Tribunal Criminal Tribunal for the Former Yugoslavia

Page 512

1 Wednesday, 12 March 2008.

2 [Opening Statement - Gotovina Defence]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE ORIE: Good morning to everybody. Madam Registrar. Please

7 call the case.

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

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

10 JUDGE ORIE: Thank you, Madam Registrar.

11 The Defence of Mr. Gotovina has announced that it would like to

12 make an opening statement. The other parties have announced they would

13 not, at least not at this stage, therefore, Mr. Misetic or Mr. Kehoe, are

14 you ready to give your opening statement.

15 MR. KEHOE: Yes, Your Honour.

16 JUDGE ORIE: Then please proceed.

17 MR. KEHOE: Mr. President, Your Honours, learned colleagues on

18 the Defence and the Prosecution. Mr. President, Your Honours, my name is

19 Gregory Kehoe. I am honoured here to represent the man General

20 Ante Gotovina in this matter before the Court.

21 I sat here yesterday for the better part of the day,

22 Your Honours, and thought about many of the things that were being stated

23 about General Gotovina by the Prosecution. I don't know where this has

24 gone wrong. I don't know how the Office of the Prosecutor has gotten

25 this so wrong, but we will attempt at this part of the opening to begin

Page 513

1 to explain and to elaborate, and my portion of the opening, Mr. President

2 and Your Honours, I will talk about the general overview of the area. I

3 will then turn to my colleague, Mr. Misetic, who will then talk about

4 Operation Storm and the participation of General Gotovina in detail.

5 As I sat here yesterday and listened to what was said by the

6 Prosecution, it was not so much what the Prosecution said but what they

7 didn't say that was starkly evident. What was starkly evident was that

8 there was no deportation once Operation Storm commenced on the morning of

9 August the 4th of 1995, because the Republic of Serb Krajina had always

10 planned to remove their people from the area, a matter that was never

11 brought forth to the Court.

12 There was no excessive shelling of Knin on either the 4th or the

13 5th. How do we know that? We know that from very practical concerns,

14 practical concerns that were evident to the Prosecution that they chose

15 not to share. And the first and foremost practical concern being brought

16 forth to the Court is the Brioni tape to both Mr. Tieger and Mr. Waespi

17 referred, and in that tape President Tudjman cautions General Gotovina

18 and the other military commanders not to expend unnecessary rounds. "Do

19 not shell like we are Americans and Russians because we do not have the

20 munitions." A fact that wasn't brought out by the Prosecution, yet

21 starkly evident in the face of their argument that there was excessive

22 shelling.

23 They didn't bring out that the one person that the United Nations

24 had tasked in Knin to determine whether civilian targets had been

25 shelled, Steinar Hjertnes, who is the chief of the UN military observers,

Page 514

1 did such an examination on the 18th of August, and in that examination he

2 concluded that the artillery attack by the HV was proper and directed

3 towards military targets and not towards civilian targets. That

4 particular report, along with its author, are the only hard evidence to

5 come before this Court by the United Nations at the time. What is

6 interesting to note is that this witness, this head of the military

7 monitoring commission, has been removed from the witness list by the

8 Prosecution.

9 JUDGE ORIE: That's not interesting to know but the Court knows

10 that because there is litigation about that, Mr. Kehoe, so therefore --

11 MR. KEHOE: I understand, Judge.

12 JUDGE ORIE: Let's be very practical. Let's proceed.

13 MR. KEHOE: Yes, sir. And moving on practicalities and talking

14 about the issue of that shelling. The Prosecution has made much that the

15 shelling was designed to bring terror to the civilian population. What

16 is not brought to your attention is the actual law in that regard, that

17 the ICRC and their commentary on the protocols says that that is a

18 natural consequence of a military attack and that attacks on armed forces

19 are purposely conducted brutally in order to intimidate the enemy

20 soldiers and to persuade them to surrender.

21 Probably more important than anything else that was overlooked

22 with regard to General Gotovina is that he was an operational commander,

23 an operational commander that with his army was able to do that which no

24 other army was able to do. In the midst of a time frame when the Bosnian

25 Serb army with Ratko Mladic at its helm and President Karadzic running

Page 515

1 the Republika Srpska, the Bosnian Serbs were attempting to solidify their

2 hold on the grounds gained and to connect the Krajina with the lands held

3 by the Bosnian Serbs. There was one person, Mr. President and

4 Your Honours, that brought the demise of the Bosnian Serb army and the

5 end of the war in the former Yugoslavia, the one person at the head of

6 those armies that brought the carnage in the former Yugoslavia from 1991

7 to 1995 to an end, one person, that man.

8 At the direction of the HV and then in conjunction with the

9 Bosnian Muslim army brought to heel that which international armies were

10 never able to do.

11 And what was also not brought to your attention was that

12 Operation Storm was a series of plans that were -- that were designed to

13 bring the Bosnian Serbs to heel. It started in summer of 1995 with

14 taking of the high ground over Knin. It then moved to Operation Storm on

15 the 1st, 4th, 5th of August. It then moved in September and October to

16 Operation Maestral and Operation Southern Movement, all being directed by

17 General Gotovina to finally defeat the Bosnian Serb army and bring them

18 to the negotiating table and to put this carnage to an end.

19 That is the man who sits before you. But I think, Your Honour --

20 Mr. President and Your Honours, in order to look to see how we got to

21 1995, it's important to take a look at what happened preceding that.

22 As Your Honours know, and we're not here to rehash the history of

23 the former Yugoslavia, by the time 1991 came around, Yugoslavia as it was

24 post-Second World War was falling apart. In 1991 there were public

25 referendums both in Slovenia and in Croatia declaring independence from

Page 516

1 the former Yugoslavia. That particular referendum in Croatia was on the

2 25th of June, 1991. Shortly thereafter, international recognition came

3 to Croatia. And while the Yugoslavia as -- the prior Yugoslavia being

4 run by Slobodan Milosevic and backed by the Yugoslav People's Army, the

5 JNA, were not particularly interested in the Slovenians leaving, they

6 were quite interested in keeping the Serbs in the former Yugoslavia. And

7 so we -- what begins to evolve is the determination of or the evolution

8 through the words and propaganda of Slobodan Milosevic of a Greater

9 Serbia, that all Serbs will be able to live together in one state and

10 that even though through public referendums within a democratic election

11 in Croatia held in 1991 that the people decided to secede from the former

12 Yugoslavia, such was not to be the case. Slobodan Milosevic was not

13 allowed -- going to allow Croatia to leave with the Serb population that

14 inhabited areas such as the Krajina, Eastern Slavonia, and in Western

15 Slavonia which encompassed -- well, Eastern Slavonia, Vukovar, and

16 Western Slovenia about midway through Croatia. And what was unleashed at

17 that particular point was the JNA. The Yugoslav People's Army was

18 unleashed on the Croats in order to bring them to heel, and what happened

19 at that juncture is nothing short of horrific, and we'll show you in a

20 moment exactly what happened in the wake of that attack.

21 We had an army of the -- one of the most powerful armies in

22 Europe unleashed on the civilian population in Croatia in order to bring

23 them to heel. And one might ask why the Croats didn't fight back. The

24 reality is, Your Honours and Mr. President, that in 1991, the Republic of

25 Croatia had nothing with which to fight back. It was a new country with

Page 517

1 no army and no military and was pitting itself against one of the most

2 powerful and largest armies in Europe, the Yugoslav People's Army. And

3 in conjunction with this attack by the JNA, we have the formulation

4 within the Republic of Serb Krajina of many of the individuals that you

5 hear throughout this, Milan Martic, Milan Babic, Radovan Karadzic, and

6 last but not least, General Mladic. Interestingly, going back as early

7 as 1991 when the Republic of Serb Krajina was coming into its incipiency,

8 was in its incipiency with Milan Martic at its head with Milan Babic, one

9 of the members of the officers of the JNA that was supporting their tasks

10 was none other than Ratko Mladic.

11 And in the face of the democratically elected country, in June of

12 1991 the Republic of Serb Krajina declared its existence and independence

13 in the summer of 1991. And with the assistance of the JNA solidified

14 their gains both in the Krajina and in Eastern and Western Slavonia, so

15 after a point almost a third of the Republic of Croatia was in the hands

16 of the Serbs or the JNA. And what happened at the hands of the JNA was

17 nothing short of horrific. One need only to look what happened to the

18 beautiful town of Vukovar, a baroque city on the coast of the Danube to

19 begin to understand the carnage that was inflicted on the Croatian

20 population throughout the latter part of 1991 until the end of the war

21 in -- in the end -- of the cease-fire in November of 1991.

22 Let me show Your Honours and Mr. President a short piece of that

23 carnage for Your Honours to understand, just a brief history of what this

24 country had gone through in order to declare itself as a sovereign, if we

25 may.

Page 518

1 JUDGE ORIE: Please do so.

2 MR. KEHOE: Yes, sir.

3 [Videotape played]

4 "As soon as the Slovenes and the Croats announced their

5 independence Milosevic started the war. He bungled an attack on Slovenia

6 but after the humiliation he turned his attention to Croatia. His

7 military strategy consists of first bombarding his target from the air,

8 then the troops pound the area with long-range missiles. After a while

9 the tanks move in, followed by swarms of militiamen.

10 "Terrible acts of brutality and looting have taken place within

11 these homes. We see only the after-effects when nothing has been left

12 worth a price on the black market.

13 "Leaders of the European Union decided to send the British

14 nominee Lord Carrington to intervene between what they called the warring

15 factions. Diligently, he drew up one agreement after another for a

16 cease-fire, each of which Milosevic eagerly signed and just as eagerly

17 broke.

18 "Nothing compared in horror to the siege of Vukovar. They wanted

19 to rob them of their past, their history, their memories, their identity.

20 They wanted to make it as if they had never existed. They burned their

21 books, their archives, their records, their manuscripts, their registers

22 of births and deaths, all in the name of ethnic cleansing. They smashed

23 their ancient monuments, even their grave stones and their churches,

24 always their churches, but they could not kill the spirit of the people

25 of Vukovar. Against the cruelest of killing machines they held out day

Page 519

1 after day, night after night for as many as 90 days and nights. The

2 Serbs boasted tomorrow Vukovar will fall, but the people would not

3 surrender. No one came out of the cellars and begged for mercy. No one

4 came out of cellars until the beautiful town of Vukovar was no more.

5 "The Serbs crowed over their victory as if they had routed a

6 force as heavily armed as themselves.

7 "Despite all the evidence to the contrary, the Serbs often

8 accused their victims of killing their own people.

9 "It's not Croatian territory. It's the territory of Yugoslavia,

10 and the fact is those Croatian forces, they are the ones who killed,

11 strangled, and massacred the people who were living here.

12 "They have killed all our friends, and we are not guilty. We

13 didn't want the war. We only loved them. We don't kill them. We don't

14 hate. We still don't hate.

15 "The French called for more effective intervention. In response

16 the United Nations Security Council imposed an arms embargo on all the

17 republics of former Yugoslavia, but the Croats were virtually

18 defenseless, while the federal army generals boasted that they had

19 stockpiled enough to keep the war going for another six years. Their

20 superior technology enabled them to conquer with the greatest of ease a

21 third of Croatia. They also wrecked, wantonly and senselessly wrecked

22 most of the show Serb villages within the Dubrovnik region

23 "But everything depends on the cease-fire and after 12

24 cease-fires one cannot be very optimistic that it will hold.

25 "Lord Carrington seems so unperturbed by the ceaseless breaking

Page 520

1 of cease-fires that the United Nations sent their own negotiator

2 Cyrus Vance to see what he could do. He succeeded in establishing a

3 temporary peace by endorsing the status quo. He brought in

4 United Nations troops to guard the new frontier. This effectively

5 prevented the Croats from retrieving their own territory.

6 "Though Milosevic had lost the battle of Dubrovnik, he had cause

7 for satisfaction. He had conquered a third of Croatia, wrecked its

8 economy, killed over 9.000 people, made nearly a quarter of a million

9 homeless, had smashed over 400 Catholic churches and had shown what he

10 meant by ethnic cleansing, which is, of course, Fascism.

11 "Questions were asked. Why couldn't the war be stopped? What

12 was the purpose of NATO? The Americans threatened air-strikes and the

13 bombing stopped, but it started again as soon as the threat was seen to

14 be mere words. This is not and never was a civil war. It was mainly an

15 unprovoked attack upon unarmed civilians by a heavily armed military

16 force. It was genocide as President Izetbegovic always insisted.

17 "How is it possible that we should have allowed such sights as

18 these to be seen again in this century?

19 "The heavily-armed secessionist Serbs easily concurred two-thirds

20 of Bosnia-Herzegovina. The sight on our screens of the shelling of the

21 bread queue, later the massacre in the marketplace of Sarajevo, shocked

22 the world. Never were our leaders so contemptible as when they pretended

23 not to know whether perhaps it had been the Muslims themselves who had

24 been responsible for the massacre.

25 "Again people asked why can't the war be stopped. Our leaders,

Page 521

1 having no policy of their own, could only respond to the public outcry.

2 "[No interpretation].

3 "What does one say to the grown-up children of murdered parents?

4 What does one say to them? How does one persuade the children of the

5 Bosnians to accept European values when Europe is what has murdered their

6 parents? How does one argue against the power of another ideology which

7 is supplying them with guns? It's very hard to see. You know, if ten

8 years from now, 15 years from now these kids have grown up and we find

9 ourselves with an Hamas or a Hezbollah sitting on the edge of Western

10 Europe and launching revenge attacks, revenge for the death of long-dead

11 parents, what are we going to say to them? Do we say, you know, you are

12 the terrorists? How can we call them terrorists when they have been so

13 terrorised?

14 "Our leaders have reneged on every relevant international

15 agreement which they have signed on our behalf. Our leaders have closed

16 their minds and hardened their hearts to the consequences of what they

17 propose, a tolerance, almost an approval of a Fascist regime not far from

18 our own doorsteps. Ghastly atrocities are at this moment being committed

19 in the name of ethnic cleansing.

20 "As for ourselves, how could we live with the shame of looking

21 the other way?"

22 MR. KEHOE: Mr. President, Your Honours, I want to show you that

23 video --

24 JUDGE ORIE: Mr. Kehoe, we asked ourselves why, because this

25 Chamber's interested to hear the facts about the background of the

Page 522

1 conflict. Whether the Chamber's interested in what music has been chosen

2 to underline pictures which we do not know to what extent it's

3 journalistic material or whether it really represents what it says, of

4 course the background of the conflict, atrocities committed elsewhere

5 against Croats, against Muslims, et cetera, is certainly relevant.

6 Let's keep it to facts. We are not a jury, and of course what

7 the Chamber asked itself when looking at this video, whether in the

8 exercise of the right of an accused to be tried in a public hearing,

9 whether it was the public who was looking at how you addressed the Court

10 or whether it was the Court that was allowed to observe how you address

11 the public.

12 Please proceed.

13 MR. KEHOE: Your Honour, the essence of this is how this all

14 began, and in order to understand Operation Storm and what happened in

15 its aftermath, it's essential to see what transpired prior to that and

16 what happened throughout the evolution of this.

17 What is also significant in this particular issue Vukovar,

18 Your Honour, is that, and I will show you a short video of a comparison

19 what happened in Vukovar and what happened in Knin, and I ask Your

20 Honours and Mr. President to look at these facts.

21 JUDGE ORIE: Mr. Kehoe, I take it that the message was clear.

22 MR. KEHOE: Yes, Your Honour.

23 JUDGE ORIE: Yes. So therefore we don't have to compare who --

24 whom ill-treated, mistreated, because this Chamber, of course, follows

25 not only what is now shown but of course has a lot of facts based on the

Page 523

1 case law of this Tribunal and of the case law in the republics of the

2 former Yugoslavia where the Chamber is not presented a journalistic

3 impression, and I have a question to you in relation to this, but can

4 follow what has happened on the basis of evidence that was presented and

5 that was challenged.

6 I do not know whether this video will be later tendered into

7 evidence and on what basis.

8 MR. KEHOE: It will, Your Honour.

9 JUDGE ORIE: It will and then we will see whether there are any

10 objections to that. Could you at least inform us at this moment what we

11 looked at? Who broadcasted it, who --

12 MR. KEHOE: The BBC. The prior, Your Honour?


14 MR. KEHOE: As the note had at the beginning of that, it was the

15 British Broadcasting Corporation, the BBC.

16 JUDGE ORIE: BBC. That's fine. Then we'll see what happens if

17 this is tendered into evidence whether there's any objection against it

18 then. But the Chamber is most assisted by, of course, giving the

19 background, fine, but then to focus on what is at the core of this case.

20 Please proceed.

21 MR. KEHOE: Yes, Your Honour. And I would like to turn to a

22 split screen comparison between Vukovar and Knin that we will also --

23 JUDGE ORIE: Yes. We'll look at it. I could split my screen and

24 present whatever images. Let's look at it and see whether it assists --

25 MR. KEHOE: Yes Your Honour.

Page 524

1 JUDGE ORIE: -- the Chamber. Please proceed.

2 [Videotape played]

3 JUDGE ORIE: Mr. Kehoe.

4 MR. KEHOE: Yes, Your Honour.

5 JUDGE ORIE: It becomes clear to the Chamber what you're showing

6 by a selection of pictures, that under the heading of Knin you showing

7 buildings that are mainly intact and under Vukovar you present buildings

8 that are heavily damaged.

9 MR. KEHOE: Yes, Your Honour.

10 JUDGE ORIE: If that is what you want the Court to understand,

11 then you have succeeded and that it is the position of the Defence that

12 whereas Knin, the buildings were not that much damaged. That was totally

13 different in Vukovar. The Chamber has totally understood this. Please

14 proceed.

15 MR. KEHOE: And, Your Honour, that the Office of the Prosecutor

16 never charged an illegal shelling case for Vukovar.

17 JUDGE ORIE: You know what it is. Please proceed.

18 MR. KEHOE: If I may, Judge, that one might ask how this

19 happened, and as I referred to you before and this is significant towards

20 the evolution of this case, because when we look back at 1991 there was

21 no army of the Republic of Croatia. It was beginning to build. It was

22 beginning to train, but they had nothing to fight the JNA.

23 So the -- what happened after the Serbs and the JNA had

24 solidified their gains in the Republic of Croatia was that the Vance Plan

25 came in that was referred to in the video, and in January of 1992, and I

Page 525

1 have it back up on the screen, we see the areas in the map in orange that

2 have been taken by the Serbs, both the Krajina Serbs and with the JNA,

3 that then became UN protected areas and were solidified by the

4 Vance Plan. So what the Vance Plan actually did in 1992 was to in fact

5 solidify the gains of Serbs.

6 Now, the design of that plan with the oncoming of UNPROFOR in

7 1992, was the United Nations, as the Martic judgement pooled, was

8 designed to ensure that the areas remain demilitarised and that all

9 persons residing in them were protected from fear of armed attack.

10 Unfortunately, from 1992 until Operation Flash and Operation Storm, and

11 in 1995, nothing could be further from the truth.

12 If we turn our attention to the Special Rapporteur's report from

13 1994, paragraph 136, that's on the screen: "According to UNHCR

14 statistics from 1994, 800-900 Croats, many of whom are elderly or

15 disabled have remained in UNPAs, United Nations Protected Areas,

16 Sector South. It is estimated that 44.000 Croats lived in the area

17 before the conflict broke out in 1991.

18 "Demographic estimates of UN protected area UNPA Sector North

19 from 1994 indicate that, out of a total population of 112.000, 1.000

20 Croats and Muslims have remained despite earlier ethnic cleansing."

21 Suffice it to say that the Vance Plan and its designs by the

22 United Nations to protect both the Croat and the Muslim ethnic

23 populations in their UN protected areas was a disaster. The reports of

24 ethnic cleansing, killings, sufferings, and other injuries inflicted on

25 the Croat and Muslim population from 1992 through 1995 are vast. This,

Page 526

1 this, in the face of the idea of the Vance Plan that these areas,

2 including the Krajina, was still part of the Republic of Croatia. And

3 suffice it to say during that entire period of time, there has been --

4 was no successful diplomatic effort to bring those areas back into the

5 Republic of Croatia.

6 So how did they fight back? What was the Republic of Croatia to

7 do? What the Republic of Croatia did, luckily enough, was have people

8 like Ante Gotovina come back, a man who had spent some time in the

9 French Foreign Legion and in the military to come back to save the

10 homeland, to begin to train the troops. General Gotovina had no

11 background in traditional JNA doctrine that you saw inflicting injury on

12 Vukovar. He came back in in 1991 and worked his way up through the

13 various ranks in the Croatian army, taking the rank as a man who led from

14 the front. Not a staff officer back in headquarters but a man who led

15 from the front that showed his troops the way to go, and he rose to the

16 top.

17 Truly he had help. You will see during the course of this trial

18 that the United States authorised the company called MPRI to come in with

19 the Croatian army, to assist in the building of the Croatian army.

20 General Gotovina set up an officers training school where

21 international humanitarian law was taught. Those graduates of that

22 academy graduated for the first time in 1994. Truly, truly an army that

23 was growing right before his eyes. But throughout it all, Mr. President,

24 Your Honours, it was a man, this was an officer --

25 JUDGE ORIE: Mr. Kehoe, it's now approximately 25 times and when

Page 527

1 you talk about Mr. Gotovina that you turn your back to the Court and turn

2 to Mr. Gotovina. If you address the Court, the Chamber by now, after 25

3 times, knows where Mr. Gotovina is seated. That's to our right.

4 Therefore, again this is not a theatre. This is a court of law where a

5 professional Bench hears your opening statement. Please proceed.

6 MR. KEHOE: Yes, Your Honour. This is a man who has never lost

7 sight of what he thought was right and wrong through leading his men in

8 battle, Mr. President and Your Honours. And I would like to show you,

9 Your Honour, a brief interview of an individual who will present himself

10 to Mr. President and Your Honours concerning who General Gotovina was in

11 the face of that battle.

12 JUDGE ORIE: Please play the video.

13 [Videotape played]

14 THE INTERPRETER: "[Voiceover] At the time General Gotovina had

15 only asked me to come but he didn't tell me there was an impending

16 military operation called Maslenica, which was conducted five days after

17 my meeting with the commissioned and non-commissioned officers in the

18 Zadar hinterland.

19 "General Gotovina certainly want me to set forth the Catholic

20 principles regarding conduct in war. These issues interested both him

21 and his associates who were present, so that through the lecture, the

22 conference and the discussion which were held, I relayed the teachings of

23 the Catholic church concerning the conduct of soldiers in a war in which

24 they are defending their homeland in order to set forth the position on

25 how to conduct oneself in military operations, in action, in military

Page 528

1 action, which was then imminent. I didn't know at the time. He didn't

2 reveal to me why he had invited me, but I saw afterwards and later on in

3 numerous conversations with the general we recalled this event. In later

4 conversations, because he told me it was of great important to him that

5 as a bishop, I set forth the Catholic teachings so that his commissioned

6 and non-commissioned officers could abide by these Catholic teachings

7 during war. We were taught during war one must remain ethical and that

8 there are limits to legitimate defence which must not be crossed.

9 "When discussing ethics in war and peace, I told the Croatian

10 officers it was necessary to conduct a legitimate defence and that one

11 must not go beyond the limits of legitimate defence, nor should one be

12 destructive. I told them that it's not ethical to rape, to loot, or to

13 commit any form of evil. Everything that is necessary in order to defend

14 your country and which does not humiliate others, that is, that should be

15 woven into military ethics, into the ethics of those who are at war.

16 "My perception of General Gotovina judging from my meetings with

17 him is a positive one. In my opinion, General Gotovina is a man who

18 upheld war ethics and a man who said to me after I'd held the conference,

19 'Your Excellency, it is very important to me that you addressed my

20 officers, my commissioned and non-commissioned officers, with those words

21 which I shall repeat to them constantly so that they adhere to them.'

22 "When I met General Gotovina after Operation Maslenica and later

23 on during other operations, he would visit me as I told you for

24 Christmas, Easter, and new year, and he told me that he kept my words in

25 mind all the time."

Page 529

1 MR. KEHOE: Suffice it to say, Mr. President and Your Honours,

2 that when General Gotovina was instructing his troops, he was instructing

3 his troops to act ethically, honourly, honestly, and morally.

4 If we move ahead, Your Honour. Much had happened during this

5 period of time between 1992 and 1995. Certainly, the rise of the Bosnian

6 Serb army solidifying their gains in conjunction with the gains in

7 Croatia were taking place. Diplomacy had failed on the international

8 level throughout 1992, 1993 and 1994 with the Bosnian Serbs repelling the

9 Vance-Owen Plan and also the Contact Group plan in 1994. I know

10 Your Honours know much about that. But clearly the year 1995, after the

11 international community had tired of the war in the former Yugoslavia,

12 clearly that was the point at which the end game was going to come about.

13 The Bosnian Serbs understood that they -- this was their time to solidify

14 their territorial gains, and that is what they set out to do.

15 The Republic of Srpska and the Republic of Serb Krajina commenced

16 in 1995 to bring about that end game. In February of 1995, specifically

17 20 February, 1995, the Republic of Srpska and the Republic of Serb

18 Krajina announced the formation of a joint defence council. They were

19 henceforth formally operating together.

20 In March of 1995, President Radovan Karadzic set forth his end

21 game for the eastern enclaves of Srebrenica and Zepa, and we have it

22 before the screen.

23 "The first goal, such goal is the separation from the other two

24 national communities.

25 "The second strategic goal is the corridor between Semberija and

Page 530

1 Krajina ... there will be no Krajina, Bosnian Krajina or Serb Krajina or

2 an alliance of Serbian states if we do not secure that corridor.

3 "The sixth strategic goal is the access of the Serbian Republic

4 of Bosnia and Herzegovina to the sea."

5 In a directive that was given in March of 1997 by

6 Radovan Karadzic concerning the solidification of their goals in

7 Srebrenica and Zepa, the Office of the Prosecutor has described it as

8 such. Directive 7 directed the Bosnian Serb army to complete the

9 physical separation of Srebrenica from Zepa as soon as possible,

10 preventing even communication between individuals in the two enclaves. A

11 planned and well-throughout combat operations create an unbearable

12 situation of insecurity with no hope of further survival or life for the

13 inhabitants of Srebrenica.

14 That was in March of 1995. In May of 1995, the cease-fire

15 expired, and May 26th of 1995, the Bosnian Serbs took UN peacekeepers

16 hostage.

17 As we move into July of 1995 given the state of affairs in the

18 former Yugoslavia with no hope of bringing about a peaceful solution to

19 this, the United Nations considered evacuating its peacekeepers. And

20 then the final end game began with the attack on Srebrenica and Zepa in

21 the first week of July of 1995. Unfortunately and tragically, as

22 Mr. President and Your Honours know, the world stood by while more than

23 7.000 Bosnian Muslim men were taken out and executed. The response by

24 the international community was virtually nothing.

25 And let it not be said that that was the only theatre of

Page 531

1 operation that the Serbs were operating in at that time. As you can see

2 on the map that is on the screen, the enclaves of Srebrenica and Zepa and

3 thereafter Gorazde were under siege, and clearly as they moved to their

4 end game to solidify their goals, they had to move to the circle that is

5 number 1 up in the corner, which is the Bihac pocket.

6 Now, Mr. President, I know you've heard quite a bit about the

7 Bihac pocket. And, Your Honours, the Bihac pocket was an enclave, a

8 Bosnian Muslim enclave, that was surrounded by the Bosnian Serbs. Why

9 was it so important? It was important because with that fall or

10 potential fall of Bihac the Bosnian Serbs, along with the Krajina Serbs,

11 would be unified. The goal of a Greater Serbia would have been achieved,

12 and the goal set forth by Radovan Karadzic that we talked about

13 previously would have been brought about. It was essential that Bihac

14 not fall.

15 Why else was it essential for Bihac not to fall, because is there

16 any doubt that if Bihac fell that the rivers of north-west Bosnia, like

17 Srebrenica, would have run red with the blood of Bosnian Muslims at the

18 hands at Ratko Mladic? I submit to you there is no doubt about that.

19 And after the gains in Srebrenica and Zepa were solidified, the

20 new Krajina Serb general, General Mrksic, began the move on Bihac and

21 launched an attack on the 17th of July, on the 17th of July of 1995.

22 What fear did that run through the international community?

23 Ambassador Galbraith of the United States said the greatest evil was the

24 possible fall of Bihac and the risk of the massacre of 40.000 people.

25 And Ambassador Galbraith's testimony in the Milosevic case: "We were

Page 532

1 deeply concerned that Bihac would fall, that it would become another

2 Srebrenica. It was four times as populous as Srebrenica, so we were

3 concerned that we could see 30 to 40 thousand people being massacred

4 if -- if Mladic and the Bosnian Serbs did the same thing."

5 In his testimony in Martic, Ambassador Galbraith reiterated these


7 "In July of 1995 the Bosnian Serb had overrun Srebrenica,

8 massacred some 7.000 men and boys, and had overrun another safe area,

9 Zepa, and it, along the forces of the RSK, was launching an attack on

10 Bihac that looked like it might prevail. This was intolerable for the

11 Croatian government, as indeed was intolerable for the United States.

12 The Croatians feared that if Bihac was overrun and -- that there would be

13 another massacre, the survivors would end up in Croatia which already had

14 been burdened by receiving some 2 million refugees passing through the

15 country since 1991. That it would create a solid Western Serb entity of

16 the RSK, plus the Bosnian Serb territory, so would put Croatia at a

17 strategic disadvantage and the Croatian government was not going to let

18 that happen. They saw that there was no prospect of successful peace

19 negotiations with the Krajina Serbs, given the attitude of the accused

20 who is Milan Martic, who refused to negotiate."

21 In response the government of Bosnia and Herzegovina and the

22 Republic of Croatia met at Split in July of 1995, July 22nd, 1995. "And

23 the agreement was to allow the Bosnian Serb to operate in conjunction

24 with the army of the Republic of Croatia and to allow the HV to operate

25 in Bosnia. You see, what was happening at this juncture was that RSK

Page 533

1 troops were moving from the Krajina into Bihac. And with the permission

2 of the army -- excuse me, of the government of Bosnia-Herzegovina,

3 General Gotovina led an attack on July the 27th in Grahovo to take the

4 pressure off the Bihac pocket and to allow the Bihac pocket and the army

5 of Bosnia and Herzegovina to survive. He led that attack commencing on

6 the 26th of July and was successful by the 27th of July. And,

7 Mr. President and Your Honours, it worked. There was a withdrawal from

8 the attack on Bihac at that time, and Bihac did not fall. The Bosnian

9 Serbs in conjunction with the army of the Serb Krajina were unsuccessful

10 in taking that.

11 Nevertheless, notwithstanding the loss of Grahovo, Milan Martic,

12 then the president of the Republic of Serb Krajina, had no desire to live

13 in a Republic of Croatia in peace, had no desire to engage in any

14 negotiation to bring about a peaceful resolution of this, and we hear as

15 much in a conversation that he had in Knin shortly after the fall of

16 Grahovo in the 27th of July.

17 [Videotape played]

18 THE INTERPRETER: "[Voiceover] Nobody has the right to stop

19 halfway and to reconsider whether we could have lived with our demons.

20 It is clear that such a life is impossible, and for this reason we are

21 keeping only one thing in mine. We haven't been offered any possibility

22 of peace. We aren't in a position to choose peace. We are being offered

23 slavery, a life of uncertainty and a fight for freedom. And with regards

24 to this choice, I'm fully committed towards the fact that we have to

25 fight to the end in our fight for freedom. We need to bear in mind only

Page 534

1 one thing: How to remain strong in a military sense and capable of

2 defending ourselves. After having repeated the opinion that the Republic

3 of Srpska Krajina should never be a part of Croatia, President Martic

4 especially stressed the conviction that the Serb people have the strength

5 to endure that honourable fight for their existence to be fought until

6 the very end and to show the demons that the Republic of Srpska Krajina

7 was and will remain Serb ethnic territory."

8 MR. KEHOE: And to solidify that, Your Honour, what the -- I'm

9 sorry, Your Honour. And to solidify that, Your Honour, what the

10 Bosnian Serbs and the Krajina Serbs were doing was preparing for war.

11 If we could turn our attention to the video of 18, please.

12 [Videotape played]

13 "The Bosnian Serbs and their allies -- crisis meetings not

14 because America has moved one step closer to lifting the arms embargo and

15 not because NATO is threatening robust action to protect the remaining

16 safe areas. It is the prospect of an all-out conflict with the Croatian

17 army that prompted this council of war. The Bosnian Serb military

18 commander General Ratko Mladic meeting rebel Serb commanders from Croatia

19 to plan a joint strategy. The military council meeting --"

20 MR. KEHOE: But as this was going on -- I'm sorry, Your Honour.

21 I apologise, Judge.

22 JUDGE ORIE: I'm -- I'm following the translation, and if you

23 take a little break so that they can finish the French translation then

24 please proceed.

25 MR. KEHOE: Yes, Your Honour.

Page 535

1 While the Bosnian Serbs and the Krajina Serbs were preparing for

2 war, they are also trying to give the view in buying time through some

3 efforts or supposed efforts on their part at diplomacy and we had a

4 series of meetings that were going on in Geneva in the first few days of

5 August. Well, what is clear, what is clear from this, in this particular

6 tape of the 2nd of August, 1995, was that Martic had no intention

7 whatsoever of engaging in any peace negotiations. If we look at the

8 centre of that page when they are talking about a Z-4 plan and the Z-4

9 plan was the plan being proposed by Ambassador Galbraith which, among

10 other details, allowed for the peaceful reintegration of the Krajina

11 Serbs into the Republic of Croatia.

12 Prijic, the individual says: They are dispersed there but we

13 cannot accept the Z-4 plan.

14 "Martic: Out of the question. Out of the question. There will

15 be no discussions about the Vance Plan or about Z-4." They have no

16 interest whatsoever in engaging in this. What they are engaged in,

17 Your Honours, is a plan for war. This is all within a few days of each

18 other, Your Honour, and I will turn our attention to exactly one last

19 item which is the BBC broadcasting reflection of a radio Knin -- a radio

20 Knin broadcast. And about midway down --

21 JUDGE ORIE: You have to slow down for the --

22 MR. KEHOE: Yes, Your Honour.

23 JUDGE ORIE: -- interpreters. Perhaps if you repeat your last

24 few sentences.

25 MR. KEHOE: Yes, Your Honour. What we have on the screen before

Page 536

1 us is an article that comes from a BBC world report concerning the

2 negotiations in Geneva. And suffice it to say from this article, and we

3 need not go into it in detail, is that Prijic and the Krajina Serbs have

4 no interest whatsoever in negotiating a peaceful resolution. And coming

5 until the first few days in August with this intercept and the other

6 information coming from the Krajina Serbs, President Tudjman,

7 General Gotovina, and others know it. The only thing that they are doing

8 is buying time, and buying time and preparing for war. And the person

9 that is going to lead that war in conjunction with the General Mrksic is

10 none other than Ratko Mladic. And then on July 30th of 1995,

11 General Mladic comes to Knin to discuss that matter.

12 If we can turn to the videotape.

13 [Videotape played]

14 THE INTERPRETER: "[Voiceover] General Ratko Mladic, the

15 legendary commander of the Main Staff of the Republika Srpska army, an

16 old acquaintance and one of the Serb legends.

17 "So this is an opportunity to use the presence of General Mladic

18 to address you and to ask him questions concerning the current situation

19 which is of great importance to the Serb people, critical. So I now give

20 the floor to General Mladic and will not be taking up any more of your

21 time. So, Mr. General, please go ahead.

22 "Thank you very much. If I could I would like to take this

23 opportunity to use the media in order to address the people, to greet the

24 people of the Republic of Srpska Krajina. We are here together. I've

25 always been here even if I left and was away for a while. I never really

Page 537

1 left here.

2 "Maybe for starters Mr. General how do you perceive the situation

3 as a whole in the Republic of Srpska and the Republic of Srpska Krajina?

4 "Currently, I would say that the situation is quite complex due

5 to an extensive aggression being conducted by the Croatian armed forces

6 against the Republika Srpska. The goal of their operation being to cut

7 off the Republic of Srpska Krajina and to use their weapons and the

8 assistance of mediators and pressure by the international community to

9 enforce a solution in the area by means of force. I do have a hope that

10 with the help of good organisation and the function of all segments of

11 the Serb people in both the Republika Srpska and the Republic of Srpska

12 Krajina the outcome will be a successful one. I think the Croats have

13 made a crucial mistake in this war and it is going to cost them dearly.

14 "Do the Serbs have enough strength to withstand the Muslims and

15 the Croats?

16 "The Serb people have enough forces and sufficient strength and

17 had countries from the German and Islamic bloc not provided support,

18 unfortunately along with the support of some others, they would have lost

19 this war long ago. Any prolongation of this war is disastrous, first of

20 all for those who started, and here I mean the Croatian armed formations.

21 "Mr. General, from a strategic point of view, in my humble

22 opinion, I think the Croat forces are quite stretched across the

23 territory now and towards the defence lines of our Serb defence forces.

24 To what extent with respect to our strategy can this be -- can this be a

25 fuse for a successful strategic strike to retake and liberate our

Page 538

1 territories?

2 "I won't address this question. You pose a good question taking

3 into consideration the fact that you express typical journalist

4 curiosity. I wouldn't answer your question with any particularly high

5 degree of precision. Time will show and time will answer your question.

6 "Mr. General, what is the current situation in the Grahovo and

7 Glamoc battlefields.

8 "Croatia's military formations have carried out attacks, entered

9 Grahovo and in part Glamoc as well. I do hope that we will retake these

10 and other occupied territories of the Republic of Srpska very soon.

11 "Among other issues we are interested in the situation in Grahovo

12 and Glamoc in the area of responsibility of the 2nd Krajina Corps. All

13 sorts of rumours are being circulated among the public, even by some

14 public information agencies in the Serb territories. There is

15 insufficient defence coordination between the Republic of Srpska Krajina

16 and Republika Srpska there are even rumours and attempts to stir unrest

17 among the population. There are talks of some sorts of selling out or

18 surrender of our liberated lands for a greater gain.

19 "First of all, I won't be getting to commenting on this

20 calculated propaganda, low intensity propaganda. As far as I'm concerned

21 the Serb population is unified from Kupa to Korana and all the way to

22 Timok and South Morava. I feel that the Serb people in those

23 territories, as should a lot of people on the planet, have the same

24 interests, the same state and remaining structures of such a state. And

25 I believe that with regard to that, what is going on in every part of

Page 539

1 those territories, needless to say, is with every individual on the

2 planet that Serbs should be allowed to demonstrate an interest in at

3 least the same degree as any other modern state demonstrates for its

4 citizens living within their state or in foreign territory.

5 "Surprised you by his presence but this doesn't mean that they

6 have asked me many questions up to now and they know what I think

7 [inaudible].

8 "You posed a good question. This isn't the first time the

9 Ustasha formations attacked our lives.

10 "That was a good question. This isn't the first time the Ustasha

11 formations attacked our lives. However, I believe the time has come that

12 our people as a whole realised something that many have come to realise

13 during this war and something that I have been indicating all along. I

14 believe terrible mistakes were made by individuals who claimed the war

15 with the Croats was over once for all or that it would be over within

16 seven days and that in the lines, along the lines of separation, numerous

17 check-points were being opened, customs zones. In some places there were

18 even soccer games being held. As you can see, these proved to be costly

19 decisions resulting in the loss of lives, numerous refugees and burned

20 villages, but I hope our people have now understood this and they have

21 enough strength, they will muster enough strength so that this aggression

22 by Croatia by has been present with its armed force during the whole time

23 of this war in the whole territory of Bosnia and Herzegovina be avenged

24 and so that we send them back to where they belong, their own territory.

25 "I just want to send my regards to the people. I want to tell

Page 540

1 them they should remain resolute in defending their century-old

2 historical hearth and graves and not to give into any acts of provocation

3 or any form of propaganda because it is only with the means of our forces

4 that we are creating our state. A state can be made only by using one's

5 own children and so many of our wonderful children have given their lives

6 for both the Republic of Srpska Krajina and the Republika Srpska which

7 should motivate the rest of us who are still alive and on our feet to

8 apply additional efforts and that we remain focused on the final stage of

9 this war. Until the final victory. That's right.

10 "Thank you very much."

11 MR. KEHOE: So Your Honours, quite clearly from this -- I'm

12 sorry, Your Honour, I don't know if the French translation was finished.

13 JUDGE ORIE: Yes, please proceed.

14 MR. KEHOE: Yes. Quite clearly from this interview in Knin

15 during this period of time they are getting prepared for one thing and

16 one thing only which is to bring about the final solidification of their

17 territorial gains. And how were they going to do that? In what fashion

18 were they going to do that? Were they going to taste the Bihac pocket

19 and other lands taken by the army of the Republic of Croatia in a fashion

20 in accordance with international humanitarian law or were they going to

21 use the tasks and methods employed in Srebrenica and Zepa? Ratko Mladic

22 answers that himself.

23 [Videotape played]

24 THE INTERPRETER: "[Voiceover] Mr. General, will the Muslims from

25 Bihac continue to provoke the Serb defence in the area of Ribic and

Page 541

1 thereon much longer?"

2 "Yes. And they will until they have been completed defeated as

3 they were in Srebrenica and Zepa."

4 MR. KEHOE: As they were defeated in Srebrenica and Zepa. There

5 is no doubt what would happen if General Gotovina and the HV had not

6 ensured that the Bihac pocket would not fall. Had he not come forward

7 and began not only summer 1995 which was the taking of Grahovo, but then

8 Operation Storm in August of 1995 followed by Operation Maestral and

9 followed by Operation Southern Movement.

10 General Gotovina and the army of Bosnia-Herzegovina changed the

11 entire international landscape to bring about the defeat of the Bosnian

12 Serbs and to end this carnage once and for all. And those words are not

13 necessarily mine. They are the words of negotiators on behalf of the

14 United States and the international community and also the president of

15 the United States.

16 He we turn to the book on the screen. This was an excerpt from

17 the book written by President Clinton, his memoirs, where he writes at

18 the bottom of the page: "In August, the situation took a dramatic turn.

19 The Croats launched an offensive to retake the Krajina, a part of Croatia

20 that the local Serbs," we are moving to the top of the next page, "had

21 proclaimed their territory. European and some military and intelligence

22 officials had recommended against the action in the belief that Milosevic

23 would intervene to save the Krajina Serbs, but I was rooting for the

24 Croatians. So was Helmut Kohl, who knew, as I did, that diplomacy could

25 not succeed until the Serbs had sustained some serious losses on the

Page 542

1 ground.

2 "Because we knew Bosnia's survival was at stake, we had not

3 tightly enforced the arms embargo. As a result, both the Croatians and

4 the Bosnians were able to get some arms which helped them survive. We

5 had also authorised a private company to use retired US military

6 personnel to improve and train the Bosnian Serb army," -- excuse me, "the

7 Croatian army."

8 The key, Your Honour, is in the last sentence of the paragraph

9 before that diplomacy could not succeed until the Serbs had sustained

10 some serious losses on the ground. That idea was echoed by

11 Richard Holbrooke where he noted, I'm quoting one of his colleagues: "I

12 realise how much the Croatian offensive in the Krajina profoundly changed

13 the nature of the Balkan game and thus this diplomatic offensive."

14 General Wesley Clark simply called it the turning point.

15 Mr. President and Your Honours, we are now going to -- I'm going

16 to turn this over to my colleague, Mr. Misetic, to talk yet further about

17 Operation Storm in some degree of detail, but I want to end,

18 Your Honours, with this one last point before the break: The man who

19 brought about the turning point, Mr. President and Your Honours, the man

20 who brought this war and this carnage to an end sits before you. The man

21 who, if anyone is responsible for peace and bringing an end to the war in

22 the former Yugoslavia, is General Ante Gotovina. That is the man before

23 you with which I hope this Court, Mr. President and Your Honours, gives

24 full breadth and full consideration when we are revealing the facts

25 before us.

Page 543

1 If time permits, I may have some concluding arguments, but if

2 not, I yield the floor to my colleague, Mr. Misetic.

3 JUDGE ORIE: Mr. Misetic, before you start, how much time you

4 would need? I have to find out whether it would be more suitable to take

5 a break now or after you've started.

6 MR. MISETIC: I think a break would be appropriate now,

7 Your Honour. I have a significant portion.

8 JUDGE ORIE: Then, Mr. Kehoe, I have one question that -- for you

9 at this very moment.

10 MR. KEHOE: Yes, Your Honour.

11 JUDGE ORIE: You spent a lot of time on what caused the military

12 operations in the summer of 1995, and you spent a lot of time on

13 explaining what the positive effect would be and to what extent it was

14 justified to take such action.

15 Now, I might have misunderstood Mr. Tieger yesterday, but I think

16 in five lines explained to us that he did not challenge the right of the

17 Republic of Croatia to retake the area that was earlier taken by the

18 Serbs so that the mere fact that retaking and bringing back to its

19 internationally recognised boundaries was, as far as I understand, not

20 contested as legitimate by the Prosecution. So therefore I asked myself

21 a couple of times what actually in this respect keeps the parties apart.

22 MR. KEHOE: I'm glad you asked that question, Your Honour,

23 without getting into the law on this regard but I think it's important

24 that we ascertain the distinction between an operational commander and

25 one who is a functional military governor or responsible for matters in

Page 544

1 his flank. And I direct Your Honour to the high command case where

2 General von Leeb, while there was ethnic cleansing going on with various

3 groups coming out of the SSS who were attached to General von Leeb, the

4 Court noted that General von Leeb was an operational commander. He was

5 responsible for offensive operations. And it is -- what is significant

6 and very, very important to this case, Your Honour, is for us to explain

7 to Mr. President and Your Honours the role of an operational commander

8 and what he is tasked to do. And what he was tasked to do was to bring

9 about the defeat of the Bosnian Serb army and also the army of the

10 Republic of Serb Krajina.

11 That being said, his responsibility vis-a-vis -- vis-a-vis taking

12 care of things that are 250 kilometres in his flank is non-existent.

13 Even if the -- von Leeb said even if he had the potential right to

14 intervene, he did not have direct responsibility.

15 So what was important for the Defence of General Gotovina,

16 Mr. President, was to circumscribe and explain that he was truly an

17 operational commander operating in the offensive with the design to bring

18 about the defeat of the Serbs in various theatres not only in the Krajina

19 but in Bosnia-Herzegovina. It is a matter of law that these facts will

20 apply to, and I refer back to the High Command case which the Celebici

21 Appeals Chamber cited with authority.

22 Now, with that in mind, Judge, tasking what an operational

23 commander is doing and how he is operating is highly, highly significant

24 to the defence of General Gotovina.

25 JUDGE ORIE: Yes. I still do not know whether in many respects

Page 545

1 there is disagreement between the parties in this respect, but we'll then

2 further hear about that.

3 We'll have a break and we'll resume at a quarter to 11.00.

4 --- Recess taken at 10.20 a.m.

5 --- On resuming at 10.51 a.m.

6 JUDGE ORIE: Mr. Misetic, before I allow you to continue, I'd

7 like to put on the record that the Chamber is aware that now and then

8 where reference is made to Mr. Martic, the transcript, at least the

9 provisional transcript, reads Markac, and that's of course a mistake. It

10 will be corrected anyhow, but the Chamber, if only from the context,

11 perfectly well understood when the reference was made to Mr. Martic.

12 Mr. Misetic, please proceed.

13 MR. MISETIC: Mr. President and Your Honours, may it please the

14 Court, Judge Schomburg of the Appeals Chamber once remarked in an

15 interview concerning some of the indictments before the ICTY he said:

16 "What is particularly critical is the mostly vague indictments. They

17 often comprise a stockpile of a whole range of possible actions and their

18 implementation. One can't help getting the impression that an arrest

19 warrant is issued first and only afterwards do the actual investigations

20 begin."

21 This case at the end of the -- at the conclusion of the

22 Prosecution's evidence is a perfect example of what Judge Schomburg was

23 referring to. At the end of the Prosecution's case in chief, you, too,

24 will come to the same conclusion. There is no evidence to support the

25 Prosecution's charges against General Gotovina, and there never has been.

Page 546

1 A Franciscan friar named William of Ockham who was a 14th Century

2 logician is the author of a principle of logic that has become famously

3 known as Occam's principle or Occam's Razor. Occam's Razor paraphrased

4 states that: All other things being equal, the simplest answer is the

5 best.

6 Throughout this trial, the Prosecution will consistently and

7 repeatedly ask you to violate Occam's principle. To reject the simple,

8 straightforward interpretation of the evidence in favour of a tenuous,

9 complicated conspiracy theory. Their entire case literally rests on your

10 willingness to believe the conspiracy theory despite the overwhelming

11 evidence that refutes that very theory.

12 For example, the Prosecution will ask you to believe that

13 Operation Storm was a vast joint criminal enterprise designed to

14 ethnically cleanse the Serbian population from Croatia. This is wholly

15 without merit. The simple straightforward answer is that Operation Storm

16 was launched with the best of intentions, to end Milosevic's, Karadzic's

17 Mladic's, and Martic's four year reign of terror in Croatia and Bosnia

18 and to do it while protecting the safety and security of the Serb

19 population which would remain in Croatia. It had the blessings of

20 portions of the international community specifically the United States of

21 America and President Clinton, provided that certain conditions were met.

22 The evidence in this case will show that the Croatian government,

23 including the Croatian army, planned and executed Operation Storm so as

24 to minimise civilian casualties and to provide safety and security to

25 those Serbs that remained in Croatia.

Page 547

1 The Prosecution points to the Brioni meeting as an alleged

2 meeting where criminal conspiracy was hatched. Nothing could be further

3 from the truth. The Brioni meeting was a meeting where the Croatians

4 discussed -- the Croatian government discussed destroying a criminal

5 conspiracy, Martic's and Milosevic's criminal conspiracy. At no point

6 during the Brioni meeting does President Tudjman suggest to those present

7 that they should force Serb civilians to flee.

8 Show 23A, please.

9 In the Martic case, the Prosecution submitted both pre-trial and

10 final trial briefs and here are some of the excerpts of the Prosecution's

11 position as recently as 14 months ago in the Martic case. I quote: "The

12 implementation of this plan (referring to Martic's joint criminal

13 enterprise) took several forms. An intense media campaign directed by

14 members of the Martic JCE in Belgrade began to portray Serbs in Croatia

15 as being discriminated against and victimised by the Croat majority and

16 imminently threatened with genocide by the latter.

17 "This threat, which was repeatedly echoed by Martic and other

18 Serb nationalist leaders in Croatia, Bosnia and Herzegovina and Belgrade,

19 instilled fear and resentment in the Serb population and eliminated the

20 possibility of co-existence between the ethnic groups.

21 "As a result of the implementation of this criminal plan, Serbs

22 living in Croatia and Bosnia and Herzegovina were made to believe that

23 they could only feel safe in a homogeneous Serbian state."

24 And then in the final trial brief --

25 JUDGE ORIE: Mr. Misetic, I hear the French interpreters

Page 548

1 struggling with your speed of speech. Please proceed.

2 MR. MISETIC: Sorry.

3 The Prosecution 14 months ago told the Trial Chamber in the

4 Martic case: "There is no evidence that Croatian leaders or the Croatian

5 media were actually threatening the Serbs with genocide, as claimed by

6 Serb leaders at the time."

7 This was the Prosecution's case in Martic.

8 The Prosecution said Martic's intense propaganda over four years

9 had "eliminated the possibility of co-existence with the Croats." That

10 the Serbs were made by Martic to believe that they could "only feel safe

11 in a homogeneous Serbian state." That the Croatian government -- there

12 is no evidence that the Croatian government was actually threatening the

13 Serbs with genocide.

14 President Tudjman, in planning Operation Storm understood that

15 Serb civilians had become victims of Milan Martic's propaganda campaign

16 for four years and that they had been made to believe that they could not

17 live in a Croatian state. As a result, prior to Operation Storm, it was

18 understood not only by President Tudjman but by the entire international

19 community that if Croatia were compelled by Milan Martic to use force to

20 retake its occupied territories, many Serb civilians would flee as a

21 result of the fear of Croatia that had been ingrained in them by Martic.

22 What is the evidence for what I have just told you? Well, the

23 evidence, Your Honours, is as the Prosecution made reference yesterday to

24 an operation of the Croatian army known as Operation Flash in May of

25 1995. During Operation Flash, Croatia recovered its territory in

Page 549

1 Western Slavonia. Many Serbs fled Western Slavonia when the Croatian

2 forces launched the operation. However, some Serbs stayed behind.

3 At the insistence of Mr. Martic, the United Nations organised a

4 programme to take out the remaining Serbs from Western Slavonia and to

5 move them to Banja Luka. The UN Special Rapporteur for Human Rights

6 submitted a report on this topic in July -- 5 July 1995, which is on your

7 screens, and he wrote, paragraph 29 -- sorry, paragraph 28, please.

8 "During the first two days of the military operation, as many as

9 10.000 people fled from the Serb-held area of Western Slavonia, mostly

10 from the Okucani area, across the Sava River bridge into northern

11 Bosnia ... the RSK authorities had previously held regular evacuation

12 drills, and there were reports that some of the refugees may have been

13 forced into leaving against their will. Subsequently, in negotiations

14 with the United Nations Protection Force and Croatian authorities, the

15 leaders of the RSK insisted that the persons left behind, estimated at 3

16 to 4.000, be given the opportunity to leave Western Slavonia and join the

17 other refugees in the Serb-held territory of Bosnia and Herzegovina. The

18 United Nations acceded to this demand and initiated the programme known

19 as Operation Safe Passage with the context of the four point Cessation of

20 Hostilities Agreement.

21 29: "Serbs still living in the sector were advised of their

22 right to remain and the public assurances of the government of Croatia

23 that their rights, including the right to citizenship of the Republic of

24 Croatia, would be fully respected. Nevertheless, during the month of May

25 hundreds of Serbs from Sector West applied for inclusion in Operation

Page 550

1 Safe Passage and by early June more than 2.000 had left for Serb-held

2 territory in Bosnia and Herzegovina. According to recent information, no

3 more than 1.000 remain in the sector. Numerous observers have voiced

4 concerns that the operation was conducted in an unduly hasty manner and

5 persons were not adequately informed of their rights. However,

6 continuing demand for inclusion in the exit convoys as late as mid-June

7 suggests that most Serbs in Western Slavonia were intent upon leaving

8 under any circumstances. Intending refugees interviewed by the

9 Special Rapporteur's field office indicated that the main reasons for

10 their wish to depart were the desire to join relatives who had already

11 fled, and doubts about future prospects in Croatia, especially the

12 security situation and the likelihood of finding work."

13 This all took place, Your Honours, between 60 and 90 days before

14 Operation Storm. The United Nations and international governments were

15 certainly aware of the policies of Martic to have Serb civilians removed

16 from areas where the Krajina Serb authorities did not control the

17 territory.

18 Who else in the international community knew that the Serb

19 policies of Martic would result in the departure of the Krajina Serbs?

20 Ambassador Peter Galbraith, the United States ambassador, in his

21 diplomatic diary, entry on June 15th, six weeks before Operation Storm,

22 wrote the following -- he talks -- the bottom paragraph.

23 "If Croatia took the territory," he's referring to Sectors North

24 and South, "the Krajina Serbs would leave. They could be resettled in

25 Sector East thus threatening Milosevic's claim to territory that he very

Page 551

1 much wants for Greater Serbia."

2 We don't only have Ambassador Galbraith's diary. Ambassador

3 Galbraith tried to avoid conflict, tried to get the Krajina Serbs to come

4 to their senses and agree to the peaceful reintegration of the so-called

5 Krajina into Croatia, and so on the 2nd of August, he went to Belgrade

6 and met with Milan Babic to try to convince him to accept the Z-4 plan.

7 On the 3rd of August, Ambassador Galbraith, on the evening before

8 Operation Storm, reported to Mr. Tudjman what he had discussed with

9 Mr. Babic in Belgrade, and you will now hear the audio of Mr. Galbraith's

10 conversation with President Tudjman and how he told Babic: "If you fail

11 to agree to peace, the majority of Krajina Serbs will leave."

12 Here is that audio:

13 [Audiotape played]

14 "Mr. President, I have a -- I would like to report, if I may, on

15 my meeting with Babic in Belgrade and that I have a message for you from

16 our government which follows through on that meeting. But first on the

17 meeting.

18 "Babic had indicated he wished to see me, and since I'm not very

19 popular in Knin after attending the Split meeting and after what I said

20 about the attacks on Zagreb, he proposed the American embassy in

21 Belgrade, and the administration, I made them aware of your subsequent

22 concern that maybe it wouldn't be a good idea but they asked that I go

23 anyhow.

24 "He -- we met at the embassy in Belgrade. He came by himself.

25 I began the meeting and I explained to him the facts of life as I saw

Page 552

1 them, namely that Croatia was poised to take military action to recover

2 the entire Krajina. Well, anyhow by that I mean sectors north and south.

3 That their action in going to Bihac had meant that they had forfeited a

4 very significant international sympathy, that it was our judgement that

5 if the Croatian army went it would be successful. And I said that this

6 would be a great tragedy because we know that many of the Serbs who live

7 there would leave, probably most of them. There would, of course, be

8 thousands of dead on both sides."

9 MR. MISETIC: That's an excerpt.

10 THE INTERPRETER: Interpreters note that they did not have the

11 transcript of this audio. It is not a custom to interpret if we don't

12 have the audio, the transcript of the audio.

13 JUDGE ORIE: Mr. Misetic --

14 MR. MISETIC: I'll try to take care of that later for them, Your

15 Honour.

16 JUDGE ORIE: That cannot, of course, undo what has happened

17 already. Is there any audio or video clip to be played for which there

18 is no written transcript available for the interpreters' booth?

19 MR. MISETIC: My case manager says we did e-mail it to them so

20 I'm not sure -- except for this audio but for the rest we did. I would

21 note, Your Honours, just one point there was an English translation

22 prepared of this transcript by OTP but however, for whatever reason, this

23 sentence where Mr. Galbraith says, "It would be a great tragedy. We know

24 that many of the Serbs who live there would leave, probably most of

25 them," for whatever reason was not translated. So that sentence was

Page 553

1 deleted in the English translation and I didn't have time to prepare a

2 new translation.

3 JUDGE ORIE: Yes. I'm a bit surprised about an English

4 translation, because I heard the text spoken in English, so what was

5 there still translation from English into -- I'm a bit puzzled about your

6 remark because why translate --

7 MR. MISETIC: She said she wanted a transcript. I thought she

8 meant a transcript of the English.

9 JUDGE ORIE: Yes. So it's not -- you say there was a transcript

10 prepared in English which was not complete.

11 MR. MISETIC: Correct.

12 JUDGE ORIE: Not a translation.

13 MR. MISETIC: A translation because there is a Croatian

14 transcript of this that was translated by OTP. We got the English

15 translation of the transcript.

16 JUDGE ORIE: I'm really puzzled. I hear words spoken in English.

17 I take it then that someone has translated it into Croatian or B/C/S, ,

18 whatever you'd like to call it, and then to translate it back when the

19 original is available in English surprises me. So therefore I can

20 imagine that a transcript of the words spoken is not available.

21 MR. MISETIC: I'll clarify. I don't believe that the OTP has

22 this audio so it was never translated -- or transcribed, let me say, this

23 way. They have a written transcript from the Croatian archives, from

24 Croatian that they translated into English. The English translation of

25 the written Croatian transcript did not have this sentence which is the

Page 554

1 need of why I had to use the audio which OTP doesn't have.

2 JUDGE ORIE: Now I better understand what the -- what happened

3 and why it still was a translation.

4 For the interpreters' booth, this will not happen again from what

5 I understand from Mr. Misetic.

6 Is there any need at this moment to repeat or to -- or were you

7 able to follow the text in such a way that we can rely upon the

8 translation as we find them on the transcript?

9 THE INTERPRETER: Interpreters note it's fine, Your Honour.

10 JUDGE ORIE: Thank you very much for your understanding.

11 Then please proceed, Mr. Misetic.

12 MR. MISETIC: Thank you, Mr. President.

13 So we see, Your Honours, that there was a whole record of

14 knowledge prior to Operation Storm that the Serbs would leave. There's

15 also more evidence. The Krajina Serb leadership on Krajina Serb

16 television in July of 1995, weeks before Operation Storm, broadcast

17 evacuation drills and their messages to the population. We have that

18 video as well which we'd like to show you about how the Krajina Serb

19 leadership was instilling fear in its own population and telling them to

20 leave in the event of armed conflict.

21 [Videotape played]

22 THE INTERPRETER: "[Voiceover] Having heard the sound of sirens

23 we hurried towards Terzic. It is now five minutes to 6.00. We're

24 located on a bridge crossing the river Mreznica, between Terzic and

25 Primisalj. We encountered the commander of the 13th Infantry Brigade,

Page 555

1 Colonel Marko Reljic. As we speak, a column of civilians with vehicles

2 and livestock are arriving from Terzic. What does this mean, commander?

3 "Well, this is an exercise which we're conducting in accordance

4 with our assumptions and our information that the enemy aviation will be

5 active in this region using rockets and artillery and before this happens

6 we have to evacuate, that is evacuate the civilian population from the

7 combat area and our units will complete the tasks that they have been

8 given. That means it is of importance to us to train the population, the

9 civilian population to evacuate as to suffer as little losses as

10 possible.

11 "Are you satisfied with the exercise up to now? Are members of

12 the 13th Infantry Brigade engaged in this exercise or are they manning

13 their positions?

14 "Members of the 13th Infantry Brigade are manning their positions

15 and according to the tasks that they have received, all soldiers are at

16 their positions. And I am very pleased with the conduct of the civilian

17 population. They understand the situation and are aware of the fact that

18 we need to prepare and be trained if we truly find ourselves in a

19 situation to have to evacuate so that there are no unnecessary victims.

20 And so that what happened in Western Slavonia does not happen to us

21 again.

22 "Absolutely. Thank you very much.

23 "You're welcome.

24 "Because Terzic is our first position which will be targeted so

25 we wanted to test this and by means of this exercise we have to review

Page 556

1 whether we are well prepared, whether we are well-organised and what

2 would be the best way to do this so as to avoid civilian victims should

3 there be military activity. We need to evacuate the civilian population

4 in due time. After having learned a lesson in Western Slavonia and

5 throughout history and wars, the population needs to be evacuated and

6 removed in time. The units and the army are to remain in their positions

7 executing their tasks. It is extremely important that you understand and

8 that you know that within your homes and families you need to prepare

9 yourselves, organise yourselves, and upon receipt of the signal you need

10 to withdraw to the designated region because the enemy wants to

11 slaughter, to murder, to burn, to slaughter these children. That is why

12 every citizen must be prepared for the evacuation. This evacuation won't

13 be signalled in advance. There won't be enough time to prepare. You

14 might have to [inaudible] they will have to save their skin. You must be

15 prepared for this."

16 MR. MISETIC: Your Honours, we submit to you that the evidence at

17 trial is going to be overwhelming that the Krajina Serb leadership,

18 specifically Martic and his joint criminal enterprise, consistently and

19 repeatedly used their civilian population as a tool in furtherance of the

20 desire for Greater Serbia, that they instructed their civilian population

21 both in Western Slavonia and immediately prior to Operation Storm through

22 television broadcasts to "be ready to go when the desired signal is

23 given."

24 This was not a tactic that was limited to Mr. Martic. This was a

25 tactic that was common to all of Milosevic's joint criminal enterprise.

Page 557

1 Indeed, it was well-known in the international community, and in 1999,

2 when conflict again broke out in Kosovo, what did the international

3 community assume would happen when international forces enter Kosovo? We

4 have that as well. This is the Pentagon spokesman four days before NATO

5 enters Kosovo.

6 [Videotape played]

7 "To keep hunting rifles and things like that which is different

8 from complete disarmament, but --

9 "[Inaudible].

10 "There will be some sort of -- some sort of decision made about

11 probably classifying weapons by calibre and I don't know what that is,

12 but the issue is that there will not be anybody to fight. NATO's going

13 to be there. NATO is going to be maintaining a secure environment.

14 There's going to be a security border around Kosovo that will mean that

15 the Serb troops have to be 25 kilometres away from the border with

16 Kosovo, and I would expect that everybody will do what -- what they want

17 to do, which is to rebuild their lives, to get home, to plant crops, to

18 get their kids in school, to reunify their families, and that's the point

19 of why NATO's going in to set up a stable environment.

20 "As I understand it, it's 5 kilometres for the forces.

21 "Can I just ask for a quick -- do you have any concerns about

22 Kosovar Albanians or KLA's retaining their small arms and engaging in

23 small arms fights with paramilitaries who may remain and NATO getting

24 caught in the crossfire?

25 "We always have to be concerned about threats to NATO troops.

Page 558

1 The fact of the matter is that I don't think that Kosovo is going to be a

2 very happy place for Serbs when NATO comes in, and the -- and the -- I

3 don't think Serbs will want to stay there. I think they will want to

4 return to Serbia. I don't anticipate that's what's going to happen. I

5 anticipate people will want to get home and rebuild their lives and

6 that's what they'll devote their energies to.

7 "[Indiscernible] said that 'Kosovo won't be a very happy place

8 for Serbs.'

9 "Well, I mean the Serb minority will be allowed to stay if it

10 wants to stay. We're already getting some reports and suggestions that

11 is most Serbs will want to go. We don't know how big the Serb minority

12 is there; it's probably about a hundred thousand, could be a little more

13 than that. But as Kosovar Albanians flow back in, our assumption is that

14 many Serbs will probably return to Serbia

15 "It sounds like you're encouraging the Serbs who now live in

16 Kosovo then to leave.

17 "I'm not encouraging them at all, I'm just stating what we

18 anticipate the facts will be."

19 MR. MISETIC: What we anticipate the facts will be. Why is this

20 relevant? Let's go back to the Brioni transcript.

21 You have heard, Your Honours, the evidence of what was common

22 knowledge prior to the Brioni meeting and prior to Operation Storm and

23 indeed what became common knowledge after Operation Storm.

24 On the Brioni transcript you will not find a single instance

25 where President Tudjman encourages his generals to do something to cause

Page 559

1 Serb civilians to flee. Why? Because he didn't have to. There was no

2 reason to force civilians to flee when it was common knowledge that the

3 Serb leadership had as a policy that they were going to evacuate their

4 civilians.

5 Mr. Tieger cited the following quote from page 2 of that

6 transcript. He says: "In which way do we resolve it? This is the

7 subject of our discussion today. We have to inflict such blows that the

8 Serbs will to all practical purposes disappear, that is to say, that the

9 areas we do not take at once must capitulate within a few days."

10 Your Honour, we submit that the proper interpretation when

11 President Tudjman says "Serbs," he's not referring to Serb civilians,

12 he's using the colloquial in the same way that we might say for US forces

13 the Americans or the Germans or the Japanese, something to that effect,

14 and we know that because in the highlighted area, the second highlight,

15 he repeats the exact same thought.

16 "Therefore, our main task is not Bihac, but instead to inflict

17 such powerful blows in several directions that the Serbian forces will no

18 longer be able to recover, but will have to capitulate." "Capitulate,"

19 the same word he used in the first paragraph. Armies capitulate,

20 civilians don't capitulate. He's not talking about Serb civilians.

21 Page 3. As to this issue that the Prosecution is going to

22 attempt to put forward to you that Knin was undefended, what did the

23 Croatians know:

24 "Mr. President: Listen. How can they undertake a counter-attack

25 against --

Page 560

1 "Admiral Domazet: A counter-attack is two-fold, Mr. President.

2 From Knin, or rather, to the northeast of Knin there are forces the

3 adversary has partially transferred. The counter-attack forces come from

4 two operational axes of Knin."

5 The Croatian army did not anticipate that Knin would be

6 undefended and in the fact Knin was not undefended and the evidence will

7 be clear on that point at trial.

8 Page 10. What is President Tudjman talking about on -- on the

9 Brioni transcript? He is not -- he is not referring to an effort to

10 force civilians to flee. Instead, in this passage you see

11 President Tudjman is criticising the planning of Operation Storm because

12 it left no exit route for the civilians who are anticipated to be

13 prepared to flee for the reasons I've already spelled out, and in effect

14 the plan initially drawn up was to trap the civilians and the military

15 forces in the so-called Krajina. So the president says: "Do you know

16 what, from a strategic point of view, is a drawback to our consideration

17 of the plan? It's all very well that the Admiral is now supposed to

18 close off their remaining three exits, but you are not providing them

19 with an exit anywhere. There is no way out. (To close it off.) To pull

20 out and flee; instead, you are forcing them to fight to the bitter end,

21 which exacts a greater engagement and greater losses on our side."

22 "Accordingly, let us take into consideration on a military level

23 the possibility of leaving them a way out somewhere so they can pull out

24 part of their forces ..."

25 I understand. I apologise, Your Honour. I'll slow down.

Page 561

1 JUDGE ORIE: Please. Yes, especially when you're reading. It's

2 good to be aware that speed of speech usually goes up. Please proceed.

3 MR. MISETIC: Thank you.

4 The issue of greater panic. When the president refers in the

5 following statement, he says: " ... when we undertake a general

6 offensive in the area even greater panic will break out in Knin."

7 He does not say when we excessively shell or otherwise terrorise

8 civilians, he is saying when we launch the operation and put pressure on

9 their front lines, the plans put in place by the Krajina Serb leadership

10 will cause panic, not that the Croatian forces are doing anything that is

11 not in accordance with the laws of war.

12 The president in a passage quoted by Mr. Tieger quotes the words

13 where he -- President Tudjman talks about shelling for complete

14 demoralisation. We will get to that in a few minutes and I will address

15 that question.

16 The president: "Is an attack on Knin possible without hitting

17 the camp which UNCRO UNPROFOR has there?

18 "General Gotovina: At this moment we can engage in extremely

19 precise operations at Knin systematically without aiming at the barracks

20 in which UNCRO is located.

21 "Domazet: In those southern barracks, and his forces are to the

22 north therefore we can fire with great precision without coming in the

23 line of fire ..."

24 Your Honours, think about what Admiral Domazet is saying there.

25 The UNCRO camp will not be hit because it is in the sought of Knin and we

Page 562

1 are targeting the military barracks of the RSK forces which is in the

2 north and therefore nothing will come in the line of fire. There's no

3 discussion about spraying Knin with artillery shells at all.

4 Finally, the general in the Croatian army in charge of logistics

5 is named Vladimir Zagorec. General Zagorec is asked to comment on the

6 state of the ammunition reserves and he says: "We can extend logistical

7 support to one part. You have the inventory. However, the amount of

8 ammunition used up at Glamoc and Bosansko Grahovo was relatively large.

9 I am now only interested in this and I urge all commanders to take into

10 account the amount of ammunition expended in these operations. We have

11 reserves for some five days. However, attention should be paid to

12 artillery." And then it goes on. And how does the president respond to

13 this? How does he conclude the discussion about artillery?

14 "Gentlemen, I said this to all of you and especially to some

15 generals, that in this war we are really using up ammunition as if we

16 were Russians or Americans. Therefore, use smaller units, engage in

17 sabotage operations and use surprise. Strike with smaller infantry

18 forces and even helicopter assaults where they are unexpected but where a

19 far greater impact can be achieved - it is clear. If we had enough, then

20 I, too, would be in favour of destroying everything by shelling prior to

21 advancing."

22 The sentiment is clear. "We don't have enough artillery, so

23 don't waste it."

24 Let me just note that there was a discussion about leaflets and I

25 believe Mr. Tieger made a misstatement of fact. He stated that leaflets

Page 563

1 were dropped in Operation Storm prior to Martic issuing his evacuation

2 order. And as you will see at trial, leaflets were dropped seven hours

3 after Martic issues his evacuation order and the only thing the leaflet

4 said was that the evacuation orders had been issued and here are the safe

5 routes you can take to exit.

6 Moving on from the Brioni meeting. It's also important to note

7 something that the Prosecution did not discuss with you yesterday.

8 High-level officials of the Croatian government travelled to Washington

9 on the 1st of August. During that discussion, they received approval in

10 the way that we would understand approval. I won't get into the

11 diplomatic terms that are going to be used at trial but, nevertheless, it

12 was understood that it was an approval by the United States for Croatia

13 to launch Operation Storm. There were several conditions. Condition

14 one, you are to minimise civilian casualties. Condition two, nothing is

15 to happen to the UN forces, in Croatia. Condition three, you are to do

16 it quickly and cleanly.

17 The evidence will show that the Croatian government, after August

18 1st, prior to but also after August 1st, having received that approval,

19 set out to ensure that the conditions given by the United States would be

20 fulfilled.

21 On the 2nd of August, the minister of defence calls a high-level

22 meeting of all generals in other relevant military personnel. We have

23 notes from that meeting. What did the defence minister tell all members

24 of the military? "Military police must be energetic in its actions and

25 must prevent all offences.

Page 564

1 "ZP or military district commanders must be the ones to pass on

2 to the other commanders the prohibition of any kind of excessive conduct,

3 (torching, looting, et cetera.)

4 "We must not have a reason to put the heroes of the Homeland War

5 on trial."

6 And finally: "PB," which means the political affairs department

7 of the Ministry of Defence, "workers must carry out their task of

8 appropriately briefing HV members."

9 And you will see later, Your Honours, that the political affairs

10 department was the one that was charged with training in international

11 humanitarian law, advising all units of their obligations under the

12 Geneva Conventions and otherwise ensuring respect for the rule of both

13 international and Croatian law.

14 That same day at 17.30, the ministers of defence and the interior

15 have a meeting to discuss security and how they are going to secure the

16 area once military hostilities are over. Present at the meeting are

17 Minister of Defence Susak, Minister of the Interior Jarnjak, Assistant

18 Minister of the Interior Josko Moric, and the head of the military

19 police, Mr. Mata [phoen] Lausic, whose name is not listed here because he

20 is the author of these notes.

21 Minister Jarnjak in point three says: "All MUP reserve units are

22 to be mobilised on the 3rd and 4th of August, 1995, and they enter the

23 liberated territories and take over power.

24 "The police administration will be in Knin and Glina."

25 That same day the head of the military police, Mr. Lausic, issues

Page 565

1 an order to ensure the implementation of the orders of the minister of

2 defence and the minister of the interior, and he sends out his personal

3 emissary from his office in Zagreb, a man named Major Juric, to be an

4 intermediary to ensure that General Lausic's orders having been received

5 from the minister of defence are implemented in the Split Military

6 District. And he gives Major Juric the authority to replace military

7 police commanders who are not effective in implementing the orders of the

8 minister of defence ability interior and it says: "Major Juric in the

9 command system he is superior to the 72nd Military Police Battalion and

10 73rd Military Police Battalion commanders."

11 And below that: "He is responsible for the implementation of all

12 military police tasks, in the 72nd Military Police zone of

13 responsibility."

14 It should be noted Mr. Juric and Mr. Lausic are not in

15 General Gotovina's chain of command. They cannot issue orders to

16 General Gotovina, nor can General Gotovina issue orders to them.

17 On the 3rd of August the Assistant Minister of the Interior

18 Mr. Moric and Mr. Lausic, the head of the military police, have a

19 coordination meeting to draw up the plans that had been ordered by their

20 respective ministers.

21 General Lausic issues an order, says: "On 3 August 1995, a

22 working meeting was held with representatives of the Ministry of the

23 Interior at which the tactics and method of conduct of the military

24 police and civilian police at the start of offensive operations in newly

25 liberated areas of the Republic of Croatia were discussed.

Page 566

1 "In keeping with the conclusions and in order to ensure that they

2 are implemented on all levels of command of units of the military police

3 of the armed forces of the Republic of Croatia, I hereby order" and then

4 the details are spelled out in the order.

5 There is no question that the military police and the civilian

6 police came up with a plan to prevent crime on the orders of the Croatian

7 leadership and that those orders were implemented by Mr. Lausic on the

8 military side and Mr. Moric on the civilian side. General Gotovina was

9 not invited to these meetings. He was not asked to send a liaison

10 officer to discuss the plans or how they would be implemented.

11 In order to believe the Prosecution's case, you would have to

12 conclude that a plan for security was drawn up prior to Operation Storm.

13 It was ordered by the ministers of the interior and defence, given to the

14 head of the military police and the assistant minister of the interior to

15 work out the details. And then according to the Prosecution, Mr. Lausic

16 turned around and subordinated the military police to General Gotovina,

17 who is in nobody's chain of command and who is not present at any of the

18 meetings. It is contrary to military logic. It is contradictory to

19 common logic. It violates the principle of Occam's Razor.

20 The Gotovina Defence submits to you, Your Honours, that the

21 simple, straightforward explanation of the evidence is that plans were

22 drawn up, given to Mr. Lausic and Mr. Moric. Mr. Lausic issued the

23 orders, and Mr. Lausic throughout this time period remained in command of

24 the implementation of these security plans. There will be no other

25 interpretation of what happened.

Page 567

1 What did General Gotovina do as part of the planning to prevent

2 crime? Part of the attack order for Operation Storm in the Split

3 Military District, point 5: He orders the political affairs department

4 to "Familiarising members with conduct in occupied settlements and

5 handling of war booty.

6 "Familiarising units with the need to eliminate all negative

7 occurrences that will surface in the course of combat operations with a

8 focus on preventing torching and destruction of larger populated areas

9 and towns."

10 8: "Advising members of units on conduct with civilians and POWs

11 in accordance with the Geneva Conventions."

12 Part of what we believe is relevant is also what we discussed

13 before, that General Gotovina set up his own officer training centre

14 where international humanitarian law was taught. He called in Catholic

15 bishops to try to teach his officers proper conduct in war. It should be

16 kept in mind, the meeting of the 2nd of August and the exhortations of

17 the minister of defence to prevent all unlawful conduct.

18 At this point, Your Honour, the evidence is clear. All key

19 institutions in the Republic of Croatia are attempting to prevent crime.

20 The MUP, which is the ministry of the interior. The military police,

21 you've seen the order to prevent crime from happening. The minister of

22 defence, and military commanders including General Gotovina are all

23 issuing orders to prevent crime.

24 Occam's Razor. The Prosecution wants you to believe that a state

25 and its ministers and its generals are issuing orders that they don't

Page 568

1 want followed. The Defence submits that the simple, straightforward

2 answer is that ministers and commanders issue orders, and when they issue

3 them they want them followed. Yet the Prosecution will have you believe

4 that there was a joint criminal enterprise to allow crime to take place.

5 To believe that, you have to believe that these orders were issued so as

6 not to be followed.

7 I also note in the operational diary the oral exhortations of the

8 Split Military District command. "Knin must not experience the same

9 treatment as Grahovo."

10 Let's talk about the execution of Operation Storm. In the

11 Vance Plan, which was the plan under which the United Nations

12 peacekeepers came into Croatia, there is a point at paragraph 4 on page

13 448 on your screens. It says, the peacekeepers: "They would be required

14 to be completely impartial between the various parties to the conflict."

15 Your Honours, you will probably be surprised by the evidence in

16 this trial, and the fact is the UN personnel did not maintain the

17 neutrality that they were obligated to maintain under the Vance Plan.

18 UN personnel -- as I had stated to you before, one of the US

19 conditions allowing Operation Storm to proceed was that nothing could

20 happen to UN personnel in Croatia. As a result, the Croatian government

21 advised the United Nations on the evening of the 3rd of August that the

22 operation would commence at 5.00 a.m. and that they were to take all

23 necessary precautions to ensure the safety of UN personnel. So what did

24 the personnel and the command in Sector South and Knin do? They violated

25 their UN neutrality and immediately notified the Krajina Serb Main Staff

Page 569

1 in order to allow them to be ready for the attack and thus, from a

2 military sense, taking away the element of surprise, which is one of the

3 basic tenets of planning a military operation.

4 How do we know this? We have two Krajina Serb military officers

5 who have already provided evidence that this is what happened.

6 [Videotape played]

7 THE INTERPRETER: "[Voiceover] At 4.14 I received a phone call

8 from a liaison officer from headquarters, who was our government's

9 liaison officer for UNPROFOR, to the effect that he had received

10 information from an operational organ with UNPROFOR from Sector South

11 command that the Croats would be attacking us. We were informed 18 times

12 by various officers, French and such, informing us that we would be

13 attacked in the morning at 5.00."

14 General Sekulic there at the end refers to a French officer. He

15 really means a French-Canadian officer in Knin and we will discuss that

16 at trial as well, Your Honour.

17 You will also see some evidence consistent with the evidence

18 given by the Prosecution -- one of the Prosecution's star witnesses in

19 the Milosevic case. He was a member of the Serbian intelligence services

20 working with Belgrade in the so-called RSK. Here is what he has

21 testified already to for the Prosecution, speaking now on behalf the Serb

22 intelligence services: "Our sole objective was to obstruct the work of

23 the ECMM, and later of the UN. We did everything to keep them from

24 finding out the truth, and we repeatedly supplied them with

25 misinformation. It was amazing to us how often they believed what we

Page 570

1 were saying. But if you keep repeating the same lies again and again, it

2 seems as if anyone would eventually conclude that it must be true, that

3 no one could lie so often and so consistently.

4 "We also worked very hard to gain the trust of internationals and

5 to have them come around to our point of view. We would do what we could

6 to establish a rapport with them and then it made it much easier to have

7 them accept our lies. No one would want to believe that their good

8 friend would lie to them, so it made sense to use this approach, which I

9 think we were more effective with than were the Croats."

10 Second part of the statement which will become relevant as you

11 have some of the witnesses start to appear, Your Honours.

12 "The Serb secret services have continued these practices until

13 today and they still control almost all, if not all, interpreters working

14 for international agencies in Serb-held areas. It was encouraged that

15 interpreters try to gain the trust of their principals so that their

16 employer would want to take them with them to other assignments.

17 "From early 1992 onwards, I was instructed by Zimonja to recruit

18 UN and ECMM international personnel as cooperating agents of the RSK."

19 JUDGE ORIE: Mr. Misetic, you used the expression "star witness,"

20 which is in legal terms unknown to me. May I take it that you wanted to

21 refer to an important or a prominent witness for the Prosecution?

22 MR. MISETIC: Let's use the word "insider witness" then,

23 Your Honour.

24 JUDGE ORIE: Yes. That seems legally more commonly known, that

25 expression.

Page 571

1 MR. MISETIC: That's fine.

2 JUDGE ORIE: Please proceed.

3 MR. TIEGER: Your Honour, excuse me, and I'm sorry to interrupt

4 my colleague but if we could move into private session for just one

5 moment.

6 JUDGE ORIE: We move into private session.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 572

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 [Open session]

23 THE REGISTRAR: We are in open session, Your Honour.

24 JUDGE ORIE: Thank you, Madam Registrar. Please proceed,

25 Mr. Misetic.

Page 573

1 MR. MISETIC: Your Honours, the evidence will show that the UN

2 personnel in Knin were far from neutral and had become too close to the

3 local Serb government and population. Indeed, they became so close that

4 we will present evidence to you that dozens of UN personnel wound up

5 marrying local Serbs and their translators.

6 Let's discuss the planning of the use of artillery.

7 Operation Storm was conducted in accordance with the US [Realtime

8 transcript read in error "UN"] military doctrine known as AirLand battle.

9 AirLand battle, one of the key tenets of air land battle is the so-called

10 deep battle. Deep battle is the use of, amongst other things, artillery

11 at the onset of an operation to achieve various purposes.

12 From the US army field manual under "Pursuit, point 1: Artillery

13 is used to "maintain pressure to demoralise the enemy with massed fires."

14 Furthermore the Prosecution has submitted an expert report in

15 this case which is a public document by Mr. Theunens. In Mr. Theunens's

16 report here is what he writes about the purposes of artillery are. They

17 are not simply, as the Prosecution yesterday left the impression, that it

18 is exclusively to destroy military buildings.

19 "Deep operations," according to the operations expert, "are

20 directed against the enemy forces and functions beyond the close battle.

21 Deep operations are executed at all levels with fires, manoeuvre, and

22 leadership and expand the battlefield in space and time. The deep battle

23 is designed to nullify the enemy's firepower, disrupt his command and

24 control systems; destroy his supplies; and break his morale."

25 When we were going through the Brioni transcripts, Your Honour, I

Page 574

1 said that President Tudjman used the word "demoralise."

2 President Tudjman, as a military man, used the exact word that appears in

3 the US army field manual and in the Prosecution's own expert report about

4 what the legitimate purposes of artillery are.

5 The suggestion that General Gotovina ordered shelling in order to

6 put pressure on Serbs to leave is absurd. No military expert would

7 question General Gotovina's decision to use artillery in support of his

8 offensive operations. This is standard military practice, particularly

9 under air land battle doctrine.

10 JUDGE ORIE: Mr. Misetic, just for the correctness of the

11 transcript, page 60, line 12, we find at this moment in the transcript

12 that is UN military -- let me just check that for one second. UN

13 military doctrine which I think you said US military.

14 MR. MISETIC: US military doctrine.

15 JUDGE ORIE: That's correct.

16 MR. MISETIC: In terms of the planning, Your Honour, you noticed

17 or should have noticed yesterday silence on fundamental issues like what

18 targets did the Croatian army actually select in planning its artillery

19 operation? What targets did the Croatian army actually select in

20 planning its military operations? What targets did the Croatian army

21 actually hit in executing its military operation?

22 There was, to use an expression, radio silence from the

23 Prosecution yesterday on these two fundamental issues. There were

24 general references to proportionality, distinction, but with no reference

25 to any evidence, any facts.

Page 575

1 We will submit those facts to you, Your Honours. The targets

2 that were selected were exclusively military targets in Knin, Obrovac,

3 Benkovac, Gracac, and Drnis. We know this. We have the documents for

4 every town, and we will submit them to the Trial Chamber.

5 The Prosecution wants you to believe that the Croats shelled

6 civilian areas but offer you no evidence, nor has any been disclosed in

7 discovery in this case, about what areas were targeted and what areas

8 were hit.

9 You don't have to just rely on our interpretations, Your Honours.

10 There was no excessive shelling. There were such claims on the 4th of

11 August, and as a result of the claims of people like UN personnel in Knin

12 upon whom the Prosecution relies, the United Nations military observers

13 conducted an investigation three weeks after the fact to determine

14 whether these allegations were true. The findings were, at point 2: "In

15 general shelling was concentrated against military objectives. The

16 damages caused by shelling to civilian establishments is concentrated to

17 the close vicinity of military objectives. Only few ... impacts," three

18 to five, "is observed in other urban areas."

19 This report, you will have to wait for the Defence case to get

20 it, because this witness, the head of the UNMO, was on the Prosecution's

21 witness list until the 1st of February. They pulled him. Why did they

22 pull him? You will hear evidence from the Prosecution that Mr. Hjertnes

23 the head of the UNMOs in Sector South, those findings by his team were

24 subsequently overturned, overruled, different findings despite the fact

25 that Mr. Hjertnes told the Prosecution in the middle of January that he

Page 576

1 has no idea what they are talking. The findings here say provisional, he

2 testified under oath that a week later the final findings were submitted

3 in the UN system and that they did not change. So the Prosecution

4 removed him from their witness list in favour of two witnesses who are

5 much lower-level subordinates of Mr. Hjertnes who will tell you that

6 these findings were overturned.

7 Here's the problem, Your Honours, and again I use the concept of

8 Occam's Razor: There is no report that has been produced indicating that

9 these findings were overturned. We have searched the entire UN system.

10 There is no reference in any UN document to a finding subsequent to this

11 report that there was excessive shelling or shelling of civilian areas.

12 We have done a LexisNexis --

13 JUDGE ORIE: Could I ask you one thing in this respect. You said

14 we will have to wait to see this report for the Defence case. Well,

15 first of all, I don't know whether there will be any Defence case

16 presented, so therefore that sounds a bit premature to me. At the same

17 time, of course, I was not educated in the adversarial system, but

18 putting such a report in cross-examination to the witness which

19 apparently, although there's still litigation about that, apparently

20 should replace the other witness, is that --

21 MR. MISETIC: Sorry. We'd be happy to do it in

22 cross-examination, Your Honour.

23 JUDGE ORIE: You tell us that we have to wait until the Defence

24 case where I did not understand, from a procedural point of view,

25 understand what the necessity of waiting was. And even if you wouldn't

Page 577

1 have such material, you know that the Chamber, and of course every party

2 could take any initiative in that respect, could order a party to present

3 evidence. I mean, that's within the power of the Chamber. So I thought

4 you might be a bit over pessimistic about the procedural perspectives the

5 Defence may have.

6 MR. MISETIC: I'm very happy to hear that, Your Honour, and we'd

7 be happy to submit that to you.

8 JUDGE ORIE: Please proceed.

9 MR. MISETIC: As I said we've done a search of LexisNexis,

10 Your Honours, to find any article ever written in the English language

11 which references a subsequent report that the Croatian army shelled

12 civilians or civilian areas and that this was a finding of the UNMOs and

13 you find nothing. So to believe the Prosecution's theory, again

14 Occam's Razor, the simple, straightforward answer is there's a report.

15 It was filed. The author of the report says it wasn't changed.

16 Therefore, that's the finding.

17 To believe the Prosecution's case, this finding was overturned.

18 There's no report, and there must have been some conspiracy because I

19 would think that a finding that the Croatian army excessively shelled

20 civilians would have been referenced by someone somewhere in the UN

21 system or in the international media. We will leave it to you,

22 Your Honours, to judge the credibility of the Prosecution's claims.

23 In addition to this report as a result of the allegations that

24 had been made on the 4th of August, the international media descended on

25 Knin on the 7th of August expecting to find, to use two towns referenced

Page 578

1 by Mr. Tieger yesterday, Stalingrad or Vukovar. What did they find?

2 Here is what Roy Gutman wrote of his findings, not just his findings,

3 these were all international reporters were part of a pool. On the 7th

4 of August: "At the United Nations base in Knin, UN officers chaffed at a

5 continued curfew and restrictions on movements, but they acknowledged

6 that the UN had overstated the damage to Knin during the height of

7 fighting.

8 "The UN commander, Brigadier-General Alain Forand of Canada had

9 said that there had been no direct hits on Knin's hospital. Reporters

10 saw ... large craters from shells that shattered most of the windows in a

11 nearby apartment house but there was no evidence of indiscriminate

12 shelling."

13 United States Ambassador Galbraith will testify before you. He

14 will tell you that military attaches of foreign countries including the

15 United States also went to Knin on the 7th of August to investigate the

16 claims of excessive shelling. And he will tell you that there was no

17 excessive shelling and that was the finding of his military attache as

18 well as military attaches of several other countries.

19 One Prosecution witness will tell you, Mr. Tieger pointed out and

20 left the impression that the Croatian army had hit the Knin hospital.

21 Here's what really happened according to the Prosecution's own witness.

22 He's talking about a visit to Knin on the 7th with Mr. Akashi and

23 he says: "I remember that the one question that had come up is whether

24 the Knin hospital had been targeted by fire, by either side, and we did

25 speak with a nurse who indicated that, at one point early in the

Page 579

1 fighting, I believe it would have been on the 5th of August or perhaps

2 the 4th, an RSK tank had been positioned very close to the hospital and

3 had been sending outgoing fire and had also been targeted apparently by

4 Croatian army units. In fact, there was almost no evidence of damage to

5 the hospital that we could see. There was one sign of an impact that we

6 were shown, but it caused minor structural damage to the building. So

7 this contradicted early reports we had heard that the hospital had

8 sustained major damage. That did not appear to be the case."

9 Your Honours, there's going to be a lot of discussion about the

10 Brioni transcript in this case. We believe we have the right

11 interpretation of it. The Prosecution will believe that they have the

12 right interpretation of it. The question is: What is the best way for

13 you to decide who has the better of the argument? We submit,

14 Your Honours, that the best way is to look to see what did the

15 subordinates of President Tudjman do? How did they act after the Brioni

16 meeting? Did they implement a plan to target civilians, civilian

17 buildings? Did they implement a plan which hit civilian targets and

18 civilian buildings, or did they target exclusively military targets, as

19 we have -- as we will show according to the documents, and did they only

20 hit military targets as indicated by the various pieces of evidence that

21 I have now alerted you to? We submit, Your Honours, that you should

22 interpret the Brioni transcript in accordance with how the Croatian

23 commanders themselves would have interpreted the words that

24 President Tudjman was saying. After all, that is the only relevant issue

25 with respect to that transcript. What I think about it, what Mr. Tieger

Page 580

1 thinks about it, how the Trial Chamber itself may have interpreted those

2 words is really somewhat irrelevant. The question is how did the

3 subordinates interpret those words, and we believe you should look to the

4 evidence. The evidence shows the Croatian commanders, specifically my

5 client, Ante Gotovina, did not interpret anything that President Tudjman

6 said as being an order to excessively shell civilians or civilian

7 targets.

8 How did we get these false claims of excessive shelling? Where

9 does this come from, you may ask yourselves. We can explain that to you

10 as well, Your Honours.

11 False claims of excessive shelling were put forward as propaganda

12 by the Krajina Serbs themselves at 6.30 in the morning on the 4th. This

13 is a report, a protest sent by General Mrksic to General Forand in the

14 UNPROFOR command in Zagreb, at 6.30 -- sorry, to General Janvier. I

15 apologise. "Long range artillery fire began at exactly 0500 hours this

16 morning on 4 August against all civilian targets in the towns of Knin,

17 Benkovac, Obrovac, Drnis, Vrgin Most, Vojnic, Glina, Petrinja, and most

18 populated places in the western part of Krajina and in the areas of

19 Eastern Slavonia, Western Srem, and Baranja.

20 Simultaneously with this protest note Mrksic's liaison officer,

21 Colonel Novakovic, called General Janvier. We have a record of what

22 General Janvier was told by Kosta Novakovic at 6.30 in the morning on the

23 4th. He alerts General Janvier to the fact that the protest note has

24 come and he said at third paragraph: "This morning at 0500, HV and HVO

25 forces conducted general aggression, targeting civilian objects in all

Page 581

1 inhabited areas of the RSK especially in Knin on which thousands of

2 shells fell.

3 "They have destroyed numerous buildings; there are casualties

4 amongst the civilian population including women, children and the

5 elderly.

6 "They targeted the immediate vicinity of UNPROFOR Sector South

7 command using direct fire.

8 "They also targeted the hospital and other similar buildings,

9 firing randomly and without any order; UNPROFOR officers located there

10 can confirm these claims."

11 As we know, Your Honour, claims such as the Croats targeting the

12 hospital were false. This was propaganda that had been put out and in

13 fact passed along by the UN Sector South command. It is important to

14 note that the UN commanders in Knin on the 4th of August never went out

15 in the town to examine whether the claims of General Mrksic and

16 Colonel Novakovic were actually true. Nevertheless, they sent that

17 report relying on Mrksic and Novakovic, and I refer you back to

18 Mr. Lazarevic's testimony about how easy it had become to lie and lie and

19 to have the UNCRO commanders believe it. And they lied again and the

20 UNCRO commanders believed it again and they sent it up the chain of

21 command. They sent it up so far that by 2.00 p.m. on the 4th of August

22 Carl Bildt, the chair -- one of the co-chairmen and the representative of

23 the European Union issued the following statement at paragraph three,

24 sentence three -- sorry, sentence two: "Especially appalling is the

25 shelling of the civilian population now being reported. It should be

Page 582

1 remembered that Krajina Serb president Mr. Martic had been indicted for

2 war crimes following the Serb rocket attack in Zagreb in May. It is

3 difficult to see any difference between these actions and the shelling of

4 Knin which President Tudjman must now be held responsible for."

5 This is 2.00 on the 4th of August and no one from the UN had gone

6 out to actually investigate whether this was true. This was a rush to

7 judgement. And as a result of statements like this from Mr. Bildt, the

8 international press descended on Knin, as I said earlier, found the

9 conclusions to be inaccurate, and as a result of statements like this the

10 UNMOs conducted their own investigation and concluded that the

11 allegations were false. But as Mr. Lazarevic, the insider witness in

12 Milosevic, said, they had come under the influence, the UNCRO command in

13 Knin had come under the influence of Serb officers, and that will be

14 proven by the evidence at trial.

15 Your Honours, another comment. The evidence of these Canadian

16 officers upon whom the Prosecution's indiscriminate shelling case relies

17 has been in their possession since 1995 and 1996. There is nothing new

18 in this case over the last 13 years with respect to those allegations.

19 Yet I call your attention to the amended indictment in this case,

20 confirmed in February of 2004 and ask you to search that document and see

21 if you can find the words "shelling" or "artillery" or any variation of

22 those words in the amended indictment in this case. If the evidence is

23 so strong, beyond reasonable doubt, that the testimony of these UNCRO

24 commanders in Knin is that strong and has been in their possession for 12

25 or 13 years now, why is it that the words "artillery" or "shelling"

Page 583

1 appear only in the 2006 as part of a new allegation against

2 General Gotovina alleging him to be a member of a joint criminal

3 enterprise.

4 The answer you will find at the conclusion of the Prosecution's

5 case. They need some intentional act, some bad act by Ante Gotovina to

6 justify why he's even here. You didn't see an illegal order issued by

7 General Gotovina yesterday. They acknowledged that he has issued

8 repeated orders for conduct, maintaining the rule of law.

9 If the shelling issue is not here, what is the bad act that

10 General Gotovina committed? We submit to you there is no other bad act.

11 There is no other way to get him into a joint criminal enterprise unless

12 you want to now believe that the excessive shelling case which wasn't

13 worthy of being mentioned in the amended indictment suddenly is the

14 linchpin of the Prosecution's case and not a single piece of relevant

15 evidence has changed in 13 years.

16 Your Honours, this might be an opportunity for a break if you

17 wish.

18 JUDGE ORIE: Yes. May I inquire how much time you or Mr. Kehoe

19 would need after this break?

20 MR. MISETIC: We're going to go to the end, Your Honours.

21 JUDGE ORIE: You'll go to the very end.

22 MR. MISETIC: Yes.

23 JUDGE ORIE: Then we will have a break. We will resume at 25

24 minutes to 1.00 and then you've got one hour and 10 minutes.

25 MR. MISETIC: Thank you, Your Honours.

Page 584

1 --- Recess taken at 12.11 p.m.

2 --- On resuming at 12.40 p.m.

3 JUDGE ORIE: Before I give you the opportunity to continue,

4 Mr. Misetic, there still seems to be a problem about the operative

5 indictment. The indictment that was filed on the 22nd of February had as

6 its title, and that was a remainder from the past, "Proposed amended

7 indictment." So we ordered the Prosecution -- or invited the Prosecution

8 to refile it but now without the word "proposed" because it was the

9 operative indictment.

10 To my understanding this has not been done yet which creates

11 confusion as to what the operative indictment is.

12 MR. TIEGER: Yes, Your Honour. And that -- I had hoped it would

13 have been completed before we were -- there was some problem with the

14 presence of the Prosecutor to sign it and make it official but it's

15 definitely on our radar screen and the operative documents have been

16 prepared.

17 JUDGE ORIE: Yes. Then the Chamber expects the Prosecution to

18 deal with that without further delay.

19 At the same time, I now put it on the record that since the only

20 thing the Chamber expects that will change is to take out the word

21 "proposed," that the content of the indictment as filed on the 22nd of

22 February is the operative indictment.

23 Mr. Misetic, you may proceed.

24 MR. MISETIC: Your Honour, do I want to correct the record.

25 Mr. Tieger alerted me to the fact that in fact the Steinar Hjertnes UNMO

Page 585

1 report is a 92 ter exhibit with one of their witnesses. So I did want

2 that -- to clarify that.

3 JUDGE ORIE: Yes. You mean we don't have to wait --

4 MR. MISETIC: That's correct. Just to correct the record,

5 Your Honour, and I regret the error.

6 JUDGE ORIE: Let's proceed.

7 MR. MISETIC: Mr. President, Your Honours, why did the

8 Krajina Serbs leave on the 4th of August? Because they -- the leadership

9 of the Krajina Serbs had a plan to evacuate its civilians. They trained

10 and had exercises to be ready to implement that plan, and on the 4th of

11 August they implemented it.

12 On the 4th of August -- let me take a step back.

13 You will hear evidence, Your Honours, that from UN personnel they

14 had reported at 1500 on the 4th of August that the situation in Knin was

15 now calm, that people were exiting their homes after the initial shelling

16 in the morning and were cleaning up the broken glass, at 1500 on the 4th.

17 At 16.45, Milan Martic, and it's on your screens, issues the

18 evacuation order to evacuate the civilian population.

19 Point 1 states: "To begin the planned evacuation of all

20 inhabitants unfit for combat from the following municipalities," and

21 lists them.

22 Point 2 says: "To evacuate them the evacuation shall be carried

23 out in a planned manner according to the existing planned directions

24 towards Knin and then through Otric towards Srb and Lapac."

25 The Prosecution yesterday suggested to the Trial Chamber that

Page 586

1 this order was not intended to evacuate the civilians permanently out of

2 the so-called Krajina but that the plans were only to evacuate them

3 internally to Srb and Lapac, which are towns in Croatia.

4 We submit to you, Your Honours, that that is not an

5 interpretation supported by the evidence. It is true that Martic's order

6 says to go to Srb and Lapac, but that is because the existing plans that

7 had already been prepared said that. In reality, the order that was

8 issued said to go to Bosanski Petrovac in Bosnia and to Banja Luka in

9 Bosnia.

10 How do we know this? At 19.53 on the evening of the 4th, the UN

11 reported the following at paragraph 4 of this document: "We have been

12 advised by the civil affairs office in Sector South that the Knin

13 leadership have requested UNHCR and UNPF assistance in evacuating

14 approximately 32.000 civilians from Benkovac, Obrovac, Gracac, and Knin

15 to Petrovac and Banja Luka in Bosnia and Herzegovina."

16 We have more than this. We have the Krajina Serb leaders

17 themselves on video for you to see describing the atmosphere around

18 Milan Martic and General Mrksic on the afternoon of the 4th and how it

19 was that the decision to evacuate the entire civilian population from

20 so-called Krajina to Bosnia was taken. We'd like to play that video for

21 you now. The speaker is the mayor of Knin, Drago Kovacevic who was a

22 high-ranking member of Martic's inner circle at the time and who was

23 present when these conversations and the decision was taken to evacuate

24 the civilian population.

25 [Videotape played]

Page 587

1 THE INTERPRETER: "[Voiceover] Martic was in uniform. There was

2 a huge ashtray in front of him, several empty packs of cigarettes, and we

3 exchanged greetings. Why had he called me? He called me because he

4 said, I've decided to evacuate the city and we should take steps to

5 relocate the civilian population. And I must stress this, civilian

6 population from Northern Dalmatia, meaning the municipalities of

7 Benkovac, Obrovac, Knin, Drnis, and the municipality of Gracac in Lika.

8 "This does did not come to as a shock to me. I perceived this to

9 be some sort of a rational measure. At that moment, we passed the order.

10 Kosta Novakovic specifically passed the order.

11 "It was then that we wrote in the order that this was to evacuate

12 the civilian population, meaning in the direction of Knin, Otric, Srb, or

13 Lapac, which were the areas where the people were to be relocated to. It

14 was then that Mrksic reacted and said, What do you mean by Srb? We need

15 to go further than Srb, he says. Further towards Petrovac and

16 Banja Luka. And then he expressed a reservation. He said if the

17 civilians started leaving, the military lines would be facing a problem.

18 He says if the civilians go, the army will go after them to evacuate them

19 and we are going to have enormous problems.

20 "However, sometime that evening when he arrived, Mrksic was

21 somewhere on the floor above, he told me on the stairs that the

22 evacuation of the population had been ordered. I told him, "General, the

23 army will fall apart. What do you mean by evacuating the people and

24 doing this by means of an order?" He says this is not in our hands. It

25 was the Supreme Defence Council that took that decision.

Page 588

1 "And then someone requested that Martic -- it was Martic himself

2 who requested to be put through to Slobo, to spoke to Slobo and he spoke

3 not to Slobo but to Brane Crncevic. So he got hold of Brane Crncevic who

4 assured him that he probably couldn't get hold of Slobo, which was why he

5 spoke to Brane, and then he was told by him, No, no, he won't take any

6 steps. Slobo wouldn't do anything in this case. And then for the first

7 time I heard Martic cursing Slobo and so on and so forth."

8 MR. MISETIC: Your Honours, the evidence in this case is going to

9 be overwhelmingly clear that the Krajina Serb leadership under

10 Milan Martic, as they had in Western Slavonia, as they had prepared to do

11 for the 90 days prior to Operation Storm, evacuated their own population

12 rather than allow them to live in a multi-ethnic state. It was part and

13 parcel of the ideology that reigned in the so-called Krajina. As

14 referenced in the Prosecution's pre-trial brief in Martic, the ideology

15 was: There can be no co-existence with Croats. The Serbs can only feel

16 safe in a homogeneous, ethnically-Serb state. That was the mentality

17 that had been imposed by the Greater Serbian ideology of the time. We

18 know this from a video from the 7th of August, discussing now in

19 retrospect what had just occurred. This is real evidence taken in

20 realtime on the 7th of August, 1995. It involves a man named Savo

21 Strbac. This is a name you will hear repeatedly and extensively

22 throughout this trial. Mr. Strbac is a key member of Martic's joint

23 criminal enterprise who was among the leadership of the Krajina Serbs,

24 who was ideologically committed to the ideology of an ethnically pure

25 Greater Serbia. He made these statements to the international media

Page 589

1 repeatedly in the years prior to Operation Storm. He repeatedly stated

2 that Serbs will only accept a unified Greater Serbia and that no

3 co-existence with Croats was possible.

4 After Operation Storm, Mr. Strbac formed his own "humanitarian

5 centre" and became an associate of the Office of the Prosecutor in

6 assisting the Prosecutor's office in obtaining witnesses for this case.

7 Mr. Strbac even received a letter of recommendation from the Prosecution

8 to assist him in raising money for his efforts.

9 The following video was taken on the 7th of August, 1995. It is

10 Mr. Strbac explaining from a TV studio in Banja Luka to the Serb

11 population why the decision had been taken to take the civilians out of

12 the so-called Krajina. In this video you will see the very mind-set of

13 which I speak, the mind-set of the ideology of an ethnically pure

14 Greater Serbia.

15 [Videotape played]

16 THE INTERPRETER: "[Voiceover] The Croats never intended to live

17 with the Serbs in the former Croatia.

18 "This was now most clearly demonstrated by the latest examples of

19 their aggression in Western Slavonia and now in Dalmatia, Lika, Banija

20 and Kordun. All of us who were in a position to speak to international

21 players constantly kept warning them that -- about this fact and spoke

22 about this, that the Croats didn't want to live with us and that we

23 cannot allow ourselves to live with them so that the genocide committed

24 against us in the past would not be repeated. And I use the term we must

25 not allow ourselves because it has a stronger meaning than we do not wish

Page 590

1 to live with them simply. We do not and cannot of course live with them

2 and because of this it was necessary first and foremost that we preserve

3 our biological potential. Our people could have become extinct. The

4 civilian population could have been killed. Our civilians and women

5 could have been killed. We need our biological potential for something

6 that is hopefully yet to come.

7 "On the day of the most recent aggression against Krajina my

8 association, the Veritas, wrote a letter to Boutros-Ghali alerting him

9 about these things, a never before seen massacre which would be launched

10 against the Serb population which is why it was decided in the end to

11 begin the exodus in order to protect the people."

12 MR. MISETIC: Your Honour, the decision was taken to preserve our

13 biological potential. That is the ideology at play here on the Krajina

14 Serb side. That is the reason that leaders of the Krajina Serbs and

15 indeed leaders of the Milosevic JCE from Western Slavonia to Sarajevo to

16 Kosovo evacuate their civilians, to preserve their biological potential.

17 I turn next to the issue of crime prevention. You've already

18 seen the orders of General Gotovina and the attack order for

19 Operation Storm concerning the implementation of international

20 humanitarian law and the prevention of looting. You've seen the

21 Split Military District diary entry saying Knin must not suffer the same

22 fate as Grahovo. We now have for you the entry in the operational diary

23 on the morning of the 5th of August as General Gotovina's forces, as he

24 is advised that his forces are about to enter Knin. General Gotovina

25 issues the order orally: "He ordered maximum fairness in treatment of

Page 591

1 civilians and behaviour towards the UN. This order has been passed to

2 all operative groups and commanders."

3 General Gotovina in the execution of the operation is issuing

4 orders for maximum correctness to civilians and the UN. Nevertheless, it

5 is true that when the troops entered Knin, in their state of jubilation

6 they began to engage looting. Not of any great scale, and that will be

7 confirmed for you by the United Nations itself, sitreps of the

8 United Nations, as well as a video that we will show you at trial of the

9 UN on the 7th saying, Croatian troops in Knin are behaving

10 "professionally and correctly." Why, on the 7th, are they behaving

11 professionally and correctly?

12 The Prosecution referenced a video of what General Gotovina did

13 when he entered Knin on the 6th. It is important for you to keep in mind

14 that General Gotovina conducted Operation Storm from his headquarters in

15 Bosnia. It is important to keep in mind and this is what Mr. Kehoe was

16 referring to in his portion, that the objectives of the Croatian army

17 were centered in Bosnia. And Operation Storm for General Gotovina was

18 simply a left turn to take one portion of territory and to come back to

19 his headquarters in Bosnia and be prepared for further operations in

20 Bosnia where he had been since the winter of 1994. Again, I repeat that

21 General Gotovina was in Bosnia from the winter of 1994.

22 General Gotovina came into Knin on the morning of the 6th after

23 having issued written orders, after having issued oral orders, seeing

24 troops breaking glass, drinking, and otherwise in a state of exultation

25 and videotaped a meeting with his commanders, all of whom thought that

Page 592

1 General Gotovina was about to praise them for winning the war and taking

2 the capital of the Krajina Serbs. This is General Gotovina in realtime

3 on the 6th. It is my suggestion but obviously it's up to the Trial

4 Chamber, I think it's important that the Trial Chamber hears

5 General Gotovina's voice during this. It's a six-minute video, but

6 obviously I'll leave it to the Trial Chamber, I've been told by the

7 booths that if it's changed to B/C/S you can read along with the

8 subtitles. If you prefer the translations, we'll have to replay it

9 again.

10 JUDGE ORIE: I think the Chamber has the choice to hear the

11 original on channel 6. If you could assist us in telling us

12 approximately when we should move to what approximately the language that

13 immediately precedes the moment --

14 MR. MISETIC: I will stop it and tell you to change it.

15 JUDGE ORIE: Then we'll move to 6 and then we'll read the English

16 and then we'll hear what you'd like to us to hear. Then please proceed.

17 [Videotape played]

18 THE INTERPRETER: "[Voiceover] And all the rest that was tasked,

19 the tasks that were issued last night and I'm now calling upon you to

20 account for yourselves. Security services, Generalic, did he pass it on

21 to Loza? First, did the political affairs department do its job? No, it

22 didn't. Ceko, you were at the meeting, weren't you? Zelic was here; he

23 had other tasks. You were at the meeting. What have you done since last

24 night? Was the County Prefect contacted? Did you verify whether the

25 County Prefect was contacted? Was civilian protection requested? Were

Page 593

1 the firefighters requested? They have been requested, General. And

2 where are they then? Do you realise that everything has to be ready by

3 5.00 this afternoon, everything? Was it that difficult to find just a

4 single cross here? A single cross. Skoric, where's the cross?

5 "We couldn't find one, it should be coming --

6 "You didn't find a cross, you fucking imbecile. Had you stopped

7 in Sinj by the church there and asked the friar there to give you a

8 cross, he'd have given you ten of those. Because you are idiots,

9 incompetent. But you're good enough to pose in front of those cameras,

10 those screens to be photographed. You're good enough to do that. Just

11 one example, you weren't even able to get hold of a single cross."

12 MR. MISETIC: I think now might be an appropriate time.

13 [Videotape played]

14 THE INTERPRETER: "[Voiceover] Let me not even begin to mention

15 what I could see in the town. It's a disgrace. A disgrace. Barbarians

16 and vandals act like that, those who are paid with war booty and wage war

17 for war booty.

18 "The unit commanders from Sinj to Knin, with the help of the

19 engineers, have the task today to get the entire road in order.

20 Everything, the vehicles, all that dirt, throw it out. Clean it up.

21 Clear it. The army is not to be seen in the streets. The military

22 police is not in groups but is deployed at all check-points. They took a

23 map of the town as planned and systematically set up check-points and

24 assumed control of the town. The military police commanders are

25 patrolling. Patrol vehicles are patrolling the town. Cooperation with

Page 594

1 the civilian authorities in the form of the civilian police is to be

2 established until General Cermak, who has just arrived this morning, can

3 take over these matters and take matters into his own hands. And until

4 then, if he's left alone, by 5.00 tonight nothing will be ready but we'll

5 have chaos again. What a disgrace. Do you realise the prime minister is

6 coming, the ministers, the minister of transportation and all that.

7 Everybody arriving today will enter into a town that the Croatian army

8 went through and which it still had under its control because the

9 civilian authorities haven't taken over yet. Who are you trying to

10 embarrass? You are embarrassing yourselves and those under your command

11 for whom you are responsible. And all of our people who died, who were

12 killed, you are responsible, people who gave their lives for this, you

13 should have a little respect because people have died for the sake of

14 Knin and all the way from Dinara since this winter, last October. Not to

15 mention the recent operations and how many perished and how many are

16 still in hospital to this very day and those maimed for life. And yet

17 you behave like this and you call yourselves commanders. Security. What

18 is security? Security must be organised. It's in control of the

19 situation. The military police must obey. They are the executors, the

20 technical executors. They are the guardians of the code of honour of the

21 armed forces. It guarantees the implementation and application of all of

22 that in the field.

23 "Political affairs department. I don't see any posters in the

24 street. No flags at any of the major facilities, installations.

25 Nothing. Where is -- where is all of that?

Page 595

1 "Being put up as we speak, General?

2 "What's being put up? Where is it? It's 11.30. Since this

3 morning, since 4.00 in fact, you should have been doing this all through

4 the night. A helicopter is available. Everything is available to pursue

5 this with total efficiency and yet you don't know how to make use of all

6 of this. If you don't know how to work, do your job, something,

7 whatever. Since nobody dragged you by your hair to become what you are,

8 then gentlemen, go ahead and join the infantry, go into battle. You'll

9 end up saying well, I was -- I am a warrior. The fuck you are. Every

10 day is a new day for a warrior and every day a warrior has to prove

11 himself over and over again."

12 MR. MISETIC: Your Honour, the Prosecution described those orders

13 from General Gotovina yesterday as boilerplate and routine. I suggest to

14 you, Your Honours, that if one of us were yelled at by our superiors like

15 that we would not consider that to be boilerplate or routine.

16 What happened on the 6th of August? It is a critical day. The

17 Prosecution presented a map yesterday which I believe is misleading to

18 the Trial Chamber in that it suggests it was a map of General Gotovina's

19 forces and the days where they were stationed as Operation Storm

20 progressed and the overlay, and this is the map, the overlay then is --

21 these are -- these are General Gotovina's forces advancing in the period

22 of 4 August through the 8th or 9th of August, but the killings, wanton

23 destruction, plunder, are for the period through the 30th of September,

24 1995.

25 We believe that's misleading to the Trial Chamber, Your Honours,

Page 596

1 because on the 6th of August the civilian government of the Republic of

2 Croatia consistent with the plans that had been drawn up and ordered by

3 Ministers Susak and Jarnjak, took control of territories as the Croatian

4 army was advancing on the front line. What that means as a matter of law

5 is that these territories immediately returned to the constitutional

6 order of the Republic of Croatia and the civilian government had

7 jurisdiction over these lands.

8 I'd like to show you now a video of the 6th of August of the

9 minister of the interior establishing the police station in Knin and

10 appointing an ethnic Serb as the head of the Croatian police

11 administration in Knin.

12 [Videotape played]

13 THE INTERPRETER: "[Voiceover] Dear Mr. Chief, please allow me to

14 hand over to you the signboard bearing the inscription Republic of

15 Croatia Ministry of the Interior police administration Knin. It is

16 provided by the constitutional law on ethnic minorities of the Republic

17 of Croatia that Knin has a district and, accordingly, the police

18 administration should now be established in Knin. Since, according to

19 the aforementioned law, an Assembly has not been established and upon

20 this Assembly's proposal the chief shall be appointed by the government

21 of the Republic of Croatia, I hereby appoint you acting chief until an

22 election takes place whereupon the Assembly will nominate to the

23 government of the Republic of Croatia a chief. Until such time, I am

24 assigning you this duty provided by the constitution of the Republic of

25 Croatia and the laws of the Republic of Croatia. Your task shall be to

Page 597

1 establish the civilian authorities in Knin and in the area of your police

2 administration. In your own area of responsibility, you are to link up

3 with the police administration of Zadar. Congratulations to you."

4 MR. MISETIC: On the 6th of August, General Gotovina turned over

5 control of the town of Knin to the civilian government and

6 General Gotovina left to continue offensive operations in Operation Storm

7 to the north of Knin. It is important to note that as the Croatian army

8 took territory, it immediately turned over jurisdiction of that territory

9 to the civilian government. I think the best way for the Trial Chamber

10 to hear this is to hear it from the minister of the interior himself who

11 held a press conference on the 8th of August and went and explained in

12 great detail the constitutional order of the Republic of Croatia, what

13 the security plans were and who had jurisdiction over the territory

14 referenced in the map that the Prosecution submitted yesterday.

15 This is Minister of the Interior Jarnjak on the 8th of August.

16 [Videotape played]

17 THE INTERPRETER: "[Voiceover] Good evening. This conference is

18 now open. I would like to welcome the minister of the interior of the

19 Republic of Croatia, Mr. Ivan Jarnjak.

20 "Ladies and gentlemen, good evening. Please allow me to inform

21 you about the current and future activities of the Ministry of the

22 Interior throughout the areas that are now being liberated. The

23 constitutional and legal order of the Republic of Croatia is now being

24 introduced to the liberated areas. In order to accomplish this, it is

25 necessary for the Ministry of the Interior, along with other

Page 598

1 institutions, to enter those areas with its forces. Following the

2 Croatian army and the special units of the Ministry of the Interior, the

3 civilian police entered those areas as well, immediately after them

4 establishing basic police and border police stations.

5 "Following state policy guidelines, already in 1992 the Ministry

6 of the Interior developed the organisational structure of two of these

7 police administration and police stations for the entire Republic of

8 Croatia including the territories that have now been liberated.

9 Therefore, we've had the entire organisational structure in place since

10 1992. Now we are merely implementing it.

11 "Of all the police stations that had been expelled from their

12 respective areas during the aggression, those police stations that had

13 been expelled in 1991 and 1992 in part they continued operating in such

14 areas as they had been relocated to. Now they return to their own

15 original areas, those being the police stations Lovinac, Drnis, Vrlika,

16 Kijevo, Slunj, Petrinja, Glina, and Hrvatska Kostajnica. The expelled

17 police substations have also been returned, those being Cetingrad,

18 Saborsko, Plaski and Lasinje.

19 "The border police have become operational in Hrvatska

20 Kostajnica, Kijevo, Slunj, Donji Lapac, Strmica, Donji Srb and Licko

21 Petrovo Selo. Police stations are prepared to receive the border police

22 in Dvor and Topusko.

23 "According to the constitutional law on human rights and

24 liberties, the rights of ethnic communities and minorities, police

25 administrations which must be organised according to these laws have

Page 599

1 become operational. Those being the Knin police administration and the

2 Glina police administration. Those are districts according to this

3 constitutional law which have special statutes. In those areas, of

4 course, police stations have also been established for Knin, Donji Lapac,

5 Gracac, Korenica, Benkovac, and Obrovac. Those are the police

6 administrations which are part of -- or, rather, police stations which

7 are part of this police administration.

8 "For the district of Glina, the police administration has been

9 established with the police stations Glina, Vojnic, and Hrvatska

10 Kostajnica. The police stations of Vrgin Most and Dvor are ready to go

11 back to their areas of operation.

12 "Immediately after the Croatian army and the Special Police of

13 the Ministry of the Interior completed the first part of their task and

14 the combat operations and activities ceased, members of the Ministry of

15 the Interior entered the populated localities and started securing the

16 populated localities and the communications connecting those localities

17 and controlling and directing the traffic.

18 "At the same time as police stations and police substations were

19 being established, all services of the Ministry of the Interior became

20 operational, meaning civil protection, the firefighters, while

21 pre-conditions are also being created for the establishment of services

22 that conduct civil affairs, that is specifically issuing Croatian

23 documents. The Civil Protection Units have started clearing the field in

24 terms of removing small livestock and cattle, taking care of the

25 abandoned movable property and any real estate left behind, first in the

Page 600

1 settled areas and then over the following days this will also be the case

2 in non-populated areas. Probably over the next couple of days.

3 "To all those residing in the newly liberated areas, to those who

4 remained and to those who will return, hereby I mean displaced persons,

5 we guarantee personal safety, safety for their property. We guarantee

6 public law and order that we shall uphold.

7 "Thank you very much.

8 "Thank you, Minister Jarnjak."

9 MR. MISETIC: Your Honours, there was one more question and I

10 believe it was raised in the Prosecutor's opening statement regarding

11 this allegation that, yes, the Ministry of Interior and the

12 constitutional order of the Republic of Croatia had been restored, but

13 somehow the argument was advanced that everybody knew that they really

14 couldn't do their jobs or they weren't prepared or they weren't ready,

15 and then the issue was raised about jurisdiction over investigations of

16 crimes committed by soldiers. This question was asked by a reporter of

17 the Washington Post. It concerns an incident of the Bosnian army

18 crossing from the Bihac pocket into Croatia and allegedly burning down

19 Serb villages and the following question and answer were posed.

20 [Videotape played]

21 "Minister Washington Post Gene Rupert. [No interpretation]

22 THE INTERPRETER: "[Voiceover] I have no information concerning

23 this matter. However, when we come to that area and any area, the police

24 will establish the actual state of affair, carry on-site investigations

25 at each facility, take records and then establish whether it was caused

Page 601

1 by combat activities or something else. Then I will be able to give a

2 specific answer to your question."

3 MR. MISETIC: Furthermore, Your Honours, on the 8th of August,

4 it's important to note that the justice system had been restored to the

5 newly liberated areas. Courts had been put in place, civilian courts in

6 Knin on the 8th of August and we have video of the president of the

7 Supreme Court of Croatia and the Minister of Justice Mr. Separovic in

8 Knin on the 8th of August establishing the civilian court system.

9 [Videotape played]

10 THE INTERPRETER: "[Voiceover] The president of the Supreme Court

11 of the Republic of Croatia Krunoslav Olujic and the Minister of Justice

12 Miroslav Separovic visited Knin today. At the building of the Municipal

13 court a work meeting was held with the presidents of the county courts in

14 Sibenik, Split and Zadar. It has been concluded that the municipal court

15 in Knin headed by Milovan Curko, should become operational as soon as

16 possible.

17 "The Minister of Justice, that is the competent county court,

18 made a decision according to which the seat, that is the temporary seat

19 of the municipal court in Knin is relocated from Sibenik to Knin. Today

20 we opened the building in Knin and the fact that from this day the

21 building of the municipal court in Knin is for practical purposes open

22 means that a legal State of Croatia has become functional in those areas

23 and that the implementation of the rule of law as one of the fundamental

24 principles of the Croatian constitutional order has begun.

25 "I am confident that this is a new beginning, a beginning where

Page 602

1 the municipal court in Knin will guarantee all human rights to all

2 citizens who live here and contribute to the rule of the constitution and

3 the laws of the Republic of Croatia.

4 "The high level delegation continued its visit to the area in

5 Drnis."

6 JUDGE ORIE: Please proceed.

7 MR. MISETIC: Now, again I want to -- I wish to reiterate the

8 point why we went through that exercise is because the constitutional

9 order of the Republic of Croatia and civilian institutions were back in

10 the territory. This map would therefore lead you to believe because

11 it -- because the crimes committed after Storm through the 30th of

12 September are overlaid on a map of General Gotovina's conduct of battle

13 for four days in early August, it would lead you to think that the

14 Croatian army held this territory through the 30th of September or was

15 otherwise responsible for security and that is not the case. The fact of

16 the matter is Croatian troops were not in control of this territory after

17 hostilities ended on the 9th of August.

18 General Gotovina continued to nevertheless issue orders for

19 compliance with discipline. He issued the following order on the 10th of

20 August: "Based on the information from the areas liberated by the HV,

21 the analysis thereof and in order to prevent theft of property,

22 undisciplined conduct, and to save human lives I hereby order.

23 "I prohibit arbitrary movement of the HV members of liberated

24 areas without the knowledge of --

25 THE INTERPRETER: Kindly slow down for the interpreters, thank

Page 603

1 you.

2 MR. MISETIC: Sorry. I'll go to point 2: "Take all necessary

3 measures and fully engage in the implementation of the military

4 disciplinary conduct and the maintenance of order in the areas of

5 responsibility, and prevent arson and all other illegal acts. Take

6 resolute measures against anybody to conducts himself in an undisciplined

7 manner."

8 When we talk about murders, the state of the evidence in this

9 case is that there is not a single piece of evidence that would suggest

10 that General Gotovina ever had any information about anybody being

11 unlawfully killed.

12 The Prosecution yesterday talked about subordination of

13 General Gotovina's sanitation units and then reports were sent to

14 somebody else but I didn't hear in that argument that a report was ever

15 sent to General Gotovina informing him of anything improper in terms of

16 unlawful killing. There would have been no reason for anyone to inform

17 General Gotovina about this. That's why there are no reports. There is

18 no reason, because the civilian government was in charge of the area.

19 The civilian police had primary jurisdiction to investigate any murder

20 committed by anyone, to document it, to get the civilian prosecutors on

21 board, and to investigate it. There was no reason for anyone ever to let

22 General Gotovina know of any unlawful killing, and it never happened.

23 I again refer to Occam's principle. You will see in the evidence

24 in this case, Your Honours, that despite the fact that there were indeed

25 problems in coordination and implementation of the plans to provide

Page 604

1 security in the area, within the Croatian government itself nobody ever

2 sent a message to General Gotovina that he had to take some measures.

3 Nobody asked him to come to a meeting to say, We can't do our jobs. You

4 need to do something.

5 The international agencies and organisations in the region also

6 did not seek meetings with General Gotovina to advise him of crimes being

7 committed, because he was not a person who was responsible for security

8 in the area. We will show you a videotape at trial of a meeting between

9 General Gotovina and General Forand of Canada on the 8th of August and in

10 that video you will see there was nothing but praise for

11 General Gotovina, his conduct of hostilities, and the fact that when he

12 turned the town of Knin over, he had restored order when he turned over

13 the town to the civilian government.

14 While we do not dispute that certain incidents did indeed occur

15 of murder, the fact is that there are other incidents that will be

16 contested in this case. There are situations, as the Trial Chamber is

17 aware, where cause of death has not been determined, where a body has not

18 been found, indeed, even to this day there are multiple names on the

19 Prosecution's schedule of killings that turn out to be one and the same

20 person. So we will go through that evidence in trial, Your Honours.

21 We do ask you to keep in mind that the Prosecution must obviously

22 prove that someone was a non-combatant. The evidence in this trial will

23 show, again according to the Krajina Serb generals themselves, that the

24 average age of the Krajina Serb soldier was 47 years old. Several

25 companies of the RSK had an average age of 56 years old. If that is the

Page 605

1 average, it is likely at that there were people in their 60s who were

2 active combatants.

3 We therefore ask the Trial Chamber to keep this in mind and keep

4 the Prosecution to its proof that a particular person was a

5 non-combatant.

6 It is important to note at this point, again why that

7 introduction was important about the context of what was going on.

8 General Gotovina was in Bosnia for a year, only had a slight detour to

9 come back to Croatia to conduct Operation Storm. He had been fighting

10 active combat from the 23rd of July in what was know as Operation Summer

11 95 all the way through the 10th of August in active combat, as were his

12 front-line troops. On orders of his superiors, he was given leave on the

13 11th of August. He had recently gotten married and left and spent five

14 days on islands off the coast of Croatia. This is relevant piece of

15 evidence for us because ultimately you will have to conclude what were

16 General Gotovina's responsibilities as told to him by his superiors.

17 We submit to you, Your Honours, General Gotovina was an

18 operational commander who had been tasked by his superiors to conduct

19 offensive operations and keep himself focused on being prepared for the

20 next phase of hostilities, which would soon happen. Indeed, they

21 happened so soon that while General Gotovina was on leave on the 13th and

22 14th of August, General Mladic executed a counter-offensive against

23 General Gotovina's forces in Bosnia, killing 28 members of the Croatian

24 army. General Gotovina cut short his leave in order to retake command as

25 a result of that counter-offensive.

Page 606

1 General Gotovina was preoccupied with events in Bosnia. That was

2 the task that was given to him by his military commanders, and the area

3 in his rear, which was now liberated territory in the constitutional

4 order of the Republic of Croatia, had been left intentionally to other

5 agencies of the Croatian government to act in accordance with the law and

6 in accordance with their obligations under the constitution of the

7 Republic of Croatia.

8 We submit to the Trial Chamber that if anyone had perceived at

9 the head of the State of Croatia that General Gotovina was responsible

10 for security, he would not have been given leave of five days to just

11 rest. Instead, that leave was intended for him to -- for him and his

12 front-line forces, I would also add that his front-line forces were given

13 leave at the same time, having been in active combat for 17 days. They

14 were on leave. And indeed when General Gotovina came back on the 16th,

15 the next day he was asked to come to Zagreb because a high-level US

16 delegation led by Mr. Holbrooke and General Wesley Clark were in Zagreb

17 to discuss future Croatian activities in Bosnia and General Gotovina was

18 in Zagreb preparing the next phase of the hostilities, which were to

19 defeat General Mladic on the battlefield. As you heard earlier,

20 President Clinton had been convinced that only by defeating Mladic's

21 forces could there be a negotiation that would ultimately leave -- lead

22 to the Dayton Peace Agreement.

23 General Gotovina was not perceived by anyone in the Croatian

24 government or anyone in the international forces or organisations on the

25 ground as being the person to go to to resolve security issues. Everyone

Page 607

1 understood, including the UNCRO commanders in Knin, that General Gotovina

2 was in Bosnia and was tasked with different objectives.

3 General Gotovina, Your Honours, was not Superman. He was and is a human

4 being who could only do so much. He was entitled, as stated in the von

5 Leeb case, to rely on those other institutions, to rely on commanders in

6 his rear, to rely on the civilian government of the Republic of Croatia

7 to take care of the security situation. He did his job. He defeated --

8 he fulfilled the objectives that had been laid out for him which was win

9 the war. He did it all the time by issuing orders, energetically

10 advising his troops of their obligations, instituting training

11 programmes, inviting Catholic bishops, constantly trying to take this new

12 army which didn't exist in 1991 and give it a professional level. And I

13 submit to you, Your Honours, that in the three years that

14 General Gotovina had a chance to do what he could, he did his job nobly.

15 And I dare say that I do not know of other commanders who would have done

16 a better job.

17 There were indeed problems in restoring law and order to this

18 region. We concede that point. The issue is what was the intent?

19 The fundamental problem in this case from our perspective is that

20 the Prosecution starts from the position, as will some of the

21 Prosecution's witnesses, that crime happened, and because crime happened,

22 and crime happened on a wide-scale level, the Trial Chamber is to assume

23 or to draw the conclusion that this was "ordered from the top."

24 Mr. Tieger repeated several times yesterday, this is criminal.

25 Why can't something be done? What Mr. Tieger avoided discussing

Page 608

1 yesterday was any concrete proposal from the Prosecution, from any

2 Prosecution witness, as to what it is they think could have been done to

3 materially change the situation as it existed when Croatia took 10.500

4 square kilometres of territory and tried to impose the rule of law in a

5 relatively short period of time.

6 There is a reason why the Prosecution and its witnesses avoid

7 that discussion, because the answer is not easy.

8 The question must be asked: If it weren't Croatian forces or the

9 Croatian government or the Croatian police, if this area had been taken

10 over by the best fighting force in the world committed to international

11 humanitarian law, NATO, if the civilian authority had been given to the

12 defender of human rights in the world, the United Nations, would they

13 have taken steps that would have simply solved the problem in a snap as

14 implied by the Prosecution? We don't have to guess on the answer to that

15 question. We will repeatedly ask the Prosecution's witnesses to speak

16 concretely about what steps were so obvious that could have been taken

17 that weren't, that the failure to take those steps would amount to

18 recklessness or wilful indifference to the crime being committed in this

19 area. We will ask witnesses to compare the situation, particularly the

20 international witnesses, who were also later involved in events in Kosovo

21 in 1999. We want to discuss the situation there because we believe it is

22 important for the Trial Chamber to have some frame of reference when we

23 review these facts. How did NATO and the UN fare when they had the legal

24 obligations in Kosovo after June of 1999 to protect civilians, protect

25 their property, and maintain the rule of law and law and order? You will

Page 609

1 find the statistics show that similar to what happened in Croatia, the

2 same problems were encountered by NATO and the UN in Kosovo. In the six

3 months after the international community took control of Kosovo,

4 according to Human Rights Watch, 1000 Serbian civilians were killed, tens

5 of thousands of Serbian homes were destroyed, uncountable property was

6 looted, 76 Orthodox churches were destroyed or partially destroyed.

7 The question must be raised: If it is so simple to restore order

8 to 10.500 square kilometres of territory, and I note that both Kosovo and

9 the so-called Krajina region are roughly 10.500 square kilometres of

10 territory, if it is so simple, why couldn't NATO and the UN do it? I

11 concede that the parallels will not be perfect but, nevertheless, we need

12 to examine in this case what were the real security possibilities? What

13 were the resources of the Croatian civilian government, the Croatian

14 Ministry of the Interior the Croatian army to restore this order?

15 Mr. -- the Prosecutor yesterday openly stated that this was a

16 situation where, according to the statistics we cited to you at the

17 beginning of this opening statement, 44.000 Croats lived in this area in

18 1991. By 1995, there were less than 500. That means 43.500 people and

19 their families came back to an area that had been devastated.

20 NATO and the UN in explaining why they could not keep control of

21 Kosovo said the same thing: "We cannot keep control of the situation

22 where people return to their homes and decide to take the law into their

23 own hands an or to seek vengeance."

24 The evidence will show on the basis of the correspondence that

25 you will be given in this case that the Croatian authorities, military

Page 610

1 police, civilian police and others did not simply sit on their hands and

2 do nothing as this situation continued. There is constant correspondence

3 between Croatian institutions throughout this time period. Meetings are

4 held because the intent was to ensure that the plans and orders that had

5 been issued immediately prior to Operation Storm be implemented and be

6 effective.

7 The fact that the Croatian authorities were not fully effective

8 does not mean that they had criminal intent. We ask the Trial Chamber to

9 keep that fact in mind. We ask the Trial Chamber to note the comparisons

10 that we will make and the questions we will ask of the international

11 witnesses in this case and ask specifically what steps again were so

12 obvious that the failure to take them amounts to recklessness or wilful

13 indifference by the Croatian government.

14 Nevertheless, documents from this time period, from both the

15 ministry of the interior and the military police show that measures were

16 being taken. I'm not here to say that all measures were effective or

17 that all crime was prosecuted. Nevertheless, these are the statistics on

18 the 16th of September, 1995, of the military police. According to

19 General Lausic -- if -- Madam Registrar, if you would show the document.

20 General Lausic filed a report on the 16th of September. I again

21 remind the Trial Chamber that he was the head of the military police.

22 The report is important for a number of reasons.

23 First because in a military sense, the person who is in command

24 of particular forces is the one who then files a report at the end to

25 explain himself and what his forces had done under his command. It was

Page 611

1 General Lausic who filed a report about what the military police had

2 accomplished in the six weeks from the beginning of Operation Storm until

3 the 16th of September. This is a strong indication, Your Honour, that

4 the Prosecution's theory as raised yesterday that General Gotovina was in

5 command of the military police is simply false.

6 In addition, this document from Mr. Lausic shows what the

7 Croatian military police had done, and it says: "The military crime

8 police, in collaboration with the RH MUP crime police, processed 321

9 crimes."

10 Thirteen murders. Then beneath this, 18 cases of HV members

11 dying accidentally. There are 191 cases of torching, 13 cases of setting

12 explosives, and 86 cases of looting, theft.

13 Of the known perpetrators of the above crimes, 79 members were HV

14 members and 274 were civilians.

15 On the 2nd of October, minister of the interior, Minister Jarnjak

16 filed a report with the state prosecutor in Croatia, advising the state

17 prosecutor of what had been accomplished thus far. This will be tendered

18 into evidence for the Trial Chamber as well.

19 On the 2nd of October, you can see a breakdown from police

20 administrations from the period of 22 August to 2 October of murders,

21 burnings and mines, and removal of property, which is essentially theft.

22 You can see in Zadar-Knin 28 murders were being investigated, 162 cases

23 of arson, three of setting explosives, and 132 of theft. Sibenik, you'll

24 see statistics for Sibenik as well and then beneath that an overview of

25 the number of on-site investigations and perpetrator profile. And again

Page 612

1 in the Zadar-Knin police administration, 192 conducted on-site

2 investigations, known perpetrators -- sorry, we translated this last

3 night so I will just tell the Trial Chamber. Zadar-Knin, 28 HV members,

4 194 civilians, and 1 person wearing a military uniform but who was in

5 fact a civilian, and 15 unknown perpetrators.

6 These are statistics which again we will not say that this meant

7 that all crime was processed in the area, but it shows an intent by the

8 institutions of the Republic of Croatia to process crime and, moreover,

9 from the perspective of our client there was no reason for him to

10 suddenly come back to Croatia and impose himself in some form of what can

11 only be described as a coup d'etat to take over control from the

12 legitimate civilian government. The civilian government, civilian

13 institutions had primary responsibility to secure this area, to conduct

14 investigations regardless of whether the perpetrator was military or

15 civilian, to refer the matter after of an investigation had been

16 completed to the relevant prosecutors, state prosecutor or military

17 prosecutor, and then have the courts process the matter. I again remind

18 the Court that at no point in time did anyone come to General Gotovina

19 and say, "The system is not working. We cannot cope. You need to do

20 something." It didn't happen.

21 Why didn't that happen? Because through the time period of the

22 statistics as you've seen them and the dates of these documents,

23 General Gotovina is in Bosnia conducting an operation known as

24 Operation Maestral. And in early October he is in Bosnia conducting

25 Operation Southern Movement, Southern Sweep. It was understood that

Page 613

1 General Gotovina could not have too much on his plate. He was conducting

2 offensive operations in a foreign country and these matters were left to

3 other responsible institutions.

4 Your Honours, we submit again in conclusion, General Gotovina was

5 a man who found himself in a circumstance in the late July of 1995 where

6 the Bosnian Serbs were pursuing their end game. This was not introduced

7 to you this morning for purposes of defending or giving evidence about

8 the legitimacy of Operation Storm. This evidence is instead relevant to

9 the state of mind as well as the obligations of General Gotovina

10 throughout the indictment period. You must be aware of what the Bosnian

11 Serbs were doing in Bosnia in July of 1995 because General Gotovina was

12 the one primarily tasked with stopping what was happening in Bosnia in

13 July of 1995 and onwards.

14 You must understand the context that General Gotovina, as

15 Mr. General Mladic said in the video which we showed you, General Mladic

16 said when asked, "Are the Croatian forces now spread too thin?" He said,

17 "I'm not going to answer your question, but wait and see." Who he was

18 talking about was General Gotovina and his forces.

19 General Gotovina throughout this time period is dealing with

20 matters related to Bosnia and, as I said, Operation Storm for him was a

21 left turn, to complete that operation, come back, consolidate his forces

22 and continue on against Mr. Mladic.

23 We respectfully submit, Your Honours that at the conclusion of

24 the Prosecution's evidence you will find that General Gotovina conducted

25 himself at all times in accordance with the laws of war, conducted

Page 614

1 hostilities at all times in accordance with the laws of war, that there

2 is no evidence of any excessive shelling of Knin. In fact, the evidence

3 is overwhelmingly to the contrary. That General Gotovina issued repeated

4 orders to his subordinates for the respect of the rule of law and

5 discipline. You have seen the video of how energetic he was in insisting

6 upon that, and we believe it is unfair to call that boilerplate orders.

7 Your Honours, we submit to you that the conclusion of the --

8 JUDGE ORIE: Mr. Misetic, I thought that my body language looking

9 at the clock three or four times would be sufficient for you. Then I

10 started getting all my stuff together, but --

11 MR. MISETIC: Okay. Last sentence.

12 JUDGE ORIE: 30 seconds.

13 MR. MISETIC: Not even. We submit to you, Your Honours, at the

14 conclusion of the Prosecution's case you will find that there is no

15 evidence and you will dismiss this case pursuant to Rule 98.

16 Thank you, Your Honours.

17 JUDGE ORIE: Thank you, Mr. Misetic. This concludes the opening

18 statements to the extent the parties wished to make an opening statement.

19 Tomorrow morning we will start hearing the evidence. Mr. Tieger, I take

20 the witness scheduled for tomorrow is available. It might well be that

21 in view of a pending motion that we start tomorrow in private or closed

22 session to further deal with this pending motion than hear the evidence

23 of Witness 136.

24 We adjourn until tomorrow morning, 9.00, same courtroom.

25 --- Whereupon the hearing adjourned at 1.47 p.m.,

Page 615

1 to be reconvened on Thursday, the 13th day

2 of March, 2008, at 9.00 a.m.