to focus for a moment on what happened in the aftermath of Grubori.

21 Now, that's the incident in which five people were killed,

22 including the 78-year-old man you saw in the video and a 90-year-old

23 woman with a bullet in her head, burned in her house. So similar events

24 of course had happened before. There was one difference here. The human

25 rights action team was virtually on the spot with a camera, and they

Page 501

1 forced certain actions and responses that enable us to see both the

2 attitude toward killings of Serbs and General Cermak's view of what to do

3 about them.

4 So let's begin with the day of the operation. First

5 General Markac's Special Police members were involved in the mopping up

6 of Grubori. And during the course of that day through radio contact as

7 they were reporting back, they reported that nothing had happened and

8 when they returned that evening they reported that nothing had happened.

9 But the same day, the human rights action team came in with cameras and

10 entered the village and then confronted General Cermak later on. And if

11 I can show you a quick video of his comments.

12 JUDGE ORIE: Mr. Tieger, has a hard copy of the transcript been

13 provided to the booth?

14 MR. TIEGER: Yes, Your Honour, it has.

15 JUDGE ORIE: Yes. Then please proceed.

16 [Videotape played]

17 THE INTERPRETER: "[Voiceover] There are still some scattered

18 groups of renegades and terrorists on the ground and our own

19 anti-terrorist units of the civilian police are mopping up the area. In

20 one such clean-up action yesterday, they covered 100 kilometres of land

21 towards the villages of Plavno and Grubor. Our troops are performing

22 their normal tasks.

23 "However, the general denied that civilians had been killed or

24 houses burned.

25 "I don't know where you got the information from that the people

Page 502

1 were called out from their houses, some were in pyjamas and that houses

2 were burned. I will personally submit an official report on this and I

3 think that your information is not really accurate."

4 In this case, however, under pressure from the internationals, it

5 was clear that saying nothing happened was not going to work. So

6 General Markac and his troops went for the easy justification, combat

7 activity. General Markac obtained backdated reports from, first, the

8 commander of the unit and then later, realising there were no reports

9 from the subcommanders who had actually conducted the operation, obtained

10 backdated reports from them as well. All of these reports say that

11 killings occurred as an unfortunate consequence of combat. And these are

12 interesting reports which the Court will have an opportunity to see. Of

13 particular interest is the fact that at some point someone realised that

14 these reports needed an added touch and so the same reports were redone

15 with an extra paragraph which said that before the operation they had

16 been instructed to comply with international law.

17 That's that last paragraph you see in this document.

18 But there was a small problem and that was the two local civilian

19 police wanted to investigate, but that was quickly dealt with. Both were

20 reprimanded not to initiate an investigation. One was called to

21 General Cermak's office, and there the minister of interior was

22 telephoned by General Markac's assistant commander to complain about what

23 the local police were trying to do and it seemed at that point that the

24 matter was successfully buried. Meanwhile, however, General Cermak was

25 assuring the internationals that the victims had died in combat. So in a

Page 503

1 letter to the ICRC chief of delegation on August 30th, he assured her

2 that: "The Croatian army has and observed strict rules about the

3 protection of civilians." And emphasised: "I personally visited the

4 area the following day and convinced myself of the truth and course of

5 the incidents in question."

6 JUDGE ORIE: Mr. Tieger, just for me to follow, I heard and the

7 transcript reads: "One was called to General Cermak's office and there

8 the minister of interior was telephoned by General Markac's assistant

9 commander --"

10 MR. TIEGER: Sorry, Your Honour, in General Markac's presence

11 after a conversation with General Cermak and the assistant to that local

12 civilian police officer pushing him not to investigate.

13 JUDGE ORIE: So, in General Cermak's office by the assistant of

14 General Markac.

15 MR. TIEGER: Correct.

16 JUDGE ORIE: All right. Please proceed.

17 MR. TIEGER: I just noted General Cermak's comment that he

18 personally visited and convinced himself of the truth. The Court has had

19 an opportunity to see that scene, and perhaps it wasn't visible on the

20 video, but that includes bullet casings on the floor where one of the

21 victims was murdered, which is hardly suggestive of collateral damage

22 until the battle took place in that victims' bedroom.

23 Well, not surprisingly, people realised that none of this made

24 sense and Grubori was referenced in a report by the Special Rapporteur

25 Elizabeth Rehn and this is 7th of November.

Page 504

1 JUDGE ORIE: Mr. -- it's my recollection but I could be wrong

2 that I saw one casing on the floor or are there more? Have I missed the

3 relevant part or --

4 MR. TIEGER: I thought there were two, Your Honour, but I may

5 have --


7 MR. TIEGER: In any event the point was --

8 JUDGE ORIE: At least one.

9 MR. TIEGER: At least one.

10 JUDGE ORIE: At least one. Please proceed.

11 MR. TIEGER: And -- and Rehn wrote the Foreign Minister

12 emphasising some of the factors that made this clearly appear to be

13 murder rather than combat. And so General Markac was contacted as a

14 result of this letter and he came up with now the third and most

15 implausible version, his new version was that the victims had been

16 executed as the evidence indicated but by Serb terrorists. Now, this

17 version was so transparent that when the Croatian officials responded to

18 Rehn, they didn't even mention it. And in fact this version was too

19 preposterous for even General Markac to maintain and in 2001 when he was

20 interviewed by Croatian investigators looking into Grubori, he reverted

21 to the original coverup story, that the victims had been killed in

22 combat.

23 JUDGE ORIE: I take it the exclamation marks we find in the

24 margin, are they put there in the original as well or --

25 MR. TIEGER: I don't have the original, Your Honour. My

Page 505

1 recollection is that's right but we will check and get back to you on

2 that.

3 JUDGE ORIE: Just for us to be sure. Please proceed.

4 MR. TIEGER: So let me quickly recap.

5 The first story is that nothing happened. Then, when the

6 killings couldn't be denied it was said to be result of combat

7 activities, and when that was challenged, then Serb terrorists were

8 responsible. And when that clearly couldn't be sustained, General Markac

9 reverted back to the combat activity story which hadn't made sense in the

10 first place. The true story is that the Special Police murdered the

11 victims and destroyed the village and that together, Generals Markac and

12 Cermak worked to ensure that this would never be known.

13 Now, General Markac's cover-up would have been significant enough

14 if he was simply another superior officer of the Lucko unit which was

15 involved; but as the assistant minister of the interior for Special

16 Police and the commander of the Special Police forces during Storm, he

17 set the standard for every member of that body.

18 THE INTERPRETER: Slow down, please. Thank you.

19 MR. TIEGER: I apologise to the interpreters and I'll write it

20 down on each page.

21 The Special Police was originally designed to be an elite force

22 within the Ministry of the Interior to fight sabotage and combat

23 terrorism, and they were also, as they did in Storm, to participate in

24 combat operations as specialised infantry forces. After combat, they

25 were used to mop up. They were heavily armed with everything from

Page 506

1 pistols, rifles, machine-guns, to anti-tank rocket launchers, mortars,

2 and multiple-rocket launchers.

3 During and for a time after Operation Storm, Special Police

4 forces were operationally subordinated to the Croatian army with

5 General Markac reporting both to the Croatian army Main Staff and to the

6 minister of the interior. He had mechanisms to receive reports about

7 upcoming, ongoing, and completed operations and had the authority to

8 order investigations and initiate disciplinary actions against

9 subordinates. And despite the obvious crimes that were taking place all

10 around him and that were clearly committed by his men, he chose like his

11 fellow accused not to do anything, not to punish anyone, or, rather, he

12 chose to do the opposite.

13 From the virtual outset of entering towns and villages the

14 Special Police began committing crimes. As Mr. Waespi indicated, they

15 entered Gracac on the 5th and within a short time the town was destroyed

16 or was being destroyed.

17 JUDGE ORIE: Mr. Tieger. Could you perhaps put it every ten

18 lines, Mr. Tieger. Please proceed.

19 MR. TIEGER: Ultimately, as you have heard, 85 per cent of Gracac

20 was destroyed and you saw those photographs of the Special Police members

21 loading televisions on trucks and hot-wiring cars.

22 General Markac could always know where his men were. He received

23 regular reports, but in Gracac he didn't need to read reports to know

24 that. He was there with them. On the morning of the 5th of August, he

25 entered Gracac with his Special Police and set up his forward command

Page 507

1 post there at noon. And that's the -- I think you can see that at the

2 arrow.

3 A few days later, on the 7th of August, the Special Police

4 entered Donji Lapac in much the same way as they entered Gracac. As with

5 Gracac, the town was set ablaze and as with Gracac the burning continued

6 for days. Ultimately, Donji Lapac was virtually completely destroyed.

7 As the minister of defence said in September to President Tudjman:

8 "President, Donji Lapac as such does not exist. There is only its name

9 on the map. Everything is destroyed, everything."

10 Here, too, General Markac didn't need to rely on the widespread

11 awareness of the looting and burning or the reporting system that would

12 have alerted that to him -- excuse me, to the presence of his units in

13 the locations where the looting and burning was taking place. He was in

14 Donji Lapac as the evidence will show and he could see it for himself.

15 Now, in light of what you've heard about Grubori, it's no

16 surprise that no disciplinary measures or criminal penalties were imposed

17 against members of the Special Police for crimes. General Markac's

18 interest was not in disciplining his troops, not in preventing these

19 crimes, not in punishing these crimes but in ensuring the opposite, that

20 these crimes would not be brought to light, that they would be buried

21 along with the victims.

22 We talked Grubori already. The very day after the Grubori

23 massacre, on the 26th of August, the same unit involved conducted a

24 mop-up operation in the municipality of Orlic. And you have you've heard

25 from Mr. Waespi what happened to Orlic. In the course of this operation

Page 508

1 they began setting fires. General Markac was present immediately after

2 the incident. In this case he argued with the subordinate commander who

3 had led the unit over the manner in which the operation was conducted.

4 But he didn't punish, discipline, or arrest the members of the unit

5 despite the fact that he knew that they were the unit which had just set

6 fire -- General Markac was aware that this unit which had just set fire

7 to the village was the same unit involved in Grubori the day before.

8 Instead of the necessary punishment, punishment that would have sent a

9 message that had long since been needed in -- in the face of the ongoing

10 crimes, he simply withdrew them to Zagreb.

11 And then this incident, too, was covered up by General Markac,

12 just like Grubori. In his report to the chief of staff on the Special

13 Police operation for that date, he reported that this fire occurred in

14 the course of combat. And indeed when you have an opportunity to look at

15 those reports you can see the similarities.

16 This false characterisation just like in Grubori served as a

17 means of cloaking crimes by his subordinates, crimes that he was

18 responsible for preventing and punishing, not covering up.

19 Your Honours, the circumstances that I have outlined, the

20 unlawful failures of those with responsibility, the climate of impunity,

21 the cover-ups did not happen by accident. They can be traced back to the

22 objective I described at the beginning of my remarks, to drive Serbs out

23 of the Krajina and keep them out. As discussed, the three accused

24 contributed to that objective in various ways, whether actively or by

25 repeatedly turning a blind eye, by standing by as the destruction

Page 509

1 unfolded day after day and yet repeatedly failing to take necessary steps

2 to prevent or to stop the crimes.

3 In so doing, as I've said before, the message that was sent is

4 the one that was received by the soldier who talked to that international

5 that Mr. Waespi referred to, who understood that his conduct was

6 tolerated and permissible. It is for these reasons that the indictment

7 charges a joint effort to achieve the illegal objective identified in the

8 indictment.

9 Your Honours, twice earlier I referred to the anguished

10 rhetorical question posed about an international in the midst of the

11 destruction of the Serb community, a community which had resided in that

12 part of the Krajina for centuries: "This is criminal. Is there nothing

13 that can be done?"

14 Well, at this point what can be done now is the trial that we

15 have embarked today which promises a full and fair account of those

16 events with due regard to the rights of the accused and the rights of the

17 victims and to the solemn responsibility to ensure that to the extent

18 possible, the full story of what happened based on all the available

19 evidence will emerge and responsibility allocated accordingly. It is the

20 Prosecution's submission, Your Honours, that at the end of this trial,

21 having heard all the evidence, you will find the accused guilty of the

22 crimes charged in the indictment.

23 This concludes my opening remarks and Mr. Waespi's opening

24 remarks for the Prosecution. Thank you, Your Honours.

25 JUDGE ORIE: Thank you, Mr. Tieger.

Page 510

1 Having finished for today, we'll adjourn unless there's anything

2 to be raised.

3 Mr. Misetic.

4 MR. MISETIC: Your Honour, I did want to say something. I should

5 have addressed it earlier but I didn't want to take time away from the

6 Prosecution's opening statement. We have extensive use of videos in our

7 opening statement tomorrow. We have already sent an instruction to our

8 team to get as many transcripts as possible to the interpreters in the

9 booth but I did want the Trial Chamber to be aware that I'm not positive

10 yet that we're going to have all the transcripts, but we're going to do

11 everything possible to get that done by tomorrow morning.

12 JUDGE ORIE: Yes. I take it that you understand my concern for a

13 complete transcript. On reviewing this this afternoon, whether you have

14 all the material available, try to imagine what practical problems could

15 arise on those clips for which you have no hard copy available. If these

16 are longer clips, that might create an unworkable situation. If it's a

17 very short clip, you might read at the appropriate speed something into

18 the transcript. Perhaps also the parties could consider this afternoon

19 to what extent videos played or audios played are later tendered because

20 then there might not be that much of a need to have them all marked for

21 identification. If, however, this is material that will not come at any

22 later stage, then I think it would be wise to have them marked for

23 identification. Perhaps it would even be a good idea that if not every

24 single part would be marked for identification that at least, in one way

25 or the other, it is on the record what has been played, for example, by

Page 511

1 just providing a short list, finding them, index of video and audio

2 material played during opening statements can be filed then we don't have

3 to pay any attention to it any further, but then the record is at least

4 complete.

5 We will adjourn until tomorrow morning, 9.00, the same courtroom.

6 --- Whereupon the hearing adjourned at 1.37 p.m.,

7 to be reconvened on Wednesday, the 12th day

8 of March, 2008, at 9.00 a.m.